United States v. Clarke – Oral Argument – January 15, 1980

Media for United States v. Clarke

Audio Transcription for Opinion Announcement – March 18, 1980 in United States v. Clarke
Audio Transcription for Oral Argument – January 16, 1980 in United States v. Clarke


Warren E. Burger:

We’ll hear arguments next in United States against Clarke.

Mr. Dalton, I think you may proceed whenever you’re ready.

Harlon L. Dalton:

Thank you.

Mr. Chief Justice and may it please the Court.

In this case, the Court is called upon to determine the means by which states and municipalities may acquire rights of way across land allotted to Indians and held in fee by the United States.

The precise question presented today is whether the Municipality of Anchorage may, invoking Section 357 of Title 25, acquire a private road running across the allotment of one Bertha Mae Tabbytite by simply taking over that roadway and saying, in effect, “sue me.”

In 1954, Ms. Tabbytite entered onto the land in question and began to homestead it.

Four years later, Respondents, Clarke and Baker, filed a homestead application on an adjoining-80 Acres and, two months after that, bulldozed a road across the Tabbytite allotment without seeking or obtaining her consent and without obtaining an easement from anyone.

Tabbytite protested and continued to protest for the 11 years from the construction of the road in 1958 until this suit was commenced in 1969, without success.

Now, from 1968 to 19 — 1958, rather, to 1966, Clarke — neighbors Clarke and Baker interposed three contests to Tabbytite’s application for a homestead patent as a result of which, she was unable to perfect that application during the pendency of those contests.

Clarke and Baker, however, were able to obtain, in 1961, a homestead patent for their property and they properly subdivided it into 40 parcels which were essentially sold before this suit was instituted.

Also, in 1961, the City of Glen Alps, third-class City of Glen Alps, was incorporated and took over maintenance of the road.

Essentially, that city covered the territory surrounding the property of all of the aforementioned parties to this litigation.

William H. Rehnquist:

It wasn’t annexed to Anchorage.

It was just incorporated as a city.

Harlon L. Dalton:


In 1966, apparently despairing of ever obtaining the — her homestead patent, Tabbytite elected to take her land as an Indian allotment, as she was entitled to do.

In 1967, she attempted to block the road.

Prior to that, her attempts to block trespassers essentially amounted to posting “no trespassing” signs.

In 1967, she tried physically to block the road, but pulled back when Glen Clarke indicated to her that she could be arrested for so doing.

At that point, she turned to the Bureau of Indian Affairs with her predicament.

In 1969, the United States Government instituted this suit to close the road and to seek damages.

In 1973, the district court, in fact, awarded damages but declined to enter injunction holding that the road across the Tabbytite allotment constituted a way of necessity, and that to close it would create undue hardship for the defendants.

Now, that determination was reversed by the Ninth Circuit in 1976.

Just a few months before that reversal, however, Anchorage and Glen Alps merged in effect.

There was a unification of Anchorage and two smaller communities, and as the resulted entity of the Municipality of Anchorage took over maintenance of the road and entered this lawsuit.

Now, on remand, the Municipality of Anchorage opposed the Government’s injunction — request for injunction on the grounds that its predecessor in interest, Glen Alps, had, in effect, condemned the land inversely back in 1961 when it took over the road.

The district court entered two opinions, the second time around, which together held that Glen Alps did not have the power of inverse condemnation and, therefore, had not acquired the land in 1961 but that in 1975, when Anchorage and Glen Alps were unified, Anchorage had effectively obtained the land by inverse condemnation and that that was satisfactory within the meaning of Section 357.

Warren E. Burger:

You say that inverse condemnation is, perhaps, synonymous with de facto condemnation?

Harlon L. Dalton:

No, I would not s —

Audio Transcription for Oral Argument – January 16, 1980 in United States v. Clarke


Warren E. Burger:

Would you say?

Harlon L. Dalton:

On the contrary.

The Government’s position is 180-degrees away from that position.

Our position is that, despite the similarity of terminology, inverse condemnation and condemnation are by no means equivalent and, indeed, I may not use the term “inverse condemnation” again today.

What inverse condemnation is essentially is the second half of a taking by seizure.

Reverse condemnation is a phrase that’s been used to des — really to describe the fact that land owners whose land is taken inadvertently by the sovereign had a constitutional right to just compensation and the so-called reverse condemnation proceeding —

Warren E. Burger:

Well, does it have to be inadvertent?

There’s nothing inadvertent about this, was there?

They knew the road was going over some —

Harlon L. Dalton:

Absolutely and, indeed, one of our contentions is that, though this is somewhere further down the line of my argument, that is a general proposition we’re taking our purposeful it is a policy of the United States and the policy of the State of Alaska that those takings proceed by condemnation not by seizure.

William H. Rehnquist:

In inverse condemnation actions they brought under the Tucker Act, isn’t there a long line of federal authorities holding that if the Government may defend such an action by saying Congress had not authorized the intrusion and, then, the person’s remedy is simply to have a person — have their land back?

