United States v. Cherokee Nation of Oklahoma

No. 86-1940

Argued February 28, 1987

Decided March 31, 1987

480 U.S. 700

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

Syllabus



Choctaw Nation v. Oklahoma, 397 U.S. 620, held that, under pertinent

treaties with the Federal Government, certain Indian Tribes, including

respondent Tribe, were granted title to the riverbed underlying portions

of the Arkanas River in Oklahoma.  The Government's construction of a

navigable channel in the river damaged respondent's riverbed mineral

interests.  After unsuccessfully seeking compensation from the

Government, respondent filed suit in Federal District Court, contending

that the channel project resulted in a taking under the Fifth Amendment

of respondent's riverbed interests without just compensation.  Granting

summary judgment for respondent, the court rejected, on the basis of

Choctaw Nation, the Government's defense that its navigational servitude

under the Commerce Clause precluded liability for the alleged taking,

and held that, under the relevant treaties, the Government had not

reserved its navigational servitude.  The Court of Appeals affirmed,

adopting a different analysis.  It found that the Government retained a

navigational servitude in the river, but that -- balancing the public

and private interests involved -- the servitude was insufficient to

protect the Government from liability to compensate respondent.



Held:  No "balancing" test, as formulated by the Court of Appeals, is

required where, as here, the interference with in-stream interests

results from an exercise of the Government's Commerce Clause power to

regulate navigational uses of waters.  The proper exercise of the

Government's navigational servitude 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 riparian owners' interests are subject. 

Contrary to respondent's contention, the decision in Choctaw Nation does

not support the conclusion that respondent's title to the riverbed is

unique in scope, or that, under the pertinent treaties, the Government

abandoned its navigational servitude in the area.  Moreover, the

Government's fiduciary obligations in dealing with Indian tribal

property do not elevate the Government's actions into a taking.  The

tribal interests here simply do not [480 U.S. 701] include the right to

be free from the Government's navigational servitude.  Pp. 703-708.



782 F.2d 871, reversed and remanded.



REHNQUIST, C.J., delivered the opinion for a unanimous Court. REHNQUIST,

J., lead opinion



CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.



In Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), the Court determined

that certain treaties between the Cherokee, Chickasaw, and Choctaw

Tribes and the United States granted to the Tribes fee simple title to

the riverbed underlying specified portions of the Arkansas River in

Oklahoma.  The Court found the circumstances sufficient to overcome the

"strong presumption against conveyance by the United States" of title to

the bed of a navigable water.  Montana v. United States, 450 U.S. 544,

552 (1981).  See United States v. Holt State Bank, 270 U.S. 49 (1926). 

The question presented in this case is whether the United States must

pay the Cherokee Nation compensation for damage to these riverbed

interests caused by navigational improvements which it has made on the

Arkansas River.  The damage to sand and gravel deposits resulted from

the McClellan-Kerr Project, approved by Congress in 1946, Act of July

24, 1946, ch. 595, 60 Stat. 634, 636-636, and designed to improve

navigation by construction of a channel in the Arkansas River from its

mouth at the Mississippi to Catoosa, Oklahoma.  The project was

completed in 1971.



After our decision in Choctaw Nation, the Cherokee Nation sought

compensation from the Government.  Congress refused to fund the claim

after the Department of the Interior [480 U.S. 702] and the Army Corps

of Engineers concluded that the United States' navigational servitude

rendered it meritless.  The Department of the Interior and Related

Agencies Appropriations for 1980:  Hearings Before a Subcommittee of the

House Committee on Appropriations, 96th Cong., 1st Sess., pt. 7, pp.

379-392 (1979).  Congress did, however, provide respondent with the

opportunity to seek judicial relief, conferring jurisdiction on the

United States District Court for the Eastern District of Oklahoma to

determine "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 the construction of the

[McClellan-Kerr Project]."  H.R. 2329, 97th Cong., 1st Sess. (1981).



The Cherokee Nation filed a complaint contending that the construction

of the McClellan-Kerr Project resulted in a taking under the Fifth

Amendment of the Tribe's riverbed interests without just compensation. 

The United States in response claimed that its navigational servitude

precluded liability for the alleged taking.  The District Court granted

the Tribe's motion for summary judgment, finding that the decision 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. to Pet. for Cert. 26a.  Because

the United States did not reserve its navigational servitude in the

relevant treaties, the court held, it owed the Tribe just compensation. 

