Mr. FLINT. The position of the Department of Justice is that there is, under the fair and honorable dealings clause and under the navigational servitude Mr. FRANK. No, I didn't ask you about either of those. I didn't ask whether the Government had a legal right to do it. My question is, from the standpoint of the owners of the river bed, were they worse off than before? Mr. FLINT. I don't believe they were worse off than they were before. Mr. FRANK. OK. Let me correct you on a misimpression you're under. This committee is not the Supreme Court plus one. I might wish, but we're not it. We have a different charge. We are here to decide on public policy grounds. You keep answering in strictly legal terms that would be appropriate to a case. Now those are relevant, but they are not exhaustive. Now you worry about precedent, but I think Mr. Synar has quite clearly pointed out that the uniqueness of the fact that we're dealing with a river bed that was owned, and it's the only one that was owned, that's very limiting. I think he has made a very good case in terms of limiting of our legislative action. So I have to tell you my conclusion. I think under our rules of evidence I am entitled to make an adverse inference from your refusal to answer. [Laughter.] Mr. FRANK. The inference that I draw is that you agree that this was, in fact, change to their detriment, and the answer is not that we shouldn't pay them any money, but we don't have to if we don't want to. Conceding for a moment that we don't have to if we don't want to, why shouldn't we? Why shouldn't we compensate them some? There was a greater good done here, some detriment to them, as they see it. Why not compensate them some, as a matter of public policy? Mr. FLINT. For the reasons that I've stated in my testimonyMr. FRANK. I didn't hear any of those. You told me we didn't have to. Mr. FLINT. I think it sets an adverse precedent that we will hear more of. Mr. FRANK. What else? Any others? Mr. FLINT. I think that it's a gratuity which the Congress can Mr. FRANK. Right, and the question is whether we should or shouldn't. Mr. FLINT. And in this case, we're setting up, attempting to set up a judicial proceeding where we've we've had the judicial proceeding Mr. FRANK. No, that's not a reason; that's a-I understand that, but I'm asking you whether, as a matter of public policy, there should or shouldn't be some compensation. Precedent is one argument, although I think Mr. Synar has dealt very effectively with that. I'm asking you, is there any other public policy reason? You're here on behalf of the executive branch of the Government. You're representing not just the Justice Department, but the Interior Department, which has deferred to you. Mr. FLINT. I think that, to the extent that it's a gratuity and we are concerned about what we are doing for other Indian tribes, that it is showing a preference to one group as Mr. FRANK. So you want to put up a sign, "Please don't tip the Indians?" Mr. FLINT. I have obviously not said that. Mr. FRANK. Well, you say it's a "gratuity." What's the Mr. FLINT. You misinterpret. Mr. FRANK. Well, the question is, is there a public policy reason for the Government to say, yes, the rest of us benefited from this and you suffered some harm; we'll compensate you? Mr. FLINT. Congress clearly has that power Mr. FRANK. OK. Mr. FLINT [continuing]. And Congress can clearly make that judgment. In this particular case, the Justice Department believes that you should not Mr. FRANK. Right, but the only reason you've given me is that it would be a bad precedent. If you have any other reasons, why in public policy terms that would be a bad decision to make, I'll leave the record open, and I'd be glad to receive them. Thank you. Next we will hear from our panel: Chief Mankiller of the Cherokee Nation and former Chief Swimmer of the Cherokee Nation, who is now president and chief executive officer of Cherokee Nation Industries. They will be accompanied by Mr. Anoatubby, who is the Governor of the Chickasaw Nation, and Chief Pyle from the Choctaw Nation. Ms. Mankiller, my former marching partner, we'll begin with you. STATEMENT OF WILMA P. MANKILLER, PRINCIPAL CHIEF, CHEROKEE NATION Ms. MANKILLER. That's right. It's an honor to appear before your committee, and I did want to thank you for marching. I think that all human beings should be treated with dignity and respect, and the fact that both you and I were there to do that certainly makes me feel good. I'm going to be brief because we submitted a lengthy document for the record. Mr. FRANK. Without objection, all your statements will be made part of the record. And, of course, you are very well represented by Mr. Synar's advocacy. So the combination of those puts you in good stead, but please continue as you wish. Ms. MANKILLER. I have to tell you that I've dealt with the U.S. Government in one form or another now for 14 years, and yet I was still astonished by the testimony of the Justice Department. Why they call that Department "the Justice Department" is a mystery to me. We have had to fight them absolutely all the way. I also want to just make note of the fact that the public policy people—that is, the Bureau of Indian Affairs folks-are not here and have deferred entirely to the legal people at the Department of Justice, and that concerns me also. We appreciate the introduction of H.R. 4209 by Congressman Synar and all the members of the Oklahoma delegation, as well as this committee's prompt consideration of the bill. Briefly, the historical background of the Cherokee Tribe, Choctaw and Chickasaw Nations' involvement with the Arkansas River is extensive. In exchange for the nations' ceding extensive territory in the Southeast in the 19th century, the United States conveyed to us the Arkansas River by treaty and by patent in what is today Oklahoma. They ceded this land in exchange for much, much land that now covers almost what is now presently several States. Let me quote to you some of the language from the treaty and the patent. In conveying the property and what is now Oklahoma, this quote is taken directly from those documents. It was to give us "a permanent home which shall under the most solemn guarantee of the United States be and remain theirs forever and which would never be embraced within the boundaries of any State or territory." I think that's very, very important in looking at this issue today. After more than half a century in which the nations had enjoyed exclusive rights in this territory, Indian territory, including control of navigation and other activities on the Arkansas River, the United States decided to require the allotment of the nations' territory to tribal members and sell the remaining lands to settlers