Spirit Lake Tribe v. North Dakota

III. herein, we affirm the reasons stated

For Bankruptcy Appellate judgment

Panel. formerly TRIBE, known LAKE

SPIRIT Tribe, Lake Sioux

Appellant, DAKOTA, Di Garrison of NORTH

State Conservancy District, United

version Ranch, America, North

States Ward, Partnership, Ruth

Dakota Ward, Imogene Ward,

Ralph A. Steve

Christensen, Engelhardt, Car Claire Yri, Vernyll Yri,

lyle Brye, Re Arnold Herman, Herman, Clif

ginal Eileen Diehl, Johnson, Dustin

ford M. Melvin Solheim,

King, Estate Estate of Mabel Johnston, Francis P. Minnie Schneider, Appel

Schneider, Gloria

lees.

No. 00-1819. Appeals, States Court

Eighth Circuit. May 2001.

Submitted: 17, Aug.

Filed: Small,

Andrew M. Bloomington, Minne- (Jonathan sota, argued P. Decatosmith and Blair, brief), Jack C. on the appellant. Carvell, Bismarck, Charles M. North Dakota, argued, for appellees State of North Dakota and Garrison Diversion Conservancy District. Kilbourne,

James C. D.C., Washington, (Lois argued Schiffer, J. Upton, James Hazard, Dobbins, Katherine Jeffrey C. and Zallen, Margot brief), on the for appellee United States. BYE, BRIGHT, MAGILL,

Before and Circuit Judges.

BYE, Judge. Circuit large, Devils Lake is a freshwater lake The, in northeastern North Dakota. lake outlets, has no natural so its water level and size considerably fluctuate in response changing climatic conditions. past, recent increased rainfall slowly has raised the water level and expanded the shores of the lake. The incremental ex- pansion towns, farms, has swallowed whole and roads producing breathtaking results. significant hydrological phenomenon at Devils Lake the backdrop forms for an equally legal momentous long- event—a simmering dispute concerning ownership of the lake itself.

The Spirit Lake Tribe resides on land that abuts the lake. The Tribe contends treaty gave it title to the lakebed, to be held trust the federal government. The Tribe filed the present See lies outside the Reservation. the lake to declare its seeking in 1986 lawsuit F.2d at 1051. Devils Lake lake, defen- enjoin multiple rights to lake, and to recover using the dants from 9, 1986, filed this the Tribe On June wrongful uses of damages for various to Devils Lake. quiet title action summary granted The district court lake. government, Tribe named defendants, and of all in favor judgment Dakota, the Divi- Garrison State of North appeal. present instituted the Tribe (an of the District arm Conservancy sion of the district judgment We affirm State), private numerous landowners vacate exception. We court one with contends Tribe defendants. summary judgment pertain- portion the northern treaty established the 1867 and remand ing to federal northern Lake as the Devils shore of court to dismiss to the district reservation, action boundary of subject matter for lack of Lake title to has held jurisdiction. than a for more in trust for the Tribe worst, argues, the At the Tribe century.

I treaty ambiguous. The traditionally resolve underpinnings factual that courts points out We recounted Indian in favor of ambiguities Devils treaties appeal. in an earlier this action of N.D., the Tribe approach, 917 either tribes. Tribe v. State Under Lake Sioux of (8th Cir.1990) (Devils to Devils Lake. asserts entitlement 1049, 1050-51 F.2d II). the facts at A overview of Lake brief disputes the government The federal our dis- serve to frame juncture this will The to the lake. Tribe’s claim cussion. not included Lake was claims Devils reserva- treaty that formed the in the 1867 of the mod- treaty,

In ancestors an 1867 it con- government asserts that in the tion. The lands Tribe received vast ern-day until Devils Lake hold title to a tinued to Minnesota as reward Dakotas 1889, conveyed the lake to the it during the when loyalty their to the Dakota at its statehood of North IV of that State of 1862. Article Uprising Sioux footing” doctrine. See “equal Reser- under the the Fort Totten treaty established 49-50, 1, 14 Bowlby, 152 U.S. Shively the Tribe. v. for the use of vation (1894) 548, (explaining L.Ed. 331 38 S.Ct. the northern described IV Article navigable wa- cedes that the as follows: of the Reservation boundary join they the Un- terways to States when easterly of point most “Beginning at the ion). According to the Lake; along thence the waters Devil’s Lake title to complete held State westerly point of the most said Lake ” 1971, In quitclaimed until 1971. State along the phrase The “thence same .... the lake to the portion title to a interpreted various has been waters” of a massive permit construction ment to time) (at refer points in to parties various project called the Garrison public works lake, the shore of the to the northern Diversion Unit. lake, a and even southern shore 1989, granted court In the district middle of drawn across the variety of lines summary motion for interpretation is federal proper The Devils Lake. v. Lake Sioux Tribe judgment. Devils boundary if example, For critical. (D.N.D. .D., F.Supp. 1019 N shore, State then Reservation the northern I). 1989) (Devils court Lake district Conversely, if Devils Lake. includes already had resolved boundary, then held that shore forms southern government. part its claim to Devils Lake as a absent the See Fed.R.Civ.P. (ICC) 19(b). Indian Claims Commission settle- Accordingly, the court entered a appeal- ment. Id. at 1022-26. The Tribe judgment final to adverse the Tribe. ed, the district and we reversed court’s Devils Lake 917 F.2d at decision. II factual disputes 1056-67. We discerned Quiet Title 1972(QTA), Act of regarding precise issues resolved 92-562, Pub.L. No. 86 Stat. autho proceeding, the 1977 ICC and held that rizes lawsuits govern federal support summary- record does not “[t]he adjudicate disputed ment “to title to real