Harlon L. Dalton:

I’m not familiar with that line of authority, but I trust that it exists.

It strikes me as helpful to the Government’s argument.

William H. Rehnquist:

I would think it would be helpful to your case.

Harlon L. Dalton:


The issue before this Court is not whether Anchorage has the power under Alaska law — eminent domain law to affect takings this by seizure and that’s because this land is owned in fee by the United States and absent the consent of the United States, there is no method by which Anchorage can acquire a roadway across the Tabbytite allotment.

Now, Section 347, on its face, appears to consent to be a waiver of the United States’ sovereign immunity with reference to state’s attempts to condemn allotted land.

I suppose it’s incumbent upon me to acknowledge, as the Court is aware, that Respondent Tabbytite draws into question whether even Section 357, at this point, constitutes a waiver of sovereign immunity when rights of way are at issue and particularly when roadway rights of way are at issue.

But, if we assume for the moment that Section 357 does apply, it should be construed narrowly, both because it constitutes a waiver of sovereign immunity and because takings under it, condemnation under it, in effect, potentially results in derogation of interest of Indians.

John Paul Stevens:

Mr. Dalton, excuse me for interrupting, but one question keeps running through my mind.

You’re denying that there was a taking here, that the Indian inverse condemnation, and the Government, as I remember it, is seeking an injunction.

You want to stop traffic from going over the road until the state institutes a condemnation proceeding.

Is that what you want in the case?

Harlon L. Dalton:

Well, we certainly take the position that Section 357 has to be adhered to and that means that, until a formal condemnation proceeding is brought, this taking constitutes a trespass and, so, I think —

John Paul Stevens:

And, therefore, you close off the road to traffic until the condemnation proceeding is concluded.

Harlon L. Dalton:


I take it, that would, by the way, impose no hardship on the Municipality of Anchorage, in that, when Glen Alps —

John Paul Stevens:

A few commuters may be unhappy, I suppose.

Harlon L. Dalton:

Again please?

John Paul Stevens:

A few commuters may be unhappy.

Audio Transcription for Oral Argument – January 16, 1980 in United States v. Clarke


John Paul Stevens:

It’s sort of a main thoroughfare, isn’t it?

Harlon L. Dalton:

It is a main thoroughfare in the context of a dirt road and one lane going either direction but, for that part of the world, it is a main thoroughfare.

But, when Glen Alps was involved in this litigation, it, in fact, filed a counterclaim for formal condemnation in the event that its way of necessity argument was rejected by the court.

Now, at that point, the district court did uphold that argument.

The court of appeals reversed.

At that point, the Municipality of Anchorage essentially reserve the right within 30 days of in adverse decision to it in this litigation to bring a formal condemnation action until it strikes me that they’re quite prepared to proceed in that fashion if necessary.

John Paul Stevens:

I see.

Harlon L. Dalton:

Anchorage has insisted in its brief that the term “condemnation” — that the definition of the term “condemnation” in Section 357 is subject to state law because Section 357 provides that condemnation may proceed under the laws of the states where the property is situated, but we submit that that simply cannot be.

The term “condemnation” is central to what Congress was about in Section 357.

It’s determinative of the extent of the waiver of sovereign immunity and, to leave states free to define the very right which Congress confers in that section, we submit, would stand the whole notion of consent and waiver on its head.

The decision below and Anchorage in its brief also suggest that United States seeks to deny Indians the right to bring suits for just compensation.

We certainly don’t oppose the rights of Indians to receive just compensation but that, of course, can be obtained in the context of a formal condemnation proceeding.

Our point, rather, is that the state cannot relegate Indian allotees to an action for just compensation because, as I indicated in response to your first question, Mr. Chief Justice, the phrase proceeding for just compensation, while fairly mutual on its face, really carries with it the reality that, at some point, a taking by seizure has occurred or is being contemplated.

And, since it’s our position that a taking by seizure cannot be squared with Section 357, it is inconsistent to place allottees in the position of having to — the burden of bringing an action for just compensation.

Now, there may be a case in which there would be inadvertent taking in which an allottee ought to be freed to elect to proceed in an action for just compensation, but that’s not this case.

That need not happen pursuant to Section 357.

That is, as this Court has said more than once, essentially a constitutional right.

We, of course, acknowledge that seizures by taking do exist.

That the Tucker Act, in federal practices is the proceeding by which persons whose land has been taken, may indeed proceed for just compensation.

This existed at the turn of the century at the time 357 was enacted as it exists today.

In general, we agree that it’s an appropriate remedy for inadvertent takings, but it does not follow that this land owner’s remedy can be converted into a means by which a sovereign, like the Municipality of Anchorage, can acquire a roadway affirmatively purposefully across an Indian allotment.

With the Court’s permission, I’m looking at the clock, I’ve got about a minute, I can enter into my next argument or I can pick it up in the morning.

Warren E. Burger:

Well, we’ll let you pick it up in the morning then.

Harlon L. Dalton:

Thank you.

Warren E. Burger:


We’ll resume at 10:00.