United States v. State of Minnesota

• Decision Date: 12 March 1938
• Docket Number: No. 10905.,10905.
• Citation: 95 F.2d 468
• Parties: UNITED STATES v. STATE OF MINNESOTA.
• Court: U.S. Court of Appeals — Eighth Circuit

95 F.2d 468 (1938)

UNITED STATES v. STATE OF MINNESOTA.

No. 10905.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1938.

Victor E. Anderson, U. S. Atty., of St. Paul, Minn., and Thomas E. Harris, Sp. Atty., Department of Justice, of Washington, D. C. (Lewis N. Evans, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Ordner T. Bundlie, Asst. Atty. Gen. (William S. Ervin, Atty. Gen., State of Minnesota, on the brief), for appellee.

Before STONE, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken by the United States to reverse certain orders made by the District Court in highway condemnation proceedings instituted in the name of and on behalf of the State of Minnesota.

It appears that by article 16 of the Constitution of Minnesota, trunk highway No. 61 or constitutional highway No. 1 was designated as beginning at a point on the boundary line between the states of Iowa and Minnesota and extending northerly through the city of St. Paul, thence northerly through the city of Duluth, and thence northeasterly to a point on the boundary line between the State of Minnesota and the province of Ontario in the Dominion of Canada. In the early part of 1934, the Highway Commissioner determined upon a relocation of that part of the highway between the northern boundary line of the state and the Reservation river in Cook county, Minn., and on February 15, 1934, he filed the center line and width orders designating the relocation of the highway so as to pass over and across the Grand Portage Indian Reservation. Thereupon, a petition in due form was filed in the name of the State in the proper district court of the state in the matter of the condemnation of the lands needed for the relocation of the highway, and it appeared on the face of the petition that the several tracts of land sought to be condemned and taken for the highway were lands within the Indian Reservation allotted under Indian allotments, and that the United States was the holder of the fee of the several tracts in trust for the Indians. Removal was taken to the federal court, and, the cause having come on to be heard, the State presented the petition in condemnation and the relocation orders and maps and moved for the allowance of its petition and for the appointment of appraisers to appraise and report their awards. There was no showing that authority for the construction of the highway across the Indian lands and reservation had been obtained from the Secretary of the Interior of the United States.

The United States appeared specially by the United States District Attorney for Minnesota and moved that the action be dismissed on the ground, among others, that the court was without jurisdiction for the reason that the United States had not consented to the maintenance of the condemnation suit against it. The trial court reached the conclusion: "That the consent of the United States to bring these proceedings against Indian allottees has been expressly granted and given by the United States to the State of Minnesota, pursuant to 25 United States Code Annotated, § 357, and that the United States accordingly is not a necessary party respondent to these proceedings."

The motion of the United States to dismiss was therefore denied and exception saved.

The government appealed, and motion to dismiss the appeal was denied by this court. The appeal presents the question whether the State of Minnesota has the power without the consent of the Secretary of the Interior to condemn and take the allotted Indian lands held by the United States in trust for the Indians and to open up a highway right of way across the Indian reservation.

The provisions of the Constitution pertinent to the powers of the federal government in relation to Indian tribes, Indians, Indian reservations, and Indian lands are:

Article 2, § 2, cl. 2. "The President shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur."

Article 1, § 8, cls. 1, 3. "The Congress shall have Power To * * * regulate Commerce with * * * the Indian Tribes."

Article 4, § 3, cl. 2. "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Pursuant to the constitutional provisions, the Indian lands have been drawn completely within the sovereignty of the United States and the highest dominion over them is vested in the federal government.¹ That government has undertaken the guardianship of the Indians and has reserved to itself the right to determine the manner in which the guardianship has been and shall be carried out. It has retained in itself title to the lands it permits the Indians to occupy, the authority to make laws and regulations respecting the territory, and the broad power to legislate and act for the protection of the Indians collectively and individually, wherever they may be within the territory of the United States. It is apparent that to enter upon and appropriate the individual Indian lands by the establishment of a highway easement over them and through the Indian reservation would directly and substantially affect the title of the United States in and to the lands and its dominion over them. It would restrict the government in its regulations concerning the lands, embarrass it in using the land, and substantially interfere with its right of disposal.² We think it is clear under the decisions that the State of Minnesota would not have power to maintain its suit for condemnation against the United States in the absence of consent given by that government. U. S. v. McGowan, 58 S.Ct. 286, 82 L.Ed. ___, January 3, 1938; Cherokee Nation v. Ry., 135 U.S. 641, 656, 10 S.Ct. 965, 34 L.Ed. 295; Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091; Utah Power & Light Co. v. U. S., 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791.

In Cherokee Nation v. Ry., 135 U.S. 641, loc. cit. 656, 10 S.Ct. 965, 971, 34 L.Ed. 295, the Supreme Court considered the question of whether the effect of state power of eminent domain was to preclude federal powers of eminent domain deemed inconsistent; the court concluded federal power was not lost, quoting from Mr. Justice Bradley in Stockton v. R. R., C.C., 32 F. 9, 19: "The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. * * * Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes."

The law that governs Indian reservations and lands is discussed in Surplus Trading Co. v. Cook, 281 U.S. 647, 650, 50 S.Ct. 455, 456, 74 L.Ed. 1091, and in U. S. v. McGowan, 58 S.Ct. 286, 287, 82 L.Ed. ___, January 3, 1938. In the former case the court said:

"It is not unusual for the United States to own within a state lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the state. On the contrary, the lands remain part of her territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.

"A typical illustration is found in the usual Indian reservation set apart within a state as a place where the United States may care for its Indian wards and lead them into habits and ways of civilized life." (Italics supplied.)

In U. S. v. McGowan, the court said:

"Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out, citing in footnote, U. S. v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 * * *

"The government retains title to the lands which it permits the Indians to occupy. The government has authority to enact regulations and protective laws respecting this territory. Citing in footnote, Hallowell v. U. S., 221 U.S. 317, 31 S.Ct. 587, 55 L.Ed. 750; Constitution, art. 4, § 3, cl. 2. `Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States.' United States v. Ramsey, 271 U.S. 467, 471, 46 S.Ct. 559, 70 L.Ed. 1039."

In Utah Power & Light Co. v. U. S., 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791, certain states filed brief as amici curiæ to urge upon the Supreme Court the proposition that, "The existence of easements of a public nature over vacant federal lands does not interfere with the disposal of such lands by the federal government, but is in aid thereof; and the claim made by the States of the right to control the creation and continuance of such easements, within their respective territorial jurisdictions, does not conflict with the power of Congress `to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,'" and further, that the matter was for state police power, not for Congress. Loc. cit. p. 400, 401 of 243 U.S., 37 S.Ct. 387, 61 L.Ed. 791. But the Supreme Court held that the defendant power companies must comply with the regulations of the Secretary of the Interior or move off the land which had been placed (after company occupancy in some instances) in a federal forest reservation; it held further that state authority of eminent domain could not justify the presence of the companies on government owned land,...