author: BEAM, District Judge.

text:
    Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants. The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant. Robin Ann BEAR, et al., Plaintiffs, v. The UNITED STATES of America, et al., Defendants. The WINNEBAGO TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES of America, Defendant.
    Nos. CV 82-0-199, CV 82-0-200, C 82-4052 and C 82-4053.
    United States District Court, D. Nebraska.
    June 6, 1985.

      Charles L. Smith, Telpner & Smith, Council Bluffs, Iowa, Patrick Kennison, Kutak, Rock & Huie, Omaha, Neb., Dale White, Fredericks & Pelcyger, Boulder, Colo., for plaintiffs.
    Paul W. Madgett, Asst. U.S. Atty., Douglas P. Misterek, U.S. Army Corps of Engineers, Aaron Hostyk, Office of Counsel Corps of Engineers, Omaha, Neb., Evan L. Hultman, U.S. Atty., Asher E. Schroeder, Asst. U.S. Atty., Cedar Rapids, Iowa, John P. Sarcone, Asst. Atty. Gen., Des Moines, Iowa, George F. Madsen, F. Joseph Du-Bray, Paul D. Lundberg, Sioux City, Iowa, for defendants.
   MEMORANDUM AND ORDER

BEAM, District Judge.

These matters are before the Court upon the defendants’ joint motion to reconsider the Court’s denial of their motions for summary judgment (filing 38 in CV 82-0-200; filing 49 in C 82-4053; filing 61 in C 82-4052; and filing 62 in CV 82-0-199). A hearing was held on the motion on November 8,1984. The Court, being fully advised in the premises, now finds that the motion should be sustained, in part.

Summary judgment should be granted “only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). Even under this standard, the Court finds that in the instant cases a substantial number of claims may be resolved through summary judgment.

The Winnebago Tribe of Nebraska and various individuals are the plaintiffs in four cases which have been consolidated in this Court. In CV 82-0-200 (D.Neb.) and C 82-4053 (D.Iowa) the Tribe contends that a 1972 stipulation which purported to waive its rights to contest condemnation actions against lands on the eastern bank of the Missouri River is void. In CV 82-0-199 (D.Neb.) and C 82-4052 (D.Iowa) the heirs of the original allottees of certain parcels are suing the United States and private corporations to quiet title to tracts of accretion land on the Nebraska/Iowa border.

The defendants are the United States, the Army Corps of Engineers, the State of Iowa, Briar Cliff College, and the Sinsinawa Dominican Congregation of the Most Holy Rosary of Sinsinawa, Wisconsin. They contend, among other things, that the plaintiffs’ claims are barred by the doctrines of res judicata, collateral estoppel, statutes of limitation and laches.

The facts surrounding the claims of the allottees will be presented first. In 1872, forty-acre parcels in Thurston County, Nebraska, were patented to David Horn, Reuben Decora and one Mrs. Jackson. At such time only the Jackson parcel was riparian. At some point in time between 1872 and 1906 the Missouri River changed course towards the west and all three parcels became riparian. Then, at some time prior to 1926 the River receded, adding accretions to the lots.

In 1927, 1928 and 1929 the heirs of Horn, Decora and Jackson conveyed their land by warranty deed to Thomas Ashford. The Horn deed expressly provided that both accretions and the original allotment were to be conveyed. Accretion lands were not mentioned in the other two deeds.

The individual allottees contend that title to the land which accreted to the Decora and Jackson parcels did not pass to Ash-ford because conveyance of accretion land was not explicitly provided for in the warranty deeds.

When accretion lands are added by natural forces, the owner of the original body of land acquires title to the new land that is formed. Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890); United States v. Wilson, 523 F.Supp. 874 (N.D.Iowa 1981) (lands added by accretion become the property of the riparian owner); Wiltse v. Bolton, 132 Neb. 354, 272 N.W. 197 (1937); Mercurio v. Duncan, 131 Neb. 767, 269 N.W. 901 (1936); see generally 3 American Law of Property § 1527 (A.J. Casner ed. 1952). According to the “doctrine of title by accretion,” when the land conveyed is bounded by water, it is to be regarded as the expectancy of both grantor and grantee that it should continue to be so bounded. See, e.g., Jefferis, 134 U.S. at 189, 10 S.Ct. at 520; Meyers v. Mathies, 7 So. 605 (La.1890); LeBeau v. Gavin, 37 Mo. 556 (1866). “It is well settled law that a conveyance of lands bordered by a river and intended to be riparian ... carries with it all accreted lands.” Choctaw and Chickasaw Nations v. Cox, 251 F.2d 733, 735 (10th Cir.1958). Therefore, title to accretion lands unless preserved passes with any conveyance of the land to which it is appurtenant. Illinois Central R.R. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892); United States v. 11,993.32 Acres of Land, 116 F.Supp. 671, 678 (D.N.D.1953) (“if there is an intention here to limit the conveyance by the exclusion of accretions, such intentions could easily have been evidenced by including the words ‘without accretions’ in the patents”); Jackson v. Montana, 181 Mont. 257, 593 P.2d 432, 436 (1979) (where grantors’ conveyance did not except or reserve the accretions, the accretions were conveyed to the grantees); Sioux City v. Chicago & Northwestern Railroad, 129 Iowa 694, 106 N.W. 183 (1906); DeLong v. Olsen, 63 Neb. 327, 88 N.W. 512 (1901). This rule applies to lands included within Indian reservations. Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir.1956).

