Text: H.R.3534 — 107th Congress (2001-2002)All Bill Information (Except Text)

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[Congressional Bills 107th Congress]
[From the U.S. Government Printing Office]
[H.R. 3534 Placed on Calendar Senate (PCS)]

                                                       Calendar No. 632
107th CONGRESS
  2d Session
                                H. R. 3534


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 2, 2002

                    Received and read the first time

                            October 3, 2002

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 AN ACT


 
   To provide for the settlement of certain land claims of Cherokee, 
  Choctaw, and Chickasaw Nations to the Arkansas Riverbed in Oklahoma.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Cherokee, Choctaw, and Chickasaw 
Nations Claims Settlement Act''.

SEC. 2. 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) The Cherokee Nation, a federally recognized Indian 
        tribe with its present tribal headquarters south of 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.
            (4) 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.
            (5) 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.
            (6) In the first half of the 19th century, the Cherokee, 
        Choctaw, and Chickasaw Nations were forcibly removed from their 
        homelands in the southeastern United States to lands west of 
        the Mississippi in the Indian Territory that 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.
            (7) Pursuant to the Act of April 30, 1906 (34 Stat. 137), 
        tribal property not allotted to individuals or otherwise 
        disposed of, including the bed and banks of the Arkansas River, 
        passed to the United States in trust for the use and benefit of 
        the respective Indian Nations in accordance with their 
        respective interests therein.
            (8) For more than 60 years after Oklahoma statehood, the 
        Bureau of Indian Affairs believed 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, gas, and Drybed Lands suitable 
        for grazing and agriculture.
            (9) Third parties with property near the Arkansas River 
        began to occupy the 3 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.
            (10) In 1966, the 3 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), that the Indian Nations retained title 
        to their respective portions of the Riverbed along the 
        navigable reach of the river.
            (11) In 1987, the Supreme Court of the United States in the 
        case of United States vs. Cherokee Nation (480 U.S. 700) 
        decided that the riverbed lands did not gain an exemption from 
        the Federal Government's navigational servitude and that the 
        Cherokee Nation had no right to compensation for damage to its 
        interest by exercise of the Government's servitude.
            (12) In 1989, the 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.
            (13) 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.
            (14) Much 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 disputes would take many years and entail great 
        expense to the United States, the Indian Nations, and the 
        individuals and entities occupying the Drybed Lands and would 
        seriously impair long-term economic planning and development 
        for all parties.
            (15) The Councils of the Cherokee and Choctaw Nations and 
        the Legislature of the Chickasaw Nation have each enacted 
        tribal resolutions which would, contingent upon the passage of 
        this Act and the satisfaction of its terms and in exchange for 
        the moneys appropriated hereunder--
                    (A) settle and forever release their respective 
                claims against the United States asserted by them in 
                United States 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 
                the Indian Nations.
            (16) The resolutions adopted by the respective Councils of 
        the Cherokee, Choctaw, and Chickasaw Nations each provide that, 
        contingent upon the passage of the settlement legislation and 
        satisfaction of its terms, each Indian Nation agrees to 
        dismiss, release, and forever discharge its claims asserted 
        against the United States in the United State Court of Federal 
        Claims, Case Nos. 218-89L and 630-89L, and to forever disclaim 
        any right, title, or interest of the Indian Nation in the 
        Disclaimed Drybed Lands, in exchange for the funds appropriated 
        and allocated to the Indian Nation under the provisions of the 
        settlement legislation, which funds the Indian Nation agrees to 
        accept in full satisfaction and settlement of all claims 
        against the United States 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.
            (17) In those resolutions, 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 an to the water flowing 
        in the Arkansas River and its tributaries.

SEC. 3. PURPOSES.

    The purposes of this Act are to resolve all claims that have been 
or could have been brought by the Cherokee, Choctaw, and Chickasaw 
Nations against the United States, and to confirm that the 3 Indian 
Nations are forever disclaiming any right, title, or interest in the 
Disclaimed Drybed Lands, which are contiguous to the channel of the 
Arkansas River as of the date of the enactment of this Act in certain 
townships in eastern Oklahoma.

