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United States Agent in letters to potential licensees recognizes that riverbed property continues to belong to the Nation. Earlier Cherokee Supreme Court case holding that ferries in the Nation are not inheritable by the heirs of the deceased licensee but are the property of the Nation is still controlling.

U.S. Indian Agent acknowledges that all fees and ferry tax for rivers that empty into the Arkansas and all income from sand, gravel, coal and oil leases paid into the Department of the Interior are credited to the Cherokee Nation's account and forwarded to Joe M. La Hay, treasurer of the Cherokee Nation. Later the agent concludes that this also includes license renewals.

Annual Message of Cherokee Chief Buffington shows collections to the credit of the Cherokee Nation in the United States Treasury $200.00 in Ferry Taxes for July 1, 1900 to June 30, 1901.

United States Indian Inspector for the Indian Territory writes Chief T.M. Buffington of the Cherokees retaining the 1892 Cherokee enacted regulatory scheme because "the operation of ferries is a public necessity, and that it would not be advisable to change the present law.

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U.S. Agent requests from the Cherokee Nation a formal listing with "issuance and transmittal to this office of licenses" decided upon by the tribe for "certain persons to operate ferries in the Cherokee Nation."

U.S. Agent notes that all changes in the names and designation of licensees must be authorized

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and issued by the Cherokee Nation. United States Agent directs a question "whether or not, under the laws of the Cherokee Nation, a citizen of the United States, can be granted a license to operate a ferry," to the Cherokee Nation for resolution.

1902-1906 Under the Act of July 1, 1902, the United States provided for the allotment of the tribal lands to individual members of the Cherokee Nation and the United States assumed full administrative control over all of the affairs and property of the Cherokee Nation to carry out the provisions of the Curtis Act of 1898 and the Allotment Act of 1902.

1904

1906

1906

1906

United States Indian Agent advises that "all necessary blanks to obtain a license" to operate a ferry must come from the Cherokee Nation.

Cherokee Nation continues to regulate and ex-
ercise authority over navigation including li-
censing and taxing of ferry and ferrymen
which is assisted by federal Indian agents who
direct inquiries to tribal national treasurer.
The riverbed of the Arkansas River is not
allotted by the Dawes Commission to individual
Indians, and under the patent issued by the
United States to the Cherokee Nation in 1838,
the fee simple title to the Arkansas riverbed
is vested in the Cherokee Nation and held in
trust by the United States for the use and
benefit of the Cherokee Nation.

The riverbed passes in trust to the United
States under the terms of the Five Civilized
Tribes Act of 1906 providing for the final dis-
position of tribal affairs under the following

1907

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Congressional enactment: "That the lands belonging to the Choctaw, Chickasaw, Cherokee, Creek and Seminole tribes, upon the dissolution of said tribe, 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

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Under the statutory provisions of the 1906 Present Five Civilized Tribes Act, the United States continues as the trustee for the lands not allotted which are "to be held in trust by the United States for the use and benefit of the Indians."

Mr. FRANK. Mr. Swimmer.

STATEMENT OF ROSS SWIMMER, FORMER PRINCIPAL CHIEF, CHEROKEE NATION, AND PRESIDENT AND CHIEF EXECUTIVE OFFICER, CHEROKEE NATION INDUSTRIES

Mr. SWIMMER. I appreciate the opportunity to be here. In addition to being Wilma's predecessor, as principal chief for 10 years of the tribe, I was also the Assistant Secretary for Interior in Indian Affairs from 1985 to 1989.

Mr. SYNAR. Why didn't you solve this while you were over there? [Laughter.]

Mr. SWIMMER. I was recused, Congressman, unable to deal with it at the time; it was in the courts.

I will say that I saw many actions by Indian tribes come through requesting payment on claims that were of perhaps little merit that were paid by Congress, but not involved in the judicial process. I would like to say, Mr. Flint's defense, that he has been an advocate for tribal claims over the years, and I'm sorry to see that he barred in this instance by court decisions that have come out in this particular case.