Id. at 27a. [480 U.S. 703]



A divided panel of the Court of Appeals for the Tenth Circuit affirmed,

adopting a different analysis.  782 F.2d 871 (1986).  The court rejected

the District Court's conclusion that the United States' failure to

reserve its navigational servitude defeated that interest.  It found it

"certain [that] the United States retained a navigational servitude in

the Arkansas River."  Id. at 876.  Nevertheless, the court held that the

servitude was insufficient to protect the United States from liability. 

Finding 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, id. at 877, the court

believed that the effect of the navigational servitude varied with the

owner's intended use: When 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.  Applying this test, the court concluded

that, though the Cherokee Nation could not interfere with the United

States' exercise of the navigational servitude, it had a right to

compensation for any consequent loss of property or diminution in value.



We think the Court of Appeals erred in formulating a balancing test to

evaluate this assertion of the navigational servitude.  No such

"balancing" is required where, as here, the interference with in-stream

interests results from an exercise of the Government's power to regulate

navigational uses of "the deep streams which penetrate our country in

every [480 U.S. 704] direction."  Gibbons v. Ogden, 9 Wheat. 1, 195

(1824).  Though this Court has never held that the navigational

servitude creates 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), there can be no

doubt that "[t]he 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 gives to the Federal Government a

"dominant servitude," FPC v. Niagara Mohawk Power Corp., 347 U.S. 239,

249 (1954), which extends to the entire stream and the streambed below

ordinary highwater mark.  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. Rands, supra, at 123.  See

also United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808

(1950); Scranton v. Wheeler, 179 U.S. 141, 163 (1900).



The application of these principles to interference with streambed

interests has not depended on balancing this valid public purpose in

light of the intended use of those interests by the owner.  Thus, in

Lewis Blue Point Oyster Cultivation Co. v. Brigggs, 229 U.S. 82 (1913),

the Court held that no taking occurred where dredging carried out under

the direction of the United States destroyed oysters that had been

cultivated [480 U.S. 705] on privately held lands under the waters of

the Great South Bay in New York.  The decision rested on the view that

the dominant right of navigation "must include the right to use the bed

of the water for every purpose which is in aid of navigation."  Id. at

87.  The Court did not rely on the particular use to which the private

owners put the bed, but rather observed that their very title to the

submerged lands 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. Id. at 88. 

See also United States v. Commodore Park, 324 U.S. 386, 390 (1945);

United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596-597

(1941).



These well established principles concerning the exercise of the United

States' dominant servitude would, in the usual case, dictate that we

reject respondent's "takings" claim.  We do not understand respondent to

argue otherwise.  See e.g., Brief in Opposition 11-12; Tr. of Oral Arg.

16, 28-29.  Instead, the Cherokee Nation asserts that its title to the

Arkansas River bed is unique in scope, and that interference with that

interest requires just compensation.  Respondent does not rely

explicitly on any language of the relevant treaties, but rather on its

reading of Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970).  We have

noted that Choctaw Nation involved "very peculiar circumstances,"

Montana v. United States, 450 U.S. at 555, n. 5, in that "the Indians

were promised virtually complete sovereignty over their new lands." 

Choctaw Nation, supra, at 635.  These circumstances allowed the

claimants to overcome the strong presumption against conveyance of

riverbed interests by the United States, designed to protect the

interests of the States under the equal-footing doctrine.  See Montana

v. United States, supra, at  Shively v. Bowlby, 152 U.S. 1, 48-50

(1894).  Respondent urges that these circumstances further indicate that

the United States abandoned its navigational servitude in the area. 

Thus, in respondent's view, the [480 U.S. 706] treaties by which it

gained fee simple title to the bed of the Arkansas River were such as to

make the Arkansas River a "private stream," Brief for Respondent 28,

"not intended as a public highway or artery of commerce."  Id. at 23.



We think that the decision in Choctaw Nation was quite generous to

respondent, and we refuse to give a still more expansive and novel

reading of respondent's property interests.  There is certainly nothing

in Choctaw Nation itself that suggests such a broad reading of the

conveyance.  To the contrary, the Court expressly noted that the United

States had no interest in retaining title to the submerged lands because

"it had all it was concerned with in its navigational easement via the

constitutional power over commerce."  Choctaw Nation, supra, at 635

(emphasis added).  The parties, including respondent here, clearly

understood that the navigational servitude was dominant no matter how

the question of riverbed ownership was resolved.  See, e.g., Brief for

Petitioner in Cherokee Nation v. Oklahoma, O.T. 1969, No. 59, p. 19

("[T]here 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").



Any other conclusion would be wholly extraordinary, for we have

repeatedly held that the navigational servitude applies to all holders

of riparian and riverbed interests.  See Montana v. United States,

supra, at 555;  Grand River Dam Authority, 363 U.S. 229, 233 (1960);

United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 63

(1913), citing Gibson v. United States, 166 U.S. 269, 271 (1897). 

