United States v. City of McAlester, Oklahoma, 75-50-C.

• Decision Date: 17 February 1976
• Docket Number: No. 75-50-C.,75-50-C.
• Citation: 410 F. Supp. 848
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF McALESTER, OKLAHOMA, a/k/a City of South McAlester, Oklahoma, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

410 F. Supp. 848

UNITED STATES of America, Plaintiff, v. CITY OF McALESTER, OKLAHOMA, a/k/a City of South McAlester, Oklahoma, et al., Defendants.

No. 75-50-C.

United States District Court, E. D. Oklahoma.

February 17, 1976.

COPYRIGHT MATERIAL OMITTED

Richard A. Pyle, U.S. Atty., Betty R. Outhier, Asst. U.S. Atty., U.S. Dist. Court, Eastern Dist., Okl., Muskogee, Okl., for plaintiff.

Donald R. Hackler, Municipal Atty., McAlester, Okl., for defendants.

ORDER

COOK, District Judge.

This is an action instituted by the United States of America at the request of the Secretary of the Interior in its own right and in its fiduciary capacity on behalf of the Choctaw-Chickasaw Nations against the City of McAlester, Oklahoma, a/k/a City of South McAlester, Oklahoma, (hereafter referred to as "City"); and Charley Chiusana; J. T. Hall a/k/a Joe Turner Hall; Jim Burrows; Earnest Berry; Phillip Orlandees; Joe Whitefield; Don Ketcham; Bill Lyons; and unknown lessees, licensees and permittees. Plaintiff seeks to quiet title in lands described in the Complaint owned by the Choctaw-Chickasaw Nations. The City claims an easement in the subject land for the purpose of a watershed and basin and for the proposed erecting, maintaining and using of a waterworks system for the City. The City claims a right to the easement so long as the easement used is for the purposes set out by virtue of a condemnation proceeding had in the United States Court in the Indian Territory, Central District, being Cause Number 3293.

The plaintiff more specifically seeks;

1. A judicial declaration that the easement obtained by the City over tribal lands on January 31, 1903, is invalid,

2. To quiet title in lands described in the Complaint,

3. An injunction to prevent the City from issuing permits, leases, licenses and otherwise using said tribal lands without authority, and

4. Money damages for the defendants' alleged unauthorized use of the land.

Jurisdiction of this Court is invoked by virtue of Title 28, United States Code, § 1345, which provides that district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, except as otherwise provided by Act of Congress.

The rights of the Choctaw and Chickasaw Nations in and to the lands in question derive from the provisions of the Treaty of Dancing Rabbit Creek, 7 Stat. 333, and a subsequent treaty dated June 22, 1855, 11 Stat. 611. By the terms of these treaties the Choctaw Nation acquired a tract of country west of the Mississippi River in fee simple to them and their descendants to enure to them while they exist as a Nation and live on it. The Chickasaw Nation acquired an interest in the land theretofore granted to the Choctaw Nation. Fee ownership of the subject land is held by the Choctaw and Chickasaw Nations subject to the trust responsibility of the United States of America.

Prior to January 21, 1903, the City of South McAlester of Indian Territory instituted an action in the United States Court in Indian Territory, Central District. The defendant City of McAlester is one and the same as, and also known as, the City of South McAlester. The action instituted by City, being Cause No. 3293, came on for hearing on the 21st day of January, 1903, which proceeding is evidenced by Government's Exhibit No. 1, styled "Condemnation Proceedings". No other documents, filings or record of proceeding in that case can now be located in the official court files. Government's Exhibit No. 1 recites that plaintiff, City of McAlester, appeared by its attorney; and the defendants, Choctaw and Chickasaw Nations of Tribes of Indians, appeared by their attorneys and thereupon a stipulation theretofore entered into between said parties was presented and ordered filed. The stipulation for judgment is set out verbatim in the "Condemnation Proceedings" and concludes by stating that it was "executed in triplicate on this 21st day of January, 1903." The stipulation for judgment was executed by Wm. Costigan, Attorney for City of South McAlester, and Mansfield, McMurray and Cornish, Attorneys for Choctaw and Chickasaw Nations.