SEC. 4. 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 Oklahoma.
            (2) Drybed lands.--The term ``Drybed Lands'' means those 
        lands which, on the date of enactment of this Act, lie above 
        and contiguous to the mean high water mark of the Arkansas 
        River in the State of Oklahoma. The term ``Drybed Lands'' is 
        intended to have the same meaning as the term ``Upland Claim 
        Area'' as used by the Bureau of Land Management Cadastral 
        Survey Geographic Team in its preliminary survey of the 
        Arkansas River. The term ``Drybed Lands'' includes any lands so 
        identified in the ``Holway study.''
            (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 3 
        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 mean high water mark of the 
        Arkansas River in the State of Oklahoma as of the date of the 
        enactment of this Act, exclusive of the Drybed Lands. The term 
        Wetbed Land is intended to have the same meaning as the term 
        ``Present Channel Claim Areas'' as utilized by the Bureau of 
        Land Management Cadastral Survey Geographic Team in its 
        preliminary survey of the Arkansas River.

SEC. 5. SETTLEMENT AND CLAIMS; APPROPRIATIONS; ALLOCATION OF FUNDS.

    (a) Extinguishment of Claims.--Pursuant to their respective tribal 
resolutions, and in exchange for the benefits conferred under this Act, 
the Indian Nations shall, on the date of enactment of this Act, enter 
into a consent decree with the United States that waives, releases, and 
dismisses all the claims they have asserted or could have asserted in 
their cases numbered 218-89L and 630-89L pending in the United States 
Court of Federal Claims against the United States, including but not 
limited to claims arising out of any and all of the Indian Nations' 
interests in the Disclaimed Drybed Lands and arising out of 
construction, maintenance and operation of the McClellan-Kerr 
Navigation Way. The Indian Nations and the United States shall lodge 
the consent decree with the Court of Federal Claims within 30 days of 
the enactment of this Act, and shall move for entry of the consent 
decree at such time as all appropriations by Congress pursuant to the 
authority of this Act have been made and deposited into the appropriate 
tribal trust fund account of the Indian Nations as described in section 
6. Upon entry of the consent decree, all the Indian Nations' claims and 
all their past, present, and future right, title, and interest to the 
Disclaimed Drybed Lands, shall be deemed extinguished. No claims may be 
asserted in the future against the United States pursuant to sections 
1491, 1346(a)(2), or 1505 of title 28, United States Code, for actions 
taken or failed to have been taken by the United States for events 
occurring prior to the date of the extinguishment of claims with 
respect to the Riverbed.
    (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 
        6--
                    (A) all claims now existing or which may arise in 
                the future with respect to the Disclaimed Drybed lands 
                and all right, title, and interest that the Indian 
                Nations and the United States as trustee on behalf of 
                the Indian Nation may have to the Disclaimed Drybed 
                Lands, shall be deemed extinguished;
                    (B) any interest of the Indian Nations or the 
                United States as trustee on their behalf in the 
                Disclaimed Drybed Lands shall further be extinguished 
                pursuant to the Trade and Intercourse Act of 1790, Act 
                of July 22, 1790 (ch. 33, 1 Stat. 137), and all 
                subsequent amendments thereto (as codified at 25 U.S.C. 
                177);
                    (C) to the extent parties other than the Indian 
                Nations have transferred interests in the Disclaimed 
                Drybed Lands in violation of the Trade and Intercourse 
                Act, Congress does hereby approve and ratify such 
                transfers of interests in the Disclaimed Drybed Lands 
                to the extent that such transfers otherwise are valid 
                under law; and
                    (D) the Secretary is authorized to execute an 
                appropriate document citing this Act, suitable for 
                filing with the county clerks, or such other county 
                official as appropriate, of those counties wherein the 
                foregoing described lands are located, disclaiming any 
                tribal or Federal interest on behalf of the Indian 
                Nations in such Disclaimed Drybed Lands. The Secretary 
                is authorized to file with the counties a plat or map 
                of the disclaimed lands should the Secretary determine 
                that such filing will clarify the extent of lands 