Indeed, even when the sovereign States gain "the absolute right to all

their navigable waters and the soils under them for their own common

use" by operation of the equal-footing doctrine, Martin v. Waddell, 16

Pet. 367, 410 (1842), this "absolute right" is unquestionably subject to

"the paramount power of the United States to ensure that such waters

remain free to interstate and foreign commerce."  Montana v. United

States, supra, at 551.  If the States themselves are subject to this

servitude, we cannot conclude that respondent -- though granted a degree

of sovereignty over tribal lands -- gained an exemption from the

servitude simply because it received title to the riverbed interests. 

Such a waiver of sovereign authority will not be implied, but instead

must be "`surrendered in unmistakable terms.'"  United States v. [480

U.S. 707]Bowen v. Public Agencies Opposed to Social Security Entrapment,

477 U.S. 41, 52 (1986), quoting Merrion v. Jicarilla Apache Tribe, 455

U.S. 130, 148 (1982).  Respondent can point to no such terms.



We also reject respondent's suggestion that the fiduciary obligations of

the United States elevate the Government's actions into a taking.  It

is, of course, well established that the Government, in its dealings

with Indian tribal property, acts in a fiduciary capacity.  See Seminole

Nation v. United States, 316 U.S. 286, 296-297 (1942).  When it holds

lands in trust on behalf of the tribes, the United States may not give

the tribal lands to others, or . . . appropriate them to its own

purposes, without rendering, or assuming an obligation to render, just

compensation for them. United States v. Creek Nation, 295 U.S. 103, 110

(1935).  These principles, however, do little to aid respondent's cause,

for they do not create property rights where none would otherwise exist,

but rather presuppose that the United States has interfered with

existing tribal property interests.  As we have explained, [480 U.S.

708] the tribal interests at issue here simply do not include the right

to be free from the navigational servitude, for exercise of the

servitude is "not an invasion of any private property rights in the

stream or the lands underlying it. . . . "  United States v. Rands, 389

U.S. at 123.



The judgment of the Court of Appeals is reversed, and the case is

remanded for further proceedings consistent with this opinion.



It is so ordered. Footnotes REHNQUIST, J., lead opinion (Footnotes)



1. The Cherokee Nation also claimed that, whether or not the United

States' actions resulted in a taking, the failure to pay compensation

violated the Government's duty to engage in fair and honorable dealings

with the Tribe.  The District Court did not address this claim, and

certified the takings claim for interlocutory appeal under as U.S.C. 

1292(b).  The Court of Appeals accordingly did not consider the issue,

and it is not before us here.



2. The dissenting judge found no support for the balancing of public and

private interests, noting that "instead, the issue is whether the

segment or interest is within the definition and scope of the

[navigational servitude] doctrine geographically. . . ."  782 F.2d at

882.  Relying on United States v. Rands, 389 U.S. 121 (1967), the

dissent observed that privately owned riverbed interests are subject to

the navigational servitude, and found no authority and no basis for an

exception to the public nature of the navigable river to create a

"private river," as plaintiff urges, nor to create an exception to the

application of the navigational servitude because plaintiff is an Indian

tribe. 782 F.2d at 883.



3. Though Rands spoke in terms of riparian owners, rather than those

holding fee simple title to riverbed interests, our cases make clear

that the navigational servitude is dominant to riverbed interests, no

matter how acquired.  See, e.g., United States v. Chicago, M., St. P. &

P. R. Co., 312 U.S. 592, 596 (1941) ("Whether, under local law, the

title to the bed or the stream is retained by the State or the title of

the riparian owner extends to the thread of the stream, or . . . to

low-water mark, the rights of the title holder are subject to the

dominant power of the Federal Government in respect of navigation")

(footnotes omitted).



4. See also Reply Brief for Petitioner in Cherokee Nation v. Oklahoma,

O.T. 1969, No. 69, pp. 13-14 ("Throughout their brief, respondents imply

that, if title to the river were vested in the petitioner and not in the

state (under the equal footing-implied trust doctrine) the authority and

power of the United States would somehow be compromised.  Such an

inference is absurd; no matter who holds title to the riverbed, the

petitioner or the state, the rights and power of the United States are

precisely the same").  Respondent now argues that these statements

merely admitted the power of the United States to exercise the

servitude, but did not waive its right to compensation when this

exercise damaged its interests.  See Brief for Respondent 34.  We find

no support for the existence of such a "hybrid" navigational servitude

in these circumstances.

