Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner, v. CHEROKEE NATION OF OKLAHOMA

No. 85-1940

February 23, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:38 o'clock p.m.

APPEARANCES:

JEFFREY P. MINEAR, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the petitioner.

JAMES WILCOXEN, ESQ., Muskogee, Oklahoma; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We will hear arguments next in No. 85-1940, United States versus Cherokee Nation of Oklahoma.

Mr. Minear, you may proceed whenever you are ready.

ORAL ARGUMENT OF JEFFREY P. MINEAR, ESQ., ON BEHALF OF THE PETITIONER

MR. MINEAR: Thank you, Mr. Chief Justice, and may it please the Court, in 1970, this Court decided the case of Choctaw Nation versus Oklahoma. That decision effectively held that the Cherokee Nation owns an 87-mile portion of the bed of the Arkansas River. The Cherokee Nation has since sued the United States, claiming that the federal government's navigational improvements on the Arkansas River have damaged the tribe's riverbed properties.

The question in this case is whether the tribe's claims are barred by the United States navigational servitude which permits the government to improve navigable waters free from demands for just compensation.

The government's brief describes the long history of federal navigation improvements on the Arkansas River and the genesis of the present dispute. Turning directly to the legal question at issue, I will first address the characteristics of the navigational servitude and then explain why the servitude is fully applicable in this case.

It has been well settled since this Court's historic decision in Gibbons v. Ogden that the commerce clause gives Congress broad power to regulate and improve navigable water for the public benefit. This Court, construing that authority in light of history and the needs of interstate commerce, has developed the concept of the navigational servitude.

This concept has played a vital role in the commercial unification of the country. The navigational servitude expresses a general understanding that the determination whether federal navigation improvements have taken property within the meaning of the Fifth Amendment must take into account the overarching public interest in free navigation.

It recognizes the historic fact that navigable waters are especially valuable as a conduit for trade, and that for this purpose they should be treated as public property of the nation, to be used for the common benefit of all of the nation's constituents, and of particular relevance in the present case, the navigational servitude lays down a firm rule that the United States is not required to pay compensation for damage to in-stream property resulting from federal navigation improvements to naturally navigable rivers.

This Court has repeatedly stated that the owner of land beneath navigable waters has a qualified title, not at its absolute disposal, but to be held at all times subordinate to such use as may be consistent with or demanded by the public right of navigation. This Court has recognized that principle in a number of cases, but perhaps the best example is Lewis Bluepoint Oyster Company versus Briggs. In Lewis the plaintiff cultivated oysters on land beneath New York's Great South Bay that was originally conveyed into private hands through a royal patent during the colonial period.

The United States dredged the bay to improve navigation, destroying the plaintiff's oyster beds. This Court rejected the plaintiff's demand for compensation stating that by necessary implication from the dominant right of navigation, title to submerged land 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 may require.

As Lewis indicates, it has long been settled that the United States is not constitutionally obligated to pay compensation when federal navigation improvements impair property within the bed of a naturally navigable body of water. The same principle is applicable here. Indeed, when this Court confirmed the Cherokee Nation's riverbed rights in the Choctaw Nation decision, it specifically recognized the tribe was subject to the United States navigational servitude.

The Cherokee Nation nevertheless contends that it should be exempt from the servitude, but there is no basis for creating such an exemption. The tribe is a part of the United States and is subject just like any of the nation's other constituents to the national government's commerce clause powers. The Cherokee Nation argued in the District Court that the tribe's quasi-sovereign status provides a basis for an exemption. We disagree. Even the states which exercise the full measure of sovereignty allowable under the Constitution are subject to the servitude. Indian tribes, which have only limited sovereignty but the sufferance of Congress, are not entitled to broader rights than the states possess.

The Cherokee National also claims an exemption on the ground that it received its title through a treaty with and patent from the United States. However, that fact does not provide the basis for an exemption. The tribe, like any owner of land beneath navigable waters, took its riverbed interest subject to the federal government's dominant power under the commerce clause to regulate and promote navigation.

