Cherokee Nation of Oklahoma v. U.S.

• Decision Date: 23 January 1986
• Docket Number: No. 84-2355,84-2355
• Citation: 782 F.2d 871
• Parties: CHEROKEE NATION OF OKLAHOMA, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 871

782 F.2d 871

CHEROKEE NATION OF OKLAHOMA, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 84-2355.

United States Court of Appeals, Tenth Circuit.

Jan. 23, 1986.

James G. Wilcoxen, Muskogee, Okl. (Paul M. Niebell, Washington, D.C., with him on brief), for plaintiff-appellee.

Jeffrey P. Minear, Dept. of Justice, Washington, D.C. (Jacques B. Gelin and F. Henry Habicht II, Washington, D.C., with him on briefs), for defendant-appellant.

Before MOORE and SETH, Circuit Judges, and MATSCH, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is an interlocutory appeal granted pursuant to 28 U.S.C. Sec. 1292(b) to consider whether the assertion of a navigational servitude by the United States prevents liability for an alleged Fifth Amendment Taking of land held in fee simple by the Cherokee Nation of Oklahoma (Cherokee Nation or appellee). A second issue, whether the exercise of a navigational servitude constituted the breach of some duty of care to the Cherokee Nation, was reserved pending this appeal. The district court sustained the Cherokee Nation's motion for summary judgment, holding that the United States, having granted fee simple title to the banks and bed of the Arkansas River with no reservation of a navigational servitude, is liable for a taking of private property and must pay just compensation. The United States sought interlocutory review contending the construction of the Arkansas River Navigation System, the McClellan-Kerr Navigation Project (the Project), does not constitute a compensable taking of the Cherokee Nation's interest in the bed of the Arkansas River. Upon our review of the facts of this particular case and the law, we affirm the district court's holding but do not adopt its reasoning. We do not address the second issue.

By statute, Pub.L. No. 97-385, 96 Stat. 1944 (1982), ¹ Congress conferred special jurisdiction on the district court to hear the Cherokee Nation's claim for damages. ² The Cherokee Nation alleged that to create the Project, the United States constructed dams and waterways, altering the channel of the river and causing the loss of valuable deposits of sand, gravel, and coal. Specifically, the Webbers Falls Lock and Dam No. 16, the Robert S. Kerr Lock and Dam No. 15, and the W.D. Mayo Lock and Dam No. 14, were designated as located in whole or in part on Indian lands granted in the 1838 patent. The Cherokee Nation alleged a Fifth Amendment Taking and sought just compensation for the past and future loss of the mineral deposits, fair market value of the damsites, and other damage to the bed and banks of the Arkansas River. The parties stipulated to the facts and agreed to address the issue of liability separately on cross-motions for summary judgment.

I. Standard of Review

We premise our review of the district court's granting judgment in favor of the Cherokee Nation, on cross-motions for summary judgment, on the same considerations before the trial court under Fed.R.Civ.P. 56(c). United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). In examining the record, we, too, must decide whether any genuine issues of material fact exist to preclude one of the cross-movants from proceeding to litigate that issue. Any inferences appropriately arising must be viewed in the light most favorable to the party against whom they are offered. Weir v. The Anaconda Co., 773 F.2d 1073, (10th Cir.1985); Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir.1984). An ultimate determination is equally and necessarily predicated on the correct application of the substantive law. Daitom Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir.1984); Western Casualty & Surety Co. v. National Union Fire Insurance Co., 677 F.2d 789 (10th Cir.1982). This standard is not talismanic but fully requires that we look beyond the pleadings to determine whether the moving parties present any factual dispute capable of a trial's resolution. We must be convinced beyond a reasonable doubt that this "salutary device" appropriately resolves the issue before us. Fed.R.Civ.P. 56 advisory committee note; See also Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975).

