United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
dispute involves the renewal of a right-of-way across tribal
and allotted lands located within reservation boundaries of
the Omaha Tribe of Nebraska. The plaintiff, Northern Natural
Gas, filed this suit seeking to condemn individually owned
interests in two parcels of allotted land: Allotment No.
742-2 and Allotment No. 742-4. Filing 30 at 2. The defendants
in this case each have an individual interest in Allotment
No. 742-2, Allotment No. 742-4, or both.
filed a partial motion for summary judgment (filing 35)
asking the Court to confirm its right to condemn the
individual interests in those Allotments. At least one
defendant, Nolan J. Solomon, disputes Northern's power to
condemn the property. For the reasons discussed below, the Court
will grant Northern's motion for summary judgment.
Natural Gas owns and operates a pipeline system spanning much
of the Midwest. Filing 30 at 2. In 1931, Northern obtained a
right-of-way allowing three of its pipelines to cross the
Omaha Tribe's Reservation located in Thurston County,
Nebraska. Filing 30 at 2-3. That right-of-way was renewed in
1992 for a thirty-year term set to expire on February 7, 2018
("the original ROW"). Filing 37-2.
anticipation of the original ROW's expiration, Northern
initiated a renewal process with the Bureau of Indian Affairs
("BIA"). Filing 30 at 3-4. This process, at least
originally, went smoothly: Northern and the Omaha Tribe
entered into an agreement to renew the rights-of-way across
tribal trust lands ("the New ROW"), see
filing 37-3 at 1-7, a majority of the individual interest
holders in Allotment No. 742-2 and Allotment No. 742-4
consented to that grant, see 25 U.S.C. § 324,
and the BIA approved the New ROW and granted Northern the
right-of-way, see filing 37-5. But at some point,
one of the individual interest holders in Allotment No. 742-2
and Allotment No. 742-4 withdrew his consent. Filing 30 at 3.
That meant Northern would need to acquire its right-of-way
across Allotment No. 742-2 and Allotment No. 742-4 by virtue
of condemnation rather than agreement. Compare 25
U.S.C. § 324 with 25 U.S.C. § 357.
Northern filed the underlying complaint seeking condemnation
of the Allotments. See filing 30 at 1-7. A few weeks
after this condemnation action was initiated, one of the
individual interest holders in Allotment No. 742-2 and
Allotment No. 742-4, Nolan J. Solomon, deeded a fractional
interest to the United States in trust for the Omaha Tribe.
Filing 37-6; filing 37-7. Now, Solomon contends that because
of the Tribe's interest in those parcels of land,
Northern cannot condemn the Allotments. See filing
42 at 4. As a result, Northern has filed a partial motion for
summary judgment asking the Court to confirm its right to
condemn the interests of the remaining individual owners.
Filing 35 at 2.
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
proceeding to the merits of the parties' arguments, the
Court must take a brief detour through the history of Federal
Indian policy-- specifically through the history of Indian
land tenure. That history is marked by periods of shifting
policy goals that are inconsistent and at times
irreconcilable, which have shaped the current landscape of
this litigation. See American Indian Law Deskbook
36-37 (Larry Long et al. eds., 4th. ed., 2008).
begin, in the early nineteenth century, the government began
pushing Indian tribes west where they were confined onto
reservations. See, e.g., Williams v. Lee,
358 U.S. 217, 221-23 (1959). The underlying purpose of this
policy was to segregate tribes--both territorially and
politically--from the rest of society. Id.; see
also American Indian Law Deskbook at 34. Later in the
nineteenth century, the government shifted its efforts away
from segregation and towards integration. Id. To
accomplish this new goal, Congress passed the General
Allotment Act which required portions of Indian reservation
land to be transferred (i.e., allotted) to
individual tribal members. Babbitt v. Youpee, 519
U.S. 234, 237 (1997). Land not allotted to individual tribal
members was opened to non-Indians for settlement.
Id. at 237. The United States, however, continued to
hold fee title to allotted lands in trust, subjecting the
individual allottees to various restraints on alienation.
Id. Those restraints on alienation meant that on the
death of the allottee, the land descended according to the
laws of the State or Territory where the land was located--a
policy which "proved disastrous for the Indians."
Hodel v. Irving, 481 U.S. 704, 707 (1987); see
also 24 Stat. 389. Indeed, because the land was held in
trust and often could not be partitioned, allotted parcels
became splintered into multiple undivided interests with some
parcels having hundreds, and many parcels having dozens, of
1934, Congress again changed course, by passing the Indian
Reorganization Act of 1934. That legislation was intended to
restore "the principles of tribal self-determination and
self-governance" that prevailed before the General
Allotment Act. County of Yakima v. Confederated Tribes
and Bands of Yakima Nation, 502 U.S. 251, 255 (1992).
The Indian Reorganization Act halted further allotments,
began restoring unallotted surplus land, and indefinitely
extended the trust periods for parcels of land that were not
yet fee-patented. Id.; 25 U.S.C. § 5101. But
the Indian Reorganization Act "made no attempt to
withdraw lands already conveyed to private persons through
fee patents (and by now sometimes conveyed to
non-Indians)." Upper Skagit Indian Tribe v.
Lundgren, 138 S.Ct. 1649, 1653 ...