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95TH CONGRESS

1st SESSION

S. 660

IN THE SENATE OF THE UNITED STATES

FEBRUARY 7 (legislative day, FEBRUARY 1), 1977 Mr. BELLMON (for Mr. BARTLETT) (for himself and Mr. BELLMON) introduced

the following bill; which was read twice and referred to the Committee on Interior and Insular Affairs

FEBRUARY 11 (legislative day, FEBRUARY 1), 1977 Rereferred, pursuant to S. Res. 1, to the Select Committee on Indian Affairs

A BILL To authorize the Secretary of the Interior to enter into an agree

ment with the Cherokee, Choctaw, and Chickasaw Indian Nations for the purchase and/or lease by the United States of each nation's right and interests in the riverbed of the Arkansas River, and for other purposes.

1

Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled,

3 That (a) the Secretary of the Interior is authorized, after

4 consultation with the Secretary of Defense, to enter into

5 an agreement or agreements with the Cherokee, Choctaw,

6 and Chickasaw Nations of Oklahoma on such terms and

7 conditions as may be agreeable to the Secretary and such 8 nations providing for the use, lease, and/or purchase by

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1 the l'nited States of any or all of the rights of such nations

? in the bed of the Arkansas River.

3 (b) The Secretary shall utilize as a basis for the terms 4 of the agreements with the Cherokee, Choctaw, and Chicka

5

saw Nations of Oklahoma the value of the property rights

6 of said nations in the bed of the Arkansas River, as deter

7 mined by appraisals conducted by the Secretary and ac8 cepted by said nations, and any such lease and/or purchase 9 agreement shall provide for payment to said nations of not 10 less than the appraised value of the property rights involved. 11 (c) The Cherokee, Choctaw, and Chickasaw Nations of

12 Oklahoma are each authorized to enter into an agreement

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Sec. 2. (a) The Secretary shall simultaneously submit any agreement with the Cherokee, Choctaw, and Chickasaw

16

17 Nations pursuant to this Act to the respective Committees of

18 Congress on Interior and Insular Affairs for their considera

19 tion. Any agreement under this Act shall become effective, 20 and the Secretary shall take immediate action to implement 21 the agreement, at the end of the sixty-day period beginning 22 on the day such agreement is submitted to the Congress, un23 less during such sixty-day period either House adopts a reso

24 lution disapproving such agreement.

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1

(b) When an agreement under this Act becomes effec

2 tive as provided in subsection (a) of this section, the Sec

3 retary shall cause a notice of that fact and the effective date

4 to be published in the Federal Register.
5 SEC. 3. There are hereby anthorized to be appropriated
6 such sums as may be necessary for the purpose of this Act.

We would like now to hear from our colleague, Senator Henry Bellmon of Oklahoma on the bill S. 660.

Senator, welcome. I serve on the Budget Committee with Senator Bellmon. He is the ranking minority member on the Budget Committee. He is, I think, one of the very good Senators in the Senate in spite of the fact that he is a Republican. [Laughter.]

STATEMENT OF HON. HENRY BELLMON, A U.S. SENATOR FROM

THE STATE OF OKLAHOMA

Senator BELLMON. I appreciate the compliment, I think. [Laughter.]

I want to congratulate the chairman for scheduling these hearings because the matter before the committee is of great importance to a large number of my constituents in Oklahoma and I hope the hearing will help bring prompt action on S. 660.

This is a bill to authorize the Secretary of the Interior to enter into an agreement with the Cherokee, Choctaw, and Chickasaw Indian Nations for the purchase and/or lease by the United States of each nation's right and interest in the riverbed of the Arkansas River.

May I take this opportunity to express my appreciation to the chairman, Senator Abourezk, for extending me this invitation to appear this morning as well as to thank my fellow Senator from Oklahoma, Senator Bartlett, the ranking minority member of this committee and the original sponsor of S. 660.

Mr. Chairman, as you will undoubtedly learn from the testimony presented here this morning, the history of the ownership of the Arkansas riverbed is long and involved. During my term as Governor of the State of Oklahoma, the litigation began between the three tribes and the State of Oklahoma.

I might take just a minute to say parenthetically how this all happened.

At the time that this litigation began the State School Land Commission in Oklahoma thought that it owned this land. We undertook to lease it for mineral development and as the titles were being examined it developed that there was a cloud on the title and so the State School Land Commission actually provided funds for a court test to see who was the proper owner of the riverbed.

What had happened was that the Corps of Engineers which had developed the navigational channels straightened them so that there were ox bows left which the State assumed belonged to the State. Yet, when the litigation proceeded as I will describe in a moment, it turned out that that was not the case at all.

The case followed through the courts until April of 1970 when the Supreme Court of the United States confirmed the fee title and right to possession of the bed of the Arkansas River from the confluence of the Grand-Neosho River in Oklahoma to the western boundary of the State of Arkansas in the Cherokee, Choctaw, and Chickasaw Nations of Oklahoma.

