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U.S. Court of Appeals, Federal Circuit
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No. 00-5006
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238 F.3d 1348, 238 F.3d 1348, 2001.CFC.0000049
<http://www.versuslaw.com>
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January 29, 2001
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GREGORY T. BANNER, JOHN T. BRAHANEY, MARIE A. BRAHANEY, KAREN L.
EWING, ALICE M. FLUENT, JOSEPH D. FLUENT, NATHAN FRANK, JAMES R. FREANEY,
CHRISTINE FREANY, CAROL K. GOERGEN, ROBERT L. JOHNSON, NANCY C. O'BRIEN,
SARAH C. OWENS, RONALD W. SCHUBERT, MARJORIE L. SCHUBERT, MARIE B. SCHWAB,
BETTY J. SEITZ, SUSAN D. SWIECH, JERRY A. TITUS, ELIZABETH TITUS AND THE
SALAMANCA COALITION OF UNITED
TAXPAYERS,
PLAINTIFFS-APPELLANTS,
V.
UNITED
STATES,
DEFENDANT-APPELLEE.
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David J. Sleight, Lustig & Brown, Llp, of Buffalo, New York,
argued for plaintiffs-appellants. Katherine Hazard, Attorney, Environment
& Natural Resources Division, Appellate Section, Department of
Justice, of Washington, Dc, argued for defendant-appellee. On the brief
were Lois J. Schiffer, Assistant Attorney General; Kathryn E. Kovacs, and
John A. Bryson, Attorneys.
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Before Rader, Bryson, and Gajarsa, Circuit Judges.
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The opinion of the court was delivered by: Gajarsa, Circuit
Judge.
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Appealed from: United States Court of Federal Claims
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Senior Judge Moody R. Tidwell
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DECISION
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The appellants in this case are individuals who once leased portions
of the Allegany Reservation from the Seneca Nation of Indians ("SNI") in
the western part of the State of New York. The appellants argue that the
enactment of a federal statute, the Seneca Nation Land Claims Settlement
Act of 1990, 25 U.S.C. § 1774 (1994 & Supp. IV 2000) ("Act of 1990"),
constitutes a taking of certain property interests in violation of the
Takings Clause of the Fifth Amendment. The Court of Federal Claims
dismissed appellants' claims on cross-motions for summary judgment. Banner
v. United States, 44 Fed. Cl. 568, 577 (1999). Because no compensable
property interest was taken, we affirm the decision of the Court of
Federal Claims.
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I. BACKGROUND
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A. Factual Background
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The SNI is a sovereign Native American tribe who presently reside on
two separate land parcels. One is the Cattaraugus Reservation; the other
is the Allegany Reservation. The latter is located near the city of
Salamanca, in the western part of the State of New York. See Banner, 44
Fed. Cl. at 570. The Allegany Reservation, comprising 30,469 acres, is
approximately forty miles long, one mile wide, and tracks the course of
the Allegany River.
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The SNI is one of the Six Nations of the Iroquois Confederacy
("Iroquois Confederacy"). The Iroquois Confederacy, or Haudenosaunee, is
believed to have been formed in the fifteenth century when the legendary
Hiawatha and the Great Peacemaker united the warring eastern Native
American tribes. Prior to European colonization, the Iroquois Confederacy
exercised active dominion over nearly thirty-five million acres, most of
what is now the states of New York and Pennsylvania, and was considered
the most powerful peacekeeping force of Native Americans east of the
Mississippi River.
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The land erosion of the Iroquois Confederacy started with the French
and Indian War and culminated with the Revolutionary War. By the end of
the Revolutionary War, individual member nations of the Iroquois
Confederacy had lost most of their aboriginal land to European settlers.
In October 1784, under the authority of the Articles of Confederation, the
United States and the Iroquois Confederacy entered into the Treaty of Fort
Stanwix, 7 Stat. 15. This treaty secured peace between the United States
and certain members of the Iroquois Confederacy, and guaranteed their land
holdings in exchange for their relinquishing claim to certain western
territory. In 1790, at the urging of President George Washington, the
United States Congress passed the first Indian Trade and Intercourse Act,
1 Stat. 137, which required federal approval of all land transactions with
Native American tribes. In 1794, the United States and the Iroquois
Confederacy entered into the Treaty of Canandaigua, or the Pickering
Treaty, 7 Stat. 44.
