I. THE COURT OF APPEALS CONCLUSION THAT THERE WAS NOT A SPECIAL RELA- TIONSHIP WITH A NEXUS TO THE NAVI- GATIONAL SERVITUDE BETWEEN THE CHEROKEE NATION AND THE UNITED STATES ON WHICH TO BASE A FAIR AND FLICTS WITH DECISIONS OF THIS AND OTHER COURTS, AND WITH TREATIES OF A. The Special Relationship Between The United States And The Cherokee Nation Has A Nexus To The Navigational Servitude B. The Conveyance Of The Riverbed By The United States To The Cherokee Nation Necessarily Implicates The Navigational Servitude In The Special Relationship Be- iv II. ASSERTION OF THE NAVIGATIONAL SERVITUDE AGAINST THE CHEROKEE NATION'S TITLE IS INCONSISTENT WITH THE STANDINGS OF FAIR AND HONOR- ABLE DEALINGS TO WHICH THE UNITED A. The General Rule That Exercise Of The Navigational Servitude Is Not Compensable Was Not Fully Expressed By This Court Un- til Long After Treaty And Statutory Com- mitments And Other Representations To The Contrary Had Been Made By The United B. The Court Of Appeals Failed To Take Into Account Principles Of Estoppel In Ruling That The Cherokee Nation Was Not Entitled III. THE CONFLICT BETWEEN THE INTER- STATE COMMERCE CLAUSE AND INDIAN COMMERCE AND TREATY CLAUSES RE- GARDING THE NAVIGATIONAL SERVI- TUDE SHOULD BE RESOLVED IN FAVOR OF THE FAIR AND HONORABLE DEAL- IV. THE COURT OF APPEALS DECISION CON- FLICTS WITH THE PRINCIPLES OF MOR- ALITY AND JUSTICE EXPRESSED BY THIS COURT IN UNITED STATES v. REALTY CO. AND BY THE COURT OF CLAIMS IN BURK- V. THE EXPLICIT PROVISIONS FOR RECOV- ERY IN PUB. L. 97-385 PROVIDE AT LEAST TABLE OF AUTHORITIES CASES: United States Supreme Court Page 25 21 Bell v. New Jersey, 461 U.S. 773 (1983) Cotton Petroleum v. New Mexico, 490 U.S. 163 County of Yakima v. Confederated Tribes and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).... Louisville Bridge Co. v. United States, 242 U.S. 409 McClanahan v. Arizona State Tax Commission, 411 U.S. 162 (1973) ..... Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893) Nevada v. United States, 463 U.S. 110 (1983) Shively v. Bowlby, 152 U.S. 1 (1894) Union Bridge Co. v. United States, 204 U.S. 364 25 24 15 16 .14, 15, 19, 20 19, 21 22 15, 16 13 13, 15 .16, 17, 19 16 United States v. Cherokee Nation of Oklahoma, 480 ...3, 4, 5, 6, 15, 19, 20, 22, 23, 24, 29 United States v. Creek Nation, 295 U.S. 103 (1935) 14 United States v. Kansas City Life Ins. Co., 339 U.S. 17 United States v. Rands, 389 U.S. 121 (1967) 16 United States v. Realty Co., 163 U.S. 427 (1896).... 25, 30 26 Utah Division of State Lands v. United States, 482 U.S. 193 (1987) 13 United States v. Bellingham Bay Boom Co., 176 vi TABLE OF AUTHORITIES-Continued Page West Chicago Street R. Co. v. Chicago, 201 U.S. 506 17 White Mountain Apache Tribe v. Bracker, 448 U.S. 25 CASES: United States Courts of Appeals Boone v. United States, 944 F.2d 1489 (9th Cir. 15, 16 Cherokee Nation of Oklahoma v. United States, 937 .1, 3, 13 Cherokee Nation of Oklahoma v. United States, 948 F.2d 635 (10th Cir. 1991) .1, 3, 28 CASES: United States District Courts Cherokee Nation of Oklahoma v. United States, CASES: United States Court of Claims Burkhardt v. United States, 84 F. Supp. 553 (Ct. .1, 3, 25 ..3, 25, 26, 27, 28, 29, 30 Creek Nation v. United States, 168 Ct. Cl. 483 (1964) 14, 28 Otoe and Missouria Tribe of Indians v. United 29 29 United States v. Seminole Nation, 173 F. Supp. 784 CONSTITUTIONAL PROVISIONS AND STATUTES 28 U.S.C. § 1254 (1) 28 U.S.C. § 2509 Act of April 26, 1906, ch. 1876, 34 Stat. 137, Sec- 1 .1, 26, 27, 28, 29, 30 .1, 4, 14, 18 Indian Claims Commission Act, 60 Stat. 1049 (25 i, 1, 2, 23 Oklahoma Constitution, art. 1, § 3 Oklahoma Enabling Act, ch. 3335, 34 Stat. 267, Private Law 378, ch. 32, 64 Stat. A13 (1950) 18 18 27, 30 vii TABLE OF AUTHORITIES-Continued Public Law 97-385, 96 Stat. 1944 (1982) .... Page ..1, 14, 23, U.S. Const. art. I, § 8 U.S. Const. art. II, § 2 28, 29, 30 i, 1, 25 1 TREATIES AND COMPACTS Treaty of January 7, 1806, 7 Stat. 101 Treaty of July 2, 1791, 7 Stat. 39 7 2,7 Treaty of New Echota, December 29, 1835, 7 Stat. 2, 9, 10, 11 7 Treaty of September 11, 1807, 7 Stat. 103 MISCELLANEOUS Annual Report of the Commissioner of Indian Cherokee Nation Fee Patent 10, 11 4, 18, 23 16 Cohen, Handbook of Federal Indian Law (1982).... 22, 23 Clark, Water and Water Rights (1978) Glosser, Congressional Reference Cases in the Current Perspective, 25 Am. U. L. Rev. 595 29 H.R. Rep. No. 2693, 79th Cong., 2d Sess. 2225 29 29 II Kappler, Indian Affairs, Laws and Treaties 8 19 of the Interior (March 15, 1979) Morreale, Federal Power in Western Waters: The Tarlock, Law of Water Rights and Resources 16 11 12 16, 17 |