The plaintiffs make much of the fact that accretions were expressly provided for in the deed conveying the Horn allotment. The Court refuses to find that the state of mind of Horn’s heirs in some way affected the state of mind of the grantors of the Decora and Jackson parcels. One could as easily conclude that the grantors of the Decora and Jackson lot intended to convey the accretions as Horn did, but being aware of applicable law, chose to do so by remaining silent on the matter. In all likelihood, grantors’ attorney in the Horn grant was a more thorough practitioner.

The court, having reviewed all the evidence provided by the plaintiffs in the light most favorable to them, is compelled to apply here the well-established principle that accretions ordinarily pass upon a conveyance of a parcel of real estate absent a specific reservation of title. Accordingly, the allottees’ claims with respect to accretion lands will be denied. Summary judgment will be granted accordingly.

Facts predicate to deciding the Tribe’s claims follow. In 1970 the United States initiated condemnation actions against Winnebago treaty lands (tracts 119 and 210) along the eastern bank of the Missouri River. See United States v. 1,716.18 Acres of Land, No. 70-C-3014-W, slip op. at 11 (N.D.Iowa 1971). The treaty lands were being appropriated for a recreational facility.

The Tribe answered and filed a cross petition challenging the United States’ authority to condemn the land in question. Shortly thereafter the Tribe agreed to relinquish title to the subject property. A stipulation was signed by the attorney for the Tribe and the State of Iowa, but was not signed by an official of the United .States government. The land was later condemned by the United States.

The Native American plaintiffs contend that the lack of federal approval renders the June 13, 1973, stipulation void under the Indian Non-Intercourse Act, 25 U.S.C. § 177. That statute provides:

No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto of any Indian nation or Tribe of Indians shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. § 177. See also Oneida Indian Nation v. County of Onedia, 414 U.S. 661, 668-69, 94 S.Ct. 772, 777-78, 39 L.Ed.2d 73 (1974) (Indian title can be extinguished only with consent of the federal government); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941) (same, citing cases). The Tribe contends that the above-mentioned stipulation is void because it was not approved by Congress or the Secretary of the Interior.

The defendants in this action do not contend that a government official signed or constructively approved of the stipulation in question. The defendants argue that (1) under Federal Power Com’n. v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960), the United States need not obtain congressional approval to condemn the land in question; and (2) in the event that this Court rejects their first argument, counsel for the Tribe, as constructive agent for the Bureau of Indian Affairs (BIA), was authorized to approve the stipulation. These issues must be considered in light of the distinctive principles which govern federal government relations with the Indians.

The United States holds most Indian land in trust for Indians and their tribes. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574, 5 L.Ed. 681 (1823) (establishing the principle that tribes do not hold, and thus cannot convey, fee interests in the lands they occupy); Jackson v. Porter, Fed.Cas. No. 7, 143 (C.C.D.N.Y.1825) (the seisin of lands of Indian tribes is in the sovereign). In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), Chief Justice Marshal observed that an Indian tribe, in its relationship to the United States, “resembles that of a ward to his guardian.” Id. at 17; see also F. Cohen, Handbook of Federal Indian Law 220-221 (1982 ed.) (hereinafter Cohen) (trust relationship is “one of the primary cornerstones of Indian law”).

Special rules of construction arising out of this trust relationship govern the interpretation of statutes that regulate Indian conduct. Id. (Courts presume that Congress’ intent towards Indians is benevolent); see also Wilkinson & Volkman, Judicial Renew of Indian Treaty Abrogation, 63 Calif.L.Rev. 601, 620-23 (1975) (special cannons of construction designed to rectify inequality in bargaining power). Statutes and treaties are to be liberally construed to favor Indians, see, e.g., Choctaw Indian Nation v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943); Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 864-65, 86 L.Ed. 1115 (1942); Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912), and all ambiguities are to be resolved in their favor. McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973); Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); Winters v. United States, 207 U.S. 564, 576-77, 28 S.Ct. 207, 211-12, 52 L.Ed. 340 (1908).

In Tuscarora Indian Nation, 362 U.S. at 99, 80 S.Ct. at 543, the Supreme Court observed that “the obvious purpose of [25 U.S.C. § 177] is to prevent unfair, improvident or improper dispositions of land owned or possessed by Indians to other parties....” Id. at 119, 80 S.Ct. at 555; Schaghticoke Tribe of Indians v. Kent School Corp., 423 F.Supp. 780, 784 (1976); but see Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D.Mass.1982), aff'd, 707 F.2d 23 (1st Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 555, 78 L.Ed.2d 728 (1983) (purpose of section 177 was to prevent Indian uprisings and preserve peace along the frontier). Because of the United States’ special status as trustee for the Indians, the Tuscarora Court held that the Secretary need not explicitly approve of conveyances to or condemnations by the United States or its licensees. Id.; see also United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 211, 63 S.Ct. 534, 536, 87 L.Ed. 716 (1943).

The defendants’ reliance on this case is, however, misplaced. Tuscarora does not stand for the proposition that the United States may condemn treaty lands without congressional approval. The majority in Tuscarora squarely held that the lands at issue were “not subject to any treaty.” Tuscarora Indian Nation, 362 U.S. at 123, 80 S.Ct. at 557. The plaintiffs correctly contend that United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir.1976) is controlling on the issue of the government’s power to condemn Indian treaty lands.

In Winnebago, the Eighth Circuit held that the United States, through the Corps of Engineers, was without authority to condemn tribal treaty land without the express approval of the Secretary of the Interior. Id. at 1006. The Court noted that nothing in Tuscarora sanctioned the taking of treaty lands without congressional authorization. Id. This part of Winnebago is still good law.