judgment theory on 1977 settle- property in which the United States claims disposes alleged ment Tribe’s the. 2409a(a). § an interest.” 28 U.S.C. “Con rights.... requires issue further [T]his gress QTA provide intended the development on the merits.” Id. at 1056. exclusive means which adverse claim returned parties district ants challenge could the United States’ They spent years attempt- court. several title to real property.” Block v. North case, ing to settle the settlement but talks Lands, Dakota ex rel. Bd. Univ. & Sch. failed fruit. In parties to bear 273, 286, 461 U.S. 103 S.Ct. their revived case before the district court. (1983) (Block I). L.Ed.2d 840 The Su revival, agreed After court and counsel preme QTA pro Court has held that the proceedings. phase, bifurcate the first only vides the basis for an Indian plain and the State quiet tiffs title action against the federal preliminary procedural would raise Mottaz, government. United States jurisdictional pre- defenses. If the Tribe 834, 841-44, vailed, U.S. 106 S.Ct. parties try would then the case (1986). L.Ed.2d 841 question on the merits and resolve the of ownership. The against gov- Tribe’s suit the federal The district court entertained the defen- upon QTA. ernment relies con- We summary judgment dants’ motions for on clude, however, QTA relief is not phase-one preliminary questions and available because the Tribe failed to com- argument. January heard extended On ply pertinent with the statute of limita- 24, 2000, 17-page the court opin- issued a tions. granting summary judgment. ion The against court held that the Tribe’s suit A federal In government was time-barred. QTA generous The a 12- contains addition, preclu- the court held that “issue 1 limitations, year of provides statute which prevented litigating sion” the Tribe from that an “action shall be deemed to have of Devils Lake because plaintiff accrued on the date the' or his (but Tribe could raised that issue did predecessor or interest knew should not) dismissing in a 1951 ICC suit. After have known of the claim of the United the federal the court deter- § 2409a(g). 28 States.” U.S.C. Because mined that the an indis- was QTA government’s waives the sover pensable party proceedings, to the and I, suit, eign immunity from Block 461 U.S. suit Tribe’s State 1811, the other defendants not plaintiff could continue 103 S.Ct. a must 1808, 1814, appears It that the district court intended 532 U.S. S.Ct. (2001) preclusion (distinguishing pre- claim to serve as the basis L.Ed.2d 968 claim Maine, Hampshire preclusion). conclusion. See New clusion and issue date, to effec 1971.2 On period limitations with the comply 62,000 acres of QTA acquired statute more than Hence the ment tuate that waiver. jurisdictional bar The State deeded limitations acts as the lake from the State. limitations, which statutes of Lake to the unlike most chunk of Devils this sizeable defenses. See State are affirmative quitclaim via deed to assist Lands v. & Sch. N.D. ex rel. Bd. Univ. building the Garrison (8th Cir.1986) Block, 1308, 1310 789 F.2d Project was man- Project. The Diversion II). (Block of Reclama- by the federal Bureau aged tion, designed to divert water and was be 12-year period limitations The arid irrigate River to from the Missouri know knows or should gins plaintiff when lands, municipal supplies, water and stock land claim. government’s adverse Dakota. and eastern North central § does 2409a(g). This standard 28 U.S.C. ex provide require not acquisition government’s 1971 land govern notice of its claim. plicit outlets, media widely reported local and unam need not be “clear ment’s claim Lake as the Devils Journal such F.2d at 1313. biguous.” Block Press, County Benton Farmers full “Knowledge the claim’s contours is The Tribe as well. larger organizations necessary is a required. All that not land government’s knew of the apparently the Govern reasonable awareness because a 1970 tribal resolution acquisition some interest adverse ment claims ownership in concern about land expressed Knapp v. (quoting Id. plaintiffs.” Diversion coming view of “the Garrison (10th Cir.1980)). States, Project Project.” App. State 23-24. Further, inter important, visi- single was the most itself .... legal full title est “need not amount to Dakota public project ble works North long as the interest claimed is ‘cloud As century. The in the last half of the 20th title,’ claim with a on or a reasonable hardly eye have turned a blind Tribe could basis, ‘claim’for it constitutes a substantial re major generally details. to its See twelve-year triggering purposes Dist., Conservancy Diversion Garrison Richmond, of limitations.” Fred statute (N.D.1966) (describing 144 N.W.2d Potomac R.R. Co. v. United ericksburg & coverage public hearings newspaper (4th Cir.1991). 765, States, 945 F.2d Dako- major in in eastern North held cities government trigger invalid claims Even ta the contract and deed be- to discuss QTA id. Sim period. the limitations See government). the tween the State and period triggered is ply put, the limitations that the Tribe Thus we have little doubt that a landowner reason to know when has the Diversion Pro- was aware of Garrison type of ad government claims some acqui- ject government’s generally, in that land. See Patterson verse interest portion specifically. of a of the lake sition River, 221, 224 76 F.3d Nat’l Buffalo (8th Cir.1996). actually if the did not Even Tribe government acquired title to

know that the B 1971, a of the lake in the Tribe portion certainly known. As a matter should have argues that law, quitclaim disgorging a deed title “knew or have known” of its Tribe should 7, a on July places landowner by Lake at least United States claim to Devils claim. We need not that a series notified the Tribe of its 2. The also contends early century address that contention. 20th events of late 19th 2409a(e). § triggers QTA statute of 28 U.S.C. notice We believe that the 2409a(e) § ex rel. State principle espoused limitations. State Cal. in applies, Inc., Goldfields, Land v. Yuba by Comm’n analogy, to situations in plain- which a (9th Cir.1985). 393, F.2d yet tiff has not QTA (though filed a suit deed, quitclaim coupled with evidence that period the limitations triggered has been likely knew about the the Tribe extent conduct). by adverse In those Projéct, the Garrison Diversion convinces situations, government’s outright aban- that, 1971, in or us the Tribe “knew should donment effectively removes the on cloud known,” § 2409a(g), that 28 U.S.C. plaintiffs a extinguishes title and his obli- government claimed Lake. Devils gation quiet file title action within 12 years. If the later reasserts

