Mr. BUTLER. Yes. Chairman ABOUREZK. Would private individuals pay for the management of these rivers that were owned by them earlier? Mr. BUTLER. I understand, Mr. Chairman, that under the navigational servitude theory the river level was brought up to a certain level and that there were some lands above the water line that were purchased. Is that correct, Mr. Chaney? Mr. CHANEY. Yes; that is correct. Mr. BUTLER. Mr. Chaney says that is correct. It was purchased by the Corps of Engineers. Chairman ABOUREZK. We have no more questions. We want to thank you for your testimony. Mr. BUTLER. Thank you, Mr. Chairman. Chairman ABOUREZK. We have the tribal panel witnesses next. Would they please come forward? The tribal panel consists of Mr. Andy Wilcoxen, Ross Swimmer, David Gardner, and Overton James. Mr. Wilcoxen will you begin? STATEMENT OF ANDY WILCOXEN, GENERAL COUNSEL, CHEROKEE NATION Mr. WILCOXEN. I am Andy Wilcoxen, general counsel of the Cherokee Nation in Oklahoma. Seated immediately to my left, Mr. Chairman, is Ross Swimmer, the principal chief of the Cherokee Nation. Further to my left is David Gardner, principal chief of the Choctaw Nation, and then there is Overton James, governor of the Chickasaw Nation. Mr. Chairman, I intended to review at some length the matters which have already been more than adequately taken care of by the statement of Senator Bellmon. Anything relative to the history of this matter, I think would be redundant at this time. I would like to say, Mr. Chairman, that the tribes agree that the appraisals were fairly done and represent fair estimates of the values that they encompass. I would like to again emphasize that none of the guidelines for doing the work and none of the standards for procedures to be followed and none of the selective processes in securing the appraisers-in none of these things did the tribes have input. Chairman ABOUREZK. So it was an arm's length appraisal; is that right? Mr. WILCOXEN. There is no question about it. Chairman ABOUREZK. In spite of that or because of it or whatever, are the tribes satisfied with the conduct of the appraisal or the outcome of it? Mr. WILCOXEN. Yes; we are. Chairman ABOUREZK. So you believe it was a fairly and justly done appraisal? Mr. WILCOXEN. Yes; we have had ample opportunity to thoroughly consider the work that was done and we are in agreement that they are fair and an arm's length appraisal. Chairman ABOUREZK. May I ask another question which is pertinent to this bill? We talked about time limits for the return of an agreement. The Department itself says 1-year maximum would be sufficient. Senator Bell mon and I discussed 6 months, although we just plucked that figure out of the air. Because the appraisals are already finished, there is nothing left to do except to decide on a time to sit down and sign an agreement. How long do you think it ought to take? Mr. WILCOXEN. Mr. Chairman, let me say that we have heretofore come to Washington with an agreement signed by the three leaders of the Indian tribes. We could do this very quickly, but we also understand, even as ordinary citizens, that it takes the Government a little longer to operate than it does other folks. We would suggest, sir, that we could very well accomplish all of these purposes within the 6-month period. Chairman ABOUREZK. So you think the 6-month limitation after enacting legislation, which is the only way we could do it reasonably I think, would be a fair time limit? Mr. WILCOXEN. Yes. Mr. Chairman, may I say on behalf of these Indian nations that we believe the legislation is needed, despite the attitude of the Interior Department. Let me call your attention to the fact that it does certain specific things. It directs the Secretary of the Interior to enter into an agreement with us. It suggests that he use as a guideline the appraisals that have already been secured. It is very specific in providing that appropriations will be authorized when the other purposes of this act have been carried out. The bill, as has already been made very clear to the chairman and Senator Bartlett, was initially drafted at the request of the Interior Department and we believe the position they have taken here today under questioning of the chairman and the Senator has been very helpful to us. I would like to support the position of the tribes with reference to this bill by making specific reference to a memorandum of the legislative counsel of the Interior Department dated August 12, 1976. The concluding paragraph reads as follows: In accordance with past history I firmly believe that if the Supreme Court's pronouncement in Cherokee Nation v. Oklahoma had preceded congressional consideration of the construction of the Arkansas navigation system, the Secretary of the Interior's trust obligation to protect the property interests of Indian tribes would have compelled a request for legislation to compensate the Choctaw, Chickasaw, and Cherokee Nations for the destruction of their property in the Arkansas riverbed. The enactment of the bill will be the first step in making such restitution to the Indian nations. Preceding that concluding paragraph, Mr. Chairman, is a recitation of two instances in which the policy of the United States expressed itself by making specific provision for compensation of Indian interests, once by the project on the Missouri River within the Cheyenne River Indian Reservation where Congress ratified an agreement to pay the tribe for the loss of its property interests in the Missouri