6 dressed in its decision. Id. at 702 n. 1. This claim is about the morality of reserving and exercising the navigational servitude against the Cherokee Nation, not the power of the United States to do so. A. The Special Relationship Between The United States The special relationship between the United States and the Cherokee Nation prevents the navigational servitude from being a complete bar to recovery under the fair and honorable dealings clause. The treaties with the Cherokee Nation, the patent for lands in the Indian Territory, the representations on behalf of the United States by federal officials to the Cherokee Nation, the active support by federal officials of the Cherokee Nation's exercise of governmental and proprietary power over commerce and navigation in the Cherokee territory, and Congress' placing the riverbed lands in trust, referred to in Chocktaw Nation v. Oklahoma, 397 U.S. 620 (1970), establish the moral foundation for this claim. The court of appeals' conclusion that the Cherokee Nation has failed to demonstrate that in some way the government undertook a special relationship such that it would forego or restrict its historic right under the Commerce Clause so that the government was inhibited in the exercise of the navigational servitude, or bound to make compensation for the results of its exercise (App. p. 22a) is erroneous: it refuses to acknowledge the integral relationship between the United States and the Cherokee Nation regarding navigation and commerce, and so misunderstands the nature of the fair and honorable dealings cause of action as to make it meaningless. Appendix G hereto sets forth a chronology of the relations between the United States and the Cherokee Nation that documents a mutual understanding of the Cherokee Nation's sovereign and proprietary authority over navigation and commerce in the Arkansas River. From their earliest relations, the United States treated 7 with the Cherokee Nation for the public right of passage in Cherokee territory. The United States did not assert any dominant servitude or right of navigation in the Cherokee Nation's eastern territory. Instead, the United States established a course of dealing through which it secured explicit agreements for the right to navigate the streams in the Cherokee territory. For example, the Treaty of July 2, 1791, 7 Stat. 39, App. p. 53a, provides: Article V It is stipulated and agreed, that the citizens and inhabitants of the United States, shall have a free and unmolested use of a road from Washington district to Mero district, and of the navigation of the Tennessee River. (Emphasis added.) In an addendum to the Treaty of January 7, 1806, 7 Stat. 101, made September 11, 1807, 7 Stat. 103, App. p. 56a, the Cherokee Nation "ceded to the United States all the right, title and interest which the said Cherokee nation ever had to a tract of country ... includ[ing] all waters of the Elk River." The Treaty of March 22, 1816, 7 Stat. 139, App. p. 59a, provides: Article 2 It is expressly agreed on the part of the Cherokee Nation that . . . the citizens of the United States shall freely navigate and use as a highway, all the rivers and waters within the Cherokee nation. The Cherokee nation further agree to establish and keep up, on the roads to be opened under the sanction of this article, such ferries and public houses as may be necessary for the accommodation of the citizens of the United States. (Emphasis added.) Later, during the removal of some of the Cherokees west of the Mississippi to lands in what is today Arkansas in the vicinity of the White and Arkansas Rivers, rights of navigation in that territory again were expressly provided for: 8 Art. 9 It is also provided by the contracting parties, that nothing in the foregoing articles shall be construed so as to prevent any of the parties so contracting from the free navigation of all the waters mentioned therein. Treaty of July 8, 1817, 7 Stat. 156. App. p. 63a. The United States understood that the treaty provisions by which the Cherokee Nation granted the right of navigation to non-Indians within their territory retained authority in the Cherokee Nation to regulate commerce involving river navigation. For example, on March 8, 1813, the government agent with superintendence over the Cherokee Agency witnessed the grant of authority by the Cherokee Nation for the construction of a turnpike in Cherokee territory, including "one ferry on Tennessee River, and such other ferry or ferries as are necessary on said road. . ." A copy of the authorization was certified on March 1, 1819. II Kappler, Indian Affairs, Laws and Treaties 180-181. App. p. 65a. In 1817, the United States negotiated an agreement to use the Cherokee waterways for postal service. App. p. 