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This treaty, like the Treaty of Fort Stanwix, recognized the land
rights of certain members of the Iroquois Confederacy, including the SNI,
and was one of the first federal treaties executed between the United
States and any Native American tribe under the authority of the United
States Constitution. Specifically, the Treaty of Canandaigua set the
boundary of the land of the SNI consisting of much of the western part of
the State of New York; it was bounded by Lake Ontario just west of
modern-day Rochester, west to the Canadian border, south along the Niagara
River through modern-day Buffalo, southwest along Lake Erie to the
Pennsylvania border, east to the Genesee River, and north through
modern-day Geneseo back to Lake Ontario. *fn1
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The early 1800s saw the growth of major New York cities such as
Buffalo, and the development of the State of New York canal system,
linking Lakes Erie and Ontario to the Hudson River. Consequently, the
State of New York and white settlers continued to attempt to displace the
Iroquois from populated areas to lands west of the Mississippi. In 1838,
certain Iroquois chiefs entered into a treaty that provided for the sale
of Iroquois lands and the withdrawal of the Iroquois Confederacy to land
in Kansas. See Buffalo Creek Treaty of 1838, 7 Stat. 551. However, it was
widely believed that the chiefs entered into the treaty only after
accepting bribes from land developers, and misappropriating treaty
annuities. See, e.g., Robert Porter, Strengthening Tribal Sovereignty, 28
Colum. Hum. Rts. L. Rev. 235, 246 (1997). Negative reaction to the
circumstances surrounding the 1838 treaty caused a revolution within the
SNI, and led to a subsequent "compromise" treaty. See Buffalo Creek Treaty
of 1842, 7 Stat. 550. Under the 1842 treaty, the Iroquois were displaced
from areas south of Buffalo, but among other things, the SNI retained
ownership of the Allegany and Cattaraugus Reservations.
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Throughout the mid-1800s, white settlers began to settle in a certain
area of the Allegany Reservation, located at the junction of three major
inter-continental railroads. This junction and settlement became what is
now known as the city of Salamanca in the County of Cattaraugus in the
State of New York.
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Early settlers entered into property leases with the SNI to remain on
the land. Prior to 1875, however, a New York state court invalidated the
leases because the SNI, a Native American tribe, did not have
congressional authority to lease land. Banner, 44 Fed. Cl. at 570.
Congress remedied that legal deficiency by adopting the Act of February
19, 1875, 18 Stat. 330 ("Act of 1875"). The Act of 1875, among other
things, ratified then-existing leases and established that they would be
valid until February 19, 1880. Id. The Act of 1875 also provided that the
leases were "renewable for periods not exceeding twelve years . . . on
such conditions as may be agreed upon." Id. If the parties could not agree
on lease renewal terms, the Act of 1875 provided that "referees" of the
SNI, the leaseholder, and a third person would determine the terms. Id.
The determination of the "referees" was to be "final and binding" on the
parties. Id.
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When the leases expired in 1880, the SNI renewed them for twelve years
in accordance with the Act of 1875. Banner, 44 Fed. Cl. at 570. With these
leases set to again expire on February 19, 1892, Congress unilaterally
extended the renewal period of the leases to 99 years in the Act of
September 30, 1891, 26 Stat. 588 ("Act of 1890"). Accordingly, the SNI
again renewed the leases of approximately 3,000 individuals for the
99-year term, set to expire on February 19, 1991. Id. The average rent on
these leases was a nominal amount, between $1 and $10 annually, and did
not increase over the entire 99-year term of the leases.
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In 1969, anticipating the expiration of these 99-year leases, the City
of Salamanca created the Salamanca Indian Lease Authority ("SILA") to
negotiate new leases with the SNI. Banner, 44 Fed. Cl. at 570. In 1987,
the appellants in this case authorized SILA to negotiate on their behalf
the terms of a new lease. Id. After twenty years of negotiation, SILA and
the SNI reached an agreement on July 13, 1990 ("Agreement"). The Agreement
provided that (1) the United States and the state of New York would pay a
combined $60 million to SNI to remedy the severe value inequities of the
99-year leases, (2) the SNI would offer new leases to the then-existing
lessees with a term of forty years, renewable for another forty years at
fair market value ("40/40 leases"), and (3) the 40/40 leases would reserve
a future determination on ownership of land improvements.
Id.
