for a federal buyout or long-term lease of the riverbed lands. See, e.a., S. 3525 (1976). During the same general period, the Interior Department engaged in negotiations with the Tribes to achieve a similar end. Prior to the conclusion of these negotiations, however, the Administration concluded that compensating the Tribes, whether pursuant to legislation or negotiation, would be an unwarranted payment for the exercise of the navigational servitude:

*** [t]he doctrine of navigational servitude is
applicable to Indian tribal ownership of navigable
waterways, and therefore the tribes stand in no
better position than any other owner of a bed of a
navigable stream. The tribes' rights as owners of
the riverbed are the same as any other in a similar
circumstance and those rights are not being used.
The Nations may exercise those rights to the extent
that they do not conflict with, or hinder the
exercise of, the navigation easement. *** In our
view, the Arkansas Riverbed issue does not merit
Federal compensation.2

The negotiations were discontinued, and no buyout or lease legislation was passed.

2 Letter from then-OMB Director Jim McIntyre to Congressman Tom Steed, dated April 30, 1979 (attached).

The Tribes then decided to seek special jurisdictional legislation permitting them to go to court against the United States with their riverbed claims. Without a special bill, such claims were barred by the applicable statues of limitation, since the Tribes could have brought riverbed claims on a number of occasions, including under the ICCA, or within six years of the 1970 Choctaw decision. In 1981, the Tribes secured introduction of a special bill, H.R. 2329. The bill's purpose was to grant jurisdiction to the Claims Court or the federal district to hear and decide any and all claims the Tribes might have for damages to tribal assets resulting from construction of the McClellan-Kerr Project.

The Justice Department opposed passage of H.R. 2329. (The Interior Department deferred to the Justice Department position.) Our opposition was based on a longstanding executive branch policy, which remains in place today, against piecemeal exceptions to statutes of limitations and other special jurisdictional acts. As we pointed out in 1981 testimony, the Tribes, who were at all times represented by able counsel, had failed to take advantage of numerous opportunities to bring riverbed claims.3 We also opposed the

3 See Prepared Statement of Anthony C. Liotta, Deputy Assistant Attorney General, Land and Natural Resources, reprinted in Cherokee Nation of Oklahoma: Hearings on H.R. 2329 Before the Subcomm. on Administrative Law and

7

(continued...)

bill because we believed that the navigational servitude would lead the courts to find no basis for federal liability to the Tribes, and that the litigation would thus be an "exercise in futility."4 The bill passed despite our objection, and was enacted in 1982 as Pub. L. No. 97-385, 96 Stat. 1944.

The jurisdictional grant of Public Law 97-385 was not limited to purely legal claims. Rather, the Tribes were also allowed to bring claims under the "fair and honorable dealings clause" of the ICCA, which allows claims of a purely moral nature, not otherwise cognizable in courts of the United States under generally applicable concepts of law or equity.

Pursuant to Public Law 97-385, the Cherokee Tribe, in May 1983, brought claims in the United States District Court for the Eastern District of Oklahoma based on a 5th Amendment taking theory, and also on a fair and honorable dealings theory. The takings claim was resolved finally against the Tribe in 1987, when the Supreme Court ruled that the Tribe's riverbed interests were subject to the dominant navigational servitude of the United States, whose "proper exercise ✶ ✶ ✶ is not an invasion of any private property rights in the [navigable] stream or the lands

3(...continued)

Governmental Relations of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 27-28 (1981).

4 Oral statement of Deputy Assistant Attorney General Liotta, Hearings on H.R. 2329, supra note 3 at 30.

underlying it." United States v. Cherokee Nation of Oklahoma, 480 U.S. at 700, 704 (1987), reversing 782 F.2d 871 (10th Cir. 1986). The Court also noted that:

the decision in Choctaw Nation [that the Tribe had
been granted title to the riverbed] was quite
generous to [the Tribe], and we refuse to give a
still more expansive and novel reading to [the
Tribe's] property interest. * * * The parties,
including [the Tribe] here, clearly understood
that the navigational servitude was dominant no
matter how the question of riverbed ownership was
resolved.

Cherokee, 480 U.S. at 706. The Court further emphasized that the government's fiduciary obligations regarding dealings with tribal property were not implicated, because exercise of the servitude did not interfere with any tribal property right. Id. at 707-08.

The Tribe, having lost its takings claim, returned to district court to pursue its claim under a fair and honorable dealings theory. That claim has now also been rejected, first by the federal district court and, on appeal, by the Tenth Circuit Court of Appeals. See Cherokee Nation of Oklahoma v. United

States, 937 F.2d 1539, as amended, 948 F.2d 635 (10th Cir.

1991). .5

Discussion

The federal courts have now ruled, after almost ten years of litigation specially authorized by Congress, that construction by the United States of the McClellan-Kerr Project provides no basis for legal, equitable or moral claims against the United States by the three Tribes. Just as Congress intended, the Tribes got their day in court, under the most liberal standards of liability. Now, having lost their case, the Tribes are asking Congress to compensate them anyway, through passage of H.R. 4209, for "damages" caused by construction and operation of the Project.

Our opposition to this bill is based on a number of important considerations. First, the bill would result in a[I substantial and unjustified gratuity to the Tribes, cloaked in the guise of "damages," where there has been a judicial determination of no legal, or even equitable or moral grounds for federal liability. While we do not question Congress's power to grant money to the three Tribes, we strongly object to such a grant being characterized as "damages" or otherwise being linked to construction or operation of the McClellan-Kerr Project.

5 The Tribe is seeking Supreme Court review. Petition for certiorari filed Feb. 24, 1992 (S. Ct. No. 91-1354).