PREPARED STATEMENT OF MYLES E. FLINT, DEPUTY ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE

My name is Myles Flint. I am Deputy Assistant Attorney General of the Environment and Natural Resources Division of the U.S. Department of Justice. I am pleased to be here today to testify on H.R. 4209, a bill that would amend Public Law 97-385 to allow the Cherokee, Choctaw and Chickasaw Nations of Oklahoma to collect so-called "damages" from the United States stemming from construction by the Army Corps of Engineers of the McClellan-Kerr Navigation Project on the Arkansas River.

The Justice Department strongly opposes H.R. 4209. If this bill or any similar legislation is presented to the President, the Attorney General will recommend that the President veto it.

Summary

In 1982, over Justice Department objection, the Cherokee, Choctaw and Chickasaw Nations of Oklahoma secured a special jurisdictional act allowing them to bring otherwise timebarred claims against the United States for damages allegedly caused by construction of the McClellan-Kerr Navigation Project on the Arkansas River. In 1983, the Cherokee Tribe filed an action pursuant to the 1982 Act. The federal courts have now ruled, after almost a decade of litigation, that construction of the Project created no legal, equitable or

moral basis for damages claims by the Tribes against the United States.

H.R. 4209 would allow the Tribes, notwithstanding these federal court rulings, to collect "damages" caused by construction of the Project, in an amount to be determined through further litigation in the United States Claims Court or the United States District Court for the Eastern District of Oklahoma. Payment to the Tribes would be made by the Secretary of the Treasury, "out of the money in the Treasury not otherwise appropriated."

The Justice Department opposes H.R. 4209 because it

would:

1) Result in a substantial and unjustified gratuity to the Tribes, disguised as "damages;"

2) Denigrate the judicial function;

3) Result in the waste of the considerable judicial and litigation resources, past and future;

4) Give preferential treatment to the three Tribes, and stand as a precedent for other tribes and entities to seek similar special legislation;

5) Circumvent the appropriations process and increase direct spending without providing comparable offsets as required by the Budget Enforcement Act.

Background

To begin, I would like to set forth background information relevant to this legislation.

Between 1828 and

1835, the United States entered into treaties with the

Choctaw, Chickasaw and Cherokee Nations whereby those Tribes

relinquished their lands east of the Mississippi River in exchange for a United States grant of fee simple title in more than 27 million acres in the Oklahoma Indian Territory.

In 1907, Congress enacted legislation establishing the State of Oklahoma, which encompassed the area granted to the Tribes. In 1908, the United States Secretary of the Interior advised the Governor of Oklahoma that the State held title to the bed of Arkansas River, including the 96 mile stretch of River within the Tribes' patented area (the "riverbed"), based on the "equal footing doctrine."1 From that time forward, the United States and the State of Oklahoma conducted their

1 "[W]hen the United States conveyed by warranty deed the lands occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles, it did not convey the ownership of the beds of navigable streams, but reserved them for the benefit of the future state within whose boundaries they would fall." Letter dated March 27, 1908, from Interior Secretary to Governor of Oklahoma.

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affairs regarding the riverbed in keeping with the premise of state ownership. The Tribes, however, continued to believe that they held title to the riverbed within their patented

area.

In 1946, following decades of requests by numerous Indian tribes to secure special jurisdictional acts for adjudication of their ancient claims, Congress passed the Indian Claims Commission Act (the "ICCA"), 60 Stat. 1050, 25 U.S.C. § 70 (1976). The ICCA was intended to wipe the slate clean of all pre-1946 Indian grievances against the United States. It waived all statutes of limitation, gave the tribes five years, until 1951, in which to file all potential claims, and established a special commission to hear those claims. The Cherokee, Choctaw and Chickasaw Nations, despite their belief that the United States had wrongfully deprived them of their title to the riverbed, did not include riverbed claims among those they filed under the ICCA.

Also in 1946, the United States Army Corps of Engineers, in the exercise of the federal navigational servitude, began construction of the McClellan-Kerr Navigation Project on the Arkansas River. Some of the construction activity took place in the stretch of riverbed within the Tribes' patented area. In 1966 the Tribes filed a suit against the State of Oklahoma, disputing the State's claim of title to the riverbed

within the Tribes' patented area. (The Tribes specifically rejected the suggestion of the Commissioner of Indian Affairs to have the Attorney General represent them in this case.) In 1970, the United States Supreme Court upheld a judgment for the Tribes, finding that title to the contested stretch of riverbed had been included in the patents to the Tribes in the 1800's, and thus did not pass to the State under the equal footing doctrine in 1907. The Court expressly noted, however, that the fact that the Tribe, and not the State, had title to the riverbed, did not affect the United States' navigational easement. Choctaw Nation v. Oklahoma, 397 U.S. 620, 635 (1970). In 1975, the Federal District Court for the Eastern District of Oklahoma determined the respective rights of the three Tribes in the riverbed.

After the riverbed decisions, the Tribes pursued a Congressional buyout of their riverbed interests and payment for the government's past use of the riverbed. In 1973, 1974 and 1975 they sought and received from Congress the funds necessary to complete studies and appraisals in support of such legislation. At the direction of Congress, the studies and appraisals were carried out by the Department of the

Interior.

In the mid- to late-1970's, the Tribes on several occasions had legislation introduced which would have provided

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