As we are well aware, the Supreme Court's decision was based on a serious review not only of the law, but of the treaties with the tribes and the history of the United States. The tribes were originally in the southeast section of the United States. However, to accommodate the expansion of the white settlers, the tribes were forced to exchange their homeland for land in the West. At this time, the U.S. Government offered the Indians large tracts of land in what is now Oklahoma. The United States, in the Treaty of Dancing Rabbit Creek, signed September 27, 1830, agreed to convey title to new lands west of the Mississippi to the Choctaw Nation in exchange for tribal lands in the Southeast. A similar agreement was made with the Cherokee Nation in the Treaty of New Echota, signed December 29, 1835. By treaties of 1837 and 1855, the Chickasaw Nation, which was allied with the Choctaw Nation, was granted an undivided one-fourth interest in the lands of the Choctaws.

Pursuant to these treaties, the United States issued patents to the Indian tribes in 1838 and 1842, granting them fee simple title to their new lands. In 1906, the Allotment Act caused tribal lands to be divided among individual tribal members. However, the bed and banks of the Arkansas River were excluded from allotment. When Oklahoma was admitted to the Union in 1907, it was assumed that the riverbed belonged to the United States and therefore passed to the State of Oklahoma. Based on the 1970 decision, the Supreme Court found that the Indians had never given up title to the riverbed and title did not pass to Oklahoma, but remains to this day in the Choctaw, Chickasaw, and Cherokee Nations.

In April 1975, a specially convened three-judge court quieted title in the three Indian nations. Under the terms of that decision, the bed and banks of the Arkansas River between three forks and the confluence of the Canadian River are owned by the Cherokee Nation. From the confluence of the Canadian River to the Arkansas State line, the bed and banks of the Arkansas are owned jointly by the Cherokee, Choctaw, and Chickasaw Nations.

In the Interior Department Appropriations Acts for fiscal years 1973, 1974, and 1975, the Congress of the United States authorized and appropriated funds for the survey and appraisal of the value of the property recovered by the Indian nations—the bed of the Arkansas River. These appraisals are now complete and the value of the riverbed property and property rights therein, have been established.

Mr. Chairman, I would like to point out that these were arm'slength appraisals. Those who made the appraisals were hired by the Department of the Interior and the tribes had nothing to do with either choosing the appraisers nor with the conduct of the appraisals. They were told to stay out of it and they did.

The Department ran the appraisals, chose the appraisers, and the findings are, so far as anyone can tell, absolutely legitimate. They do not represent any effort on the part of the tribes to have any influence on setting these values. I would like to submit for the record a listing of the firms that did the appraising. I know most of them. While I had no hand in choosing them I can vouch for the fact that they are competent and they are professional people who call the shots as they See them.

Chairman ABOUREZK. So ordered. [The list follows:] LIST OF CONTRACTORS FOR EVALUATION AND APPRAISAL REPORTS OF THE

ARKANSAS RIVERBED River Movement Study-W. R. Holway & Associates, Consulting Engineers,

Tulsa, Oklahoma. Coal Reserves—Phillip Chenoweth, Tulsa, Oklahoma. Market Value of Land, Market Potentials and Land Utilization-Bruce Cornish,

Lawton, Oklahoma. Appraisal of Power Head Rights, Recreation, Fish and Wildlife Benefits-W. R.

Holway & Associates, Tulsa, Oklahoma. Appraisal of Dam Sites—W. R. Holway & Associates, Tulsa, Oklahoma. Oil and Gas Resources—Kiplinger & Associates, Tulsa, Oklahoma. Sand and Gravel Evaluation-Poe & Associates, Oklahoma City, Oklahoma.

Senator BELLMON. In the reports of the Government appraisers, certain depletable assets, such as sand and gravel, oil, gas, and coal have been valued at $60,338,509.83. The remaining assets and property rights, as described in the appraisal reports, have the value of $116,686,458.30, bringing the total value to $178 million. The leaders of the Indian nations have accepted these valuations. It is my understanding the tribes have come to the agreement that no tribal lands should be conveyed away, and accordingly, the tribes have agreed to lease the property to the United States for a 99-year term. In consideration of the payment of the sum of $60,338,509.83—for depletable assets—and 99 annual lease payments of $5.8 million, representing an annualized rate of 5 percent per annum of the remaining assets identified in the appraisals, the tribes will lease to the United States the property and property rights described in the appraisal reports and waive all claims of damages arising from any unlawful taking and withholding of such property

Mr. Chairman, this is why we are here today—to consider legislation to authorize the negotiations between the Secretary of the Interior and the Cherokee, Choctaw, and Chickasaw Nations relating to the Arkansas riverbed.

I would just like to say that having served as a member of the Interior Committee for a time I am aware of how long the negotiations

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