Finding that Tuscarora is not controlling, and that congressional approval is indeed required, the Court turns its attention to the defendants’ second argument. Here the defendants contend that counsel for the Tribe, by signing the stipulation in question, fulfilled the United States’ fiduciary responsibility as trustee over the tribal lands. The defendants emphasize that the United States Attorney’s Office, recognizing that it could not represent both the Corps of Engineers and the condemnees, retained impartial counsel for the Tribe. The defendants would have this Court hold that the requirements of the Non-Intercourse Act are satisfied when the sale, disposition, or taking of Indian land is endorsed by the Tribe’s private counsel.

As noted above, section 177 embodies the federal government’s policy to acknowledge and guarantee the Indian’s right of occupancy of tribal lands. Narragansett Tribe of Indians v. Southern Rhode Island Development Corp., 418 F.Supp. 798, 803 (D.R.I.1976), (citing cases). Further understanding of the Act can be obtained by taking note of the historical context in which it has operated.

The federal government, acting through Congress and the Department of the Interior, has often established nationwide policies for the retention or disbursement of Indian lands. See, e.g., The Indian Reorganization Act of 1934, 25 U.S.C. §§ '461 et seq.; The General Allotment Act of 1887, 25 U.S.C. § 349. The Snyder Act of November 2, 1921, authorized the BIA, under the supervision of the Secretary of the Interior, to direct the expenditure of congressional appropriations “for the benefit, care, and assistance of the Indians throughout the United States.” 25 U.S.C. § 13. The BIA’s broad range of duties includes the administration of Indian lands. See Cohen at 141. The history of relations between Indians and non-Indians has too often demonstrated the undesirability of piece-meal alienation of Indian lands. See id. at 136-38 (effect of allotment and assimilation on land tenure). The Non-Intercourse Act’s government approval requirements serves both to preserve the trust relationship between the government and the Tribe and to insure that management of Indian lands be in keeping with nationwide policies established by the federal government. See United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 987, 88 L.Ed. 1326 (1944) (detailing federal government’s paramount role of establishing policy over Indian restricted lands).

It follows that private counsel appointed to represent a Tribe, acting independently as he must of the federal government, Congress and the Secretary of the Interior, should not have the authority to authorize the sale of Indian lands. Accordingly, this Court finds, as a matter of law, that the signature of counsel for the Tribe on the present stipulation does not satisfy the requirements of the Indian Non-Intercourse Act. Accordingly the stipulation in question is void.

The propriety of the government’s subsequent condemnation of the subject property will now be discussed. Disestablishment of Indian treaty lands can only be achieved through congressional abrogation of treaty rights. See Lone Wolf v. Hitchcock, 187 U.S. 553, 556, 23 S.Ct. 216, 217, 47 L.Ed. 299 (1903). A complex body of law has evolved concerning the interpretation of statutes which do not provide for abrogation on their face. See United States v. Dion, 752 F.2d 1261 at 1265 (8th Cir.1985); Wilkinson & Volkman, 63 Calif.L.Rev. at 623-34 (describing five different tests that courts have used in determining whether abrogation has occurred); see generally Note, Indian Title: The Rights of American Natives in Lands They Have Occupied Since Time Immemorial, 75 Colum.L.Rev. 655 passim (1975) (noting that determining limits on the tribal interest derived from Indian title is difficult and complex).

“[Wjhen Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.” United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 95, 54 L.Ed. 195 (1909). The congressional intent must be clear in order to overcome the general rule that ambiguities are to be resolved in favor of the Indians. McClanahan, 411 U.S. at 174, 93 S.Ct. at 1263. Accordingly, the Courts require that the “congressional determination to terminate [treaty rights] ... be expressed on the face of the act or be clear from the surrounding circumstances and legislative history.” Rosebud Sioux Tribe, 430 U.S. at 585, 97 S.Ct. at 1362-63; Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). This Court is, of course, compelled to follow Kneip. The sovereign, as the party seeking to exercise the right of eminent domain, has the burden of showing its authority. United States v. Jones, 109 U.S. 513, 3 S.Ct. 346, 27 L.Ed. 1015 (1883); United States v. Federal Land Bank of St. Paul, 127 F.2d 505, 508 (8th Cir.1942); see generally 1 Nichols on Eminent Domain § 3.213 (1981). In the present case the United States has the burden of showing that some federal statute indicated a congressional intention to abrogate provisions of the treaty setting aside Winnebago reservation land, thereby giving the United States the requisite authority to condemn the land. See United States v. 2,005.32 Acres of Land, 160 F.Supp. 193, 197 (D.S.D.1958).

The government has cited four statutes to show the authority under which it is attempting to condemn these parcels of tribal land. First, the defendants contend that the condemnations were authorized by 25 U.S.C. § 357. That statute provides:

Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the state or territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

25 U.S.C. § 357. From the face of the statute it is clear that the treaty lands in question cannot be condemned under 25 U.S.C. § 357, and many courts have so held. Nebraska Public Power District v. 100.95 Acres of Land in Thurston County, 719 F.2d 956, 961 (8th Cir.1983); Transole Pipeline Co. v. Darks, 565 F.2d 1150, 1152 (10th Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); City of Stillwater v. An Easement and Right-of-Way for Water Pipeline Purposes in Noble County, 552 F.Supp. 64, 65 (W.D.Okla.1981), aff'd, 691 F.2d 926 (10th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983); see Eastern Band of Cherokee Indians v. Griffin, 502 F.Supp. 924, 930 (W.D.N.C.1980); Comment, Overview of Questions of Access Across Indian Lands, 10 Land and Water L.Rev. 93, 106 (1975). As the United States owns the fee in tribal lands, the property cannot be condemned without the Secretary of the Interior’s approval unless authorized by some other act of Congress. Minnesota v. United States, 305 U.S. 382, 386-87, 59 S.Ct. 292, 294-95, 83 L.Ed. 235 (1939).

