[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.

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