Em casis added N1. 41. Expert of William Armsong, Arent for the Choctaws, and Ang Superintendent. Western Tammitory November 25, 1983 tained in Beve the Comm asi nem ji (uzan £7073. Air Desarment. Ofice India Aftirs 1823 457478 Later, the Azant recommended that the government reHnquish its military reservation of Fort Gibsen, pursuant to Article 3 of the 1985 treaty, my bearse of its vale to the Chemckee Nation as a site for iner-borne mmerce. I would respectfully all your attention to a matter with, though disapproved by your predecessor, from Sa propriety and importance I think it is my jury to actic refere I mean the abandonment of Fort Glam ca a military post. I do not wish, in making okia gammastion, to intimate that the covers in charge of it are in any way remiss in their ty, or that the trops are an injury in themselves, but as omurging it ti that won I be of rect molve to the citizens of the Cherokee) wathon, being at the head of steamfost nem vetta, wer tha of the ArianSES cad Grand Rinen, and in possession of the only eliza togea men be damned, while their continuance now is menestar. Emphasis added Nɔ. 42, “Report of George Butler, Cherokee Azers September 27, 1854" contained in Annue Report of the Commissioner of Indian Aftirs 114-115. By 1857, the recommendation had been بگیر 12 heeded; the government abandoned Fort Gibson and it reverted to the Cherokee Nation. No. 86, "Report of George Butler, Cherokee Agent (September 8, 1857)" contained in Report of the Commissioner of Indian Affairs (1857) 211-212. The court of appeals stated (App. p. 13a) that: If particular activities or interests of the Cherokee Nation had been specifically protected by statutes and representations of the government . . . and then the Navigation System had disrupted the Cherokee Nation's protected activities, a violation of a special relationship might be shown. As has been shown, the interests of the Cherokee Nation in regulating commerce and navigation had been recognized, accepted and protected by the United States. Accordingly, the conveyance without reservation of a servitude, and federal acceptance of Cherokee governmental authority and proprietary control of the Arkansas River evidence the special relationship's nexus with the navigational servitude. B. The Conveyance Of The Riverbed By The United The unique decision in Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) that the riverbed lands had been conveyed to the Cherokee Nation prior to Oklahoma statehood is in contrast to all other cases involving title to lands under navigable water.1 To reach the conclusion it 1 Indeed, in only a single case-Choctaw Nation v. Oklahoma -have we concluded that Congress intended to grant sovereign lands to a private party. The holding in Choctaw Nation, moreover, rested on the unusual history behind the Indian treaties at issue in that case and indispensable to the holding was a promise to the Indian Tribe that no part of the reservation would become part of a State. Choctaw Nation 13 did in Choctaw Nation, the Court reviewed the principle expressed in Shively v. Bowlby, 152 U.S. 1 (1894) which held that "Congress has the power to make grants of lands below high water mark of navigable waters. . . to carry out . . . public purposes appropriate to the objects for which the United States hold the Territory Id. at 48 (emphasis added). The conveyance to the Cherokee Nation occurred under this justification. The purpose was not to promote navigation and commerce among the states, or to ensure that the lands and governmental powers of the Cherokee Nation would be on an equal footing with other States. It was to respond to persistent demands by the eastern States that Indian title be extinguished so that expansion of the non-Indian economy could proceed, and to fulfill a solemn promise to the Cherokee Nation to isolate it from commerce with other states, secure its sovereignty and peaceful possession of new lands in the west, and avoid the depredations suffered by the Cherokee Nation through contact with non-Indian settlements in the east. Choctaw Nation v. Oklahoma, 397 U.S. at 622-27; see also Douglas, J., concurring. Id. at 636-43. The court of appeals also concluded that while a fair and honorable dealings claim was compensable where the United States had transferred tribal property to others, such a claim would not lie where the government converted tribal property to its own use under the navigational servitude. 937 F.2d at 1546. If the conversion of tribal property by the federal trustee is actionable at all, however, it should be irrelevant whether the conversion was for the trustee's own benefit or for a third party. In either situation the damage to the beneficiary is the same. The position of the Cherokee Nation in this 2 was thus literally a "singular exception," in which the result depended "on very peculiar circumstances." Utah Division of State Lands v. United States, 482 U.S. 193, 198 (1987) (citations omitted). 2 This case is distinguishable from Nevada v. United States, 463 U.S. 110 (1983) in which Congress had created competing obliga 14 regard is similar to that in United States v. Creek Nation, 295 U.S. 103 (1935), in which the government's power over tribal property was held not to be absolute but subject to limitations inhering in its guardianship of the tribe. Compensation was awarded in United States v. Creek Nation under a special jurisdictional act which authorized "legal and equitable claims" but not claims based on fair and honorable dealings. 295 U.S. at 105. In contrast, the fair and honorable dealings cause of action here is based upon moral grounds against which legal defenses such as the navigational servitude are unavailing. See Creek Nation v. United States, 168 Ct. Cl. 483, 496 (1964). The obligations defined by this Court in United States v. Creek Nation should apply here, especially in view of the explicit fiduciary obligations established for the riverbed lands under section 27 of the Act of April 26, 1906, ch. 1876, 34 Stat. 137. App. p. 86a. II. ASSERTION OF THE NAVIGATIONAL SERVITUDE AGAINST THE CHEROKEE NATION'S TITLE IS INCONSISTENT WITH THE STANDARDS OF FAIR AND HONORABLE DEALINGS TO WHICH THE UNITED STATES IS HELD IN THIS CASE. In spite of the seemingly universal applicability of the navigational servitude, this Court has rejected a per se rule that all naturally navigable waters are subject to the no compensation rule that ordinarily governs exercise of the "Commerce Clause authority to promote navigation," Kaiser Aetna v. United States, 444 U.S. at 172, and which was applied by this Court to the Cherokee Nation's Fifth tions for the Secretary of the Interior. Here there is no such conflict between congressionally established vested interests. Instead, the federal fiduciary has converted the riverbed trust lands to its own interest. In response, Congress has declared its intention to pay any debts which resulted from damages caused by that conversion, even though those debts may not be recognized by any existing rule of law or equity. Public Law 97-385. App. p. 29a. 15 Amendment claim in United States v. Cherokee Nation.3 Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979); see also Boone v. United States, 944 U.S. 1489, 1501 (9th Cir. 1991). This fair and honorable dealings claim warrants an exception to the no compensation rule of the navigational servitude. When the United States vested riverbed ownership in the Cherokee Nation, both parties gave every indication of their mutual understanding that the conveyance embraced complete, unencumbered property rights, including "one of the most essential sticks in the bundle of rights that are commonly characterized as property-the right to exclude others." Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). See also, Boone v. United States 944 F.2d 1489, 1499 (9th Cir. 1991). The context of that conveyance and the relationship between the parties created an expectation that is backed by a duty of fairness and honor which requires compensation for any damages caused by the reservation of the navigational servitude and its eventual exercise with the construction of the of the McClellan-Kerr Navigation Project. A. The General Rule That Exercise Of The Navigational Servitude Is Not Compensable Was Not Fully Expressed By This Court Until Long After Treaty And Statutory Commitments And Other Representations To The Contrary Had Been Made By The United States To The Cherokee Nation. While the federal authority over navigation had been read into the Commerce Clause as early as Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), the first compensation case involving the navigational servitude did not reach this Court until 1893. Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893). In the early decisions on compensation claims the navigation servitude 3 None of the cases on which the Court based its decision in the Fifth Amendment claim, however, involved title to submerged lands that had been conveyed to private parties by the United States under any of the Shively v. Bowlby principles or in the context of ety and fiduciary relationship. |