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Congress enacted the Act of 1990 to effectuate the Agreement, because
"the future economic success of the [SNI] . . . is tied to the securing of
a future lease agreement." 25 U.S.C. § 1774(a)(5). The Act of 1990
provides for the payment to the SNI of $35 million from the federal
government and $25 million from the State of New York, provided that the
SNI both ratified the Agreement and offered the 40/40 leases to the
then-existing lessees. 25 U.S.C. § 1774e. Furthermore, Congress enacted
the Act of 1990 because it recognized that the United States had breached
its fiduciary obligation arising from "the unique trust relationship" with
Native American tribes. See, e.g., County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169
(1985).
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By entering into a system of treaties, agreements, and statutes, a
unique trust relationship has been created between the United States and
Native American tribes. The United States has "charged itself with moral
obligations of the highest responsibility and trust," and its management
of Native American affairs must be "judged by the most exacting fiduciary
standard." See Seminole Nation v. United States, 316 U.S. 286, 296-97, 62
S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942). Acting as a fiduciary, the United
States authorized monetary compensation to the SNI, not for gratuitous
reasons, but to correct the breach of its trust responsibility when it
unilaterally imposed the 99-year leases on SNI lands by the Act of 1890.
Finally, the Act of 1990 provided exclusive jurisdiction to the United
States District Court for the Western District of New York over "any
action to contest [its] constitutionality or validity." 25 U.S.C. §
1774g.
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B. Procedural Background
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On November 30, 1990, shortly after the enactment of the Act of 1990,
the appellants first filed suit in the Western District of New York.
Counts one, eight, and ten of the complaint asserted, among other things,
that the 99-year leases granted a right to renew, and that the Agreement
and the Act of 1990 violated the Act of 1875 and provisions of the United
States Constitution. On January 25, 1991, the District Court dismissed
these counts pursuant to Federal Rule of Civil Procedure 19 because the
SNI was an indispensable party, but was immune from suit. Fluent v. SILA,
Civ. 90-1229A. slip op. (W.D.N.Y. Jan. 25, 1991) ("First District Court
Action").
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The plaintiffs appealed to the United States Court of Appeals for the
Second Circuit. "Plaintiffs again argued that they possessed property
rights to both renew the leases via arbitration and own the improvements
on the land." Banner, 44 Fed. Cl. at 571. The Second Circuit disagreed,
holding that even if the SNI was not immune, "we would affirm the district
court's judgment on the ground that the renewal provisions of the 1875 Act
applied only to the original renewals and do not extend to the present
renewals." Fluent v. SILA, 928 F.2d 542, 546 (2d Cir. 1991). The Second
Circuit reasoned that "the 1875 Act does not authorize a perpetual
renewal, and without clear language to that effect, we will not construe
the statute to confer such a right." Id. The case was then remanded to the
District Court for further proceedings against the remaining
defendants.
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On remand before a magistrate, the plaintiffs argued, among other
things, that (1) SILA had denied their right to negotiate with the SNI,
and (2) SILA had interfered with their property rights in ownership of
improvements and occupancy. Fluent v. SILA, 847 F.Supp. 1046, 1057-58
(W.D.N.Y. 1994) (adopting Fluent v. SILA, 90-CV-1229A, Magistrate Report
and Recommendation, July 27, 1993) ("Second District Court Action"). The
magistrate ruled that (1) there was no right to negotiate because neither
the Acts of 1875, 1890, and 1990, nor the 99-year leases authorized
further lease renewals; and (2) any interference with property rights was
because the plaintiffs chose not to accept the 40/40 leases. Id. This
ruling was based on the fact that "the Second Circuit [had] determined
that no further renewals are available" under the Acts of 1875 and 1890.
Id. (citing Fluent, 928 F.2d at 546). The magistrate also determined that
the Act of 1990 "does not create any right to negotiate." Id. The District
Court adopted these findings, and dismissed plaintiffs' remaining claims.
Id. The plaintiffs did not appeal that judgment.