The United States did not waive its navigational servitude in the treaty or patent, nor was it obligated to make an express reservation of that sovereign power. The retention of sovereign authority is implicit in all government agreements unless surrendered in unmistakable terms. Indeed, as the Lewis case demonstrates, even persons who hold property rights that predate the Union are subject to the servitude.

The tribe suggests that it should be exempt from the servitude because it received fee simple title to the riverbed. However, the Court's confirmation of the tribe's title in Choctaw Nation was premised in part on the fact that the United States implicitly retained a navigational servitude, and in any event this Court has specifically rejected the contention that fee interests are exempt from the government's long-standing power over navigable waters.

The tribe also claims an exemption from the servitude based on the United States trust obligations to the tribe. The tribe's right to compensation, however, depends on whether it has a compensable property right in the bed of a naturally navigable body of water. It is well settled under this Court's precedents that no such rights can exist here. As this Court has stated, the application of the navigational servitude is not an invasion of any private property rights in the streams or the lands underlying it for the damage sustained does not result from the taking of property within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of the property owners have always been subject.

The United States trust responsibility may in some circumstances create an obligation to administer whatever property rights that tribe might possess but it cannot create a property right where none would otherwise exist.

At bottom we are dealing here with a doctrine that is clear and well settled. The United States owes no compensation to any party when the government's navigational improvements impair the private use of lands within the bed of a naturally navigable river. That doctrine imposes a common burden on all of the nation's constituents for the common good. It cannot admit a special exception for the Cherokee Tribe. There is no plausible ground for exempting the tribe uniquely among all of the elements that comprise a national union from an otherwise uniform and unifying national rule. There are many good reasons why the tribes' request for an exemption should be denied. The tribe's demand for compensation, if allowed, could amount to a multi-million dollar toll on commerce along the Arkansas River, providing a windfall to the tribe at the public expense. Furthermore, the recognition of an exception here would be truly remarkable because the Cherokee Nations have been among the historic beneficiaries of navigation improvements on the Arkansas River.

Perhaps most troubling, the creation of an exception in this case may encourage other parties to sue the government, demanding compensation for in-stream damages that were previously considered noncompensable. This Court should be reluctant to disturb a long-settled constitutional doctrine that has engendered a century of investment-backed reliance. That is particularly true here where Congress itself has examined the tribe's claim and declined to provide special compensation.

For all of these reasons we suggest that the decision below should be reversed. Thank you, Your Honors.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Minear.

We will hear now from you, Mr. Wilcoxen.

ORAL ARGUMENT OF JAMES WILCOXEN, ESQ., ON BEHALF OF THE RESPONDENT

MR. WILCOXEN: Thank you, Mr. Chief Justice, and may it please the Court. When the United States argues that the navigational servitude and its general rule of no compensation prevents the Cherokee nation from having a compensable interest in the Arkansas riverbed it is limited to previous cases which have no relation to the facts and circumstances in this present unique case.

When the treaties and patent granting the Cherokee Nation fee simple title to over 14 million acres of land in what is now the State of Oklahoma, I believe that Congress intended to give the Cherokees everything it had to give. There is no limitation in words granting fee simple title to a permanent home forever that shall in no future time without their consent be included within the territorial limits or jurisdiction of any state or territory.

Of course, this is not to say that the Cherokees were no longer subject to the Constitution of the United States but it is to say that whatever rights were created must be determined from the unique historical circumstances of this case and no other. More precisely, while the Cherokee nation is subject to the broad commerce clause power to regulate navigation, the question of whether the exercise of that power affects a taking of property protected by the Fifth Amendment is another matters.

QUESTION: That may be true, Mr. Wilcoxen, but your opponent suggests that our cases are virtually larded with statements that the exercise of the navigational servitude is not a taking of property even from people because they had no compensable interest. It was always subject to this servitude.

MR. WILCOXEN: That is correct, Your Honor, Chief Justice Rehnquist, but the cases relied upon by the United States are cases where riparian owners have acquired whatever rights that the States got and it was intended in those situations and always was intended that those grants be subject to the public right of passage.

