United States v. Wilson

• Decision Date: 04 May 1977
• Docket Number: C 75-4026 and C 75-4067.,No. C 75-4024,C 75-4024
• Parties: UNITED STATES v. Roy Tibbals WILSON et al. OMAHA INDIAN TRIBE, etc. v. Harold JACKSON, et al. OMAHA INDIAN TRIBE, etc. v. AGRICULTURAL INDUSTRIAL INVESTMENT COMPANY et al.
• Court: U.S. District Court — Northern District of Iowa

433 F. Supp. 57

UNITED STATES v. Roy Tibbals WILSON et al.

OMAHA INDIAN TRIBE, etc. v. Harold JACKSON, et al.

OMAHA INDIAN TRIBE, etc. v. AGRICULTURAL INDUSTRIAL INVESTMENT COMPANY et al.

Nos. C 75-4024, C 75-4026 and C 75-4067.

United States District Court, N. D. Iowa, W. D.

May 4, 1977.

COPYRIGHT MATERIAL OMITTED

William H. Veeder, Washington, D. C., Donald E. O'Brien, Sioux City, Iowa, James J. Clear, Dept. of Justice, Washington, D. C., for plaintiffs.

Thomas R. Burke and Lyman L. Larsen, Omaha, Neb., Peter J. Peters, Council Bluffs, Iowa, Lowell C. Kindig and Maurice B. Nieland, Sioux City, Iowa, Edson Smith, Omaha, Neb., Jack W. Peters, Council Bluffs, Iowa, Bennett Cullison, Jr., Harlan, Iowa, for defendants.

MEMORANDUM OPINION

BOGUE, District Judge.

This is a memorandum opinion prepared and filed by the Court for the purpose of setting out this Court's resolution of the choice of law problems presented by these consolidated Blackbird Bend-Barrett Survey Area cases. As will be discussed below, the choice of law problems are of primary importance in dealing with the allocation of the burden of persuasion in these cases, but would not be determinative of the general definitions of the terms accretion and avulsion.

I.

Generally, questions of title to land situated within a state are governed by that state's law, regardless of whether such questions are being litigated in state or federal courts. Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923). This general proposition extends not only to questions of legal title per se, but also to questions concerning the rights of riparian landowners to accretion lands. Joy v. City of St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906). The rule established by the case law has been incorporated into a codification known as the Rules of Decision Act, 28 U.S.C. § 1652, which provides:

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

The above-quoted statute does apply to disputes over title to land. Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923). Thus, unless federal law provides otherwise, state law would provide the rule of decision for this case. It should be noted at this point that, in the event state law does in fact supply the rule of decision, Fed.R. Evid. 302 would apply as well. Fed.R. Evid. 302 provides:

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with state law.

See also Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939).¹

Before any discussion of the issue whether a provision in the Constitution, treaties or congressional enactments compels an exception to the rule that state law controls disputes over title to real property, the problem of which state law would apply should be dealt with. The land involved in this litigation was on the Nebraska side of the river as of 1867. The thalweg of the Missouri River was the Nebraska-Iowa boundary prior to 1943. Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892). Prior to the 1943 Nebraska-Iowa Boundary Compact, the movements of the river would be directly relevant (indeed, any accretion river movements would be controlling) on the location of the Nebraska-Iowa boundary. Id. With the 1943 Nebraska-Iowa Boundary Compact, one point became firmly established: regardless of who owns the Blackbird Bend area within the 1867 Barrett Survey Meander line, that area is on the Iowa side of the boundary. The difficulty here of course lies in the fact that significant changes in the location of the river occurred prior to 1943. The general choice of law problems created by this situation came to a halt in the case of Nebraska v. Iowa, 406 U.S. 117, 92 S.Ct. 1379, 31 L.Ed.2d 733 (1972). In that case the Supreme Court began by adopting the Special Master's finding

... that by 1943 the shifts of the river channel had been so numerous and intricate, both in its natural state and as a result of the work of the Corps of Engineers, that it would be practically impossible to locate the original boundary line. 406 U.S. at 119, 92 S.Ct. at 1381.