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Some of the unsuccessful plaintiffs, nevertheless, refused to accept
the 40/40 leases, and refused to vacate the land when the 99-year leases
expired. On May 5, 1995, therefore, the United States brought an action in
the Western District of New York on behalf of the SNI to eject these
individuals. The magistrate recommended that judgment be entered for the
SNI because (1) the SNI owned the land; (2) the individuals had no right
to renew their leases pursuant to the prior decisions; (3) the SNI was not
a necessary party to the ejectment because the United States represented
their interests; and (4) the SNI had been wrongfully denied possession of
their property by the defendants. United States v. Fluent, 95-CV-0356A(H),
slip op. (W.D.N.Y. Feb. 18, 1997) (adopting United States v. Fluent,
95-CV-356A(H), Magistrate Report and Recommendation, July 9, 1996)
("Ejectment Action"). The District Court ordered the individuals to vacate
the land between June 30, 1997 and August 29, 1997. Id. There was no
appeal from the panel judgment issued in the Ejectment
Action.
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Instead, on November 4, 1996, the appellants filed this action in the
Court of Federal Claims as a plaintiffs class action. There are two
categories of plaintiffs who are now appellants: (1) the unsuccessful
District Court plaintiffs that chose not to accept the 40/40 leases and
were later ejected ("Ejectment Appellants"), and (2) the unsuccessful
District Court plaintiffs that accepted the 40/40 leases but nevertheless
contest the validity of the leases. These appellants are identified as the
Salamanca Coalition of United Taxpayers ("SCOUT Appellants"). The
appellants' basic legal premise was that the Act of 1990 violates the
Takings and Due Process Clauses of the Fifth Amendment. On September 4,
1997, the Court of Federal Claims denied class certification. On August
11, 1999, the Court of Federal Claims dismissed the Due Process claim, and
granted summary judgment for the United States on the Takings claim.
Banner, 44 Fed. Cl. at 577.
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First, the Court of Federal Claims dismissed the Due Process Claim for
lack of jurisdiction. Id. at 573. Second, the Court of Federal Claims held
that collateral estoppel bars the Ejectment Appellants because the
property interest in this case is identical to the one decided in the
Ejectment Action. Id. at 574-75. Third, the Court of Federal Claims held
that claims by SCOUT Appellants were not ripe because they had "not now
lost, and may never lose, the property rights asserted." Id. at 576. On
October 7, 1999, the appellants filed a notice of appeal to this
court.
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II. STANDARD OF REVIEW
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We review an order granting summary judgment de novo. See Strickland
v. United States, 199 F.3d 1310, 1313 (Fed. Cir. 1999). Summary judgment
is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ.
P 56(c); Newbanks v. Cent. Gulf Lines, Inc., 64 F. Supp. 2d 1, 4 (D. Mass.
1999).
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III. DISCUSSION
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The appellants contend that the Act of 1990 violates the Takings
Clause of the Fifth Amendment by taking their property interests in (1)
the right to renew or negotiate their leases with SNI, and (2) the right
to own the improvements on their leased land. *fn2
The appellants also maintain that the Court of Federal Claims improperly
applied the doctrine of collateral estoppel to bar their takings
claims.
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A. Right to Renew or Negotiate Leases
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The doctrine of collateral estoppel, or issue preclusion, serves to
bar the revisiting of issues that have already been litigated by the same
parties or their privies based on the same cause of action. See Jet, Inc.
v. Sewage Aeration Sys., 223 F.3d 1360, 1365-66 (Fed. Cir. 2000).
Collateral estoppel requires four factors: (1) the issues are identical to
those in a prior proceeding, (2) the issues were actually litigated, (3)
the determination of the issues was necessary to the resulting judgment,
and (4) the party defending against preclusion had a full and fair
opportunity to litigate the issues. Id.
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In this case, the Court of Federal Claims ruled that the Ejectment
Action had already determined that the Ejectment Appellants did not
possess compensable property interests in the land or the improvements.
Banner, 44 Fed. Cl. at 575. The Court of Federal Claims noted that it was
"plaintiffs' fifth attempt to establish property rights" in this case. Id.
at 574. The Court of Federal Claims held that this issue was barred by the
doctrine of collateral estoppel because the issue had already been
litigated, the parties were fully represented, and both the Ejectment
Action and the Second District Court Action treated the Second Circuit
decision as binding precedent. Id. at 575.
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The appellants now argue that the Court of Federal Claims improperly
applied collateral estoppel. The appellants argue that they never had a
full and fair opportunity to litigate the issue and that it has "never
been actually litigated in any forum." The appellants assert that the
Second District Court Action and the Ejectment Action relied, without
examination, on the holding of the Second Circuit. However, it cannot be
contested that the first three requirements for collateral estoppel are
met. Despite appellants' assertion to the contrary, the issue was
"actually litigated" before the Second Circuit because it was properly
raised by the pleadings, was submitted for determination, and was
determined. See Restatement (Second) of Judgments § 27 comment d
(1980).
