UNITED STATES OF AMERICA, PETITIONER V. CHEROKEE NATION OF OKLAHOMA Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. PARTIES TO THE PROCEEDING The petitioner is the United States of America. The respondent is the Cherokee Nation of Oklahoma. TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Question Presented Constitutional provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-23a) is reported at 782 F.2d 871. The opinion of the district court (App., infra, 25a-28a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 29a) was entered on January 23, 1986. On April 22, 1986, Circuit Justice White extended the time for filing a petition for certiorari to and including May 23, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED Article I, Section 8, of the United States Constitution provides in relevant part: The Congress shall have Power * * * * * * * * (3) To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes * * * The Fifth Amendment provides in relevant part: (N)or shall private property be taken for public use, without just compensation. QUESTION PRESENTED Whether the United States' navigational servitude, which permits the federal government to improve navigable waters free from claims of just compensation, bars the Cherokee Nation's claim that construction of the McClellan-Kerr Arkansas River Navigation Project has resulted in compensable damage to instream tribal property interests. STATEMENT The McClellan-Kerr Arkansas River Navigation Project is an extensive congressionally-authorized navigational improvement program that links the Southern Plains states with the Nation's inland waterway system. The Cherokee Nation of Oklahoma, which holds title to a portion of the Arkansas River's bed, initiated this suit in 1983 claiming that construction and operation of the project has effected a compensable taking of the Tribe's instream property interests. The United States responded that the government's firmly established power under the Commerce Clause to improve navigable waters free from suits demanding compensation for resulting instream property damage -- the so-called "navigational servitude" -- barred the Cherokee Nation's takings claim. The district court disagreed, holding that the United States had failed to preserve its navigational servitude in the relevant Indian treaties and patents (App., infra, 25a-28a). A divided court of appeals affirmed on different grounds, holding that the Cherokee Nation is subject to the navigational servitude, but the Tribe nonetheless "ha(s) a right to compensation for any consequent loss of property or diminution of value" to tribal interests resulting from the navigation project (id. at 16a). 1. The McClellan-Kerr Project, one of the Nation's largest and most important navigational improvement undertakings, provides water transportation essential to the commerce of the Southern Plains region of the United States. The project represents the culmination of congressional efforts, begun early in the nineteenth century, to realize the full commercial potential of the Arkansas River, our country's fifth longest and thirteenth largest waterway. /1/ Congress initiated the McClellan-Kerr Project in 1935 by requesting the Army Corps of Engineers to investigate the prospects for a comprehensive program to improve the navigable reaches of the Arkansas River. Act of Aug. 30, 1935, ch. 831, 49 Stat. 1028, 1045. The Corps responded in 1945, submitting a multi-purpose plan that would provide navigational, flood control, and hydropower benefits. H.R. Doc. 758, 79th Cong., 2d Sess. (1946). Navigation was the centerpiece of the plan. The Corps would develop and maintain a nine-foot deep, 480-mile channel in the Arkansas River from its mouth at the Mississippi River to Catoosa, Oklahoma. In addition, the Corps would construct a series of locks and canals providing 420 feet of lift between the Mississippi River and Catoosa (id. at 59-66). The Corps envisioned that Oklahoma, Colorado, New Mexico, Kansas, Texas, Missouri, and Arkansas would gain access to water transportation, either directly or through connections with highways, pipelines, and rail lines, increasing commerce along the Arkansas River from 600,000 tons per year to more than 9 million tons per year (id. at 47-49, 54-55). Congress approved the McClellan-Kerr Project in 1946. Act of July 24, 1946, ch. 595, 60 Stat. 634, 635-636. Construction commenced in 1957, and was essentially complete by 1971. As a result of this project, the resident of the Southern Plains region have enjoyed enhanced commercial, recreational, and hydropower benefits from the Arkansas River. 