US v. Wilson

• Citation: 523 F. Supp. 874
• Decision Date: 04 September 1981
• Docket Number: No. C75-4024,C75-4026 and C75-4067.,C75-4024
• Parties: Re: U. S. v. WILSON; OMAHA INDIAN TRIBE v. JACKSON; OMAHA INDIAN TRIBE v. AGRICULTURAL & INDUSTRIAL INVESTMENT CO.
• Court: U.S. District Court — Northern District of Iowa

523 F. Supp. 874

Re: U. S. v. WILSON;

OMAHA INDIAN TRIBE v. JACKSON;

OMAHA INDIAN TRIBE v. AGRICULTURAL & INDUSTRIAL INVESTMENT CO.

Nos. C75-4024, C75-4026 and C75-4067.

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

September 4, 1981.

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James J. Clear, Dept. of Justice, Land & Natural Resources Division, Washington, D. C., Robert Sikma, U. S. Atty., Sioux City, Iowa, for United States of America.

William H. Veeder, Washington, D. C., John T. O'Brien, Sioux City, Iowa, for Omaha Indian Tribe.

Edson Smith, Donald Buresh, Robert J. Becker, Omaha, Neb., for Roy Tibbals Wilson.

Lyman Larsen, Thomas Burke, Omaha, Neb., for Charles G. and Florence Lakin and Harold Jackson.

John E. North, Lee Hamann, Omaha, Neb., for Charles and Florence Lakin.

Peter J. Peters, Council Bluffs, Iowa, for RGP, Inc. and Otis Peterson.

Maurice Nieland, Sioux City, Iowa, for The Travelers Ins. Co., Harold Sorenson and Harold M. Luea Sorenson and Darrell L. Sorenson.

Elizabeth M. Osenbaugh, Thomas J. Miller, John P. Sarcone, Asst. Attys. Gen., Des Moines, Iowa, for State of Iowa and Iowa State Conservation Commission.

Monona County Atty., Michael Jensen, Onawa, Iowa, for Monona County.

D. Carlton Shull, George Madsen, Sioux City, Iowa, for Agricultural & Indus. Inv. Co.

Wiley Mayne, Lowell C. Kindig and John Mayne, Sioux City, Iowa, for numerous defendants.

Phillip J. Willson, Council Bluffs, Iowa, for Northern Natural Gas Co.

Ronald E. Runge, Sioux City, Iowa, for Lloyd Fletcher.

Dewie J. Gaul, P. L. Nymann, Sioux City, Iowa, for Iowa Public Service Co.

Robert R. Eidsmoe, Sioux City, Iowa, for Mobil Pipeline.

Theodore T. Duffield, Des Moines, Iowa, for Regina Marie Torticilli.

Steven Carter, Sioux City, Iowa, for James McGuire, Auctioneer for Hudgel Estate.

Emmanuel S. Bikakis, Sioux City, Iowa, for Williams Pipeline Co. (formerly Williams Bros. Pipeline).

Clark G. Redick, Kansas City, Mo., for American Tel. & Tel. Co.

Larry Fulton, Denver, Colo., for the Fidelity National Title Ins. Co.

Ernest L. Olson, pro se.

MEMORANDUM OPINION

BOGUE, Chief Judge.

The Eighth Circuit Court of Appeals remanded these cases to this Court to determine the facts in light of the principles and conclusions set forth in both its second opinion, Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir. 1980), and in the opinion of the United States Supreme Court. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979). This Memorandum Opinion provides this Court's resolution of several issues of law and fact remaining in the consolidated Blackbird Bend-Barrett Survey area cases.

I. FACTUAL BACKGROUND

These cases concern the ownership of approximately 2,900 acres of land on the east bank of the Missouri River in Iowa. The parties seek to quiet title to the land, which was affected by the movement of the banks of the Missouri River over a period of nearly eighty years. The history of this land dispute and the discussion of the early movement of the Missouri River is set out in the Court's original opinion, 433 F.Supp. 67 (N.D.Iowa 1977), as well as the two opinions of the Court of Appeals. 575 F.2d 620 (8th Cir. 1978); 614 F.2d 1153. The Court of Appeals vacated this Court's original judgment and remanded the case with several directions. First, the Court entered judgment quieting title to the trust lands involved in this action, except those claimed by the State of Iowa, in the United States as trustee and the Omaha Indian Tribe. Second, the Appellate Court ordered that the Tribe's case against the State be severed, so that this Court could separately determine whether the Tribe sustained its burden of proof against the State. 614 F.2d at 1161.

Several additional issues were not resolved by any of the Appellate Court decisions in this case. One issue concerns the ownership of land within the Barrett Survey which was allotted to individual Indians and subsequently patented to non-Indians, or relinquished by the Indian allottees back to the Tribe. The Court of Appeals' second decision concerned only trust lands and failed to respond to issues of ownership of "fee patented" lands. The Court's first decision remanded the issues of fee patented land ownership back to this Court. 575 F.2d at 651, n. 70. This Court must further address the defendants' claim for the value of improvements placed upon land in which title was quieted in plaintiffs. Finally, this Court has before it the parties' motions for summary judgment concerning title to lands outside the Barrett Survey within the Blackbird Bend area.

