Cornelia Deroin Yellowfish, Stella Deroin Rowe, Willene Deroin, Clarice Deroin Rickman, Wilma Deroin Guoladdle, Pearl H. Deroin McKinney Lillian Carson Morgan, Lena Shadlow Black, Louis (Lewis) Peters v. City of Stillwater

Citation: 691 F.2d 926Docket: 81-1948

Court: Court of Appeals for the Tenth Circuit; November 11, 1982; Federal Appellate Court

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The City of Stillwater sought to condemn easements over trust allotments belonging to nine Indian appellants, collectively known as 'Yellowfish,' to construct a municipal water supply pipeline. The United States was included as a defendant due to the nature of the allotments, which were issued under the General Allotment Act of 1887, with legal title held by the U.S. as trustee. Jurisdiction for the condemnation was based on 25 U.S.C. § 357, which allows for the condemnation of Indian lands in a manner similar to fee-owned land for public purposes.

Yellowfish argued that § 357 was partially impliedly repealed by the Act of February 5, 1948, which grants the Secretary of the Interior authority to grant rights-of-way with consent from Indian allottees. If this were valid, the district court would lack jurisdiction to proceed with the condemnation. However, the court disagreed and upheld its jurisdiction under § 357, allowing the condemnation to proceed without the need for consent from the Secretary or the Indian allottees.

Following the filing of the condemnation petition, the Bureau of Indian Affairs informed the 110 allottee defendants about representation options, but the nine appellants chose to hire private counsel. The trial court ruled that § 357 had not been impliedly repealed and declined to dismiss or stay the proceedings, permitting the City to take possession of the condemned allotments for pipeline construction.

Yellowfish subsequently sought an interlocutory appeal regarding the jurisdiction issue and the requirement for the United States, as trustee, to provide specific grounds for asserting that the condemnations served the best interests of the Indians. The court granted permission for the appeal but denied a stay during the appeal process. The two central issues on appeal are the existence of federal court jurisdiction in light of the alleged repeal of § 357 and the disclosure obligations of the United States as trustee.

The principle against implied repeal of statutes is firmly established, with courts favoring the coexistence of statutes unless there is a clear congressional intent to the contrary. This principle is especially strong when dealing with longstanding statutes. Yellowfish's argument that the rule against implied repeal does not apply to partial repeals or to various Indian statutes is rejected, as it misinterprets relevant case law. There are two recognized scenarios for implied repeal: (1) when two statutes are in irreconcilable conflict, the later statute implicitly repeals the earlier one; and (2) when the later statute wholly covers the subject of the earlier one and is intended as a substitute. Legislative history and intent play crucial roles in these determinations, requiring that legislative intent be "clear and manifest." Yellowfish claims that section 357 should be viewed as partially repealed by implication, similarly to a previous case involving a 1926 Act replaced by later statutes requiring consent for right-of-way grants. However, while section 357 and the 1926 Act share similarities, they differ significantly in their treatment of land, with section 357 allowing condemnation of allotted land, unlike the 1926 Act, which addressed communal lands owned by the Pueblo Indians. Past court interpretations indicate a distinction made by Congress between tribal and allotted lands, but they do not support the conclusion that section 357 was partially repealed by implication.

Three circuits have acknowledged that section 357 offers an alternative means to acquire allotted Indian land. In *United States v. Minnesota*, the Eighth Circuit determined that the condemnation process under section 357 of the 1901 Act is not subject to the requirement of secretarial consent for rights-of-way as stipulated in 25 U.S.C. 311. The court emphasized that while the allottee holds fee title to the land, their right to alienate is restricted, making traditional purchase methods impractical. Therefore, the statutes provide two valid procedures for acquiring a right-of-way: through condemnation or with the Secretary of the Interior’s permission.

The court also rejected the notion that these provisions impliedly repeal one another, as shown in *Transok Pipeline Co. v. Darks*, where it was held that while the Secretary's approval is essential for rights-of-way under certain statutes, it is not necessary for condemnation under section 357. The rationale is that Congress believed the safeguards in federal judicial processes were sufficient.

Yellowfish's argument that condemnation under section 357 contradicts more recent congressional policies established in the Indian Reorganization Act of 1934 and the Oklahoma Indian Welfare Act of 1936 was also dismissed. Although these acts altered prior policies, existing allotments remain valid, and new allotments continue for Indians not living on reservations.

Federal policy regarding Indian affairs is established through various laws, treaties, and executive orders, which must be interpreted together to determine congressional intent. While legal ambiguities should generally favor Indians, this does not allow for the disregard of explicit congressional intentions. In 1976, Congress reaffirmed section 357 as a valid condemnation statute by repealing the 1926 Act and amending the 1928 Act to extend section 357 to the Pueblo Indians of New Mexico. The Supreme Court, in Oklahoma Gas & Electric, ruled that secretarial permission granted for state projects on Indian land implied broader rights, emphasizing that Congress would clarify any differing rules for Indian lands. Consequently, it was concluded that Congress did not clearly intend to partially repeal section 357, and that both section 357 and the 1948 Act can coexist to provide different methods for obtaining rights-of-way over allotted lands. Historical practices and judicial precedents further support this interpretation, affirming the trial court's jurisdiction under section 357 for the condemnation of a water pipeline. 

Regarding the United States’ role as trustee, Yellowfish questioned whether its support for Stillwater's condemnation of trust allotments was justified. The position taken by the United States, which aligns with congressional policy in section 357, does not constitute a breach of trust, nor does it necessitate a detailed justification of the benefits to Indian beneficiaries, as Congress has already assessed their interests.

The Government has sufficiently demonstrated the necessity of right-of-way condemnations for the benefit of Indian allottees, as preventing such condemnation could allow a single allottee to obstruct essential public projects, such as roads or utilities. The 1948 Act empowers the Secretary of the Interior to grant rights-of-way over trust lands held for individual Indians or tribes, with the possibility of authorizing such rights without Indian consent under specific conditions. Legislative history indicates that the 1928 Act replaced the previous 1926 statute on condemnation, but there is no evidence that the 1948 Act intended a similar change. Additionally, decisions made by this court cannot be overturned by a three-judge panel and must be reviewed en banc, though this does not affect the current case, as the court concurs with the ruling that condemnation of allotted lands is permissible under section 357 without the Secretary’s consent. The ruling is AFFIRMED.