The second act upon which the United States relies is the River and Harbor Act of 1945, Pub.L. No. 79-14 (uncodified), reprinted in 59 Statutes at Large 10 (1945). The Act allegedly authorizes the Missouri Stabilization Project, and briefly mentions flood control projects on the “Missouri River between Sioux City, Iowa, and the mouth.” Id. at 19. The details of the project are set forth in “House Document Numbered 214, Seventy-Sixth Congress.” The Court has reviewed House Document No. 214 in its entirety, and applying Kneip finds nothing within the text from which congressional intent to disestablish treaty lands may be inferred.

The third act cited by the government is an Act of April 24, 1888, codified at 33 U.S.C. § 591. Section 591 empowers the Secretary of the Army to acquire interests in land for river and harbor projects. This provision forms the basis of the condemnation authority possessed by the Secretary of the Army in acquiring ordinary lands for the implementation of flood control projects. Neither the language of the statute nor its legislative history reveals that Congress contemplated the taking of Indian land in these sections.

Fourth, the government relies on the Flood Control Act of 1944, as amended in 1962 to include non-reservoir projects, 16 U.S.C. § 460d. This statute authorizes recreational facilities at Corps of Engineers’ reservoirs and water resource projects. This Act gave general approval to the implementation of designated plans for the Missouri River Basin Program. There is no mention of Indian lands in the Act itself.

Similarly, three other statutes cited by the government, do not mention the taking of treaty lands. Because Kneip requires that the intent to disestablish treaty lands be clearly inferable from the statute, its legislative history, or the “surrounding circumstances,” the Court finds that the United States was without authority to condemn the Indian lands in question.

Before proceeding to the government’s defenses, the Court will address an argument made by the individual allottees in regard to the condemnation actions. The individual allottee plaintiffs contend that they were not notified of the government’s 1970 condemnation proceeding against lots 203, 204 and 205. The government argues that all persons whose names appeared in the Register of Deeds office were notified and that notice of the condemnation actions was properly published in the county newspapers. See Fed.R.Civ.P. 71A(c)(2).

The question presented, then, is whether the government’s methods of notice satisfy the requirements of due process. Due process requires that an owner whose property is taken must be given notice. Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S.Ct. 200, 202, 1 L.Ed.2d 178 (1956). Notice by publication is sufficient with respect to those persons who .neither live on the land nor are listed in deed or tax records. Schroeder v. City of New York, 371 U.S. 208, 212-14, 83 S.Ct. 279, 282-83, 9 L.Ed.2d 255 (1962); Walker, 352 U.S. at 116, 77 S.Ct. at 202 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318, 70 S.Ct. 652, 659, 94 L.Ed. 865 (1950): “Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.”).

Counsel for the government asserted that all parties of record were notified before the 1970 condemnations went through and that notification of others, including “unknown owners,” was attempted by publication. The allottees have argued that their identities would have been disclosed had the government searched the titles of tracts adjacent to the lands under condemnation. The allottees have not cited any cases that impose this kind of duty on the government, and the Court has found none. Therefore, the Court finds that the individual allottee’s rights of due process have not been violated.

The Court will now proceed to consider whether the Indians’ claims are barred by the doctrines of res judicata, equitable estoppel, laches or the applicable statutes of limitation.

The doctrine of res judicata provides that a party or one in privity with a party who seeks determination of a question which was or should have been litigated and included as part of a final judgment in a court of competent jurisdiction is precluded from litigating that same question at a later time. C.I.R. v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Lovell v. Mixon, 719 F.2d 1373 (8th Cir.1983); IB Moore’s Federal Practice ¶ 0.405 at 178 (2d ed. 1984). Before applying this doctrine to the facts before the Court, the machinations of the 1972 condemnation cases will be set forth in some detail.

In 1970, the United States Army Corps of Engineers brought suit to condemn lands on the Missouri River to be used for the Oxbow Recreation Lakes, the Snyder Winnebago Complex and the Missouri River Recreation Lakes Project. See 1,716.18 Acres of Land, No. 70-C-3015-W at 1. In this action the United States sought to condemn tracts 119 and 210. These tracts are being claimed by the Tribe in the present suits.

The Tribe was served, appeared, answered and filed a cross-claim challenging whether the United States had authority to condemn the tribal lands. The United States moved to strike the answer and cross-claim and requested summary judgment on the issue of its authority to condemn. By Order of May 25, 1971, the Court, relying principally on United States v. 687.30 Acres of Land, 319 F.Supp. 128. (D.Neb.1970), appeal dismissed, 451 F.2d 667 (8th Cir.1971), cert. denied, 405 U.S. 1026, 92 S.Ct. 1291, 31 L.Ed.2d 486 (1972) (a companion condemnation case), granted summary judgment and ruled that the government had authority to condemn. The Tribe’s interlocutory appeal was denied on the grounds that there was no final judgment. United States v. 687.30 Acres of Land, 451 F.2d 667 (8th Cir.1971).

On June 13,1973, the Tribe and the State of Iowa entered into the stipulation described in detail above. The Tribe did not participate further in this condemnation action. The United States then proceeded with its condemnation suit against the State of Iowa.