II. Background

Although the facts giving rise to this particular case are not in dispute, a conflicting view of the broader historical background underpins the divergent legal analysis. Our task is simplified by the Supreme Court's review in Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), on which the district court also relied. At issue in Choctaw Nation was the title to land underlying certain navigable portions of parts of the Arkansas River in Oklahoma. Beginning with the post-revolutionary period, the Court traced the early history of the Cherokee Nation as it, like the other Five Civilized Tribes, ³ experienced the increasing pressure of white settlement in their territory and the correspondingly insistent federal removal policy. Wary of promises of a permanent home and federal protection, the Cherokees resisted relocation and met with hostility, both from the State of Georgia, where the Cherokees were settled, and the federal government, which was anxious to placate white settlers. ⁴

The Court reviewed this history as background for an understanding of the Treaty of New Echota, signed on December 29, 1835, and negotiated with a faction of the Cherokees fearful of a forced military removal. In the Treaty of New Echota, the United States granted a vast area of its western territory, now the eastern part of the State of Oklahoma, in exchange for the cession of all Cherokee land east of the Mississippi River. Choctaw Nation, 397 U.S. at 627, 90 S.Ct. at 1332-33. The United States covenanted to convey these lands in fee simple. The Cherokee Nation was promised a permanent home which would "never be embraced within the boundaries of any State or Territory." Treaty of New Echota, December 29, 1835, 7 Stat. 478, 2 Kapp 439. In 1838, those Cherokees who refused voluntary removal suffered the forced migration, later referred to as the "Trail of Tears," ⁵ to these western lands. The Treaty of New Echota was intended to provide a permanent and enduring resolution for the Cherokee Nation. Choctaw Nation, 397 U.S. at 635, 90 S.Ct. at 1336-37.

Nevertheless, these solemn vows were tested by new settlement pressure in Indian territory. Id. at 628, 90 S.Ct. at 1333. Unable to relocate the Cherokees, the new federal policy sought instead to allot Indian lands and terminate tribal affairs in order to facilitate Oklahoma's admission to the Union on an "Equal Footing" with the original states. Oklahoma relied on this Equal Footing Doctrine in Choctaw Nation to claim title to the bed of the Arkansas River in which Oklahoma had executed various leases.

In holding that the United States intended to and did convey to the Indians fee simple title to the bed of the Arkansas River, the Choctaw court relied on both "the circumstances of the treaty grants and the countervailing rule of construction" that treaties with Indian nations must be interpreted as the Indians would have understood their meaning. ⁶ Citing Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (title to the riverbed is an incident of state sovereignty); Brewer-Elliott Oil and Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67, L.Ed. 140 (1922) (Congress has the power to convey land below the high water mark of navigable waters; thus, the United States expressly conveyed a portion of riverbed to Osages); and United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926) (United States' intention to convey must be definitely declared), the Court recognized that the literal letter of these holdings did not require that "courts blind themselves to the circumstances of the grant in determining the intent of the grantor." Choctaw Nation, 397 U.S. at 635, 90 S.Ct. at 1336-37. The Court added:

As a practical matter, reservation of the river bed would have meant that petitioners were not entitled to enter upon and take sand and gravel or other minerals from the shallow parts of the river or islands formed when the water was low. In many respects however, the Indians were promised virtually complete sovereignty over their new lands.... We do not believe that petitioners would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United States intended otherwise.

Id. at 636, 90 S.Ct. at 1337. The Court gave full effect to the government's promise that no State or Territory would ever embrace the lands granted and refused to engage in the legal fiction that the river bisecting the Cherokee land was excluded from the grant. In a later appeal, we affirmed the district court's order on remand from Choctaw Nation, holding that the Supreme Court had decided past and present ownership. Cherokee Nation v. Oklahoma, 461 F.2d 674, 677-78 (10th Cir.1972).

III. Navigational Servitude

A.

Against this background, we now decide whether the district court erred in holding that the failure to reserve a navigational servitude in the patent amounted to a loss of the right to assert it. The United States argues the navigational servitude is a constitutional power arising from the Commerce Clause and permits no "special exception" for Indian tribes. To conclude, as did the district court, that having failed to reserve a navigational servitude, the United States loses that power is "unprecedented" according to appellant. Moreover, contrary to the district court's reference to the Cherokee Nation as a sovereign nation, the United States contends the appellee is a quasi-sovereign at the sufferance of Congress and subject to the dominant power of a navigational servitude. Indeed, appellant concludes that if the fact the Cherokees own the riverbed is set aside, this case is only an ...