I think that Congress's intent in this case was when it gave a direct patent to the Cherokee Nation was that this be the private domain of the Cherokee Nation and that there was no public right of passage

QUESTION: Why should it be different in this one case of a patent to the Cherokee Nation as opposed to all of the streambeds that have gone to the states under the equal footing doctrine?

MR. WILCOXEN: I am sorry, Your Honor?

QUESTION: Well, countless streambeds have gone to the states of the Union upon their admission on the basis of the equal footing doctrine, so that there are numerous states that are situated similarly to the Cherokee Tribe here. Why should the Cherokee Tribe be unique as opposed to the states?

MR. WILCOXEN: Well, Your Honor, I would say that the equal footing doctrine would not apply as a limitation to the Cherokee Nation.

QUESTION: I am not suggesting it did, but the equal footing doctrine, our cases have held, give the states fee title to land underlying riverbeds certainly every bit as much as the Cherokee got. So why shouldn't they be treated the same for purposes of the navigational servitude?

MR. WILCOXEN: Because I think it was clearly intended as this country grew westward that those navigable lands be and remain public highways, and I think that the intent in the grant, the patent to the Cherokee Nation was that it be a private domain for the Cherokee people and was not intended to be a technical title. The cases mention a bare technical title that a riparian owner might acquire from the state.

QUESTION: I am not talking about a riparian owner. A riparian owner is a person who owns land along the bed of the banks of a stream. I am talking about states which own the bed of a stream, just as the Cherokees do here.

MR. WILCOXEN: Well, that is a good question, Your Honor. My answer would be that I believe that Congress intended in this particular case when it uniquely granted fee simple title to the bed and banks of the navigable waterway that it be and remain a public -- I mean, I am sorry, a private domain for the Cherokee Nation, and that when, to further answer your question, and that when Oklahoma Statehood took place that property passed into trust with the specific provision that the lands would not become public lands nor property of the United States, but would be held in trust for the use and benefits of the Indians.

QUESTION: But that doesn't mean that it isn't subject to navigational servitude, though.

MR. WILCOXEN: Well, Justice O'Connor, I don't see how --

QUESTION: It just doesn't follow, does it?

MR. WILCOXEN: To me I don't see how the United States can maintain its trust responsibility to the tribe especially in the face of an express provision of trust and take and use this property for a very public purpose, and that is to build a navigation way in the face of the plain provisions of the Act of 1906.

Congress intended to move the Cherokees so far west as to eliminate the conflict between white settlers and the tribe. The tribe, reluctant to move, demanded fee title. It was the first and one of few to get it. In 1838, the Cherokees' absolute ownership rights to the entire tract, including the riverbed, vested. As the Court of Appeals recognized, vested property rights secured by a treaty are protected by the Fifth Amendment.

The plain purposes of the treaties and patent was to remove and exclude the Cherokees from the ruinous effects of the intruding public. They were specifically promised protection against interruption and intrusion from citizens of the United States who might attempt to settle within the Cherokee Nation without their consent.

They would be removed by order of the President. The treaties also recognized the sovereign right of the Cherokee Nation to make and enact all laws deeded necessary for the protection of their persons and property. Cherokee law did prohibit travel in or settlement by intruders and provided for the forfeiture of all improvements made by intruders unlawfully residing in the Cherokee domain.

Lists of names of intruders were routinely submitted to the chief so that they could in turn be submitted to federal officials for their expulsion. No traders could come into the Cherokee Nation without a federal license. The trade and intercourse Acts of the time provided for the removal and forfeiture of all merchandise of unlicensed traders. Cherokee law likewise prohibited traders from coming into the Cherokee Nation without a license.

My point here is that clearly the Cherokee Nation was a private nation within a nation, and it was not open to the public right of passage.

QUESTION: Well, it is one thing, though, for the Cherokee Nation to be able to exclude traders and people like that. It is another thing to be able to exclude the United States.