Meanwhile, other Winnebago tribal lands along the Missouri River were being condemned. These parcels went to trial on the issues of title and just compensation. Judgments were entered and the Tribe appealed. In Winnebago, 542 F.2d at 1002, the Eighth Circuit held that the United States lacked authority to condemn the land. The Tribe is now asking, in essence, for this Court to apply the holding of Winnebago to the lands taken in 1,716.18 Acres of Land.

The defendants contend that the plaintiffs should be precluded from pressing their present claims because of their failure to appeal in the former action. The Tribe bites United States v. United States Fidelity and Guaranty Co., 309 U.S. 506, 60. S.Ct. 653, 84 L.Ed. 894 (1940) (Missouri district court was without jurisdiction to adjudicate a claim against Indian nations and the United States) for the proposition that the doctrine of res judicata does not apply where a prior judgment is void.

The rule of United States Fidelity and Guaranty does not apply to the present facts. In United States Fidelity and Guaranty the Supreme Court addressed a judgment issued by a court acting without subject matter jurisdiction. A judgment entered by a court lacking such jurisdiction is, of course, void. See, e.g., City of New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953). No such jurisdictional problem exists here.

This Court concedes that the May 25, 1971, interlocutory order from which the Tribe appealed, holding that the United States possessed authority to condemn the tribal lands, was constructively overruled by the Eighth Circuit in Winnebago. But a judgment is not void simply because it is later determined to be erroneous. Angel v. Bullington, 330 U.S. 183,187, 67 S.Ct. 657, 659, 91 L.Ed. 832 (1947); Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); IB Moore’s Federal Practice II 0.405(4-1) at 197.

The Supreme Court has recognized that the distinction between void judgments and incorrect judgments is crucial to the application of the res judicata doctrine.

A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action.

Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325, 47 S.Ct. 600, 604, 71 L.Ed. 1069 (1927). More recently, in a case factually analogous to the claims now pending before this Court, the Supreme Court held that the res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the prior judgment may have been wrong or rested on a legal principle subsequently overruled in another case. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981); see also Angel, 330 U.S. at 187, 67 S.Ct. at 659; Milne v. Deen, 121 U.S. 525, 534, 7 S.Ct. 1004, 1007, 30 L.Ed. 980 (1887).

This Court concludes, then, that the Tribe’s claims for land condemned in 1,716.18 Acres of Land are precluded by the doctrine of res judicata. The Tribe’s failure to appeal from the final judgment of condemnation is determinative of their present claims. Discussion of the defendants’ claims based on estoppel or laches is, therefore, not necessary.

Accordingly,

IT IS ORDERED as follows:

1. Defendants’ joint motion to reconsider the Court’s denial of their motions for summary judgment (filing 38 in CV 82-0-200; filing 49 in C 82-4053; filing 61 in C 82-4052; and filing 62 in CV 82-0-199) should be and hereby is sustained.

2. Summary judgment in conformity with the foregoing Memorandum should be and hereby is granted.

3. An order for the progression of this matter to trial will be entered this date.

      . In CV 82-0-199 (D.Neb.), the allottees are suing to quiet title to two parcels of land identified in the plaintiffs’ fifth amended complaint as containing 613.78 and 62.02 acres. These parcels are located west of the 1943 compact line entirely within the State of Nebraska.
      In the Iowa case, C 82-4052 (D.Iowa), the. allottees are suing to quiet title to two parcels that lie east of the 1943 compact line. This property is identified in the plaintiffs’ sixth amended complaint as containing 333.39 and 5.26 acres.

      . The Court recognizes the technical distinction between the term "accretions” and the term "relictions." Accretions or accreted lands are additions to the area of realty from gradual deposit by water of solid material, whether mud, sand, or sediment, producing dry land which before was covered by water, along banks of navigable or non-navigable bodies of water. United States v. Wilson, 433 F.Supp. 57, 62-63 (D.Iowa 1977) (“accretion” and "reliction" defined); Board of Public Works v. Larmar Corp., 262 Md. 24, 277 A.2d 427 (1971) (same); Smith v. Whitney, 105 Mont. 523, 74 P.2d 450, 453 (1937). Reliction is the term that is applied to land that has been covered by water, but which has been uncovered by the imperceptible recession of the water. Wilson, 433 F.Supp. at 62-63; Larmar Corp., 262 Md. at 434, 277 A.2d at 40; Martin v. Busch, 93 Fla. 535, 112 So. 274, 287 (1927).
      Technically speaking, land uncovered by a gradual subsidence of water is not an accretion but a reliction, but the terms are often used interchangeably, Omaha Indian Tribe v. Wilson, 614 F.2d 1153, 1157-58 (8th Cir.1980), and law relating to accretions applies in all its features to relictions. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 379-80, 97 S.Ct. 582, 591-92, 50 L.Ed.2d 550 (1977); Omaha Indian Tribe v. Wilson, 614 F.2d 1153, 1157-58 (8th Cir.1980); Hanson v. Thornton, 91 Or. 585, 179 P. 494 (1919); see generally, 3 American Law of Property § 1526 at 855 (AJ. Casner ed. 1952). The Court will use the term "accretion” to designate both the residue that forms accretion lands and reliction lands resulting from the gradual retreat of a body of water.

      . The Reuben Decora allotment is located in the Southeast Quarter of Section 35, Township 27 North, Range 9 in Thurston County, Nebraska. The original patent for this allotment was issued on October 22, 1872.