Mr. FRANK. And by executive branch fiat. I think you're right, and I should join in saying that it was not Mr. Flint's personal opinions we were getting, but it was his superiors also in the administration.

Mr. SWIMMER. And that's why the administration's not here, Mr. Chairman. That's why OMB and the Department of Interior and folks aren't here.

In 1982, when this legislation first came up, we faced the veto threat. We faced it and I was told that the White House would veto it, and several Congressmen rose to the defense of this bill on December 23, 1982, just before Christmas, because there was that threat, and there will be that threat again.

But my comments go to the equitable merits of it. I don't understand the courts. A fair and honorable dealing claim is a claim that is allowed; it's a unique claim allowed in law to Indian tribes who have been mistreated by the Federal Government, but where there is no legal right to compensation, but a moral right to compensation.

Whether the Supreme Court takes our case or not, I think it will be remiss if it doesn't because this is an issue that needs a decision. This is a fair and honorable claim. It's a moral claim by the Government. And let me explain just quickly why.

In 1835, when we were driven out of our lands in Georgia, a group of Cherokee leaders, knowing that there was going to be mass destruction to the Cherokee Tribe, thought it best to sign a treaty that would exchange that land in Georgia for land in Indian territory. But one of the leaders of the tribe was bright enough— and we had many bright leaders then-and said, "We don't want a reservation in this new country. We've seen what's happened; that when tribes get reservations, they get moved around from one place to another. We want a patented fee simple title to our new lands in the West." And that was part of the treaty.

Nowhere in the negotiations for that land, nowhere in the record, is there any discussion that the U.S. Government was giving us

less than what we bargained for. We bargained acre-for-acre, riverfor-river, land-for-land that we would exchange, at great personal risk to the tribe, the land in Georgia for 14 million-plus acres in this new country to the West that we had never seen. We were driven to that land. We weren't allowed to go there peacefully. The army rounded us up and they drove our ancestors to that land. They said, "This is where you're going to be and you're going to be here forever, and we're never going to create a State. You don't have to worry about anybody else coming in. You're far enough away that you're protected from everything.'

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Nowhere at any time was there a discussion from the U.S. Government that they had reserved an easement across our navigable waterways. In fact, the history is to the contrary. Throughout that period of time, from 1835 to 1907, the U.S. Government deferred to the Cherokee Nation for permits to traverse the river, for traders to go up and down the river, for ferries to use the river. There's letter after letter, decision after decision, that says, "No, you have to go to the Cherokee Nation; the U.S. Government has transferred this property to the tribes. We have not reserved any kind of an easement."

Now we're in a situation where the Government has come back and said, "Well, we're sorry, folks, we didn't tell you that in 1893, 40 years after our treaty was made, a doctrine was created by the courts in this country that was called navigational servitude. And that, as a result of that doctrine interpreting the commerce clause that goes back to the day of the Constitution, that we have imposed on your river an easement. We didn't tell you about it. We didn't tell you about it when we negotiated. You came up short and we're sorry, but legally we can't do anything about it. And, legally, we can use that river for any purpose that we choose, as long as it's in aid of navigation, without paying you a dime for it. We can dredge your sand and gravel. We can make your minerals inaccessible. We can take your damsites which are unique for power generation purposes. We can do anything we want with that river bed that the Supreme Court has said you own," because of this 1893 decision regarding navigation servitude which we knew nothing about.

Now I don't know where the courts come off on this, but to me, where the Indian tribes negotiated for fee title land-for-land and now we come up short, and the Government says, "I'm sorry, we can't compensate you," I think is very disingenuous.

The tribe has always exercised navigational authority over this river up until the time of statehood. After that, it wasn't an issue because the State was assumed to have inherited this river under the equal footing doctrine, and nobody bothered with servitude until they build the McClellan-Kerr Channel, and of course they told the State, "You're not going to be compensated." But they didn't know that the tribes owned it.

The Department of the Interior, in response to our legislation in 1976, Solicitor Krulitz said in a letter, had we known that these three tribes owned this river bed, "Of course, we would have provided compensation for their ownership in the authorizing legislation for the McClellan-Kerr system. We just didn't know it because

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