2. The Cherokee Nation's claim that the McClellan-Kerr Project has resulted in a Fifth Amendment taking of its instream property interests is premised upon the Tribe's recently established title to a portion of the Arkansas River's bed. In 1966, the Cherokee, Chickasaw, and Choctaw Tribes initiated a lawsuit to establish Indian ownership of the riverbed from the confluence of the Arkansas and Grand Rivers to the Arkansas-Oklahoma border. Prior to this lawsuit, it was generally assumed that the State of Oklahoma, upon statehood, received title under the Equal Footing Doctrine to the bed of all navigable portions of the Arkansas River. The Tribes claimed, however, that the United States granted a portion of the riverbed to the Tribes prior to Oklahoma's statehood. The Cherokee Nation, in particular, asserted that the Treaty of New Echota, Dec. 29, 1835, 7 Stat. 478, and a subsequently issued patent granting the Tribe fee simple title to a large tract of land within the present-day boundaries of Oklahoma gave the Tribe ownership of the riverbed. The Tribe further asserted that, while most of the Indian lands were later allotted and passed to non-Indian control, the riverbed remained under tribal ownership. The dispute between the Tribes and the State of Oklahoma eventually reached this Court, where the United States participated as amicus curiae supporting the Tribe's claim of ownership. This Court ruled that the nineteenth century treaties and patents did grant the Tribes fee simple title to the disputed portions of the riverbed. Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970). The Tenth Circuit concluded on remand, that the Tribes hold present title as against the State of Oklahoma (461 F.2d 674, 678, cert. denied, 409 U.S. 1039 (1972)), and a special three-judge panel later determined the ownership interests among the Tribes. /2/ Following the Court's decision in Choctaw Nation, Congress appropriated funds to the Department of the Interior to appraise the riverbed for the purpose of assisting the Tribes in managing the property. Interior, in turn, commissioned independent appraisers to conduct a valuation. The appraisal, completed in 1976, estimated the aggregate value of the Indian interests, including the value attributable to land rentals, minerals, recreation, dam sites and hydroelectric power generation, at $177 million (App., infra, 2a). See Arkansas Riverbed Rights of Cherokee, Choctaw, and Chickasaw Indian Nations: Hearing on S. 660 Before the Senate Select Comm. on Indian Affairs, 95th Cong., 1st Sess. 13-14 (1977). Thereafter, the Tribes sought to lease their riverbed property to the United States. The government declined their offer and the Cherokee Nation then sought compensation from Congress for damages to its mineral interests caused by construction of the McClellan-Kerr Project. Congress ultimately passed a special jurisdictional statute permitting the United States District Court for the Eastern District of Oklahoma to consider "any claim which the Cherokee Nation of Oklahoma may have against the United States for any and all damages to Cherokee tribal assets related to and arising from construction of the (McClellan-Kerr Project)." Act of Dec. 23, 1982, Pub. L. No. 97-385, 96 Stat. 1944. 3. In May 1983, the Cherokee Nation filed a complaint in the district court alleging that the construction of the McClellan-Kerr Project resulted in a taking of the Tribe's riverbed interests in violation of the Fifth Amendment and the United States fiduciary obligations to the Tribe. The United States asserted, among other defenses, that the government's navigational servitude precludes liability for the alleged taking and that the exercise of the navigational servitude did not violate any duty owed by the United States to the Tribe. Pursuant to the parties' suggestion, the court bifurcated the trial to consider first, on cross-motions for summary judgment, the government's navigational servitude defense and the breach of fiduciary duty claim. The district court granted summary judgment in favor of the Tribe. The court held that this Court's ruling in Choctaw Nation created a "unique situation by which a portion of the navigable Arkansas River is, essentially, a private waterway belonging exclusively to the Cherokee Nation" (App., infra, 26a). The court further held that the United States, having failed to reserve a navigable servitude in its treaty with a sovereign Indian nation, owed the Tribe just compensation (Id. at 27a). The court did not address the fiduciary duty issue. The court concluded, sua sponte, that its decision "involves a controlling question of law as to which there is substantial ground for difference of opinion" (id. at 28a) and therefore certified the case, pursuant to 28 U.S.C. 1292(b), for interlocutory appeal. The court of appeals granted the government's petition for interlocutory review (App., infra, 24a). A divided panel ultimately affirmed the district court's decision, but adopted a different analysis. The court rejected the district court's conclusion that "the failure of the United States to reserve a navigational easement in the treaty grant" operated to defeat its constitutional power under the Commerce Clause, stating that "it is certain the United States retained a navigational servitude in the Arkansas River" (id. at 9a). The court nevertheless concluded that the navigational servitude did not protect the United States from liability. The court stated that "the assertion of a navigational servitude on particular waters acknowledges only that the property owner's right to use these waters is shared with the public at large" (App., infra, 10a (emphasis in original)). The court further stated that the scope of the government's