MR. WILCOXEN: Your Honor, I am not trying to say that the Cherokee Nation is excluding the United States. What I am saying is that when the United States exercises its power to regulate navigation in such a way that it takes property vested in the Cherokee Nation, that it can create a situation where there has been a compensable taking.

The navigational servitude has generally been applied without compensation to those cases involving riparian owners who have acquired title from the state pursuant to local rules of property construction. There is no question that where the equal footing doctrine reserved title for a future state, that navigational servitude applies. In this case, however, the Cherokee Nation was uniquely conveyed title to a great tract of land of which the bed and banks of the Arkansas are only a fraction.

The United States states that there is nothing unusual with respect to the navigational servitude about fee simple ownership of riverbed interests, citing cases where states or individuals through states acquired title. First of all, it is very unusual that the Cherokee Nation was granted fee title to navigable lands. Second, I think this ignores the intent behind the grant. State lands were always intended to be public and individual owners took accordingly.

Cherokee land was intended to be private. The Cherokee Nation was not a mere riparian owner but a sovereign nation in many respects. It was promised freedom from state or territorial jurisdiction and the right of self-government.

The Cherokee title as granted was not a qualified one certainly when viewed from the plain meaning of the treaties and patent. These private rights were created without any place for public intervention. No state was contemplated in 1838. The entire area within the Cherokee domain including the riverbed constituted the private property of the Cherokee Nation.

The right to develop their property is a vested property right. As this Court has already recognized, neither Congress intended nor the Cherokees understood that they be precluded from developing their mineral rights. After repeated betrayals, a forced removal, and a unique fee patent to their new private home, I would submit that the Cherokees have a reasonable investment-backed expectation to use their property free from public interference.

Congress intended to preserve a way of life. In their eastern lands the Cherokees used the streams and rivers as avenues of transportation for food, for irrigation, and other purposes. They were not nomadic but settled in towns and villages along the rivers. Also it is clear that the Cherokees made money from the use of the rivers. In both the eastern and western homes, the Cherokees regulated public ferries crossing the many streams and rivers. Cherokee law provided for taxation, licensing, and manner of use.

The United States argues that this Court has never deviated from the fundamental constitutional principle that the United States owes no compensation when the government's navigational improvements impair private interest in navigable waters. The United States cites a long line of cases where the noncompensable loss was related either directly or indirectly to the riparian owner's access to or use of navigable waters.

As the Court of Appeals correctly held, a determination of what is compensable or not compensable should have nothing to do with the use of navigable waters. It is the character of the invasion that is determinative. In this case there is not a mere insubstantial evaluation, but millions of tons of sand and gravel have been dredged away or rendered inaccessible by rivetment constructions

Three dam sites have been taken, two of which are generating electricity with no benefit to the tribe.

QUESTION: But that is true in any number of the other navigational servitude cases. You know, valuable rights were taken in Chandler, Dunbar and Willow River, in Lewis Bluepoint Oyster, and it was held they weren't compensable. There was no question that the damages were substantial if they could have been allowed.

MR. WILCOXEN: But I think in those cases, Your Honor, those individuals took with the expectation that their property would be shared with the public right.

QUESTION: Everybody takes with the expectation that the government will exercise its navigational servitude.

MR. WILCOXEN: I don't think --

QUESTION: Our cases have said that.

MR. WILCOXEN: That is correct, Your Honor, but this is a unique case where the Cherokees had a separate domain, and I don't think it was the intent of Congress that their lands be shared with the public. The takings clause requires an examination of whether the restriction on private property forces some people alone to bear public burdens which in all justice and fairness should be borne by the public at large.

The Cherokee Nation's private property should not be destroyed and used by the United States for public purposes without compensation. They should not have to bear the public burden of sacrificing private property solemnly guaranteed forever. Upon extinguishment of their national title at Oklahoma Statehood Congress again promised that their land would not become public land nor property of the United States.

I would submit that the Cherokee property does have the force of law behind it to the extent that this Court can compel the United States to keep from using its property without making compensation. The reasonable investment-backed expectation of private use in this Cherokee case cannot be measured in terms of dollars. The Cherokees lost over 4,000 lives and their property in the east during the forced removal to gain their privacy in the west.

