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by the Congress and the Executive that induced the Cherokee Nation to believe that it was receiving the benefit of its bargain for removal. Thus, consistent with Louisville Bridge v. United States, the United States has by contract or estoppel, prevented itself from defeating the fair and honorable dealings claim in this case.

III. THE CONFLICT OF BETWEEN INTERSTATE COMMERCE CLAUSE AND INDIAN COMMERCE AND TREATY CLAUSES REGARDING THE NAVIGATIONAL SERVITUDE SHOULD BE RESOLVED IN FAVOR OF THE FAIR AND HONORABLE DEALINGS CLAIM IN THIS CASE.

Commerce Clause jurisprudence has produced two rules of construction that are squarely in conflict in this case. The first rule concerns Congress' power to regulate foreign and interstate commerce 7:

[W]hen private rights of an indefeasible nature are sought to be derived from regulatory provisions established in the exercise of this power, . . . the universal rule [is] that grants of special franchises and privileges are to be strictly construed in favor of the public right, and nothing is to be taken as granted concerning which any reasonable doubt may be raised

"Congress, which alone exercises the legislative power of the government, is the constitutional protector of foreign and interstate commerce. Its supervision of this subject is continuing in its nature, and all grants of special privileges, affecting so important a branch of governmental power, ought certainly to be strictly construed. Nothing will be presumed to have been surrendered unless it was manifestly so intended. Every doubt should be resolved in favor of the government."

(Citations omitted) Louisville Bridge Co. v. United States, 242 U.S. 409, 417-18 (1917).

7 It has long since been settled by this Court that under the Commerce Clause Indian tribes are neither States nor foreign nations. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

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The second rule also arises, in part, under the Commerce Clause, but under the phrase empowering Congress to regulate commerce with Indian tribes. See McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172 n. 7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making") (citations omitted); see also F. Cohen, Handbook of Federal Indian Law 207-12 (1982 ed.). This rule arises out of the special relationship between the Indians and the United States. As was stated in the decision on ownership of the Arkansas River bed:

The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, and any doubtful expressions in them should be resolved in the Indians' favor.

Choctaw Nation v. United States, 397 U.S. 620, 630-31 (1970) (citations omitted); see also F. Cohen, supra 22224 ("In construing Indian treaties, the courts have required that treaties be liberally construed to favor Indians, that ambiguous expressions in treaties must be resolved in favor of the Indians, and that treaties should be construed as Indians would have understood them. Similar rules of construction have been applied to situations which do not involve treaties. Statutes, agreements, and executive orders dealing with Indian affairs have been construed liberally in favor of establishing Indian rights." (citations omitted)).

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United States v. Cherokee Nation, 480 U.S. 700 (1987), nonetheless rejected the Cherokee Nation's Fifth Amendment claim largely on the basis of the rule of construction relating to congressional authority over for

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eign and interstate commerce.

As a matter of law, Cherokee Nation concluded that fiduciary principles governing the trust relationship between the United States and the Cherokee Nation were unavailing because

they do not create property rights where none would otherwise exist but rather presuppose that the United States has interfered with existing tribal property interests. As we have explained, the tribal interests at issue here simply do not include the right to be free from the navigational servitude . . .

480 U.S. at 707-708.

The fair and honorable dealings cause of action created by Congress in Public Law 97-385 is a new and independent source of liability against which the Cherokee Nation's claim must now be measured. It makes the United States accountable in moral, not legal, terms for its undisclosed reservation of a navigational servitude in the treaties and patent, and the damage resulting therefrom.

One major exception to the principle that the jurisdictional statutes are not in themselves an independent source of liability is found in the grants of jurisdiction to the Indian Claims Commission in 25 U.S.C. § 70a. This section expressly created claims in certain areas not otherwise cognizable in law or equity. Indeed, section 70a (5) specifically envisioned litigation of claims "based upon fair and honorable dealings that are not recognized by any existing rule of law or equity."

F. Cohen, supra 568 (1982) (emphasis added).

The fair and honorable dealings cause of action brings the Indian Commerce and Treaty Clauses into play with the navigational servitude, and with them the related rule of construction. The conflict that was absentbecause a right was found wanting-in the Fifth Amendment claim now emerges here because Congress has recognized rights based on honor and morality. Application of the conflicting Commerce and Treaty Clauses rules

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of construction to this case, however, does not necessarily result in a dilemma. Where different acts of Congress conflict, every effort should be made to accommodate org to the other. "Judges are not at liberty to pick and choose among congressional enactments, and when twen [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congres. sional intention to the contrary, to regard each as effetive.'" County of Yakima v. Confederated Tribes an Bands of the Yakima Indian Nation, 60 U.S.L.W. 4067 (U.S. January 14, 1992).

When the constitutional provisions come into conflict in that context, they can be reconciled; the power of the United States to exercise the servitude is unabated, but the injury caused to the tribal beneficiary of the federal trustee in the process should be compensated. While United States v. Cherokee Nation found "no support for the existence of such a 'hybrid' navigational servitude in these circumstances," of a Fifth Amendment claim, (430 U.S. at 706, n. 4) the fair and honorable dealings claim warrants a different result and obviates the need to favor one rule, and federal interest, at the expense of the other.

In considering the applicability of the navigational servitude as a defense to this fair and honorable dealings claim, the sharp difference in purpose of the Indian and Interstate Commerce Clauses is critical:

It is . . . well established that the Interstate Commerce and Indian Commerce Clauses have very different applications. In particular, while the Interstate Commerce Clause is concerned with maintaining free trade among the States even in the absence of implementing federal legislation, . . . the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs. . . . The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique roles of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause.

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Cotton Petroleum v. New Mexico, 490 U.S. 163, 192 (1989) (citations omitted) (emphasis added). See also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) ("differences in the form and nature of [State and tribal] sovereignty make it treacherous to import to one notions . . . that are properly applied to the other").

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The court of appeals, nevertheless, stated that it agreed with the district court's conclusion that "the Cherokee Nation has failed to show, and in fact cannot show, that the United States has assumed a special obligation to compensate plaintiff for the exercise of the navigational servitude." App. p. 9a (emphasis added). That conclusion is erroneous because, as has been shown, it has no basis in fact and, contrary to Cotton Petroleum, it effectively makes the Interstate Commerce Clause preeminent over the Indian Commerce Clause in any case. The court of appeals' conclusion, in effect, makes the fair and honorable dealings cause of action superfluous, a result which the law does not favor. See Bell v. New Jersey, 461 U.S. 773, 788-89 (1983) (The Court is reluctant "to construe a statute in a fashion that leaves some provisions superfluous.").

IV. THE COURT OF APPEALS DECISION CONFLICTS WITH THE PRINCIPLES OF MORALITY AND JUSTICE EXPRESSED BY THIS COURT IN UNITED STATES v. REALTY CO. AND BY THE COURT OF CLAIMS IN BURKHARDT v. UNITED STATES.

Article I, section 8 of the Constitution empowers Congress to "pay the debts of the United States." In United States v. Realty Co., 163 U.S. 427 (1896), the Court held that "debts of the United States" included more than those of a strictly legal nature.

The rationale of United States v. Realty Co. was adopted by the Court of Claims in a claim for damages resulting from exercise of the navigational servitude. Burkhardt v. United States, 84 F. Supp. 553 (Ct. Cl. 1949). The claimants in Burkhardt were private land

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