To better understand the remaining issues and claims of the parties, the Court refers to Exhibit T80. (Plate 1) The large dotted area represents land which has never been allotted to any member of the Omaha Tribe and has never been patented by the United States to anyone. These are trust lands claimed only by individual defendants and clearly are governed by the Court of Appeals' order to this Court to quiet title in the United States as trustee and in the Tribe. The small dotted areas on Exhibit T80 represents allotments which have been relinquished by the allottees or cancelled. See also, Exhibits A through P.¹ Finally, the cross-hatched areas on Exhibit T80 are lands which have been patented in fee or otherwise left their trust status after the 1854 Treaty. The individual defendants assert a claim to the fee patented lands based upon state laws for adverse possession, statutes of limitation and laches.

The Tribe contends that both the individual defendants' claim to fee patented lands and the State of Iowa's claim to land along the western edge of the Barrett Survey, are defeated by the evidence establishing that all of the land in the western Barrett Survey was eroded and replaced by accretions to tribal trust land. The prior decisions in this case place upon the Tribe the burden of proving its case against the State by a clear preponderance of the evidence. 99 S.Ct. at 2543; 614 F.2d at 1161. This Court must address first the State's argument concerning the scope of the Tribe's burden of proof.

II. THE TRIBE'S BURDEN OF PROOF AGAINST THE STATE OF IOWA

The Tribe asserted title to trust lands in the eastern portion of the Barrett meander lobe based on a series of river avulsions between 1867 and 1923, which left these original reservation lands in place. 433 F.Supp. at 70-71. After reaching its 1923 position,² however, the Tribe asserted the River moved easterly, eroding the western portion of the Barrett Survey up to a line running north to south through the western edge of Nebraska Sections 13 and 24.³ From this line eastward in the Barrett Survey, the Tribe alleged its lands left in place by pre-1923 river avulsions were not later obliterated. From this line, to the west in the Barrett Survey up to the 1943 Iowa-Nebraska Compact line, the following specific River movements were asserted: (1) From 1923 to 1930, the River eroded all of the Barrett Survey lands lying west of the "not obliterated" line, as the River moved eastward; (2) From 1930 to 1943, the River receded westward to its present location, replacing all of the western Barrett Survey lands with accretions and relictions. These accretions attached to tribal lands in place in the Barrett Survey east of the "not obliterated" line. See, Tribe's Post-Trial Proposed Findings of Fact, No. 58; (1446:9-1447:24).

The Tribe owns the trust lands east of the "not obliterated" line by virtue of the Court of Appeals' decision which held that the individual defendants failed to prove their superior title thereto based on pre-1923 river movements. 575 F.2d at 650, 651; 614 F.2d at 1161. The land claimed by the State of Iowa is located along the Compact line in the western portion of the Barrett Survey. See, State's Proposed Findings on Remand, No. 41. Consistent with its original theory, therefore, the Tribe asserts title to these lands as accretions created after 1923, which attached to eastern tribal lands.

The State of Iowa, however, contends that the Tribe must affirmatively prove pre-1923 river avulsions as well as movement by accretion thereafter.⁴ The State asserts it is not bound by the Court of Appeals' decision quieting tribal title to the eastern Barrett Survey lands, since that decision was based upon the failure of other defendants to meet their burden of proof under 25 U.S.C. § 194. That decision "does not establish, in this proceeding in which the Tribe has the burden of persuasion, that the river moved to its 1879 and 1923 positions by avulsion...." State's Proposed Conclusions on Remand, No. 10. Given the reallocation of the burden of proof on remand, the State contends there is a "nonidentity of issues." In support of its conclusion that the Tribe must prove pre-1923 avulsions over eastern Barrett Survey lands, the State cites Young & Co. v. Shea, 397 F.2d 185, 188-189 (5th Cir. 1968); In re Four Seasons Securities Laws Litigation, 370 F.Supp. 219, 235 (W.D.Okl.1974); Finnerman v. McCormick, 499 F.2d 212, 214 (10th Cir. 1974); Shimman v. Frank, 625 F.2d 80, 89 (6th Cir. 1980). These cases stand for the rule that a judgment obtained in a prior, distinct proceeding will not resolve common issues of fact in a subsequent case between the same parties, in which the burden of persuasion differs. See also, Rest.2d Judgments, § 68.1(d).

Admittedly, this is not a proper case for the invocation of the doctrines of res judicata and collateral estoppel. Res judicata requires a showing that there has been a previous action between the same parties involving the same subject matter, in which a final judgment has been rendered with respect to the same cause of action. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Bryson v. Guarantee Reserve Life Ins. Co., 520 F.2d 563 (8th Cir. 1975). Clearly, the Tribe does not invoke a judgment obtained in a prior, distinct...