Because the Tribe learned of the federal claim, 1971, adverse the reasserted claim government’s claim Devils Lake properly regarded QTA to file suit as a new claim and a required the Tribe was by preserve government’s 12-year period begins 1983 to new in which a sovereign immunity. may plaintiff QTA waiver Tribe file his action actually complaint filed its in this action in government. See Michel v. United 1986, ostensibly States, (9th Cir.1995) so the action is 130, June 132-33 12-year barred statute of limita- curiam). (per tions. Applying principles these case, present argues the Tribe C memorandum Peyton authored Reid In an effort to forestall the operation Chambers abandoned the in limitations, the statute of the Tribe raises terest in Lake. Chambers served as counter-arguments. three We discuss the Associate Solicitor for the Division of in turn. each Indian Affairs within the the Interior in 1976. argu The Tribe’s ment requires us to review the circum QTA Assuming that its claim accrued in gave stances rise to Chambers’s govern- contends that memo in considerable detail. ment abandoned its claim to Devils Lake explained, supra As we have see gov- in 1976. The Tribe believes the State believes it title to Dev- acquired ernment later reversed course statehood, ils Lake at under the it prior when reasserted its interest in the equal footing At point doctrine. some says lake. The Tribe mid-1970s, Attorney the North Dakota claim, ment’s 1981 claim was a new which sought General to establish the exact QTA set in motion a new limita- statute of argues territory tions. Thus the Tribe amount of in Devils Lake that the that its 1986 timely operative lawsuit is because the 12- acquired State had in 1889. The North year began clock in 1981. Attorney requested Dakota General opinion on the matter from the Interior disagreement We little with Department. presentation governing the Tribe’s of the Attorney The North Dakota General’s legal any framework. Like private citizen request assigned to the Office of the corporate entity, government may or (and Solicitor. Solicitor’s Office was gov abandon its If interest land. is) still of comprised several divisions. clearly unequivocally ernment aban interest, jur responsibility vary- dons court Each division for district loses bore QTA ing over pending aspects Department’s isdiction action. See of the broad al authorization.” Warren v. United Fed- over domestic matters. mandate Cf. (U.S. (D.C.Cir.2000) States, 1331, Printing Law 263 Gov’t eral Indian 1972). apparently di- QTA The Solicitor time- Office claim as (rejecting plaintiffs Attorney decisions). the North Dakota Gener- barred) rected (citing Supreme Court charge of one of request deputy al’s to a the Constitution Property Clause of Solicitor for the divisions—the Associate to Congress plenary power with invests Energy Resources. the Division of & dispose property belonging of real Const, IY, art. U.S. United States. See for the Division Solicitor Associate 3,§ officers of the recognized cl. 2. “Subordinate Energy of & Resources Attorney re- power, Dakota General’s save the North United States are without of implicated significant questions quest them only upon as it has conferred been Accordingly, he ownership. tribal land implied by Congress Act of or is to be counterpart, asked for assistance from his Royal powers granted.” from other so Chambers, who then served as Associ- States, Indemnity Co. v. United 313 U.S. of for the Division Indian ate Solicitor 289, 294-95, 995, 85 L.Ed. 1361 61 S.Ct. 21, 1976, re- Chambers Affairs. On June (1941) (citations omitted). reply He addressed a memoran- sponded. Congress never undisputed It the Divi- dum the Associate Solicitor for claim to government’s abandoned the he Energy sion of & Resources which Likewise, Associate Devils Lake. Solicitor acquire concluded that the State did not officer,” who Chambers was a “subordinate equal Lake in 1889 under the foot- Congressional lacked authorization wrote, “I am ing Chambers doctrine. claim. abandon a land See wholly ... opinion that Devils Lake is (Mar. M-35028, Op. 60 I.D. Sol. Reservation’s] within boundaries [the 1948) (concluding that the Associate Solici- title to the lakebed the United States holds Affairs “is tor the Division Indian Tribe.” in trust for the Devils Lake Sioux in the not an ‘Officer of the United States’ App. Tribe (Art. 2), sense Sec. Cl. Constitutional argues that Chambers’s view The Tribe appointed through not because he is represented position procedure of nomination the President prove point, ment in 1976. To Senate.”). and confirmation from the Tribe cites a 1981 memorandum Department poli- Our review of Interior Department repu- of the Interior Solicitor cy the au- confirms that Chambers lacked diating Chambers’s conclusion. The 1981 Attorney thority government. to bind the memo advises the Assistant Gen- governing regulations eral of the United States Chambers’s of the Solicitor’s longer upon memo “should no be relied strictly Office forbade Associate Solicitors stating position Interior De- [the signing involving “legal from documents the lake- partment] on the major opinions importance.” Solicitor’s sum, 222. In App. bed.” Tribe 1(a) § Regulation (reproduced in Aff. of posits that Chambers’s memo abandoned G). Wiles, 12, 1988, Terrance Feb. Ex. C. Lake. claim to Devils 1(b) Section excluded Associate Solicitors conveying government’s position from six argument