navigational servitude therefore depends on whether the navigational improvements interfere with property rights connected to private navigational uses or with property rights connected with other types of uses (ibid.). The court concluded -- without citing any precedential support -- that "(w)hen the exercise of that public power affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due" (ibid.). The court then recited a number of factors that, it concluded, make this case "unique" (App., infra, 11a). It noted that the Cherokee Nation holds fee simple title to the riverbed (id. at 10a), that the Tribe's property interests are secured by treaty (id. at 12a), and that the government has a trust relationship with the Tribe (id. at 13a). The court also accepted the Cherokee Nation's contention that the Tribe's ownership of a portion of the Arkansas River's bed "makes the Arkansas a uniquely private waterway held by the United States in trust for the tribe" (id. at 15a) and that "this status has not been lost simply because the Tribe has not excluded navigation" (ibid.). It summarized its decision as follows (id. at 16a): The substance of what we hold here is while the United States can exercise the navigational servitude in the waterway which courses through the property of the Cherokees, and while the Cherokees cannot interfere with the exercise of this right of sovereignty, the Cherokees have a right to compensation for any consequent loss of property or diminution of value. The court then remanded the case for a determination of damages under the taking claim and "whether the fiduciary duty owed by the United States to the Cherokee Nation was breached as a matter of fact" (ibid.). Judge Seth dissented (App., infra, 17a-23a). He explained that the nature and source of the Tribe's title to the riverbed make no difference in determining the scope of the government's navigational servitude (id. at 18a). He observed that "navigable rivers are 'public property' and have been since the earliest time" (id. at 19a). He then surveyed the numerous decisions of this Court holding that instream and riparian property rights are held subject to the federal government's dominant power to improve navigable waters (id. at 19a-22a), noting that the "exercise of the servitude is not the taking of property but the exercise of a power to which the property owners have always been subject" (id. at 22a). He also explained that the Tribe's treaty rights do not "increase the extent or nature of the Cherokees' title" to create a "'fee plus'" (id. at 23a), observing that there is no authority for treating a naturally navigable waterway as a "'private river'" or for "creat(ing) an exception to the application of the navigational servitude because plaintiff is an Indian tribe" (ibid.). Finally, he rejected the notion that the Cherokee Nation could enlarge its property rights by invoking the United States' trust obligations to the Tribe (ibid.). REASONS FOR GRANTING THE PETITION The court of appeals plainly erred in concluding that the United States' construction of the McClellan-Kerr Project has resulted in a compensable taking of the Cherokee Nation's property interests. The United States' established power to improve navigation free from Takings Clause claims -- its so-called "navigational servitude" -- precludes private claims for instream property damage regardless of whether the claimant is a private party, a state, or an Indian tribe. The court of appeals' contrary conclusion is fundamentally inconsistent with decisions of this Court construing both the navigational servitude and the Cherokee Nation's instream property interests. The court's ruling drastically alters the character of the navigational servitude. The court, concluding that the United States' navigational improvements are subject to the same ad hoc takings analysis that is applicable to any other species of takings claim, reduces the government's navigational servitude to no more than a mere right to ply the waters of navigable streams. The practical ramifications are serious. The decision will expose the public fisc to multi-million liability in this case alone and will encourage similar suits, by both Indian tribes and private parties, demanding comparable damages awards. Furthermore, the decision, if left uncorrected, will provide a windfall to instream property owners and will ultimately discourage the construction of navigation projects that benefit the public at large. In short, the case presents an important federal question meriting this Court's review. 