United States v. Goings, Magistrate's Docket No. 600.

• Decision Date: 16 January 1974
• Docket Number: Magistrate's Docket No. 600.
• Citation: 372 F. Supp. 811
• Parties: UNITED STATES of America, Plaintiff, v. Franklin Dale GOINGS and Seth Peter Bad Cob, Defendants.
• Court: U.S. District Court — District of South Dakota

372 F. Supp. 811

UNITED STATES of America, Plaintiff, v. Franklin Dale GOINGS and Seth Peter Bad Cob, Defendants.

Magistrate's Docket No. 600.

United States District Court, D. North Dakota, Southwestern Division.

January 16, 1974.

David L. Peterson, Asst. U. S. Atty., Bismark, N. D., for plaintiff.

William C. Kelsch, Mandan, N. D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

This is an assault case wherein jurisdiction is predicated on 18 U.S.C. 113(c) (. . . within the special . . . territorial jurisdiction of the United States . . .). The alleged incident occurred at the United Tribes Employment Training Center, located on the site of Fort Lincoln. For a plat of the tract involved see the plat attached hereto.

Up through May 24, 1973, the United States of America had exclusive jurisdiction of this tract United States v. Redstone, 488 F.2d 300, opinion dated December 3, 1973 (8th Cir.). On that date the United States of America executed an instrument entitled "Quitclaim Deed". The grantee of the deed is "United Tribes of North Dakota Development Corporation", a non-profit corporation, organized under the laws of the State of North Dakota. Defendants claim this deed terminated the jurisdiction of the United States because the land is no longer within the special territorial jurisdiction of the United States.

Since the language of the deed is going to be determinative of the issues, it is set out in full.

QUITCLAIM DEED

This Indenture, made as of the 24th day of May, 1973,

between the

UNITED STATES OF AMERICA, acting by the Secretary of Health, Education and Welfare, hereinafter called the Secretary, through the Regional Director of Region VIII of the Department of Health, Education and Welfare, hereinafter called the Department, under and pursuant to the power and authority contained in the Federal Property and Administrative Services Act of 1949, Public Law 81-152, as amended, hereinafter called the Act, the Civil Rights Act of 1964, Public Law 88-352, and the National Environmental Policy Act of 1969, Public Law 91-190, and regulations promulgated thereunder, GRANTOR,

and

UNITED TRIBES OF NORTH DAKOTA DEVELOPMENT CORPORATION, a nonprofit corporation organized under the laws of the State of North Dakota, whose post-office address is 3315 South Airport Road, Bismarck, in the County of Burleigh and State of North Dakota, acting by its Chairman and Center Director, GRANTEE.

WITNESSETH:

WHEREAS, the GRANTOR is the owner of certain real property in the County of Burleigh and State of North Dakota, hereinafter called the property and more fully described below; and

WHEREAS, the property has been declared surplus to the needs of the GRANTOR; and

WHEREAS, by letter dated April 11, 1973, the Regional Administrator of General Services, acting under the authority contained in the Act and a proper delegation of authority from the Administrator of General Services, did assign the property to the Secretary for disposal, upon the Secretary's recommendation that the property is needed for educational purposes in accordance with the provisions of the Act; and

WHEREAS, the GRANTEE made application dated March 2, 1973, under the provisions of the Act, to purchase the property for educational use with a public benefit allowance of one hundred percent (100%) of the fair market value thereof; and

WHEREAS, the fair market value of the property as of the date of this quitclaim deed is three million, three hundred eighty-seven thousand dollars ($3,387,000.00); and

WHEREAS, the Secretary has accepted the application of the GRANTEE to purchase the property for educational use; and

WHEREAS, the Administrator of General Services has advised in the letter of April 11, 1973, that no objection will be interposed to the transfer of the property to the GRANTEE for educational purposes as permitted under the terms of the Act.