The Tribe’s suffers from “respecting legal questions” persons distinct flaws. without outside the Interior receiving approval first from either the Solicitor, Deputy Solicitor or the Id. place, “In can- the first Government 2(b)(2) addition, § congression- Regulation of that same property not abandon without operated to cies under he an Associate Solicitor obtain which while work- required office, Associate ing concurrence of another Solic- the Solicitor’s and that he in issue concerned itor when the matter conveyed would have the extent of his See id. two Divisions. authority limited to Tribal leaders. Of primary importance, the Tribe would have regulations manifest Cham- These three QTA’s learned these facts well within the unilaterally that inability to declare bers’s 12-year statute of limitations. position gov- of the his 1976 view was the significant le- question ernment. On a present points These insurmountable ownership of such as the gal importance, argument hurdles to the Tribe’s Lake, authority no Chambers had government’s abandoned the Chambers sign per- to off. In communications with ownership of Devils Lake in 1976. involving sons outside position, Chambers needed government’s b Deputy approval of the Solicitor or the if Even we assume for the sake of the in the record demon- Nothing Solicitor. argument pos- Tribe’s Chambers Deputy or strates that the Solicitor Solici- authority sessed the to bind the approved tor ever Chambers’s conclusions ment, memo cannot be Chambers’s inter- conveyed persons or them to outside preted authority. as an exercise of that Department. Finally, Interior Section act in a Chambers did not manner that 2(b)(2) applied to Chambers’s memo be- suggested establishing position he was cause it was addressed to the Associate and thus we cannot Re- Energy Solicitor for the Division of & accept the Tribe’s conclusion that Cham- sources, initially requested the official who claim bers abandoned to assistance. Chambers would Chambers’s in these Devils Lake circumstances. had to coordinate his views with for the those of the Associate Solicitor main, agencies In the federal bind Energy & Resources. Division ways. Agencies pro- in two surely The Tribe was almost aware of rules, mulgate subject to the notice-and- authority. the limitations on Chambers’s provisions of the Administrative comment post Chambers left his and Agencies adjudicate also Procedure Act. firm the close of formed his own law controversies, usually taking individual tes- Remarkably, Ford as a Administration. timony receiving evidence in the fash- private attorney, Chambers discussed his not at- ion of our courts. The Tribe has representatives 1976 memo with tempted argue that Chambers’s memo February Washington Tribe agency rule-making or was tantamount ¶ (Dec. 1986) McKay See ML of Carl reasonably main- adjudication, nor could it (McKay served as Chairman of position. tain that 1980). meeting, At the 1978 from 1976 making from rules and ad Aside accompanied Chambers was his law cases, is judicating agencies federal also Sonosky. partner, Marvin The two met array opinion sue an of informal advice meaning with to discuss the Tribal officials letters, manuals, guidelines, enforcement years of the 1976 memo less than two after adjudica and so forth. Unlike rules memo.3 Because Chambers authored that tions, however, agency pro informal these attorney, accomplished Chambers is an we poli- “lack the force of law.” are confident that he understood the nouncements firm, represent plaint. 3. The Tribe retained Chambers's law The firm continued to eventually filed the 1986 com- Tribe in this until late 1990s. firm action Cir.1990) (10th internal (disregarding County, 529 U.S. v. Harris Christensen 576, 587, determining position 146 L.Ed.2d 621 S.Ct. memoranda (2000). Thus, memo even if Chambers’s Department). Interior Chambers’s letter, opinion likened to an were legal quite simply lacked 1976 memo words, law. In other memo would not be necessary abandon force memo did not bind the 1976 claim to Devils Lake. government’s prior ment, posi- government’s nor establish Labs., Shalala, Inc. v. Cf., e.g., Serono Lake. tion, ownership of Devils as to the (D.C.Cir.1998) 2& n. F.3d 1320-21 (“the agency FDA do not bind the types of views of staff if these Even informal force, decisionmaker”). legal the fore- had pronouncements agency’s final Chambers’s going comparison between c fails. opinion an informal letter

memo and (within the Inte- The Office of the Solicitor authority to Irrespective of Chambers’s regularly opinion issues Department) rior government policy, make routinely published in the letters that are views. The adopted Chambers’s never Register. Chambers’s memo Federal not reveal present record in the case does opinion no resemblance to such an bears use, any, what if the Associate Solicitor has not been letter. Chambers’s memo Energy & Resources made the Division of indeed, 1976 memo was published; his memo. Nor does the rec- of Chambers’s parties to the whose formally never issued ord disclose whether the Associate Solici- by its conclusions. rights land are affected Energy Division of & Re- tor for the terms, its own Chambers’s Viewed on agreed with Chambers’s sources even posi- a purport memo does not to establish views, or forwarded Chambers’s conclu- (cid:127) Chambers binding government. tion superiors Depart- sions Interior. his conclusion phrased ment, Attorney or to the North Dakota personal if it his owned the lake as were formally never General. The position. opinion, government’s not transmitted Chambers’s memo expound Had intended to Chambers Tribe, later though the Tribe obtained likely he would position of the short, copy through other channels. so, phrasing than his con- have said rather suggests the evidence in this case personal opin- in the fashion of a clusions act government never took an affirmative strongly suggest ion. These factors in Cham- consistent with the conclusions undeserving memo is of con- Chambers’s bers’s memo. agency action.4 sideration as informal to bark revealed dog’s Just as the failure memo was neither Because Chambers’s that there had never to Sherlock Holmes (in the agency nor informal action formal intruder, see Arthur Co- midnight been above), con senses we have described we Blaze, Doyle, nan The Adventure Silver memo could not clude Chambers’s Magazine, December The Strand government’s position have established 656-57, failure to act comports in 1976. Our conclusion with argument the Tribe’s emasculates memoranda do common sense: intra-office At oral legal Chambers’s memo had force. government. not bind the Aulston Cf. States, government ex- argument, 595 & n. 16 counsel for the purported acquire portion of the ernment 4. We have cause to doubt that Chambers mention, or even well informed the Devils Lake owner- lake from the State—fails to about of, recognize quitclaim ship controversy. the existence the 1971 It is remarkable that his gov- just years after the deed. memo—written five of a preclusive would have effect 1977 ICC settlement. plained that change legal in to obliged accept previous the State of its We are not our notified agreed if it had with Chambers’s position asseverations because the law-of-the-case agreement, of their part As conclusions. prior opin doctrine does not extend to a an government adopted the State ion’s recitation of facts not material to the by compen- accounting procedure which disposition appeal. of that See Dedham in the event the Tribe sate the Co., Inc. v. Cumberland Farms Water the lake. deemed to own Under was later (1st Inc., 453, Dairy, 972 F.2d 462-63 Cir. govern- that procedure, the terms of 1992). compensa- ment entitled to seek would be “losing” portion