1. The controlling principles here are familiar. "The Commerce Clause confers a unique position upon the Government in connection with navigable waters." United States v. Rands, 389 U.S. 121, 122 (1967). It broadly empowers the government to regulate, improve, and control navigable waters for commercial use (id. at 122-123). "This power to regulate navigation confers upon the United States a 'dominant servitude,' FPC v. Niagara Mohawk Power Corp., 347 U.S., 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high water mark." Rands, 389 U.S. at 123. The United States, in the exercise of its navigational servitude, may improve navigable waters free from claims for compensation from entities claiming property interests in the stream or the underlying lands. /4/ As this Court has explained (ibid.): The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. By thus permitting Congress to enhance transportation and commerce along the nation's great waterways, the navigational servitude provides substantial benefits to both riparian and nonriparian interests, upstream and downstream, and plays a significant role in the commercial unification of all components of the United States, including Indian tribes. The navigational servitude does not, of course, "create() a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation." Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979). For example, "(t)he navigational servitude of the United States does not extend beyond the high-water mark. Consequently, when fast lands are taken by the Government, just compensation must be paid." Rands, 389 U.S. at 123. /5/ And when a previously private pond -- made navigable through private efforts -- is opened to public access against the wishes of its owners, just compensation is also due. Kaiser Aetna, 444 U.S. at 178-179. But the rule remains firmly established that title to submerged lands beneath a naturally navigable river "is acquired and held subject to the power of Congress to deepen the water over such lands or to use them for any structure which the interest of navigation, in its judgment, may require." Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 88 (1913). See, e.g., Kaiser Aetna, 444 U.S. 175-176; Rands, 389 U.S. at 123. This Court has never deviated from the fundamental tenet that the United States owes no compensation to parties who claim that the government's navigational improvements impair their use of a naturally navigable waterway or their property interests in the waterway's bed. /6/ 2. The court of appeals correctly recognized that the Cherokee Nation's title to submerged lands is subject to the government's dominant navigational power, stating that "it is certain the United States retained a navigational servitude in the Arkansas River" (App., infra, 9a). /7/ The court went astray in assessing the character of the government's constitutional power. Its conclusion that the United States must pay compensation for impairment of instream property rights departs without justification from a century of contrary precedent. a. The court of appeals erred, first, in stating -- without any precedential support -- that (App., infra, 10a): When the exercise of (the navigational servitude) affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due. This is a clear misstatement of the law, at least with respect to interests within the bed of a navigable river. This Court has never held that the scope of the government's servitude depends on the private owner's use of the submerged lands; instead, the Court has repeatedly stated, without qualification, that all property within the bed of a navigable waterway is held subject to the government's right to make navigational improvements. /8/ For example, this Court has held that the United States can dredge navigable bays, destroying privately cultivated oyster beds, without paying compensation. Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. at 87-89. The court, in reaching this result, nowhere suggested that the non-navigational character of the oystermen's activities are relevant to the question of compensability. See also Coastal Petroleum Co. v. United States, 524 F.2d 1206 (Ct. Cl. 1975), cert. denied, 449 U.S. 1011 (1980)(destruction of limestone deposits). The Court has also held that no compensation is due where the government's navigational improvements interfere with other non-navigational activities, including the placement of bridges in or over navigable waters, /9/ and the use of stream flow for hydropower development activities. /10/ In short, the governing rule in the instant case is plain and firmly established: the government owes no compensation when navigational improvements impair or destroy property located within the bed of a naturally navigable body of water. The court of appeals' ad hoc balancing of interests dramatically departs from this long settled constitutional principle. /11/ b. Even if it were appropriate to conduct a balancing of public and private interests, the court here plainly relied on factors that are simply irrelevant to a takings analysis. For example, the court relied (App., infra, 10a) on the fact that the Cherokee Nation holds fee simple title to the riverbed. However, there is nothing unique about fee simple ownership of riverbed interests. The states, under the Equal Footing Doctrine, generally acquire fee simple title to lands beneath navigable waters upon their entry into the Union. See, e.g., Montana v. United States, 450 U.S. 544, 551 (1981). And private parties may hold fee simple title to lands beneath navigable waters through grants from the federal and state governments (see, e.g., id. at 551-552) or by principles of state property law (see, e.g., United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596 (1941); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 