United States v. Wilson

• Decision Date: 04 May 1977
• Docket Number: No. C 75-4024,C 75-4026 and C 75-4067.,C 75-4024
• Parties: UNITED STATES of America, Plaintiff, v. Roy Tibbals WILSON et al., Defendants. OMAHA INDIAN TRIBE, organized Indian Tribe pursuant to Act of June 18, 1934 (48 Stat. 984) as amended, Plaintiff, v. Harold JACKSON and Otis Peterson and the District Court of Iowa in and for Monona County, Defendants. OMAHA INDIAN TRIBE, etc., Plaintiffs, v. AGRICULTURAL INDUSTRIAL INVESTMENT COMPANY et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

433 F. Supp. 67

UNITED STATES of America, Plaintiff, v. Roy Tibbals WILSON et al., Defendants.

OMAHA INDIAN TRIBE, organized Indian Tribe pursuant to Act of June 18, 1934 (48 Stat. 984) as amended, Plaintiff, v. Harold JACKSON and Otis Peterson and the District Court of Iowa in and for Monona County, Defendants.

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

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

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

May 4, 1977.

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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BOGUE, District Judge.

The above-entitled actions, consolidated for purposes of trial, as to title to lands within the Barrett Survey Area of the area known as Blackbird Bend, came on for trial in the United States District Court at Sioux City, Iowa, on the 1st day of November, 1976. From the evidence submitted by the respective parties, and upon the entire record, the Court now makes the following:

FINDINGS OF FACT

I. Nature of the Action and the Parties

1. These consolidated actions are lawsuits commenced by the United States of America and the Omaha Indian Tribe seeking injunctive relief and a judgment quieting title to land situated in the State of Iowa, Monona County, east of and adjacent to the Missouri River. The defendants are various entities, and individuals, who also claim title to the land in dispute and seek to quiet title in their names. The basic issue, as tried to this Court, involves how the river moved over the span of a century from the mid-1800s to about the mid-1900s, and whether the land herein involved was added to Iowa riparian land by accretion or, whether the river moved by avulsion leaving the original identifiable land in place.

2. United States of America, plaintiff in Civil No. C75-4024, derives its interest in this litigation as a Trustee for the Omaha Indian Tribe and their reservation lands reserved to the Tribe pursuant to the Treaty of 1854.

3. The Omaha Indian Tribe, plaintiff in Civil Nos. C75-4026 and C75-4067, is a duly organized body corporate, established pursuant to its Constitution and Bylaws having been approved by the Secretary of the Interior as provided by law. Pursuant to its Treaty dated the 16th day of March, 1854 (10 Stat. 1043) with the United States of America, there was established the Omaha Indian Reservation in the then territory of Nebraska.

4. In 1867 the said reservation boundary was surveyed for the General Land Office of the United States Government by T. H. Barrett, Surveyor. Barrett meandered the Nebraska, or right bank of the Missouri River where it adjoins the Omaha Indian Reservation in the course of conducting his survey. The Reservation boundary, as originally established, was the thalweg of the Missouri River. Thus the Barrett Survey lines were not actually the boundary of the Omaha Reservation where it adjoins the River. See Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428 (1891). The said 1867 General Land Office Survey shows that Blackbird Bend of the Missouri River flowing east, south and west on the north, east and south sides of a meander lobe or peninsula sticking out like a thumb pointing east from Nebraska into Iowa. The area east of the Iowa-Nebraska 1943 Compact Lines bounded by the said Barrett meander line will be referred to herein as the Barrett Survey. The area including the Barrett Survey Peninsula but extending to the Iowa high bank, north, east and south of the Barrett Survey, will sometimes be referred to as the Blackbird Bend area. These findings and conclusions pertain only to the Barrett Survey Area.

5. Of the numerous defendants in all three lawsuits, the only defendants involved in this trial are those claiming an interest in the approximately 2900 acres within the 1867 Barrett Survey. These defendants are Roy Tibbals Wilson, landowner, RGP Inc., landowner, Otis Peterson, tenant of RGP Inc., Harold Sorenson, landowner, State of Iowa, landowner, and Travelers Insurance Company, mortgagee of RGP Inc. The 1867 Barrett Survey and the location of the defendants' land within that boundary, are set forth in Exhibit T 78.