tion from the State e acquired it Lake it believed had The also seeks to establish the Supp. Agreement Between in 1971. See government’s of Devils Lake abandonment Diver- The and the Garrison United States in 1976 reference to a 1981 memo. Dist., Conservancy attached as exhibit sion Depart- the Solicitor’s Office of the (Oct. 20, 1986); of Darrell Krull to Deck cf. ment of the Interior informed the Justice II, at 1052 n. 5. It is Devils Lake 917 F.2d Department that “the June 1976 mem- that never undisputed Solicitor, orandum the Associate Indian sought compensation from the State. We Affairs, longer upon should no relied be govern- that the highly implausible find it stating position Department of this on “loss” of ment would not have remedied its ownership App. of the lakebed.” Tribe express Devils Lake under terms its that 222. The Tribe ventures the author’s therefore agreement with the State. We that, longer” proves of the “no use words conclude, Holmes, like that 1976 and Chambers’s memo between changed position, and never ment never its upon had in fact been relied to state the abandoning memo as viewed Chambers’s government’s position vis-a-vis Devils rights to Devils Lake. disagree. Lake.5 We d explained in As we have considerable above, memo detail Chambers’s did not specter Tribe also raises the in doctrine, government’s interest Dev- ap whose abandon law-of-the-case reject. plication we is therefore left to ils Lake. The Tribe memo, that, argue the 1976 repudiating The Tribe contends that we have retroactively revived the the 1981 memo determined that already Chambers’s says force of the 1976 memo. The Tribe represented government’s posi memo memo somehow that the Solicitor’s 1981 action, appeal tion. In the first of this it had never past, though altered been explanation we asserted without rely on memo reasonable Chambers’s “opinion” memo Chambers’s argument plainly place. the first represented the views of the only interpreta- specious. The reasonable of the Interior. Devils Lake tion of the memo is Solicitor in the 1990 at 1052-53. Our assertion any misunderstanding sought avoid was, however, opinion immaterial have created be- might Chambers’s memo only presented resolution of the issue than the the claim- cause it reached a wider audience appeal, which addressed equivocate about Tribe also on statements made merits relies lake, interpreted to therefore cannot be in the context of unrelated litigation interest. in 1980 and 1981. These state- abandon upon So- The Tribe’s reliance Chambers’s Regulations authorized. See Solicitor’s Regulation supra, change at 11. in licitor’s memo as a reflection of the government’s position wholly unrea- memo, the the As concerns 1981 legally sonable and untenable. As a conse- every of Tribe is not entitled to the benefit 12-year QTA the limita- quence, Tribe’s because, strictly speak favorable inference in period stop tions did not 1976. ing, reviewing propriety we are not the summary judgment. present inquiry Our 2 directed at the historical facts under- is In counter-argument, its second court’s girding the exercise the district gov the Tribe contends jurisdiction, particular, in whether ernment has made different claims to dif QTA gov filed its action within Devils Lake at different portions ferent As erning 12-year statute limitations. in points urges time. The Tribe therefore jurisdictional inquiry, presump to that “no plaintiffs tive truthfulness attaches to the not to treat the lake an indivisible us States, allegations,” 918 whole, Osborn United 12- apply multiple but rather (8th Cir.1990), Tribe, F.2d year respec statutes of limitations to the not the bears the burden of portions tive Lake claimed at Devils subject mat establishing the existence of government. different times We jurisdiction, not ter see id. We do mean II, rejected very argument this Block suggest presently engaged we are reject likewise it in and we this case as point simply that we fact-finding. is well. accept need not the force of the Tribe’s II, repudiated tract-by- Block we a less reasonable inference when a more rea QTA analysis tract of a statute of limita- explanation readily sonable available. tions issue. We determined that when ownership of a disputed property would be f single legal theory, resolved based on a if Even credited all the Tribe’s we notice of the claim to one. arguments and inferences about the 1976 tract constituted notice toas other tracts. (as memos, and 1981 we could not conclude “[T]he assertion the United States of its matter) legal QTA a statute of claim specific put tracts the state on stopped. explained limitations As we constructive notice of the United States’ above, QTA period begins limitations claim to the remainder of the riverbed plaintiff to accrue when a has reason to tracts.” Block at F.2d 1314. We know of a cloud on his title. See Rich expressed our view that “the district mond, 945 F.2d 769. inescapable at court’s refusal to extend the scope corollary principle QTA to this .is actual notice of the United claim to States’ period stop gov limitations does not when specific tracts to constitute notice re- simply ernment action compounds pre garding riparian its claim to all of its existing Viewing cloud on title. riverbed interests constituted too narrow a position charitably, Tribe’s the 1976 and § 2409a[g].” view of the reach of Id. at 1981 memos did no more than confirm added). (emphasis “1971 already cloud” that existed on the putative Tribe’s title to Lake. complaint The Tribe’s avers that title to all of Devils holds therefore We conclude that the Lake trust for the Tribe: “This is an ment did not abandon its in Devils interest Lake, brought by action the Devils Lake Sioux nor concede Tribe’s thereof, in Chambers’s memorandum. Tribe ... to establish that it is the benefi- Furthermore, Lake.” verse conduct. the bed of Devils cial owner of ¶ Mottaz, parties QTA dicker over we note that action Complaint single of a sentence interpretation proper plaintiff, an Indian involving Supreme agree But all sides treaty. in an of, to, no Court made mention or allusion of owner- question presents this case responsibility the sort of reduced rule the Lake, ownership of dis- not ship of Devils present Tribe advocates in the case. 476 of Devils Lake. Because crete tracts 842-44, 2224. Because a U.S. S.Ct. case, dispute animates this single legal reading QTA would not strict entitle multiple- disposes II of the Tribe’s Block guid the Tribe to benefit from Loudner’s II the con- compels Block argument. tract ance, we find Loudner to be an unreliable in notice to the Tribe clusion