60-61 (1913)). This Court has long held that "although the title to the shore and submerged soil is in the various States and individual owners under them it is always subject to the servitude in respect of navigation created in favor of the Federal Government by the Constitution." Id. at 63 (quoting Gibson v. United States, 166 U.S. 269, 272 (1897)). There is no reason why the Cherokee Nation's title should be treated differently. The court of appeals also attempted to distinguish this case on the ground (App., infra, 11a) that the Cherokee Nation received its title through a treaty with the United States. But the Tribe's property rights do not turn on the form of the conveyance. The Cherokee Nation, like any owner of lands beneath navigable waters, took its riverbed interest subject to the federal government's power under the Commerce Clause to regulate and promote navigation. As the court of appeals itself recognized (id. at 9a), the United States did not need to reserve its Commerce Clause powers in its treaties with the Indian tribes. See, e.g., Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641, 656-657 (1890)(holding that Cherokee lands are subject to federal power of eminent domain). The navigational servitude is a constitutional power rather than a property right. United States v. Twin City Power Co., 350 U.S. 222, 224-225 (1956). Accordingly, the government is not obligated to reserve the servitude in Indian treaties and patents. Thus, the Tribe has no legitimate claim that the government's assertion of its navigational servitude abrogates any tribal treaty right. /12/ The court of appeals' reliance (App., infra, 12a) on the government's fiduciary obligations to the Tribe is similarly misplaced. Certainly, the government does not violate its trust responsibilities by refusing to pay Indian tribes for impairment of noncompensable interests. And the court seriously errs in characterizing the Arkansas River as "a uniquely private waterway held by the United States in trust for the tribe" (id. at 15a). This Court has repeatedly stated that navigable waters are "'(incapable) of private ownership.'" Kaiser Aetna, 444 U.S. at 179, quoting United States v. Chandler-Dunbar Co., 229 U.S. at 69. A private party may hold title to a riverbed or adjoining fast lands, but the stream itself remains "'public property of the nation, and subject to all the requisite legislation by Congress.'" Rands, 389 U.S. at 123, quoting Gilman v. Philadelphia, 71 U.S. (3 Wall.) 713, 724-725 (1866). In short, the court of appeals failed to identify any convincing basis for exempting the Cherokee Nation from the United States' firmly established Commerce Clause powers. /13/ c. The court of appeals not only misapplied the United States' navigational servitude, it also ignored this Court's prior determination of the scope of the Cherokee Nation's property interests. In Choctaw Nation, this Court held that the Indian Tribes received fee simple title to portions of the bed of the Arkansas River. But the Court specifically observed that the United States retained its navigational servitude in the Arkansas River, stating that "the United States seems to have had no present interest in the river bed at all; it had all it was concerned with in its navigational easement via the constitutional power over commerce." 397 U.S. at 635. This Court thus recognized that the Tribes' ownership of the riverbed is subject to familiar Commerce Clause constraints. /14/ The Court's statement was not inadvertent dicta. The Indian tribes, in briefing that case, expressly agreed that their riverbed interests were subject to the United States' navigational servitude. The Cherokee Nation, in its opening brief, stated that "there is nothing in the conveyance of title to the land beneath the navigable waters which conflicts with the power of the Government to hold such lands for navigation. Moore v. United States, 157 F.2d 760 (9th Cir. 1946)." Cherokee Nation Br. 19. See also Choctaw and Chickasaw Nations Br. 48-49; United States Br. 24. The Tribe forcefully reiterated this point in its reply brief, specifically stating (Cherokee Reply Br. 13-14): Throughout their brief respondents imply that if title to the river were vested in the (Tribe) and not in the state (under the equal footing-implied trust doctrine) the authority and power of the United States could somehow be compromised. Such an inference is absurd; no matter who holds title to the riverbed, the (Tribe) or the state, the rights and power of the United States are precisely the same. The Cherokee Nation, having established its ownership of the riverbed, now seeks to disown its prior representations to this Court. 