      . The allotment issued to Mrs. Jackson was Lot 7 of the Southeast Quarter of Section 35, Township 27, Range 9 in Thurston County, Nebraska. The original patent for this allotment was issued on October 22, 1872.

      . See Findings of Fact and Conclusions of Law Nos. 13 and 14 in United States v. Wilcox, No. 1314, slip op. at 4 (D.Neb.1938).

      . This claim covers all of the accreted land that extends in an easterly direction from the original allotment which has a legal description of Lot 8, in the Southeast Quarter of Section 35, Township 27, Range 9 in Thurston County, Nebraska.

      . It appears that the Tribe may also be presenting claims involving the conveyance of accretion lands. If in fact such claims still linger, the Court’s finding on this issue as set forth above will control.

      . These lands were held under an 1865 treaty with the Winnebago Indians, in which the United States agreed "to set apart for the occupation and future home of the Winnebago Indians, forever,” the tribal lands at issue. Proclamation of March 28, 1866, 14 Stat. 671.

      . Mr. Fritz Cassman, an Omaha, Nebraska, attorney, was hired by the Bureau of Indian Affairs to represent the Winnebago Nation in the condemnation proceedings.

      . Similarly, 25 C.F.R. § 152.22 provides that ”[t]rust or restricted lands ... may not be conveyed without the approval of the Secretary [of the Interior]."

      . Originally the United States government based its right to title on the doctrine of discovery. "[Discovery gave exclusive title to those who made it.” Johnson, 21 U.S. (8 Wheat.) at 574, 5 L.Ed. 681. The Court subsequently qualified its analysis regarding the acquisition of Indian land by right of discovery. In Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), Chief Justice Marshal acknowledged that the recognized right of acquisition by discovery did not itself pass title to the land. Rather, "[t]his was the exclusive right of purchasing such lands as the natives were willing to sell.” Id. at 545, 8 L.Ed. 483; see also F. Cohen, Handbook of Indian Law 50-54 (1983 ed.) (Anglo-Americans’ title to Indian lands not based on right of discovery).

      . But see comprehensive discussion on the issue of congressional takings of Indian treaty land in the dissent by Justice Black, joined by Chief Justice Warren and Justice Douglas. Tuscarora Indian Nation, 362 U.S. at 124-142, 80 S.Ct. at 557-567.

      . Winnebago also held that express congressional authorization was required to disestablish treaty lands. Winnebago, 542 F.2d at 1005. This portion of the opinion has probably not survived the Supreme Court’s opinion in Rosebud Sioux v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) (congressional intent to abrogate or modify treaty rights may be “clear from surrounding circumstances and legislative history.” Id. at 588 n. 4, 97 S.Ct. at 1364 n. 4.) See discussion at 597 infra.

      . “The juxtaposition of plenary power and fiduciary obligation may appear incongruous, but such incongruity is the keystone of Indian-government relations____’’ E. Dwyer, Land Claims Under the Indian Nonintercourse Act: 25 U.S.C. § 177, 7 B.C.Env. Affairs L.Rev. 259, 263 (1976).

      . In Dion, at 752 F.2d at 1262, the Eighth Circuit Court of Appeals adopted a bifurcated method of determining congressional intent to abrogate. In.criminal cases the Court intends to adhere to the “express reference test” first enunciated in United States v. White, 508 F.2d 453 (8th Cir.1974). This test may be stated as follows: "[Statutory abrogation of treaty rights can only be accomplished by an express reference to treaty rights in the statute or in the statute’s legislative history." Dion, 752 F.2d at 1265 (referring to White, 508 F.2d at 456); see abo Winnebago, 542 F.2d at 1005 (employing the "express reference test” in a civil action). Nonetheless, the Eighth Circuit has now recognized that the "express reference” test can no longer be used in civil cases. Dion, 752 F.2d at 1266-67 (citing Rosebud Sioux Tribe, 430 U.S. at 584, 97 S.Ct. at 1361 ("[a] congressional determination to terminate an [Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legblative hbtory" id. at 586, 97 S.Ct. at 1362) (emphasis supplied); see abo Mattz, 412 U.S. at 505, 93 S.Ct. at 2258.

      . The "surrounding circumstances” test is subject to criticism. The express reference test would appear to lead to greater clarity and more consistent results. See Dion, 752 F.2d at 1267 n. 12; Wilkinson & Volkman, 63 Calif.L.Rev. at 645-59.

      . An “allotment" is a term of art in Indian law, describing either a parcel of land owned by the United States in trust for an Indian (“trust” allotment) or owned by an Indian subject to a restriction on alienation in favor of the United States or its officials ("restricted fee allotment”). Cohen at 615-16; see United States v. Clarke, 445 U.S. 253, 260-61, 100 S.Ct. 1127, 1131-32, 63 L.Ed.2d 373 (1980) (Blackmun, J., dissenting) (describing restricted patent); United States v. Jackson, 280 U.S. 183, 184, 50 S.Ct. 143, 144, 74 L.Ed. 361 (1930) (describing trust patent).

      . The volumes of the Statutes at Large are "legal evidence" of the laws contained therein and are accepted as proof of those laws in any court of the United States. 1 U.S.C. § 112. “There is no better proof of federal law than the Statutes At Large, and hence, they are referred to as positive law.” Id.; see generally M. Cohen, How to Find the Law, 120 (7th ed. 1976).