The 1972 Nebraska-Iowa case began when Iowa claimed thirty separate parcels which were wholly on the Iowa side of the 1943 compact line. For purposes of resolving the choice of law issues, the Court divided the thirty parcels into two groups. The classification was based on whether the land in the parcels was formed before or after 1943. With respect to the parcels which were found by the Special Master to have been formed after 1943, the Court held that Iowa law would govern title disputes, except that claimants to those areas would have the opportunity to show good title under Nebraska law as of the 1943 Compact date. Significantly, the Court found that Blackbird Bend was one of the areas formed after 1943. 406 U.S. 117 at 120 n. 4, 92 S.Ct. 1379 at 1382, 31 L.Ed.2d 733 at 737 (1972).²

Thus, under the 1972 Nebraska v. Iowa decision, Nebraska law would provide the rule of decision for land disputes as to river changes occurring prior to 1943, and Iowa law would provide the rule of decision for changes occurring after that date. These guidelines would clearly apply if all of the parties to this lawsuit were private, non-governmental entities. Thus the issue to be resolved is whether the fact that the United States as trustee and the Omaha Indian Tribe as beneficiary are claimants to the land involved in this lawsuit creates an exception to the general rule that state law controls in land litigation.

Contrary to the government's assertion, the fact that the United States, as trustee for the Tribe, claims the land involved in this lawsuit does not make federal law controlling. See Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923); see also United States v. Little Lake Misere Land Company, Inc., 412 U.S. 580, 595, 93 S.Ct. 2389, 2398, 37 L.Ed.2d 187 (1973); Wright, 14 Federal Practice and Procedure, 141 N. 4 (1976). The case of Hughes v. State of Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), might arguably support an argument that the presence of the United States as a claimant converts the case to one governed by federal law. However, it appears that Hughes is limited to its somewhat unique factual situation, which involved oceanfront property and thus was closely involved with the nation's international boundaries. Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Company, 429 U.S. 363, 377, 97 S.Ct. 582, 590 n. 6, 50 L.Ed.2d 550 (1977).³

Further, the majority of cases which have decided the question have turned to state law to resolve questions of land ownership when Indian tribes are involved as claimants. In the case of Fontenelle v. Omaha Tribe of Nebraska, 298 F.Supp. 855 (D.Neb. 1969), aff'd, 430 F.2d 143 (8th Cir. 1970), Nebraska law was applied in an accretion-avulsion dispute between the Omaha Indian Tribe and private claimants who were descendants of, and traced their title back to, Logan Fontenelle, who had been a chief of the Omahas. See also Herron v. Choctaw and Chickasaw Nations, 228 F.2d 830 (10th Cir. 1956), which applied Oklahoma law in a title dispute between an Indian tribe and private claimants. Finally, the case of Francis v. Francis, 203 U.S. 233, 27 S.Ct. 129, 51 L.Ed. 165 (1906), upheld the determination of the Michigan Supreme Court that an Indian treaty reserved certain lands to individual Indians in fee simple, thus giving the individual Indians and their heirs the right to convey the land without restriction and making title in the land subject to an adverse possession claim. In Francis, the Supreme Court stated:

... the construction of the treaty here involved, whereby the respective Indians named in its 3d article are held to have acquired by the treaty a title in fee to the land reserved to the use of themselves, has become a rule of property in the state where the land is situated. That rule of property should not be disturbed, unless it clearly involves a misinterpretation of the words of the treaty of 1819.

In short, the fact that the United States and the Omaha Indian Tribe are claimants to the Blackbird Bend area within the 1867 Barrett Survey Meander line does not, standing alone, alter the general rule that the law of real property ownership is found in the law of the state in which the property in question is situated.

Under the Rules of Decision Act, 28 U.S.C. § 1652, the Constitution, treaties and Acts of Congress must be examined in each case to determine whether federal law supplants state law as the rule of decision.

The Constitution contains nothing which would compel an exception to the general rule. While it may be that the commerce clause, Article I, § 8, Cl. 3, would empower Congress to mandate the use of federal law in cases such as this, Congress has not done so. It seems clear that neither the terms of the commerce clause nor reasonable inferences to be drawn from those terms compel abandonment of state law in this case.

An examination of the three treaties received into evidence which relate to the Omaha Tribe (Treaty with the Sauk and Foxes, et al., 1830; Treaty with the Oto, et al., 1836; Treaty with the Omaha, 1854), together with the "Documents of Selection" (under which the Omaha Tribe selected their reservation lands) discloses that nothing in these treaties and documents precludes the application of state law. The only express limitations which the treaties place upon disposition of the lands are the restraints against alienation familiar to Indian law. To the extent that they supplant state law,...