36a. In 1826, the Cherokee Nation rejected a presidential request for authority to construct a navigation canal because doing so would require "the right of soil and jurisdiction over the ground where the canal would pass, and which the Cherokee Nation can never surrender." App. p. 38a. Up to that point in their history, the Cherokee Nation negotiated treaties with the United States in expectation of trade and intercourse with the non-Indian community. Accordingly, the United States recognized the need to secure the right of navigation because it furnished one of the only means of efficient transportation in frontier territory. The treaties providing for the final removal of the Cherokee Nation to the Indian Territory had a different premise, however. They contemplated that the Indians would be isolated and the lands set aside would be guaranteed to them forever. Treaty of May 6, 1828, 7 Stat. 377, Article 2. Article 8 of that treaty proclaimed that by its terms the 9 Cherokee Nation, West of the Mississippi. freed themselves from the harassing and ruinous effects consequent upon a location amidst a white population, and secured to themselves and their posterity, under the solemn sanction of the guarantee of the United States, as contained in this agreement, a large extent of unembarrassed country. (Emphasis added) App. p. 68a. Significantly, the 1828 treaty is not entirely silent on the matter of reserving rights to the United States. The United States made one reservation in Article 9, a site for a military base (Fort Gibson) for which the Cherokees agree [d] that the United States shall have and possess the right of establishing a road through their country for the purpose of having a free and unmolested way to and from said Fort. (Emphasis added) App. p. 69a. The Treaty of December 29, 1835, 7 Stat. 478, App. p. 74a, provided for the removal of the remaining Cherokees east of the Mississippi River to the Indian Territory. Once again the keynote to the treaty was the separation of the Indians from the non-Indians. The "Cherokees are anxious to make some arrangements with the Government of the United States whereby the difficulties they have experienced by a residence within the settled parts of the United States" could be eliminated. Id. Preamble. The 1835 treaty reserved the right of the United States to provide for common, intertribal use of a salt plain (Article 2) and the right to make and establish such post and military roads and forts in any part of the Cherokee country, as they may deem proper for the interest and protection of the same and the free use of as much land, timber, fuel and materials of all kinds for the construction and support of the same as may be necessary Id. Article 3. Otherwise the treaty provided that the United States would convey by patent and guarantee the security of the landa ceded to the Cherokees so that 10 in no future time without their consent, [would those lands] be included within the territorial limits or jurisdiction of any State or Territory. But they shall secure to the Cherokee Nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons or property within their own country ... Id. Article 5. .... Thus, in a course of dealings spanning half a century and culminating in the 1828 and 1835 treaties, when the United States had an interest in the right of navigation, it expressly secured it by treaty with the Cherokee Nation. Following removal to the Indian Territory, the Cherokee Nation exclusively regulated use of the Arkansas River and other rivers within its territory into the 20th Century. App. pp. 39a-52a, 83a-85a. The United States did not object to the Cherokee Nation's doing so; rather it actively assisted the Cherokee Nation in the exercise of that governmental authority. App. pp. 43a-49a, 84a. The Cherokee Nation's Treasurer considered all applications and would issue them for fixed terms upon payment of a ferry tax. App. p. 85a. In addition, the United States military declared that it had no jurisdiction to regulate river commerce in Cherokee territory; that was subject to Cherokee authority. The military, however, did control importation of liquor to Cherokee territory at points of entry on overland routes. App. p. 41a. And at a time when Congress was acting to expand admiralty jurisdiction over western, navigable inland waterways (e.g., 5 Stat. 746 (1845)), federal officials referred claims for sinking vessels to the courts of the Cherokee Nation. App. p. 44a. The silence of the 1828 and 1835 treaties on the issue of navigation was neither inadvertent nor the result of a belief that navigation rights were of no importance. In their annual reports the federal agents in the Indian Territory made annual reports to the Commissioner of In |