      . With regard to river and harbor flood control projects, Congress has often enacted laws adopting a wide variety of House or Senate "documents.” These usually consist of Corps of Engineers reports to the Congress detailing proposed projects, their financing, and their relative costs and benefits. When Congress wants a project built, it is common for it to merely adopt the whole report. See Letter from Mr. Douglas Misterek to the Court at 2 (March 20, 1985) (filing 47 in CV 82-0-200; filing 58 in C 82-4053; filing 69 in C 82-4052; and filing 71 in CV 82-0-199) (discussing applicability of House Document 214, Seventy-Sixth Congress).

      . An Act of February 26, 1931, 40 U.S.C. §§ 258a-e (providing for a declaration of taking for the acquisition of interests in land); and the following appropriation acts: Act of December 11, 1969, Pub.L. No. 91-144 (uncodified), reprinted in 83 Statutes At Large 323 (1969); and an Act of August 25, 1972, Public Law. No. 92-405 (uncodified), reprinted in 86 Statutes At Large 621 (1972).


source: Caselaw Access Project

author: CARL O. BUE, Jr., District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Mustapha FARRAN Ali Cheikh Souhail Assaad.
    Crim. No. H-84-173.
    United States District Court, S.D. Texas, Houston Division.
    June 6, 1985.

      Andrea Larry and James Powers, Asst. U.S. Attys., Houston, Tex., for Government.
    Marjorie Meyers, Asst.' Federal Public Defender, Houston, Tex., for defendant Farran.
   ORDER

CARL O. BUE, Jr., District Judge.

Before the Court is defendant Farran’s application for release pending appeal. After careful consideration of the applicable law, the memoranda of the parties, as well as the facts and circumstances, this Court is of the opinion that defendant’s motion should be denied for the reasons discussed below.

As a basis for his motion, defendant raises several issues:

1. Application of the Bail Reform Act of 1984 would violate the ex post facto clause of the Constitution.
2. The Court erred in limiting cross-examination of Eugenia Fairchild and Jhamie Waters.
3. The Court erred in allowing the prior conviction of defendant into evidence.

Background

On March 29, 1985, a jury convicted defendant Farran on two counts of causing persons to conceal a material fact from the Immigration and Naturalization Service, in violation of 18 U.S.C. § 1001 (1982), and two counts of causing persons to make false statements to the Immigration and Naturalization Service, in violation of 18 U.S.C. § 1015 (1982). Subsequently, on May 13, 1985, this Court sentenced defendant Farran to three years as to Count One, and as to Counts Two, Three and Four, defendant was sentenced for a period of three years, to run concurrent to the sentence imposed in Count One. Moreover, the Court ordered that the defendant be allowed to surrender to the designated institution.

Bail Reform Act of 1984

Although the denial of bail after conviction was justified in certain instances, the prior statute incorporated a presumption in favor of bail after conviction. Act of June 22, 1966, Pub.L. 89-465, § 3(a), 80 Stat. 215 (formerly codified at 18 U.S.C. § 3148). However, in enacting section 3143 of the Bail Reform Act of 1984, the committee endeavored to eliminate the presumption in favor of bail, and to create a presumption against post conviction release. As stated in the committee report:

Once guilt of a crime has been established in a court of law, there is no reason to favor release pending imposition of sentence or appeal. The conviction, in which the defendant’s guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law.

S.Rep. No. 225, 98th Cong., 1st Sess. 26 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3209; United States v. Giancola, 754 F.2d 898 (11th Cir.1985).

Moreover, the burden of proof rests with the defendant to prove by clear and convincing evidence that he is not likely to flee or pose a danger to the community, and that the appeal is not taken for the purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial. S.Rep. at 27. Unless this Court makes an affirmative finding of these requisites based on clear and convincing evidence presented by the defendant, the statute provides that this Court shall detain the defendant. Title 18, U.S.C. § 3143(b) reads as follows:

(b) Release or detention pending appeal by the defendant. — The judicial officer shall order a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal of a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

As noted in the legislative history, by requiring the defendant to show that the appeal raises a substantial question of law or fact gives recognition to the basic premise that a conviction is presumed correct. S.Rep. at 27.

In determining whether bail should be allowed, the Fifth Circuit in the recent case of United States v. Valera-Elizondo, 761 F.2d 1020 (5th Cir.1985), stated that the convicted defendant has the burden of establishing the following four factors in order to obtain release on bail pending appeal:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

Id.

Moreover, the Fifth Circuit squarely addressed the issue of the correct interpretation of “raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” See 18 U.S.C. § 3143(b)(2). In focusing upon what “substantial question” means, the Fifth Circuit adopted the view enunciated in United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985) which stated “... the court must determine that the question raised on appeal is substantial, that is to say a question that is either novel, which has not been decided by controlling precedent, or which is fairly doubtful. Secondly, the court must determine whether that issue is sufficiently important to the merits that a contrary appellate ruling is likely to require reversal or a new trial.” However, the Court did not accept in toto the Miller Court’s interpretation. Rather, the Court accepted a modified version based on Miller, 753 F.2d 19, United States v. Giancola, 754 F.2d 989 (11th Cir.1985) and its own addition to those two interpretations.

In essence, the Fifth Circuit defined “substantial question” as one that is novel, “one of more substance would be necessary to a finding that it was not frivolous,” Giancola, 754 F.2d at 901, or which is substantially doubtful, Valera-Elizondo, 761 F.2d 1020 at 1022 (5th Cir.1985). Moreover, the Fifth Circuit adopted the Giancola Court’s interpretation that whether a question is substantial is determined by the facts of a particular case.