In this case the trust relationship must also be considered. From the earliest Cherokee decision this Court has recognized the special relationship between the United States and Indian tribes. In the face of this duty, the United States now argues that the fiduciary relationship is not relevant to this controversy and that the cases cited by the Cherokee Nation were decided on traditional legal standards notwithstanding the trust powers of the United States.

The Cherokee Nation believes the United States' emphasis is misplaced. Cherokee property rights were established long ago by treaty and patents. The trust relationship does establish an independent standard of responsibility requiring that treaties and agreements between a nation and its dependent subjects be enforced with greater rigor than those with foreign nations or private parties unprotected by a special guardianship relationship.

QUESTION: If the Corps of Engineers wants to do something about flood control within the reservation or within that stretch of the river they are going to have to -- if they are going to take any of the banks or anything like that, straighten out the river, they are going to have to pay.

MR. WILCOXEN: That would be our position, Justice White. Yes.

QUESTION: And so it depends on the -- they are going to have to pay or get the consent of the tribe in order to protect people below.

MR. WILCOXEN: I am not saying that the tribe could prevent the Corps of Engineers from using the property.

QUESTION: No. They can prevent them without -- unless they pay.

MR. WILCOXEN: That's correct. I am saying that if the Corps of Engineers takes and uses this vested property in such a way that it destroys valuable deposits, then it must pay for it.

QUESTION: Why isn't the logic of your argument that there should be no power in the federal government to alter these streams to improve navigation at all? A deal is a deal. We gave these streams to the Cherokee, and the Corps of Engineers shouldn't be able to go in at all. Why doesn't that follow?

QUESTION: Why should it be subject to eminent domain?

QUESTION: I mean, you know, the Cherokees say, our deal was, we wanted new lands that were our lands.

MR. WILCOXEN: That's correct, Your Honor.

QUESTION: Now all of a sudden you are changing this treaty and you are making it, you know, money instead of lands. We didn't want money. We wanted lands.

MR. WILCOXEN: Well, in the past this Court has held that the Cherokee Nation is subject to this country's power of eminent domain.

QUESTION: I know we have, but that -- I am talking about the logic of your argument. Isn't the logic of your argument not just that the government must pay for the exercise of its navigational authority, but that it has no navigational authority whatever?

MR. WILCOXEN: I think that's correct, Your Honor. The Court, recognizing Cherokee --

QUESTION: The logic coming the other way is that if the Cherokee Nation is subject to eminent domain, it is subject to the navigational servitude.

MR. WILCOXEN: I would say, Your Honor, in answer to that that it would not be fair in the face of the plain promises made in the treaties and the way the Indians would have understood them to invoke the servitude in such a way that it takes property from the tribes without compensation.

QUESTION: Wasn't it conceded in the Choctaw Nation case that the government retained a navigational servitude in the river?

MR. WILCOXEN: Yes, Your Honor, it was stated in the Choctaw Nation case that the United States had all it was concerned with in retaining its navigational easement pursuant to its constitutional power to regulate navigation.

Your Honor, we are not attempting to deny the United States the power to regulate navigation but it is the effect of the exercise of that power --

QUESTION: You are certainly disavowing that concession today.

MR. WILCOXEN: Excuse me?

QUESTION: You are disavowing that concession today, clearly.

MR. WILCOXEN: Well --

QUESTION: Not really. You are just saying it is an illogical one.

MR. WILCOXEN: I am saying that to the extent that it would divest property interests of the Cherokee Nation that they thought that they had, that compensation is due.

The Court of Appeals, recognizing that Cherokee property rights are constitutionally protected, directed its opinion to this Court's decision in United States versus Creek Nation. While Congress is vested with the power to manage and control tribal property that power does not extend so far as to allow the government to give tribal lands to others or use it for its own purposes without rendering or assuming an obligation to render just compensation.