3. This case has serious practical ramifications. Of immediate concern, the court of appeals' decision threatens the United States with multi-million dollar liability, in this case alone, for traditionally noncompensable damages. The Tribe has not quantified its alleged damages, but it has requested fair market value for "the Cherokee Nation's lands," "past and future loss of the sand and gravel and coal deposits," and "the damsites thus taken by (the United States) and for the electrical energy generated at such sites" (Complaint 8-9). The court of appeals, stating that "the Cherokees have a right to compensation for any consequent loss of property or diminution in value" (App., infra, 16a), apparently contemplated that all of these alleged damages are compensable. As previously noted, the Department of the Interior's 1976 appraisal estimated that portions of the riverbed held collectively by the Cherokees, Choctaws, and Chickasaws were worth $177 million, of which $133 million was attributable to the Cherokee Nation. See Arkansas Riverbed Rights of Cherokee, Choctaw, and Chickasaw Indian Nations: Hearing on S. 660 Before the Senate Select Comm. on Indian Affairs, 95th Cong., 1st Sess. 13-14 (1977). The Tribe will no doubt claim that they are entitled to damages of at least that amount. The court of appeals' decision will also affect other pending litigation. For example, the United States is presently defending a similar suit in which the Colville Tribe has claimed damages of more than $130 million based on the United States' construction of the Grand Coulee Dam on the Columbia River. Confederated Colville Tribe v. United States, No. 181-D (Claims Ct.). See 39 Indian Cl. Comm'n 159 (1979). In addition, the Department of the Interior believes that at least 12 other Indian tribes have substantial claims to ownership of lands beneath navigable rivers and, consequently, could assert claims against the government for damage caused by navigational improvements. Finally, the court's rationale, dramatically altering the character of the navigational servitude, is not limited to Indian tribes. The court's ruling that the United States' navigational improvements are subject to the same ad hoc takings analysis that is applicable to any other species of takings claim logically reduces the government's navigational servitude to no more than a mere right to ply the waters of navigable streams. The decision will encourage suits by private parties demanding compensation for damages that previously were considered noncompensable. The decision, if left uncorrected, will upset settled expectations, will provide a windfall to instream property owners at the public expense, and will ultimately discourage the construction of navigation projects that benefit the public at large. In sum, the case presents an important federal question meriting this Court's review. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General PETER R. STEENLAND, JR. JACQUES B. GELIN Attorneys MAY 1986 /1/ Congress first authorized navigational improvements on the Arkansas River in 1832. See Act of July 3, 1832, ch. 153, 4 Stat. 551, 553. These improvements continued through the twentieth century. See, e.g., S. Exec. Doc. 26, 33d Cong., 1st Sess. (1854); H.R. Exec. Doc. 295, 41st Cong., 2d Sess. 33 (1870); S. Misc. Doc. 22, 44th Cong., 1st Sess. (1876); H.R. Exec. Doc. 94, 45th Cong., 3d Sess. 8 (1879); Act of June 13, 1902, ch. 1079, 32 Stat. 331, 357; Act. of Mar. 2, 1907, ch. 2509, 34 Stat. 1073, 1092. /2/ Under that court's decision, the Cherokee Nation holds title to the entire riverbed from the Arkansas River's confluence with the Grand River to its confluence with the Canadian River (a distance of approximately 37 miles) and to the northern half of the bed from the Canadian River to the Arkansas-Oklahoma border (a distance of approximately 50 miles). See Choctaw Nation v. Cherokee Nation, 393 F. Supp. 224, 246 (E.D. Okla. 1975). /4/ E.g., United States v. Grand River Dam Authority, 363 U.S. 229, 231-232 (1960); United States v. Twin City Power Co., 350 U.S. 222, 224-225 (1956); United States v. Willow River Power Co., 324 U.S. 499, 509 (1945); United States v. Commodore Park, Inc., 324 U.S. 386, 390 (1945); United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596 (1941); Willink v. United States, 240 U.S. 572, 580 (1916); Greenleaf Lumber Co. v. Garrison, 237 U.S. 251, 258-259 (1915); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 89 (1913); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62-63 (1913); Scranton v. Wheeler, ,79 U.S. 141, 163 (1900); Gibson v. United States, 166 U.S. 269, 271-272 (1897). /5/ Notably, however, the United States bears no constitutional obligation to compensate the owner of fast lands for value attributable to riparian location. See Rands, 389 U.S. at 123-125. /6/ See United States v. Grand River Dam Authority, 363 U.S. at 231-232; United States v. Twin City Power Co., 350 U.S. at 224-225; United States v. Willow River Power Co., 324 U.S. at 509; United States v. Commodore Park, Inc., 324 U.S. at 390; United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. at 596; Willink v. United States, 240 U.S. at 580; Greenleaf Lumber Co. v. Garrison, 237 U.S. at 258-259; Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. at 89; United States v. Chandler-Dunbar Water Power Co., 229 U.S. at 62-63; Scranton v. Wheeler, 179 U.S. at 163; Gibson v. United States, 166 U.S. at 271-272. /7/ As the court of appeals recognized (App., infra, 9a), the district court was plainly wrong in holding that the navigational servitude cannot be applied to Indian tribes unless reserved in the relevant