H.R.3534

Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act
(Introduced in the House)
 

SEC. 2. FINDINGS; PURPOSE; DEFINITIONS.

(a) FINDINGS- The Congress finds the following:

(1) It is the policy of the United States to promote tribal self-determination and economic self-sufficiency and to encourage the resolution of disputes over historical claims through mutually agreed-to settlements between Indian Nations and the United States.

(2) There are pending before the United States Court of Federal Claims certain lawsuits against the United States brought by the Cherokee, Choctaw, and Chickasaw Nations seeking monetary damages for the alleged use and mismanagement of tribal resources along the Arkansas River in eastern Oklahoma.

(3) Some of the significant historical facts relevant to the claims and controversies between the Cherokee, Choctaw, and Chickasaw Nations and the United States include the following:

(A) The Cherokee Nation, a federally recognized Indian tribe with its present tribal headquarters near Tahlequah, Oklahoma, having adopted its most recent constitution on June 26, 1976, and having entered into various treaties with the United States, including but not limited to the Treaty at Hopewell, executed on November 28, 1785 (7 Stat. 18), and the Treaty at Washington, D.C., executed on July 19, 1866 (14 Stat. 799), has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union.

(B) The Choctaw Nation, a federally recognized Indian tribe with its present tribal headquarters in Durant, Oklahoma, having adopted its most recent constitution on July 9, 1983, and having entered into various treaties with the United States of America, including but not limited to the Treaty at Hopewell, executed on January 3, 1786 (7 Stat. 21), and the Treaty at Washington, D.C.,
executed on April 28, 1866 (7 Stat. 21), has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union.

(C) The Chickasaw Nation, a federally recognized Indian tribe with its present tribal headquarters in Ada, Oklahoma, having adopted its most recent constitution on August 27, 1983, and having entered into various treaties with the United States of America, including but not limited to the Treaty at Hopewell, executed on January 10, 1786 (7 Stat. 24), and the Treaty at
Washington, D.C., executed on April 28, 1866 (7 Stat. 21), has maintained a continuous government-to-government relationship with the United States since the earliest years of the Union.

(D) In the first half of the 19th century, the Cherokee, Choctaw, Chickasaw, Creek, and Seminole Nations were forcibly removed from their homelands in the southeastern United States to lands west of the Mississippi in the Indian Territory which were ceded to them by the United States. From the `Three Forks' area near present day Muskogee, Oklahoma, downstream to the point of
confluence with the Canadian River, the Arkansas River flowed entirely within the territory of the Cherokee Nation. From that point of confluence downstream to the Arkansas territorial line, the Arkansas River formed the boundary between the Cherokee Nation on the left side of the thread of the river and the Choctaw and Chickasaw Nations on the right.

(E) Pursuant to the Act of April 30, 1906 (34 Stat. 137), title to the bed and banks of the Arkansas River passed to the United States in trust for the respective Indian Nations in accordance with their respective interests therein.

(F) For more than 60 years after Oklahoma statehood, the Bureau of Indian Affairs incorrectly assumed that Oklahoma owned the Riverbed from the Arkansas State line to Three Forks, and therefore took no action to protect the Indian Nations' Riverbed resources such as oil and gas production, sand and gravel as well as Drybed Lands suitable for grazing and agriculture. The United States Government constructed powerheads and other improvements in the channel of the Arkansas River on tribal lands, using sand and gravel belonging to the three Indian Nations. Due to the Bureau's inaction, individuals with property near
the Arkansas River began to occupy the three Indian Nations' Drybed Lands--lands that were under water at the time of statehood but that are now dry due to changes in the course of the river.

(G) In 1966, the three Indian Nations sued the State of Oklahoma to recover their lands. In 1970, the Supreme Court of the United States decided in the case of Choctaw Nation vs. Oklahoma (396 U.S. 620 (1970)), that the Indian Nations retained title to their respective portions of the Riverbed along the navigable reach of the river.

(H) In 1989, the three Indian Nations filed lawsuits against the United States in the United States Court of Federal Claims (Case Nos. 218-89L and 630-89L), seeking damages for the United States use and mismanagement of tribal trust resources along the Arkansas River. Those actions are still pending.