6. The Tribe's pleadings acknowledge that these landowner defendants, or their predecessors in title, have had possession of the disputed real estate for at least 40 years.¹ During this period of time, a substantial portion of the land was cleared of trees, leveled, fenced, drained, roads built, and cultivated. It is now a valuable and productive tract of farm ground, as evidenced by the purchase of 2180 acres by defendant Wilson in 1972 by Warranty Deed for a consideration valued at $1,685,000, approximately 1780 acres of which is within the Barrett Survey and the subject of this trial.

7. On April 2, 1975 the Omaha Indian Tribe seized possession of the land within the Barrett Survey before institution of this litigation, and up until June 5, 1975 maintained said possession without the approval or consent of any of the defendants herein. On June 5, 1975, Judge McManus granted a preliminary injunction to the Tribe and Government permitting the plaintiff Tribe to continue its occupancy of the land within the Barrett Survey during the pendency of this action and subject to certain accounting requirements pertaining to the crops. Numerous issues and problems relative to this temporary occupancy, the crops, and access rights developed but are not dealt with directly herein and many are hereby rendered moot.

II. Subject Matter of This Trial

8. By the Order of Judge McManus dated April 5, 1976, a portion of the issues and land involved in all three lawsuits was consolidated for this trial. Approximately 8000 acres of land claimed by the Omaha Indian Tribe in C75-4067 and all issues of damages were severed. The severance of the Barrett Survey Area from the other claims of the Omaha Indian Tribe was necessary because the Barrett Survey line is the only clearly ascertainable line of demarkation, and was the boundary of the area of which the Tribe received possession by virtue of a preliminary injunction entered June 5, 1975. Thus as to the Barrett Survey Area the action was construed as an equitable quiet title action, and the demands of various defendants for a jury trial were denied as to that area. As to lands claimed by the Tribe outside the Barrett Survey Area, the action was treated as a legal action for ejectment, in which defendant's demands for a jury trial may be sustainable. This left the 2900 acres within the Barrett Survey as the subject matter of this trial since the dispute over that land is common to all three lawsuits.

9. By the Treaty of March 16, 1854, the Omaha Tribe of Indians ceded to the United States all their lands west of the Missouri River, except for certain lands reserved to the Tribe. Pursuant to this Treaty, the Tribe selected a tract of land known as Blackbird Hills to be the Omaha Indian Reservation, which includes the present day Omaha and Winnebago Reservations. The Reservation was thereby established in May of 1855. The thalweg of the Missouri River was constituted the common boundary between the Omaha Indian Reservation and the State of Iowa.

III. Claims of the Parties and the Issues

10. The Government in C75-4024 alleges that it holds title in trust for the Omaha Indian Tribe to all those lands now lying within the Barrett Survey, approximately 2900 acres, and extending to the center of the main channel of the Missouri River as it existed when the Reservation was created. From this 2900 acres, however, the Government's Complaint excepts any claim for certain lands allotted to individual members of the Tribe and sold to non-members amounting to approximately 400 acres.² The Government seeks a preliminary injunction maintaining the Omaha Tribe and its members in possession of these lands until the case is decided; a judgment quieting title in the United States as Trustee for the Tribe; and, a permanent injunction against the prosecution of state actions by the defendants relating to these lands.

11. The Government's theory is that the land within the Barrett Survey in 1867 was cut off from the rest of the Reservation through avulsions caused by floods on the Missouri River; the avulsive changes which cut through the ox bow bend began shortly after the Barrett Survey in 1867 and occurred at numerous times thereafter up until the 1940s when the river was stabilized; and, that each such major move to the west was a sudden shift, which constituted an avulsive change as distinguished from the slow eating away of the banks through erosion.³

12. The Tribe in C75-4026 alleges that it is in peaceful possession of the land within the Barrett Survey; that the United States holds the subject lands in trust for them under the Treaty of 1854; and seeks a stay of certain state district court orders pertaining to the occupancy of the land and a preliminary and permanent injunction maintaining the Tribe in possession. In C75-4067, the Tribe filed suit against numerous defendants claiming title to the entire Blackbird Bend area, some 6000 acres of land, and also claiming two bends in the river to the north containing approximately 5000 additional acres. The Tribe alleges that it holds title to the subject land pursuant to the Treaty of 1854; that the adverse claims of the defendants, who have illegally and wilfully trespassed upon the land for approximately 40 years thereby prevented the Tribe's occupancy, are null and void; and seek essentially a judgment quieting title to all the land in the Tribe, the...