As to the second prong of the Miller test, the Fifth Circuit adopted the ordinary meaning of “likely,” noting that the Miller Court, as well as the government, had embellished that interpretation. Essentially, “likely” means “that if error is found, it will so taint the conviction that it is more probable than not that reversal will be required.” Valera-Elizondo, 761 F.2d 1020 at 1022 (5th Cir.1985) (emphasis supplied).

With this preliminary analysis in mind, the Court now turns to the case at bar.

Ex Post Facto

Defendant contends that since the offenses were committed prior to the enactment of the Bail Reform Act of 1984, that any application of the new Act would result in a violation of the ex post facto clause of the Constitution. In United States v. Crabtree, 754 F.2d 1200 (5th Cir.1985), the court reviewed the ex post facto consideration and held that while the offense took place before the effective date of the Act, the change in the law was procedural and did not alter any substantial right. See also United States v. Miller, 753 F.2d 19 (3d Cir.1985). Accordingly, this Court concludes that this argument is without merit.

Risk of Flight and Danger to the Community

In the present case, this Court allowed the defendant to voluntarily surrender to the specified correctional facility, thereby implicitly finding that defendant is not likely to flee or pose a danger to the safety of any other person or the community. Therefore, the issue before this Court is whether the defendant has shown by clear and convincing evidence that his appeal raises a substantial question as recently defined by the Fifth Circuit in United States v. Valera-Elizondo, 761 F.2d 1020 (5th Cir.1985). If this Court determines that a substantial question exists, then the next determination is whether it is likely to result in reversal or order for a new trial.

Limiting of Cross-Examination

Defendant contends that the Court erred in limiting the cross-examination of prosecution witness Eugenia Fairchild. During cross-examination the defendant wanted to question Ms. Fairchild concerning misuse of defendant Farran’s telephone and credit cards, as well as theft of money from defendant Farran. The defendant contends that the purpose was to establish bias and/or to show that these acts were of moral turpitude and had a direct bearing upon the witness’s truthfulness pursuant to FED.R.EVID. 608(b). The Court relied upon United States v. Sutherland, 656 F.2d 1181 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982) in rejecting defendant’s argument. The Court does not find that this aspect of defendant’s claim is a substantial question as defined by the Fifth Circuit.

As to witness Jhamie Waters, the defendant contends that cross-examination was erroneously limited as to the witness’s alleged use of drugs. Defendant maintains that the testimony was relevant insofar as it bore upon the witness’s capacity to perceive and recall events. Likewise, this Court does not find that this part of defendant’s claim is a substantial question as defined by the Fifth Circuit. See United States v. Hickey, 596 F.2d 1082 (1st Cir.1979); United States v. Leonard, 494 F.2d 955 (D.C.Cir.1974).

Prior Crimes

Defendant alleges that this Court erred in allowing defendant Farran’s prior assault conviction into evidence. Moreover, the defendant contends that this Court was required to make an on-the-record determination whether the probative value outweighed the prejudicial effect if the conviction were admitted. United States v. Pres ton, 608 F.2d 626 (5th Cir.1979), cert. denied, 466 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). The government maintains that while the Court did not make specific findings on the record, the issue was resolved by the Court’s ruling on the record of defendant’s Motion in Limine which specifically addressed the issue.

According to United States v. Preston, 608 F.2d 626, 639 (5th Cir.1979), an on-the-record finding should be made under FED. R.CIV.P. 609(a)(1). As the Court stated:

Despite our belief in the importance of a Trial Court making an on-the-record finding under Rule 609(a)(1) that the probative value of admitting the evidence outweighs its prejudicial effect, the failure to make such a finding does not automatically call for reversal of [defendant’s] conviction. Instead, following a procedure analogous to that used in United States v. Rivero, 5 Cir., 1976, 532 F.2d 450, we remand the case for an on-the-record Rule 609(a)(1) determination. If the Trial Court determines that the probative value of admitting the prior conviction outweighed its prejudicial effect, then the conviction will stand affirmed. If the Trial Court determines that the prejudicial effect of admitting the.evidence outweighed its probative value, then the question remains whether there is any reasonable possibility that the admission of the conviction affected the outcome of the case.

Id.

After reviewing the record in this cause, the Court notes that during an in-chambers conference held on March 28, 1985 at which a court reporter was present, the parties argued their respective positions with regard to defendant’s Motion in Limine which directly addressed the issue of admissibility of Farran’s prior crime. At that time the Court denied the Motion in Limine and specifically found that the prejudicial effect of allowing into evidence defendant Farran’s prior crime did not outweigh the probative value. While recognizing the directive of the Fifth Circuit concerning the importance of an on-the-record finding, this Court does not believe that an on-the-record finding in open-court is required. Rather, this Court believes that its ruling in chambers on defendant’s Motion in Limine satisfied the finding requirement as set forth in Preston. Accordingly, this Court does not find that this portion of defendant’s claim raises a substantial question.

Conclusion

In conclusion, while this Court finds that the defendant is not likely to flee or pose a danger to the community or any other person, and that the appeal is not for the purpose of delay, this Court does not find that the appeal raises a substantial question of law. Accordingly, defendant is ordered detained pending appeal.

      . This Court notes that where evidentiary requirements need to be met, a hearing should be held. However, since the Court has allowed voluntary surrender, the issue of risk of flight and danger to the community are moot. Therefore, the only remaining issue is a question of law.

      . The Court finds in accordance with the four factors outlined in Valera-Elizondo that the appeal is not taken for the purpose of delay.

      . Since the Court did not find that any substantial question exists, this Court need not address whether it is likely to result in reversal or order for a new trial.