(I) In 1997, the United States filed quiet title litigation against individuals occupying some of the Indian Nations' Drybed Lands. That action, filed in the United States District Court for the Eastern District of Oklahoma, was dismissed without prejudice on technical grounds.

(J) From time to time over the years following the Indian Nations' Court of Federal Claims litigation, the Indian Nations, the Department of Justice, the Bureau of Indian Affairs, and the Indian Nations have engaged in settlement negotiations.

(4) Nearly 7,750 acres of the Indian Nations' Drybed Lands have been occupied by a large number of adjacent landowners in Oklahoma. Without Federal legislation, further litigation against thousands of such landowners would be likely and any final resolution of pending disputes through a process of litigation would take many years and entail great expense to the United States, the three Indian Nations, and the individuals and entities occupying the Drybed Lands and would seriously impair long-term economic planning and development for all parties.

(5) The Councils of the Cherokee, Choctaw, and Chickasaw Nations have each enacted tribal legislation which would, contingent upon the passage of this Act and in exchange for the monies appropriated hereunder--

(A) settle and forever release their respective claims against the United States asserted by them in UnitedStates Court of Federal Claims Case Nos. 218-89L and 630-89L; and

(B) forever disclaim any and all right, title, and interest in and to the Disclaimed Drybed Lands, as set forth in those enactments of the respective councils of those Nations described in paragraph (6).

(6) The enactments of settlement legislation adopted by the respective Councils of the Cherokee, Choctaw, and Chickasaw Nations each provide that, contingent upon the passage of this Act, the Indian Nation agrees to dismiss, release, and forever discharge its claims asserted against the United States in the United States Court of Federal Claims, Case No. 218-89L, and to disclaim any right, title, or interest of the Nation in the Disclaimed Drybed Lands, in exchange for the funds appropriated and allocated to the Indian Nation under the provisions of this Act, which funds the Nation agrees to accept in full satisfaction and
settlement of all claims against the United States for its use of and damage to the bed of the Arkansas River arising out of the construction of the McClellan-Kerr Navigation Way and for the damages sought in the aforementioned claims asserted in the United States Court of Federal Claims, and as full and fair compensation for disclaiming its right, title, and interest in the
Disclaimed Drybed Lands, payable in the next fiscal year after the date of the enactment of this Act.

(7) In those enactments, each Indian Nation expressly reserved all of its beneficial interest and title to all other Riverbed lands, including minerals, as determined by the Supreme Court in Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), and further reserved any and all right, title, or interest that each Nation may have in and to the water flowing in said river and its tributaries.

(b) PURPOSE- The purposes of this Act are as follows:

(1) To approve, ratify, and confirm an agreed-to resolution of claims brought by the Cherokee, Choctaw, and Chickasaw Nations against the United States, and the agreed-to disclaimers of the three Indian Nations to any right, title, or interest in approximately 7,750 acres of Drybed Lands contiguous to the present channel of the Arkansas River in certain townships in eastern Oklahoma.

(2) To reserve the three Indian Nations' beneficial interest in the Riverbed except for the Disclaimed Drybed Lands.

(3) To authorize and direct the Secretary to implement the terms of such settlement.

(4) To authorize the actions and appropriations necessary to implement the provisions of this Act.

(5) To maintain the trust relationship between the United States and each of the three Indian Nations.

(c) DEFINITIONS- For the purposes of this Act, the following definitions apply:

(1) DISCLAIMED DRYBED LANDS- The term `Disclaimed Drybed Lands' means all Drybed Lands along the Arkansas River that are located in Township 10 North in Range 24 East, Townships 9 and 10 North in Range 25 East, Township 10 North in Range 26 East, and Townships 10 and 11 North in Range 27 east, in the State of Oklahoma.

(2) DRYBED LANDS- The term `Drybed Lands' means those Riverbed lands of the three Indian Nations which lie above and contiguous to the present high water mark of the Arkansas River in the State of Oklahoma but which have become part of the Riverbed by operation of accretion and avulsion.