To do otherwise would not be an active management but one of confiscation. Congress's power to manage and control tribal trust property is not absolute but is subject to pertinent constitutional restrictions, including the Fifth Amendment. Furthermore, the duty to manage and control cannot be preempted and subsumed by the navigational servitude. Congress's fiduciary responsibility to protect tribal property rights is no less compelling in the face of the navigational servitude.

The power to regulate tribal affairs and the navigational servitude spring from the same commerce clause. Regulation does not include confiscation. Congress cannot completely ignore one duty on the one hand to advance another. Likewise, it cannot simultaneously act as trustee for the benefit of the Cherokee Nation and promote and protect its property interests on the one hand and on the other hand invoke its power to regulate navigation when to do so would take tribal property and use it for a public purpose.

In any given situation in which Congress has acted it must act in one capacity or the other. It is the good faith effort on the part of Congress to give the Indians the full value of their land that identifies the exercise by Congress of its authority to manage property of the Indian wards for their benefit. Without that effort, Congress could exercise sovereign power to regulate navigation, thereby destroying tribal property and using it for its own purposes without assuming an obligation to compensate the tribe.

In this case, Congress cannot be presumed to have exercised its navigational servitude with no intent to compensate the Cherokees. The Court of Appeals noted that special circumstances surrounding the grant to the Cherokee Nation, particularly the series of broken treaties culminating in a new set of treaties and patent uniquely granting fee title to the Cherokee Nations, to their lands in the west, and promising freedom from state and territorial jurisdiction.

In the face of these circumstances, the Court of Appeals found that it must adhere to the principle that treaty rights will not be deemed abrogated or modified absent a clear expression of Congressional purpose. The intention to abrogate or modify a treaty is not to be lightly imputed to Congress. In neither the Flood Control Act of 1944 nor the Rivers and Harbors Act of 1946 was any provision made for the payment of compensation to the Cherokee Nation for the loss of its property, but more importantly, the Acts of Congress do not express an intent to deprive the Cherokee Nation of its trust property without compensation.

In 1906, this riverbed property, remaining unallotted, passed into trust with the provision that it shall not become public land nor property of the United States but shall be held in trust for the use and benefit of the Indians.

After Oklahoma Statehood, the Secretary of Interior and the Oklahoma State Supreme Court erroneously concluded that the property had passed to the State of Oklahoma, and this misbelief persisted until this Court's decision in Choctaw Nation versus U.S., 397 US 620, in 1970.

When Congress authorized construction of the navigation project it made no authorization to take tribal property. Congressional intent should not be implied to the detriment of the Cherokee Nation. When the United States took this property for the McClellan-Kerr project without payment, it violated the terms of its trust provision to hold the property for the use and benefit of the tribe.

There is nothing in the navigational servitude which absolutely binds Congress to an intent to take property without compensation. It is clearly not a blanket exception to the Fifth Amendment. The navigational servitude is not absolute. Absent a clear expression of Congressional intent to take tribal trust property without compensation, I would say there is a well-founded doubt that should be resolved in favor of the tribe.

QUESTION: Well, the question is really whether there is property to be taken. I mean, it isn't whether they are taking it without compensation. It is whether there is property to be taken in the first place. Did the tribe ever get the right to have the beds free from the federal government's navigational interest which applies everywhere else?

MR. WILCOXEN: That is correct, Justice Scalla.

QUESTION: Now, it seems to me that the problem you confront is that in all other instances it is -- in all other instance it is assumed that when the federal government conveys property, even when it conveys fee title, it does not convey that little bit that consists of its right to deepen the bed of the stream or otherwise improve navigation. Why should one feel differently in this case?

You can't cite a single other case where the United States has conveyed land where it has not implicitly, without saying so, reserved that particular right so that that piece of property is not conveyed. Why should we think it has been conveyed here?

MR. WILCOXEN: But this truly is a unique case that they granted an Indian tribe fee simple title to navigable lands, to lands below a navigable river.

QUESTION: It isn't unique at all. Under the equal footing doctrine, by the very act of admitting states to the Union, they get precisely the fee simple title to the bed of a river that you are talking about.