Judgment was entered pursuant to the stipulation and verdict of jury determining and assessing just compensation. The judgment provided that City have and recover of and from the Choctaw and Chickasaw Nations or Tribes of Indians an easement in and to certain properties described therein and provided that City shall enter upon, take hold and acquire the lands so described for the purpose of a watershed and basin and erecting, maintaining and using a waterworks system for said plaintiff, the City of South McAlester, to have and to hold and possess said easement so long as the same shall be used for the purposes set out. The judgment further ordered and decreed that the said Choctaw and Chickasaw Nations or Tribes of Indians have and recover of and from plaintiff therein in full satisfaction of said easement the sum of $6,515.00, and further directed the distribution of said moneys to the Treasurer of each of said nations in amounts as allocated therein. The judgment was signed by Wm. H. H. Clayton, U. S. Judge.

The City of McAlester, pursuant to said judgment and condemnation proceeding, has possessed said lands from the approximate date of said judgment under its easement rights for the purpose of a watershed and basin and for the purpose of erecting, maintaining and using a waterworks system for the City of McAlester.

The parties have agreed that the City of McAlester has made the following uses of the real property which it has possessed and which was the subject of the 1903 condemnation action:

1. Leasing to individuals including J. T. Hall, a/k/a Joe Turner Hall, Earnest Berry, Phillip Orlandees, Don Ketcham, and Joe Whitefield, for the purpose of growing, cultivating, gathering, baling, and related efforts designed toward obtaining and selling hay;

2. Permitted and encouraged Jim Burrows and Charley Chiusana to occupy residences upon the McAlester watershed, which residences were placed there by the City of McAlester 3. Leasing parcels of subject real estate to utility companies for the purpose of building antennas;

4. Issuing hunting, fishing and grazing permits upon and over the subject real property;

5. Erecting archery shooting ranges, and picnic areas; and

6. Partitioning the subject property with fences.

The City has received revenues from the activities it has permitted upon the subject real property and has defrayed all costs and expense of maintaining the area. None of the moneys so received from the subject property have been turned over to either the Choctaw-Chickasaw Tribes or to the Department of the Interior.

The City of McAlester's use and permitted use of said subject tract evolves from its easement rights purportedly acquired from the condemnation action culminating in a judgment entered on January 31, 1903. The parties agree, and the Court so finds, that the United States was an indispensable party to the condemnation proceedings had in 1903; and, if the United States was not a party to those condemnation proceedings by which the City claims its right under easement, then the United States is not prevented from bringing this action for a judicial declaration that the easement obtained by the City over tribal lands on January 31, 1903, is invalid.

At the request of the parties, the Court has bifurcated the issue of money damages for the defendants' alleged unauthorized use of the land, and therefore has before it at this time the remaining issues presented by plaintiff's Complaint.

The United States contends that it was not made a party to the 1903 proceedings, that it was an indispensable party to said proceedings, and therefore seeks a judicial declaration that the easement obtained by the City over the tribal lands is invalid, and by reason of such invalidity prays that the Court quiet title in the lands described in the Complaint.

The City acknowledges the fee simple estate of subject lands to be vested in the Choctaw and Chickasaw Nations, but contends, and by pre-trial order it is admitted, that the fee simple estate of the Choctaw and Chickasaw Nations is subservient to the imposed easement of the City of McAlester. (Pretrial Order 3h). The City does not concede that the United States was not a party to the 1903 proceeding and contends that the burden of proof rests with the United States to prove that it was not a party to the 1903 condemnation action. It further contends that the present action constitutes a collateral attack upon that judgment and the burden is therefore upon the plaintiff to overcome the presumption that the Court rendering the 1903 judgment had jurisdiction of the subject matter, had the necessary parties before it and that all the necessary facts to give jurisdictional power to render the judgment existed and were duly proven and found. City further contends that the mere receipt of a judgment itself, or certified copy thereof, is not sufficient to overcome the presumption. In support of its position, City cites Choctaw & Chickasaw Nations v. City of Atoka, 207 F.2d 763 (10th Cir. 1953). In City of Atoka, a condemnation action, the process papers were destroyed by fire. The remaining records of the proceedings did not indicate whether or not the United States was a party to the action. The Court stated,

"The record did not show that the United States was not a party and the judgment recited that all of the claimants to the land sought to be condemned had been notified of the proceedings as required by law." City of Atoka at 765. (Emphasis added).

That action, the court observed, was a collateral attack upon the judgment in the condemnation proceedings. The court found that as

"against a collateral attack on a judgment rendered by a court of competent jurisdiction, it will be presumed that the court had jurisdiction of the subject matter and of the parties, (citations omitted)

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