in order to create the State of Oklahoma. The tragedy of this chapter in U.S. history is that, after having endured the infamous trail of tears in which thousands of Cherokee men, women, and children died, either while being held in stockades prior to the removal or during the removal itself, the Cherokees accepted the promise of a permanent home in the West that had been pressed upon them by the United States. The Government tried to seize or destroy everything the nations had created in their new land, including their governmental and educational institutions. Following Oklahoma's admission to the Union in 1907, State and Federal officials mistakenly assumed that title to the Arkansas River bed had passed to the State of Oklahoma under the equal footing doctrine. Acting under that assumption, the United States authorized construction of the McClellan-Kerr navigation project in 1946. The estimated cost of construction in 1946 exceeded $435 million. Nowhere in that estimate is compensation to the nations for the use and occupancy of their river bed land. In 1970, just a year before project construction was completed, the Supreme Court confirmed that the nations owned the river bed land occupied by the project. The Court also confirmed that the river bed is held in trust by the United States and by law "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 Indians." This is the only case in the history of the Supreme Court in which the Court has held that the Government conveyed title to land under navigable waters to a party other than a State. After the Supreme Court ruled that the nations owned the river bed, the nations sought compensation from the Federal Government for damages caused by the McClellan-Kerr project. The Department of the Interior offered as settlement which the nations accepted, but then the Government reneged on the settlement and refused to sign it. The Government took the position that the navigational servitude should bar Federal liability as a matter of law. By the time the Government broke off settlement negotiations with the nations in the late seventies, the statute of limitations had expired on claims they may have made against the United States. The nations appealed to Congress, which enacted Public Law 97-385, in 1982 to establish jurisdiction in the Federal courts for the tribes' claims. The legislation authorized both legal and equitable claims, and especially authorized claims based on fair and honorable dealings that are not otherwise recognized by any existing rule of law or equity. Under the authority of Public Law 97-385, the Cherokee Nation has pressed its river bed claim all the way to the Supreme Court, but the Supreme Court has never reached the damages issue. The Justice Department has argued successfully that the interstate commerce clause's navigational servitude overrides tribal property rights. Thus, the courts to date have ruled against the nations' claim on the basis of case law that is distinguishable both legally and factually. After 9 years of litigation, the Cherokee Nation is facing the challenge of returning to the Supreme Court, yet again, to petition for relief on its fair and honorable dealings claim. Looked at purely in terms of its result, the tribes are worse off in this case than non-Indians who have found themselves similarly situated. For example, the United States compensated private parties on grounds of fairness and honor for losses caused by navigation project construction even though they had no special relationship to the United States and did not own the river bed. Where non-Indian private property rights are concerned, the Reagan and Bush administrations have been extraordinarily active in restricting the exercise of constitutional powers over them. As Congressman Synar noted, just last month, on March 1, the Justice Department argued to the Supreme Court that a lower court decision upholding a regulatory action to protect coastal zones should be vacated. How can the Justice Department take such a position while it simultaneously invokes the navigational servitude to override the nations' rights to lands acquired directly from the United States by treaty and patent? Finally, the simple facts are that the United States has taken tribal land, absolutely breached its trust responsibility to the nations, and constructed a navigational project that has proven to be a colossal failure economically, without compensating the tribal landowners who hold fee simple title and who were prevented from quieting title to their land for more than 60 years because of Federal and State sovereign immunity. H.R. 4209 would amend Public Law 97-385 to acknowledge that the nations should be compensated. It would still require them to return to court to prove any damages caused by the construction of the McClellan-Kerr project. Favorable action on H.R. 4209 will bring the tribes one step closer to the successful conclusion of their journey, which has been a long and difficult journey for compensaen which began more than 25 years ago. This concludes my testimony. We have very brief comments from Mr. Swimmer and Governor Anoatubby and Mr. Pyle. [The prepared statement of Ms. Mankiller follows:] STATEMENT OF THE CHEROKEE, CHOCTAW, AND CHICKASAW NATIONS TO THE SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS ON H.R. 4209 APRIL 1, 1992 Mr. Chairman and members of the subcommittee, I am Wilma P. Mankiller, Principal Chief of the Cherokee Nation. With me here today are Governor Bill Anoatubby of the Chickasaw Nation and Chief Hollis E. Roberts of the Choctaw Nation. Ross 0. Swimmer, my predecessor at the Cherokee Nation, has long been involved in the subject of this hearing and is with us to assist in the subcommittee's consideration of H.R. 4209. We deeply appreciate the introduction of H.R. 4209 by Congressman Synar and all of the members of the Oklahoma delegation, as well as this committee's prompt consideration of the bill. The historical background of the Cherokee, Choctaw and involvement with the Arkansas River is Chickasaw Nations' summarized in Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), and is briefly restated here. In exchange for the Nations' cession of their extensive territory in the east in the 19th century, the United States conveyed to them by treaty and patent lands encompassing a portion of the Arkansas River in what is today Oklahoma as "a permanent home, which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever" and "which would never be embraced within the boundaries of any State or Territory." 397 U.S. at 624, 626. After more than a half century in which the Nations enjoyed exclusive sovereignty and proprietary rights in their territory, including licensing and |