[Congressional Record Volume 148, Number 151 (Wednesday, November 20, 2002)]
[Senate]
[Page S11725]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ARKANSAS RIVERBED LAND
Mr. INHOFE. Mr. President, I wish to express my thanks to the
chairman and vice chairman of the Senate Committee on Indian Affairs
who have greatly assisted the effort to bring much needed finality to
the uncertainty created by litigation surrounding the ownership of the
bed of the Arkansas River. A decision by the United States Supreme
Court in 1970 determined that parts of the bed of the Arkansas River
were included along with other land that was conveyed to Indian Nations
based on 19th century treaties between the United States and the Indian
Nations that were relocated from the East Coast of the United States to
Oklahoma or ``Indian Territory'' as it was then known.
Based on the Supreme Court's decision that Arkansas riverbed lands
were included within the treaties with Indian Nations, the United
States is subject to monetary damages for any breaches of its trust
obligation with respect to this land. A suit has been brought on behalf
of the Indian Nations asserting that such breaches of trust have
occurred. The case is presently before the United States Court of
Federal Claims.
With respect to such treaty lands, the Non-Intercourse Act of 1790
prevents the transfer of title without Congressional approval. Without
action by Congress, claims to legal title on behalf of the Indian
Nations can continue to be raised with respect to these lands based on
the Federal Government's underlying trust obligation. The threat of
such lawsuits is a serious hardship on those people who were simply
unaware that they were living on land that was once part of the bed of
the Arkansas River. H.R. 3534 would eliminate title problems that are
the result of the Supreme Court's decision and resolve breach of trust
claims brought by the Indian Nations.
Several months ago, United Keetowah Band of Cherokee Indians, UKB,
filed a motion to intervene in the Court of Federal Claims lawsuit.
Although this motion was denied, the Department of Justice expressed
its reluctance to endorse H.R. 3534 unless it was drafted to precluded
the UKB from either bringing quiet title actions or from petitioning
the United States to bring such actions. In order to ensure that UKB
was not left without a remedy for pursuing its claims, the Justice
Department proposed that the bill be amended to allow the UKB to pursue
such claims in an action in the Court of Federal Claims. In addition,
the Justice Department suggested that H.R. 3534 be amended to reserve
some portion of the settlement proceeds until any claims that can be
raised by the UKB are fully and finally litigated.
I am pleased to report that a compromise was reached on this issue.
Like any compromise, everyone had to give something up in order for us
to move forward. In that regard, I would like to express my
appreciation to all of those who have worked so hard on this
compromise.
Under the proposed amendment to H.R. 3534 that is before the Senate,
all tribal claims concerning Arkansas riverbed land are resolved
through proceedings in the Court of Federal Claims or through the
settlement incorporated in H.R. 3534. This allows the United States
Congress to remove the threat of quiet title actions brought by or on
behalf of an Indian tribe claiming title to land based on the Supreme
Court's decision. In other words, the UKB and each of the other tribes
have agreed to allow their claims to the riverbed to be addressed
through the process established by H.R. 3534. In return, the UKB has
asked that 10% of the settlement fund established by the bill will be
aside to satisfy any of the UKB's claims if the tribe is ultimately
successful in the Court of Federal Claims. In addition, if this amount
is not sufficient to satisfy any judgment awarded to the tribe, the
permanent judgment appropriation, section 1304 of title 31, is
explicitly made available to satisfy the remainder of any judgment
amount awarded to the UKB.
The UKB has also requested one additional consideration. The UKB
recognizes that the purpose of the legislation is to preclude the
Tribe from bringing or asking the United States to bring a lawsuit
making a direct claim that asserts right, title, or an interest in
Arkansas riverbed arising out of the Supreme Court's opinion. However,
the Tribe wishes to make it clear that nothing in H.R. 3534 is intended
or is to be construed to address, resolve, or prejudice the underlying
basis of a claim that they would have been able to make if H.R. 3534
was not enacted. In other words, the UKB have asked that the
legislation include a provision to make it clear that H.R. 3534 does
not alter the character, nature, or basis of any claim or right that
the tribe could have made before the effective date of this
legislation. We have done so.
I wish to express my appreciation for the assistance of the Chairman
of the Committee on Indian Affairs, Senator Inouye, who has provided
important procedural assistance to allow the bill to be moved
expeditiously now that we have an agreement between all of the Indian
tribes and the Departments of Interior and Justice.
In addition, I wish to acknowledge the good work of Senator Campbell,
the vice chairman of the Indian Affairs Committee, who deserves a great
deal of the credit for bringing the final compromise on this matter to
fruition. With that in mind, I would like to briefly engage in a
colloquy with him on this final compromise.
Does the vice chairman agree that section 9 of the proposed amendment
ensures that the law will only be construed to preclude claims for
title to the Arkansas riverbed lands either by the UKB or on its
behalf; or from the UKB requesting that the Federal government bring
such claims?
Mr. CAMPBELL. That is correct.
Mr. INHOFE. Based on the Senator's answer to my last question, it is
clear that the UKB will no longer be able to make a claim to the
riverbed lands. However, the bill still provides a means for the UKB to
raise the riverbed claims it might otherwise have brought, but it now
directs that they must pursue these claims exclusively in the manner
provided in H.R. 3534; isn't that correct?
Mr. CAMPBELL. Yes, that is correct.
Mr. INHOFE. By including section 9, Congress is making it clear that
other than this change in forums for riverbed matters, it is not
Congress's intent to express any opinion or have any effect on the
claims the UKB might bring. Isn't that correct?
Mr. CAMPBELL. That is correct. To my knowledge, Congress has not
reviewed or considered these claims. Furthermore, it is not necessary
for Congress to do because the bill does not address the individual
claims of the UKB, it merely ensures that the Tribe's claims to the
riverbed are only pursued in the manner provided in H.R. 3534. Section
9 is included to make it clear that the bill is not to be construed to
address the merits of any particular claim by the UKB; instead the bill
is only concerned with how those riverbed claims may be pursued.
Mr. INHOFE. I thank the Senator for his assistance in this very
important matter.
____________________