(3) INDIAN NATION; INDIAN NATIONS- The term `Indian Nation' means the Cherokee Nation, Choctaw Nation, or Chickasaw Nation, and the term `Indian Nations' means all three tribes collectively.

(4) RIVERBED- The term `Riverbed' means the Drybed Lands and the Wetbed Lands and includes all minerals therein.

(5) SECRETARY- The term `Secretary' means the Secretary of the Interior.

(6) WETBED LANDS- The term `Wetbed Lands' means those Riverbed lands which lie below the high water mark of the Arkansas River in the State of Oklahoma exclusive of the Drybed Lands.

SEC. 3. SETTLEMENT AND CLAIMS; APPROPRIATIONS; ALLOCATION OF FUNDS.

(a) EXTINGUISHMENT OF CLAIMS- Upon payment of the funds appropriated under this section, all claims for use of and damage to the Riverbed arising out of the construction and maintenance of the McClellan-Kerr Navigation Way and the claims asserted by the Cherokee, Choctaw, and Chickasaw Nations in the United States Court of Federal Claims against the United States shall be deemed extinguished.

(b) RELEASE OF TRIBAL CLAIMS TO CERTAIN DRYBED LANDS-

(1) IN GENERAL- Upon the deposit of all funds authorized for appropriation under subsection (c) for an Indian Nation into the appropriate trust fund account described in section 4, all claims and all right, title, and interest that the Indian Nations may have to the Disclaimed Drybed Lands, shall be deemed extinguished. The Secretary shall execute an appropriate document citing this Act, suitable for filing with the county clerks, or such other county official as is appropriate, of those counties wherein the foregoing
described lands are located, disclaiming tribal interests in such Disclaimed Drybed Lands.

(2) EXCEPTION- Notwithstanding any provision of this Act, the Indian Nations do not relinquish any right, title, or interest in any lands or minerals to which the United States claims title which are contiguous to the Riverbed, and no provision of this Act shall be construed to extinguish or convey any water rights of the Indian Nations in the Arkansas River or any other stream or the beneficial interests or title of any of the Indian Nations in and to trust lands lying above or below the high water mark of the Arkansas River, except for the Disclaimed Drybed Lands.

(3) LAND TO BE TAKEN INTO TRUST- To the extent that the United States determines that it is able to effectively maintain the McClellan-Kerr Navigation Way without retaining title to lands above the high water mark of the Arkansas River, said lands, after being declared surplus, shall be taken into trust for the Indian Nation within whose boundary the land is located. All Wetbed Lands, including minerals, from the Arkansas State line upstream to the historic point of navigability near the confluence of the
Arkansas, Verdigris, and Grand Rivers, and all Drybed Lands located outside the foregoing described Townships,  shall continue to be held by the United States in trust for the beneficiary Indian Nation and shall be protected in accordance with applicable law
governing tribal trust lands.

(c) AUTHORIZATION FOR SETTLEMENT APPROPRIATIONS-

(1) SETTLEMENT OF CLAIMS- There is authorized to be appropriated the aggregate sum of $41,293,245. After payment pursuant to section 5, the remaining funds appropriated under this subsection shall be paid and allocated among the three Indian Nations in accordance with subsection
(d) and deposited into the trust fund accounts established pursuant to section 4. Such payment shall be in full satisfaction and settlement of the Indian Nations' claims for the use of and damage to the Arkansas Riverbed arising out of the construction and
maintenance of the McClellan-Kerr Navigation Way and asserted against the United States in the United States Court of Federal Claims, Case Nos. 218-89L and 630-89L, and in full satisfaction of, and as compensation for, the three Indian Nations' respective right, title, and interest in and to the Disclaimed Drybed Lands.

(2) RENTALS- In addition to funds authorized to be appropriated in
paragraph (1), there is authorized for appropriation and allocated in accordance with subsection (d) $8,000,000, representing the present value of the fair market rentals for the location and future operation in perpetuity of the two hydropower generation and
related facilities at the Webbers Falls Lock and Dam and the Kerr Lock and Dam on the Arkansas River.