NOW, THEREFORE, the GRANTOR, for and in consideration of the public benefits to be derived from utilization of the property for educational purposes by the GRANTEE in accordance with the plan contained in the GRANTEE'S application, and the promise of the GRANTEE faithfully to observe and perform the conditions, covenants, reservations and restrictions hereinafter set forth, and other good and valuable consideration, receipt of which is hereby acknowledged, does hereby GRANT, QUITCLAIM, RELEASE and REMISE unto the GRANTEE, its successors and assigns forever, all such interest, right and title as the GRANTOR has in and to the following-described property, reserving and excepting such right, title and interest to the GRANTOR as may be hereinafter expressed, situate, lying and being in the County of Burleigh, State of North Dakota (aggregating 105 acres, more or less), to wit:

A tract of land situated in the southeast quarter of Section 15, Township 138 North, Range 80 West of the 5th P.M., Burleigh County, North Dakota, more particularly described as follows: Beginning at the Southeast corner of the aforesaid SE¼ thence north along east line of said SE¼ for a distance of 1397.66 feet; thence west parallel with the south line of said SE¼ to the west line thereof; thence south along the west line for a distance of 807.50 feet; thence 93° 30' to the left for a distance of 277.00 feet; thence 47° 00' to the right approximately 400 feet to the intersection of the centerline of Beaver Road; thence southerly along centerline extended to the south line of said SE¼ thence east along said south line to the point of beginning.

Also the NE¼ SE¼ SW¼ of Section 23, Township 138 North, Range 80 West of the 5th P.M.

Excepting therefrom the following described parcels: (1) the area transferred to General Services Administration for a motor pool facility: A parcel bounded on the west by the west side of Marne Road, on the east by the east boundary of Fort Lincoln, on the north by a line which is the extension of the north line of Sheridan Avenue, and on the south by the south boundary of Fort Lincoln; and (2) the area conveyed to Burleigh County, North Dakota: Commencing at a point 580 feet east of the southwest corner of the SE¼ of Section 15, thence north 33 feet, thence east 970 feet; thence north 12 feet, thence west 970 feet; thence south to the place of beginning.

EXCEPTING and RESERVING in the GRANTOR all right, title and ownership interests in and to any and all coal, oil, gas and other fossil fuels as well as precious and semiprecious stones, metals and other minerals being, lying on, within or beneath said property and the right to enter upon the property to exploit, separate, remove and dispose of the same, including rights of reasonable access and egress;

ALL SUBJECT to existing easements, exceptions, interests, liens, rights-of-way, licenses and permits, including those for roads, highways, railways, pipe lines, and sewers, for power, telephone, gas, and water lines, and for any other public and private utilities.

TOGETHER WITH, all and singular, the appurtenances, hereditaments, improvements and tenements thereunto belonging or in anywise appertaining, whether in, on or under said property, and the reversion and reversions, remainder and remainders, issues, profits and rent thereof, except as hereinafter otherwise expressly provided;

TO HAVE AND TO HOLD the property unto the GRANTEE and its successors and assigns forever, PROVIDED, that this deed is made and accepted upon each of the following conditions subsequent, which shall be binding upon and enforceable against the GRANTEE, its successors or assigns, and each of them, as follows:

1. That for a period of thirty (30) years from the date of this deed the property herein conveyed shall be utilized continuously for educational purposes in accordance with the proposed program and plan set forth in the application of the GRANTEE and for no other purpose.

2. That during the aforesaid period of thirty (30) years, the GRANTEE will encumber, hypothecate, lease, mortgage, resell or otherwise dispose of the property, or any part thereof or interest therein, only as the Secretary or his successor in function, in accordance with applicable law and regulations, may authorize in writing.

3. That one year from the date of this deed and annually thereafter for the aforesaid period of thirty (30) years, unless the Secretary or his successor in function otherwise directs, the GRANTEE will file with the Secretary or his successor in function reports on the operation and maintenance of the property and will furnish, as requested, other pertinent data evidencing continuous use of the property herein conveyed for the purposes specified in the aforesaid application of the GRANTEE.

4. That for the period during which the property is used for a purpose for which Federal financial assistance is extended by the Department or for another purpose involving the provision of similar services or benefits, the GRANTEE hereby agrees that it will comply with the provisions of Title VI of the Civil Rights Act of 1964, Public Law 88-352, and all requirements imposed by or pursuant to the regulations of the Department, 45 Code of Federal Regulations, Part 80, issued pursuant to that Title and as in effect on the date of this deed, to the end that, in accordance with the aforesaid Title VI and the aforesaid regulations, no person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under the program and plan referred to in condition 1 above or under any other program or activity of the GRANTEE, its successors or assigns, to which such Act and regulations apply by reason of this conveyance.

5. That the GRANTEE, by the acceptance of this deed, covenants and agrees for itself, its successors and assigns, that for the period during which the property is used for a purpose for which Federal financial assistance is extended by the...