that guide in this case. portion acquired a sizeable government the construc- quitclaim Lake via deed of Devils D the Tribe of the tively informed agree the district We with claim to the entire lake. ment’s adverse QTA court the Tribe exceeded the reject out of 789 F.2d at 1313-14. We part company of limitations. statute We Tribe’s feeble efforts to distin- hand the only court so far as the with the district II. guish Block Facing a time- form of relief is concerned. claim, barred the district court entered summary judgment govern in favor of the compares the Finally, the Tribe entry ment. believe that the court’s We dispute private title to trust law. present summary judgment improper was because argues that it lacked notice The Tribe juris QTA the statute of limitations has a in interest Dev the adverse Plainly put, flavor. a district dictional presumed in it ils Lake 1971 because authority power court and to enter lacks trustee, acting in government, as was the QTA The district tain a time-barred suit. heavily The Tribe relies its best interests. ought in to dis court this instance States, in which upon Loudner United jurisdic government for lack of missed duty beneficiary’s that an Indian we held tion, entering judgment rather than government against to discover claims government’s favor. lessened,” or qua trustee was “somewhat with the district court Though agree we “diminished,” beneficiary because ultimate resolution of the Tribe’s as to the rely upon good to faith entitled we are against claims F.3d expertise government. Cir.1997). judgment part, vacate (8th obliged to its 896, 901 the matter so that court to remand QTA involve a Loudner did not against may dismiss the claims properly claim, and, view, not our Loudner does jurisdiction. lack of QTA construe the apply to suits. We must difference between a There is no small immunity QTA’s sovereign strict waiver summary judgment in this dismissal and a I, at ly. See Block 461 U.S. S.Ct. the terms of the district context. Under Obviously, principle of strict judgment, final the Tribe’s claim to court’s force to the applies construction with full litigated and lost on the the lake has been § ac 2409a(g), timeliness and elements own Dev- merits. The would that a strict construc crual. We believe By instructing the district court ils Lake. QTA largely at odds with tion of complaint for lack of to dismiss Tribe’s plaintiff rule that an Indian has Loudner’s however, jurisdiction, to discover ad- responsibility a reduced “A The district court dismissed the open question. Lake remains an § 2409a[g] to does not pursuant dismissal Tribe’s claims the State and in the quiet property concluding title to the United after private landowners dispute The title remains unre- “indispens States. was an the claimant Nothing prevents solved. party in whose absence the action able” title, hope his continuing from to assert not be maintained. Fed. should See inducing the States to file its 19(b). R.Civ.P. Because the suit, quiet title in which the matter own reasons, jurisdictional was absent for finally put to rest on the merits.” would be suit court dismissed the Tribe’s due to I, 291-92, 103 S.Ct. 1811. Block U.S. inability join indispensable party. controversy must await future present 12(h)(2). See Fed.R.Civ.P. perhaps judicial, or consider- legislative, 19(b) Rule authorizes a district ation. equitable powers court exercise its if party regarded dismiss an action Ill joined. cannot “indispensable” be remaining We turn now to the Tribe’s person ‘indispensable,’ “Whether a that against pri- claims the State and various is, particular whether lawsuit must be parties purport along vate who to own land person, dismissed in the absence of that the shore Devils Lake. only can be determined in the context of against claim the feder Unlike its particular litigation.” Provident Trades remaining al the Tribe’s government, Patterson, mens Bank & Trust Co. v. 390 jurisdiction. do not for lack of claims falter 102, 118, 88 19 L.Ed.2d U.S. S.Ct. Title an provides 1362 of inde Section (1968). We therefore review a district jurisdiction pendent basis for federal over court’s decision to an action for dismiss against the Tribe’s claims the State and join indispensable party failure to an un private provides landowners. That section highly der the deferential abuse-of-discre origi that courts shall have “[t]he district tion standard. ex United States rel. Steele actions, jurisdiction brought nal of all civil Inc., Key Gaming, v. Turn 135 F.3d ..., by any Indian tribe wherein the mat (8th Cir.1998). controversy ter in under the arises Consti question in the posed present.case tution, laws, or treaties of the United government’s is whether the absence § States.” U.S.C. We believe infirm, defective, judgment would render a against that the Tribe’s claims State unfairly prejudicial or in some fashion. private and the landowners “arise under” outset, emphasize, must at the We against federal law. Tribe’s claims government the federal pos- and Tribe interpretation the State derive from the sess the primary claims to Devils Lake in treaty equal the 1867 footing doc litigation. this Neither State nor the trine. that it The State believes owns the private expected landowners can be to ar- portion Lake that it of Devils did not deed government’s position ticulate the on its government to the federal in 1971. The absence, prejudice behalf so the against private claims de landowners If is obvious. the Tribe patents rive from federal land prevail, gain were to to Devils not, title government may, may or have been Lake, claim be ex- § would empowered to issue. Hence 1362 estab tinguished before it ever jurisdictional had raised its ar- lishes foothold for the Moreover, against guments Tribe’s on the claims the State and the merits. private possibly landowners. district court could not craft an N.M., v. State Navajo if of the Tribe Tribe sued judgment favor effective bound would not be the federal the State of New non-joinder. Mexico, judgment due to its private and various landowners quiet seeking to title to thousands of acres Although determination Navajo allocated to the in a 1907 Tribe will seldom be indispensability one case Executive Order. another,6 con dispositive our completely (10th Cir.1987). yearA after the Execu- buttresses our of similar cases sideration issued, tive Order the President issued a dis properly that the district court view superseding ap- Executive Order remaining claims. We missed the Tribe’s peared grant. to revoke the 1907 involving simi particular note in two cases Navajo challenged validity of the