(d) ALLOCATION AND DEPOSIT OF FUNDS- After payment pursuant to section 5, the remaining funds authorized for appropriation under subsection (c) shall be allocated among the Indian Nations as follows:

(1) 50 percent to be deposited into the trust fund account established under section 4 for the Cherokee Nation.

(2) 37.5 percent to be deposited into the trust fund account established under section 4 for the Choctaw Nation.

(3) 12.5 percent to be deposited into the trust fund account established under section 4 for the Chickasaw Nation.

SEC. 4. TRIBAL TRUST FUNDS.

(a) TRUST FUND ACCOUNTS AND USES OF TRUST FUNDS- All funds
appropriated and paid pursuant to section 3 shall be deposited into three separate tribal trust fund accounts to be established by the Secretary for the benefit of each of the three Indian Nations. All funds deposited into said accounts, and any income earned thereon, shall be expended only in accordance with the provisions of this section. No funds deposited into the trust fund accounts established in section 4 shall be made available to the beneficiary Indian Nation until that Nation files the appropriate stipulation of dismissal with prejudice of all claims asserted in Case Nos. 218-89L or 630-89L, filed in the United States Court of Federal Claims.

(b) LAND ACQUISITION- The funds appropriated and allocated to the Indian Nations pursuant to section 3(c) and deposited into trust fund accounts pursuant to section 4(a), together with any interest earned thereon, and allocated pursuant to section 3(d) may be used for the acquisition of land by the three Indian Nations for transfer to the United States in trust for the beneficiary Indian Nation in accordance with the Secretary's trust land acquisition regulations at part 151 of title 25, Code of Federal Regulations, as in effect on January 1, 2001. Any such trust land acquisitions on behalf of the Cherokee Nation shall be mandatory if the land proposed to be acquired is located within Township 12 North, Range 21 East, in Sequoyah County, Township 11 North, Range 18 East, in McIntosh County, Townships 11 and 12 North, Range 19 East, or Township 12 North, Range 20 East, in
Muskogee County, Oklahoma, and not within the limits of any incorporated municipality as of January 1, 2001, except that any such land proposed to be acquired must meet the Department of Interior's minimum environmental standards and requirements for real estate acquisitions set forth in 602 DM 2.6, as in effect on January 1, 2001, and the title to such land must meet applicable Federal title standards as in effect on said date. The Indian Nations may elect to expend all or a portion of the funds deposited into its trust account for any other purposes authorized under subsection (c).

(c) INVESTMENT OF TRUST FUNDS; NO PER CAPITA PAYMENT-

(1) NO PER CAPITA PAYMENTS- No money received by the Indian Nations hereunder may be used for a general per capita payment.

(2) INVESTMENT BY SECRETARY- Except as provided in this section and section 5, the principal of such funds deposited into the accounts established hereunder and any interest earned thereon shall be invested by the Secretary in accordance with current laws and regulations for the investing of tribal trust funds.

(3) USE OF PRINCIPAL FUNDS- The principal amounts of said funds and any amounts earned thereon shall be made available to the Indian Nation for which the account was established for expenditure for purposes which may include construction or repair of health care facilities, law enforcement, cultural or other education activities, economic development, social services, and land acquisition. Land acquisition using such funds shall be subject to the provisions of subsections (b) and (d).

(d) DISBURSEMENT OF FUNDS- The Secretary shall disburse the funds from a trust account established under this section pursuant to a budget adopted by the Council of the Indian Nation setting forth the amount and an intended use of such funds.

SEC. 5. ATTORNEY FEES.

(a) PAYMENT- At the time the funds are paid to the Indian Nations, from funds authorized to be appropriated pursuant to section 3(c), the Secretary shall pay to the Indian Nations' attorneys those fees provided for in the individual tribal attorney fee contracts as approved by the respective Indian Nations.

(b) LIMITATIONS- Notwithstanding subsection (a), the total fees payable to attorneys under such contracts with an Indian Nation shall not exceed 10 percent of that Indian Nation's allocation of funds appropriated under section 3(c).