MR. WILCOXEN: That is correct, Chief Justice Rehnquist, but it is clearly intended under those circumstances that those be and remain public highways.

QUESTION: Why is it intended there and not in this case?

MR. WILCOXEN: Because the Cherokee Nation was set aside in a separate domain. They had just suffered the ruinous effects of intrusion from white settlers.

QUESTION: Well, you know, I dare say everyone who gets a patent from the United States thinks and does get fee simple, if that is what the patent says, with all the bundle of rights that includes and yet every other patent is subject to the navigational servitude, and you are insisting that this somehow stands by itself.

MR. WILCOXEN: Well, I am saying, your Honor, that there are circumstances in which there can be created compensable property rights, and I think that the Cherokee Nation in the face of its history has a compensable property interest in the riverbed.

QUESTION: In a way there is even less reason to think that the federal government was giving it all away here, that navigational servitude that it holds. If I am correct the plans for making improvements on the river were in existence. The Corps of Engineers was already looking jealously at this particular river before the treaty was entered into. Isn't that so?

MR. WILCOXEN: There were some appropriations to study the river and to remove snags in the river, but I must say, Your Honor, that that primarily took place below Fort Smith, while some of that did come into this area, but I don't think that the removal of those snags for the primary purpose of allowing navigation to Fort Gibson to supply the fort and even to allow trading with the Cherokee Nation obviates the fact that there was clearly intended to set aside a private domain for the Cherokee Nation.

I don't think that that is sufficient an expression of intent to open up a public highway. Otherwise, settlers could have just simply come up the river with no impunity, and that was not the case.

QUESTION: In expelling or keeping the settlers out the tribe had the support of the United States, did it not?

MR. WILCOXEN: Yes, Your Honor, it does.

QUESTION: Well, now, here the United States is on the other side, and so the question is, how much of that muscle was the tribe's and how much of it was the United States'.

MR. WILCOXEN: Well, both entities had their own provisions to keep the intruders out. To the extent that that was divided, I can't say. But both tribal law and the trade and intercourse Acts prohibited traders from coming into the Cherokee Nation. Tribal law clearly prohibited anybody from coming into the Cherokee Nation, and the treaty itself, the Treaty of 1835, clearly provides that settlers will be removed by order of the President of the United States.

QUESTION: What if the United States had wanted to march a troop of cavalry through the reservation. Do you think the Cherokee Tribe could have kept them out?

MR. WILCOXEN: Well, whether or not the United States marched cavalry through the Cherokee Nation, I think that would be an entirely separate situation than if 200 American citizens just simply wanted to come and sojourn on the Cherokee Nation.

QUESTION: I am sure it would be. I think the former question and not the latter is the one that is relevant to your case.

MR. WILCOXEN: We think that Congress intended that the Cherokees have every reasonable beneficial economic value which can be derived from the riverbed, including water power. The value in the flow of the stream can be granted or retained as the government chooses. As recognized by Chief Justice Harlan Stone, then Attorney General, in 34 Attorney General Opinion 171, as a practical matter property rights include any right to hidden or latent resources of the land, such as minerals or water power, even though the Indians had no knowledge of this in their natural state.

Finally, it must be understood that the Cherokee Nation does not intend to debilitate the United States or to prevent the United States from the exercise of its power to regulate navigation, but as this Court noted in the Kaiser Aetna decision, 444 US, the regulation of navigation and whether or not that regulation constitutes a Fifth Amendment taking are two entirely separate questions.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Wilcoxen.

Mr. Minear, do you have something more?

ORAL ARGUMENT OF JEFFREY P. MINEAR, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. MINEAR: Thank you, Mr. Chief Justice.

I believe this case can be reduced to one essential question, and that is whether the tribe is a part of the national Union. We submit that it is, and that the decision below should therefore be reversed. Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Minear.

The case is submitted.

(Whereupon, at 2:15 o'clock p.m., the case in the above-entitled matter was submitted.)