treaties and patents. This Court has repeatedly indicated that the navigational servitude applies without exception to all holders of riparian and riverbed interests. See, e.g., United States v. Grand River Dam Authority, 363 U.S. at 233 ("When the United States appropriates the flow either of a navigable or a navigable or a nonnavigable stream pursuant to its superior power under the Commerce Clause, it is exercising established prerogatives and is beholden to no one.") Indian tribes, like the states, are equally subject to the federal government's navigational easement. See Montana v. United States, 450 U.S. 544, 555 (1981). See also United States v. Chandler-Dunbar Water Power Co., 229 U.S. at 63 ("'although the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude'")(quoting Gibson v. United States, 166 U.S. at 271). For further discussion of this point, see page 15, infra. /8/ See Kaiser Aetna, 444 U.S. at 175-176 (quoting Scranton v. Wheeler, 176 U.S. at 163); United States v. Rands, 389 U.S. at 123; United States v. Twin City Power Co., 350 U.S. at 224-225; United States v. Willow River Power Co., 324 U.S. at 509; United States v. Commodore Park, Inc., 324 U.S. at 390; United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. at 596; Willink v. United States, 240 U.S. at 580; Greenleaf Lumber Co. v. Garrison, 237 U.S. at 258-259; Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. at 87-89; United States v. Chandler-Dunbar Water Power Co., 229 U.S. at 62; Scranton v. Wheeler, 179 U.S. at 163; Gibson v. United States, 166 U.S. at 271-272. /9/ Louisville Bridge Co. v. United States, 242 U.S. 409, 421 (1917); Union Bridge Co. v. United States, 204 U.S. 364, 400-401 (1907). /10/ United States v. Grand River Dam Authority, 363 U.S. at 231; Twin City Power Co., 350 U.S. at 225-226; United States v. Willow River Power Co., 324 U.S. at 509; United States v. Chandler-Dunbar Water Power Co. 229 U.S. at 72. Notably, the Cherokees, in this case, demand compensation for claimed interference with their dam site and hydropower development opportunities. See Complaint 8-9. /11/ The court of appeals' ruling apparently originates in a misreading of cases dealing with compensation for navigational improvements that impair property above the high water mark. See App., infra, 10a. The general rule, set forth in Rands, is that an owner is entitled to compensation for the taking of fast lands, but value attributable to riparian location, such as power site or port site value, is noncompensable absent a specific statutory allowance. 389 U.S. at 123-125. That rule has no application to this case since the Tribe owns only the stream bed. /12/ Notably, the United States had recognized the Arkansas River as an important commercial artery at the time of the treaty and had already made navigational improvements to the lower reaches of the waterway. See H.R. Doc. 195, 23d Cong., 2d Sess. (1835). The Cherokees, although characterizing the river as a "private waterway" (App., infra, 15a), have never had an exclusive claim to its use. In all events, even property interests in submerged lands that predate the formation of the Union -- including title to submerged lands within the original thirteen colonies -- are subject to the navigational servitude. See Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. at 86; South Carolina v. Georgia, 93 U.S. 4, 10 (1876). There is no reason to give the Cherokees a special exemption from the United States' generally applicable constitutional powers. /13/ Although the court of appeals premised the government's Fifth Amendment liability, in part, on fiduciary principles (App., infra, 13a-14a), it also instructed the district court to determine "whether the fiduciary duty owed by the United States was breached as a matter of fact" (App., infra, 16a). Thus, the court of appeals apparently believed that the Tribe is entitled to additional recovery under its fiduciary duty claim. However, that claim fails for the same reason that fiduciary principles are irrelevant to the takings analysis. The government does not violate its trust responsibilities by exercising valid constitutional powers that advance the general public interest. This Court has indicated that the exercise of valid governmental powers that incidentally affect Indian interests does not constitute a breach of fiduciary obligations. Nevada v. United States, 463 U.S. 110, 128 (1983). See also Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890)(Indian tribes are subject to federal eminent power); Seminole Nation v. United States, 492 F.2d 811, 819 (Ct. Cl. 1974)(same); Moore v. United States, 157 F.2d 760, 765 (9th Cir. 1946), cert. denied, 330 U.S. 827 (1947)("The fact that navigable waters are a part of a reservation held in trust for the Indian fisheries does not conflict with the trust also to hold them for the public for navigation."). /14/ See also Montana v. United States, 450 U.S. 544, 555 (1981)("the United States retains a navigational easement in the navigable waters within the described boundaries (of the Crow Reservation) for the benefit of the public, regardless of who (Montana or the Crow Tribe) owns the riverbed"). APPENDIX