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The appellants also had a "full and fair opportunity to litigate the
issues." See Jet, 223 F.3d at 1366. The Court of Federal Claims briefly
discussed this fourth factor. See Banner, 44 Fed. Cl. at 575. It reasoned
that because the appellants were "fully represented" and "had a strong
interest in strenuously arguing the existence of property rights," they
were given a "full and fair opportunity to argue the merits of that
issue." Id. This is only part of the inquiry.
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In determining whether a party has had a "full and fair" opportunity
to litigate an issue, a court should look at (1) whether there were
significant procedural limitations in the prior proceeding, (2) whether
the party had an incentive to litigate fully the issue, and (3) whether
effective litigation was limited by the nature or relationship of the
parties. See Sil-Flo v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir. 1990)
(citing 18 C. Wright & A. Miller § 4423 at 216-226 (1981)). As
recognized by the Court of Federal Claims, there can be no doubt that the
appellants were "fully represented" and "had a strong interest" in this
issue during the Second District Court Action and the Ejectment Action.
See Banner, 44 Fed. Cl. at 575. However, in holding that the appellants
have no property interest in renewing their leases, it is true that the
Second District Court Action and the Ejectment Action relied on the
holding of the Second Circuit. See Fluent, 928 F.2d at
546-47.
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Therefore, this court must determine whether the appellants had a full
and fair opportunity to litigate this issue during the Second Circuit
decision. First, the appellants raised this issue in the pleadings before
the First District Court Action. On appeal, the Second Circuit considered
the issue, holding that it "would affirm the district court's judgment on
the ground that the renewal provisions of the 1875 Act applied only to the
original renewals and do not extend to the present renewals." Fluent, 928
F.2d at 546. It is important to note that this was a legal decision,
interpreting the 1875 Act, and affirming the motion to dismiss. The mere
disagreement with a legal ruling does not mean that a party has been
denied a "full and fair" opportunity to litigate. See Sil-Flo, 917 F.2d at
1521. Appellants' argument would lead to the absurd result of precluding
the use of collateral estoppel whenever the prior litigation originated
from dismissal of a cause of action based upon a statutory
interpretation.
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The fact that the Second Circuit decided this issue as an alternative
ground not addressed by the court in the First District Court Action does
not detract from the preclusive effect of its decision. An appellate court
"may affirm the district court on a ground not selected by the district
judge so long as the record fairly supports such an alternative
disposition of the issue." See, e.g, Hydronautics v. Filmtec Corp., 204
F.3d 880, 887 (9th Cir. 2000). When an appellate court affirms a judgment
for two separate reasons, both appellate determinations are conclusive.
Cf. Restatement (Second) of Judgments § 27 cmt. o. Therefore, when the
Second Circuit interpreted the Act of 1875, it eliminated the legal
underpinnings of appellants' cause of action by determining that there was
no legal basis for the claim. Thus, this court holds that the appellants
had a full and fair opportunity to litigate this issue prior to the
decision of the Second Circuit.
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This court further holds, as did the Court of Federal Claims, that the
decision of the Ejectment Action must also be given preclusive effect
pursuant to the doctrine of collateral estoppel. As recognized by the
Court of Federal Claims, this issue was briefed, argued, and actually
litigated during the Ejectment Action. See Banner, 44 Fed. Cl. at 575. The
fact that the decision of the Ejectment Action was based on the decision
of the Second Circuit does not prevent its judgment from having preclusive
effect as to the Ejectment Appellants. The Ejectment Appellants chose not
to appeal the decision of the Ejectment Action to the Second Circuit.
Although we cannot divine what the appellate tribunal may have concluded
upon appeal of the lower court judgment, the existence of highly damaging
precedent is not the kind of procedural limitation that prevents a party
from having a "full and fair" opportunity to litigate an issue. Collateral
estoppel requires that a party have had an opportunity to appeal a
judgment as a procedural matter. It does not, however, require that the
party have had reasonably fair prospects of winning on appeal. For these
reasons, the decisions of the Second Circuit and the Ejectment Action must
be given preclusive effect pursuant to the doctrine of collateral
estoppel.