brought lar claims Indians land superseding Executive Order in its 1982 government. federal lawsuit. The district court held that the States, thirty- Manypenny v. United federal from was immune suit members of the White Earth five enrolled because the claim fell within the Tribe’s gov- Chippewa Band of sued jurisdiction exclusive The court ICC. In- (including ernment then determined that the employees), of its terior and several party Navajo an indispensable three agents, of Minnesota and its State suit, Tribe’s and the court dismissed the counties, array pri- Minnesota 19(b). remaining under Rule defendants seeking quiet vate landowners title to See id. at 1471-73. On the Tenth appeal, (8th properties. several 948 F.2d 1057 affirmed, gov- Circuit reasoning Cir.1991). The district court dismissed the indispensable party ernment an when its is it had not federal because plainly own in land is to interest adverse immunity. The court sovereign waived its Id. the of an Indian interests tribe. applying also dismissed the State after of Eleventh Amendment immu- principles in of the federal nity. Finally, the absence Navajo Tribe il Manypenny and the re- the court dismissed government claims lustrate that when the maining private counties and landowners in conflicts squarely an interest land that 19(b). Id. at 1059. On appeal, under Rule Tribe, govern of a the with the interest judgment court’s we affirmed the district nearly al presence litigation ment’s in inability join that the to the members’ ways required proper to assure the fatal the main- federal was to adjudication dispute. the effective of We against quiet tenance of their title action persuasive find that to be this rationale Id. at 1067. parties. other above, explained govern we case. As artic Spirit ment and the Lake Tribe have presents striking Another case a more competing claims to Devils Lake. ulated analogy to the situation we face court Navajo Indians In We therefore hold that the district present case. (and reject many forms can be initiated 6. We the notion that the United States arise in every indispensable party to case involv- many parties), impossible is an and hence it is ing dispute over Indian lands. See Carlson govern- per declare a se rule that deems 1337, Wash., Tulalip Tribes 510 F.2d necessary joinder in all such cases. ment's Cir.1975) (9th (noting that "the United See, e.g., Sokaogon Chippewa Cmty. v. State of necessary party any States is a action in Wis., (7th Cir.1989); 304-305 sought might which the relief interfere with Tacoma, Puyallup Port Indian Tribe v. protect against obligation to Indian lands its (9th Cir.1983). & n. 1 F.2d 1254-55 alienation.”). Disputes over Indian lands say only judges in dis- to hear the “we decline to ample discretion did not abuse missing against fighters the Tribe’s claims wins and we send the decide who landowners due private and various State ring.” to box another inability join to its majori- from the respectfully I dissent ment. ty’s The issue is when did the opinion. it have known Tribe know or when should IV claimed the lakebed that the United States above, expressed we For the reasons view, my Lake. In the Tribe did of Devils court’s portion vacate the of the district not have known of the not know would judgment resolving the Tribe’s claim adverse claim until remand the United States. We position when the official of the United court to the matter to enable district changed from its view States as a defendant for dismiss to a view of “no Tribe owned the lakebed jurisdiction. In all subject lack of matter lakebed. position” definite on title to the respects, judgment other we affirm the position We commented on the official the district court. States in Devils Lake BRIGHT, Judge, dissenting. Circuit (8th Cir.1990). F.2d 1049 This court de- in 1976 termined that litigation case has been in for fif- This opinion, authored the Interior issued years. court teen district merits, an Associate Solicitor for Indian Affairs rejected the Tribe’s claims on the (Reid Chambers), paid Peyton had which concluded ruling I, F.Supp. wholly the lakebed. Devils Lake that Devils Lake is within Res- (D.N.D.1989). reversed, ruling We ervation boundaries and United States summary judgment inappropriate title to the lakebed in trust for the holds since, stated, we facts of the in- “The panel Tribe. Id. at 1052-53. The noted may suggest parties stant case posi- that the United States asserted this deliberately excluded the lakebed subsequent litigation, ultimately tion but they from the 1977 settlement because panel abandoned it. Id. at 1053 n. 6. The part it of the Reservation. Ad- considered government’s opinion concluded that the mitting possibility, such a it would be to the later in was communicated Tribe counterintuitive to conclude as a matter of but, 1981, government in the with- parties the intended the 1977 law at support opinion. drew from its 1976 Id. prevent settlement the Tribe from as- a claim to the lakebed.” serting subsequent Associate Solicitor Chambers’ letter (8th Devils Lake 917 F.2d stated as follows: Cir.1990). in I opinions Devils Lake By February Memorandum dated jurisdiction Lake II and Devils assumed in you requested my assistance rested the court to decide the merits. with determining the status of the title to the time, parties negotiated the Since in bed of Devils Lake North Dakota.... a but have failed to reach settlement. Attorney [of General North Dako- [T]he Now, years, majority, the in after fifteen requested opinion also an as to the ta] effect, here, that there no states is decision boundary” location of the “lakeside title of the Devils Lake lakebed the Fort Totten Sioux Indian Reserva- parties remains in limbo. It tells the which, Attorney tion in the General’s the the federal courts will not decide title view, me, is located “on the shore of Devils it to two dispute. analogous To is fought boxers who have for fifteen rounds Lake.” a that Devils Lake is received definitive answer from Unit- opinion I am of the adjacent to the Fort Totten Sioux not ed States as to of the lakebed if wholly but within Indian Reservation in it had asked for direction 1981. The the United States holds boundaries and know, did not nor it United States had in trust for the Dev- title to the lakebed determined, ownership of the lakebed. As Lake Sioux Tribe. ils result, applying the statute of limitations App. at 74. essence, stage wrong. at this late is Therefore, by conveyance the State Tribe did not know and could not know conveyance Dakota in 1971 was a of North an adverse claim to the lakebed possessed the State of whatever