River. Once again it happened on July 4, 1946, when Congress authorized the Corps of Engineers to acquire land within the Fort Berthold Indian Reservation necessary for the Garrison Dam Reservoir and made provision for compensation to the Three Affiliated Tribes who owned the bottom of the Missouri River. So, I think to put it into correct perspective from our point of view, what we are saying to this committee is that we are doing, after the fact, what we earnestly believe would have been the purpose of the work of Congress to have accomplished before the fact had anyone known, which nobody did, for 65 years. No one knew that the Indian nations owned the navigable portion of the 96 miles of riverbed in northeastern Oklahoma and not the State of Oklahoma itself. You have been patient with us. I think we will try to answer questions now because I believe most of the material, Mr. Chairman, has been covered pretty thoroughly. Chairman ABOUREZK. I think it has. In fact, the only real pertinent questions have already been asked at the outset of the testimony. We want to express our thanks to you for your appearance here. We appreciate it. Mr. WILCOXEN. Mr. Chairman, the chiefs and the Governor have prepared statements which they would like to offer into the record. Chairman ABOUREZK. Absolutely. They will be entered into the record as though they were read in full. We thank you for sparing us the reading of all those statements. Mr. Swimmer? STATEMENT OF ROSS 0. SWIMMER, PRINCIPAL CHIEF, CHEROKEE NATION Mr. SWIMMER. I am sure your patience is running thin so I will keep my remarks short. I would like to reiterate what has been said. I consider my legal counsel my right arm and when he is speaking I hope you will consider that to be the words of the tribe. I would like to say that on behalf of the tribes we do support these appraisals and we were asked to come to Washington in good faith with an agreement and we were told not to come to Washington before we three chiefs had reached this agreement. Chairman ABOUREZK. What is the agreement? Mr. SWIMMER. It is an agreement for the sale and lease of the Arkansas riverbed to the U.S. Government and it was drafted at the request of the Interior Department and the Bureau of Indian Affairs. It has a place for the signature of the Secretary and when we made the agreement and brought it to Washington, we were told that we could go no further until Congress authorizes the Secretary of the Interior to sign that agreement. They did not complain about the agreement itself. They said, "When we get authorization to sign it we will sign it." I would like to submit it for the record. Chairman ABOUREZK. It will be accepted for the record. [The agreement follows:] AGREEMENT This Agreement, made and entered into this day of of 1976, at Washington, D.C., by and between the Commissioner of Indian Affairs, Morris Thompson, and the Secretary of Interior, John Kleppe, acting for and on behalf of the United States of America, and Ross Swimmer, Principal Chief of the Cherokee Nation, David Gardner, Principal Chief of the Choctaw Nation, and Overton James, Governor of the Chickasaw Nation, acting for and on behalf of their respective Indian Nations in the State of Oklahoma. Witnesseth: Whereas, the Cherokee Nation and the Choctaw and Chickasaw Nations have recovered from the State of Oklahoma and other trespassing parties, through litigation concluded in the Supreme Court of the United States, 397 U.S. 620, 90 S.Ct. 1328, April 27, 1970, Rehearings denied, June 1, 1970, 398 U.S. 945, 90 S.Ct. 1834, the fee simple title and possession of the bed of Arkansas River from the confluence of the Grand-Neosho River in Oklahoma to the Western boundary of the State of Arkansas, and Whereas, the United States District Court for the Eastern District of Oklahoma and a specially convened three judge Federal Court on April 15, 1975, has quieted title in said Indian Nations as follows: The Cherokee Nation is the fee simple title And, Whereas, the Congress of the United States has by Interior Department Appropriation acts for the fiscal years 1973, 1974 and 1975, (86 Stat. 509, 87 Stat. 431, 88 Stat. 809) authorized and directed the Interior Department to survey and appraise the value of the bed of the Arkansas River and said appraisals have been completed by said Department pursuant to said Congressional authorizations, establishing the value of said riverbed property and property rights, therein, and these appraisals have been accepted by the Indian Nations, and Whereas, the United States desires to secure a lease of said riverbed property and property rights as described in Exhibits A, B and C hereto attached and made a part hereof, from the Cherokee Nation, Choctaw and Chickasaw Nations of Oklahoma. Now therefore, it is agreed between the parties hereto as follows: In consideration of the payment of the sum of $60,338,509.83 divided as follows: Cherokee Nation of Oklahoma $35,221,002.20, Choctaw Nation and Chickasaw Nations of Oklahoma - $25,117,507.63, and ninety-nine annual lease payments in the sum of $5,834,277.94 each payable $3,873,960.56 to the Cherokee Nation and $1,960, 317.38 to the Choctaw Nation and Chickasaw Nation, which annual sums represent lease payments for the remaining identified assets per the appraisals of the United State Government listed in Exhibits A, B, and C at an annualized rate of 5 percent per annum; the aforesaid tribes or nations lease all of said remaining identified assets shown in Exhibits A, B, and C |