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The Second Circuit held that neither the Act of 1875 nor the 99- year
leases themselves granted any further right to negotiate a renewal. See
Fluent, 928 F.2d at 546-47. The court in the Second District Court Action
agreed. Fluent, 847 F.Supp. at 1057-58. Finally, the court in the
Ejectment Action held that "the individual leaseholders have no
constitutional, statutory or contractual rights to negotiate renewal of
their leases for additional 99-year terms." See Fluent, 95-CV-03561(H),
slip op. (W.D.N.Y. Feb. 18, 1997) (adopting Fluent, 95-CV-356A(H),
Magistrate Report and Recommendation, July 9, 1996). The appellants are
now bound by the prior determinations of the Second Circuit and the court
in the Ejectment Action.
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Therefore, the appellants do not possess any compensable property
interest of the right to renew or negotiate their leases with the SNI. See
Banner, 44 Fed. Cl. at 575. Without a property interest, there can be no
taking within the meaning of the Fifth Amendment. Because the decision of
the Second Circuit applies also to the SCOUT Appellants, this court need
not address the issue of ripeness.
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B. Right to Own Improvements to the Leased Land
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The appellants also argue that they possess a property interest in the
improvements to the leased land. The appellants argue in their brief that
"by the plain language of the leases and the Acts of 1875 and 1890, it was
clearly expressed and understood that the lessees had built and paid for
the improvements on the land and that they owned those improvements." The
appellants point to language in the Act of 1875 that states, "the persons
who may be at such time the owner or owners of improvements erected upon
such lands, shall be entitled to such renewed leases." However, the
appellants admitted at oral argument that there is no such "express"
language in the 99-year leases.
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Under the general law of improvements, it is well settled that
improvements to realty are considered part of the real property; ownership
of the improvements follows title to the land. See, e.g., In re Chicago,
Rock Island & Pac. R.R. Co., 753 F.2d 56, 58 (7th Cir. 1985); United
States v. Certain Prop. 306 F.2d 439, 450 (2d Cir. 1962) ("fixtures, even
though annexed by the tenant, are distinctively realty and therefore
become the property of the landlord"); Jackson Tanker Corp. v. Hartz
Mountain Indus., Inc., 69 B.R. 850, 856 (Bankr. S.D.N.Y. 1987); Tiffany,
Real Property, § 231, pp. 535-36 (1912). "On termination of the lease,
permanent improvements, including buildings, are considered a landlord's
property unless a lease provision provides otherwise." Nat'l Wood, 1986 WL
12761, *3 (E.D. Pa. 1986) (citing Restatement (Second) of Property §
12.2(4) (1977)).
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Therefore, that the appellants may have actually owned the
improvements while subject to the 99-year lease is irrelevant. When the
99-year leases expired on February 19, 1991, all improvements, including
buildings, reverted to the SNI.
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Consequently, neither the Ejectment Appellants nor the SCOUT
Appellants possess any compensable property interest in the improvements
to the leased land. *fn3
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IV. CONCLUSION
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The judgment of the Court of Federal Claims is affirmed.
AFFIRMED.
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COSTS
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Costs are awarded to the Defendant-Appellee.
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Opinion Footnotes |
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*fn1
Under the Treaty of Canandaigua, the land of the SNI consisted of modern-
day Chautauqua, Cattaraugus, Erie, Niagara, Orleans, and Wyoming Counties,
most of modern- day Allegany and Genesee Counties, and portions of modern-
day Monroe and Livingston Counties.
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*fn2
It is important to emphasize that the Act of 1990 specifically disavows
the role of the United States in approving any lease. "The United States
shall not serve in a capacity to approve leases of the [SNI]." 25 U.S.C. §
1774c(c)(1). The Act of 1990 makes clear that the SNI is "solely
responsible for negotiation of the leases . . . and approval of any such
lease by the United States is not required." 25 U.S.C. §
1774c(a).
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*fn3
This court holds only that the ownership interest of improvements under
the 99- year leases reverted to the SNI at the expiration of those leases.
This court recognizes that the 40/40 leases do not determine the ownership
of improvements, but rather reserve the parties' rights to decide that
issue. The Ejectment Defendants chose not to enter into the 40/40 leases,
and have given up any possible property interest in the improvements.
While recognizing above the general rule of improvements, nothing in this
opinion precludes the SNI from granting the SCOUT Appellants ownership
interests in the improvements, pursuant to the 40/40
leases.
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