interest States, any prior time to at least may thought the lakebed. The State 1981 or later. title it title to the lakebed but possessed My position supported by is cases been confirmed the State. never had quitclaim may Circuit, States, have been a move the Ninth Michel v. United satisfy requirements for the paper Cir.1995) (9th curiam), (per Project, binding but Garrison Diversion Department Army, and Shultz v. question to it is another alto- the Tribe (9th Cir.1989), F.2d 1157 which treat anal- gether. ogous majority cites situations. Mi- letter, the De- Subsequently, a 1981 proposition governing chel for the the Land of the Interior advised partment legal for this is that when framework case the De- and Natural Resources Division of its interest abandons question partment of Justice on land, twelve-year begins in period a new acquired the whether the State bed may Quiet file Title Act plaintiff which a Bay, Devils Lake as an incident of West action once the statehood. The saw claim. reasserts adverse position no need to take a definitive on (“[i]f Shultz, 886 F.2d at 1161 See also title to entire lakebed at this any apparently has abandoned If and these issues arise in time. when asserted, and then it reas- claim it once Tribe, litigation they of interest claim, the later assertion is a new serts fully Depart- be addressed this will of limitations for an claim and the statute Meanwhile, 21, 1976 ment. the June claim when it action based on that accrues Solicitor, memorandum of the Associate asserted.”) However, majority’s as- Affairs, re- longer Indian should no be prop- had sumption that the United States upon stating position of this lied erty misguided. is The Tribe’s abandon ownership of Department on the the “treaty aboriginal or title” to the lakebed Lakebed. of the purposes was conceded for United at 222. App. Tribe motion, judgment and the summary States’ conveyance The was not State’s yet merits of that issue still have not been Obviously, in the mentioned 1981 letter. litigated. majority The does not reach the government placed impor- the federal no theory alternative that the Tribe Tribe’s upon conveyance by tance North Da- this submerged aboriginal retained title to the kota to the United States as shown conveyance utter lack of mention of the in lands, extinguished cannot be with- which regarding the official own- correspondence by Congress. explicit out action Oneida ership of the lakebed. County N.Y. v. Onei- Indian Nation of of da, 661, 667-68, U.S. S.Ct. my judgment, upon review these (1974). letters, it is clear the Tribe would not have L.Ed.2d 73 cases, the Ninth Circuit the United States for the Garrison Diversion Applying Department of Interior’s 1981 letter reas- Project, interpreting govern- and when serts a new status of the lakebed because regarding 1976 and 1981 memos ment’s quo govern- it the status for the indicated Further, it the reservation boundaries.7 is ownership ment’s of the of the lake- view historically that well-documented the Tribe had conviction that the changed bed from relied on the federal to man- govern- saying Tribe owned it to affairs, age day-to-day Reservation i.e., ment no definitive it did position, took right govern- had a to think that the Tribe not know. The statute of limitations cheating ment it of ownership was not out earliest, begun, at the in 1981 should protect of the lakebed but would prior not or later. record does show Tribe’s interests. why to the or when the lawsuit United Where does this leave us? The undis- ownership claimed of the lakebed. States puted facts show the filed lawsuit its rights by The issue is not abandonment of years in govern- within twelve or its government, posi- whether “I pronouncement ment’s don’t know” in government, tion binds the about which majority engages conjecture in mere 1981 that its 1976memorandum “should no simply testimony as there is no in the longer upon posi- stating be relied as support assumptions. record to these ownership tion of this on the giving anything up not Thus, of the lakebed.” the Tribe’s lawsuit letter; rather, position its 1981 was that timely. is States, it didn’t know. The no Unfortunately, majori- aas result of the prior any time claim to made ty’s may conclusion that the court properly Indeed, observed, lakebed. as we have against dismiss the claims recognized United States the Tribe jurisdiction, for lack of could claim ownership. the Devils Lake lakebed remains in limbo. per se rule of reject nonjusticiability I Dakota, example, The State of North adequately fails »to consider ground stands on uncertain now as to the history Tribe’s of reliance on the parts quitclaim of the lake it did not ment, trustee, acting in its interests. 1971, and, respect, United States give Nor I would credence to the claim the district court abused its discretion in that, prior to the Tribe understood dismissing all Tribe’s claims gov- the adverse character of the federal the State because ernment’s claim to Devils Lake. indispensable party is not an as to all it, An important question, as I see parts. any whether there was reason for the majority a judgment substitutes rely Tribe not to on its relationship trust dismissal, conjecture on based and ambi- with the federal when the merits, guity place rather than on the quitclaimed State North Dakota in 1971 62,000 more than acres of the duty provide parties lake to the this court’s majority dispute interpretation 7. The history ignores characterizes the con- that all of cerning ownership "long- territory of the lakebed as this in what is now North Dakota simmering.” contrary, belonged peoples To the I believe we to native before the arrival judicial majority implies should take notice that settlers. The white insignificant recently, getting lakebed was until the Tribe's ancestors were more than they Treaty when the level water they rose and Devils Lake in the 1867 deserved because vastly important became more for its recre- were beneficiaries of the lar- majority’s gesse. ational benefits. The unanchored respectfully I dissent. day in court. their justice denied. delayed is

Justice America,

UNITED STATES

Appellant, GUEVARA-MARTINEZ,

Martin

also as Jose Dias- known

Ibarra, Appellee.

No. 00-3855. Appeals, States Court of

Eighth Circuit. May 2001.

Submitted: Aug.

Filed: Morris, Atty., ar-

Daniel A. Asst. U.S. (Thomas Omaha, Monaghan, NE J. gued, brief), Appellant. on the

Case Details

Case Name: Spirit Lake Tribe v. North Dakota

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 17, 2001

Citation: 262 F.3d 732

Docket Number: 00-1819

Court Abbreviation: 8th Cir.