Attachment A AMENDMENT TO H.R. 4209 BY MEANS OF A SUBSTITUTE Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Cherokee, Choctaw, and Chickasaw Nations of Oklahoma Claims Act of 1992". SEC.2. AUTHORIZATION. The Act Entitled "An Act conferring jurisdiction on certain courts of the United States to hear and render judgment in connection with certain claims of the Cherokee Nation of Oklahoma", approved December 23, 1982, (Public Law 97-385) is amended by deleting the text in its entirety and inserting in lieu thereof the following: U.S. That notwithstanding sections 2401 and 2501 of title 28, United States Code, section 12 of the Act of August 13, 1946, as amended (the Indian Claims Commission Act, 60 Stat. 1049; 25 U.S.C. 70a), the navigational easement of the United States, and the decisions in United States against Cherokee Nation of Oklahoma, 480 700 (1987), and Cherokee Nation of Oklahoma against United States, 937 F2d 1539 (10th Cir. 1991), the United States Claims Court or the United States District Court for the Eastern District of Oklahoma is authorized and directed to hear, determine and render judgment in valuation proceedings that may be brought by the Cherokee, Choctaw, and Chickasaw Nations for damages caused by the United States in the construction and use of the McClellan-Kerr Arkansas River Navigation System. These damages include, but are not limited to, the value of sand, gravel, coal, and other 1 2 2 resources taken, and the value of damsites and powerheads of dams constructed, without the authority or consent of the Cherokee, Choctaw, and Chickasaw Nations, on that part of the Arkansas riverbed within the respective areas owned by each such Nation 5 pursuant to treaties with the United States as confirmed by the 3 4 6 decision in Choctaw Nation against Oklahoma, 397 U.S. 620 (1970). QUESTIONS PRESENTED The United States conveyed lands beneath a navigable river to the Cherokee Nation by treaty and fee patent, and later declared that the lands "shall not become public lands nor property of the United States, but shall be held in trust by the United States for the use and benefit" of the Cherokee Nation. The United States subsequently damaged the riverbed by constructing a navigation project and then authorized the Cherokee Nation to prosecute a moral claim for those damages "based upon fair and honorable dealings that are not recognized by any existing rule of law or equity." The questions presented are: 1. Whether the exercise of a navigational servitude under the Interstate Commerce Clause overrides the duty of the United States under the Indian Commerce and Treaty Clauses to deal fairly and honorably with an Indian tribe regarding riverbed lands conveyed by the United States to the tribe in fee simple and held by the United States in trust for the tribe's benefit? 2. Whether the federal government's failure to establish navigational rights expressly in treaties and fee patent, and the active recognition by the United States of the Cherokee Nation's governmental power over navigation makes the subsequent assertion of the navigational servitude against the Cherokee Nation's riverbed title a violation of the fair and honorable dealings clause of the Indian Claims Commission Act? 3. Whether the power of Congress to pay debts of the United States under Article I, section 8, cl. 1 of the Constitution includes claims based on fair and honorable dealings that are not recognized by any existing rule of law or equity and against which legal or equitable defenses may not be interposed? |