                disclaimed. Such a plat or map may be filed regardless 
                of whether the map or plat has been previously approved 
                for filing, whether or not the map or plat has been 
                filed, and regardless of whether the map or plat 
                constitutes a final determination by the Secretary of 
                the extent of the Indian Nations' original claim to the 
                Disclaimed Drybed Lands. The disclaimer filed by the 
                United States shall constitute a disclaimer of the 
                Disclaimed Drybed Lands for purposes of the Trade and 
                Intercourse Act (25 U.S.C. 177).
            (2) Special provisions.--Notwithstanding any provision of 
        this Act--
                    (A) the Indian Nations do not relinquish any right, 
                title, or interest in any lands which constitute the 
                Wetbed Lands subject to the navigational servitude 
                exercised by the United States on the Wetbed Lands. By 
                virtue of the exercise of the navigational servitude, 
                the United States shall not be liable to the Indian 
                Nations for any loss they may have related to the 
                minerals in the Wetbed Lands;
                    (B) 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 lands held in trust by the United 
                States on the date of enactment of this Act which lie 
                above or below the mean high water mark of the Arkansas 
                River, except for the Disclaimed Drybed Lands; and
                    (C) the Indian Nations do not relinquish any right, 
                title, or interest in any lands or minerals of certain 
                unallotted tracts which are identified in the official 
                records of the Eastern Oklahoma Regional Office, Bureau 
                of Indian Affairs. The disclaimer to be filed by the 
                Secretary of the Interior under section 5(b)(1) of this 
                Act shall reflect the legal description of the 
                unallotted tracts retained by the Nations.
            (3) Setoff.--In the event the Court of Federal Claims does 
        not enter the consent decree as set forth in subsection (a), 
        the United States shall be entitled to setoff against any 
        claims of the Indian Nations as set forth in subsection (a), 
        any funds transferred to the Indian Nations pursuant to section 
        6, and any interest accrued thereon up to the date of setoff.
            (4) Quiet title actions.--Notwithstanding any other 
        provision of law, neither the United States nor any department 
        of the United States nor the Indian Nations shall be made 
        parties to any quiet title lawsuit or other lawsuit to 
        determine ownership of or an interest in the Disclaimed Drybed 
        Lands initiated by any private person or private entity after 
        execution of the disclaimer set out in section 5(b)(1). The 
        United States will have no obligation to undertake any future 
        quiet title actions or actions for the recovery of lands or 
        funds relating to any Drybed Lands retained by the Indian 
        Nation or Indian Nations under this Act, including any lands 
        which are Wetbed Lands on the date of enactment of this Act, 
        but which subsequently lie above the mean high water mark of 
        the Arkansas River and the failure or declination to initiate 
        any quiet title action or to manage any such Drybed Lands shall 
        not constitute a breach of trust by the United States or be 
        compensable to the Indian Nation or Indian Nations in any 
        manner.
            (5) Land to be conveyed in fee.--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 
        as of the date of enactment of this Act, said lands, after 
        being declared surplus, shall be conveyed in fee to the Indian 
        Nation within whose boundary the land is located. The United 
        States shall not be obligated to accept such property in trust.
    (c) Authorization for Settlement Appropriations.--There is 
authorized to be appropriated an aggregate sum of $40,000,000 as 
follows:
            (1) $10,000,000 for fiscal year 2004.
            (2) $10,000,000 for fiscal year 2005.
            (3) $10,000,000 for fiscal year 2006.
            (4) $10,000,000 for fiscal year 2007.
    (d) Allocation and Deposit of Funds.--After payment pursuant to 
section 7, 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 6 for the Cherokee Nation.
            (2) 37.5 percent to be deposited into the trust fund 
        account established under section 6 for the Choctaw Nation.
            (3) 12.5 percent to be deposited into the trust fund 
        account established under section 6 for the Chickasaw Nation.

SEC. 6. TRIBAL TRUST FUNDS.

    (a) Establishment, Purpose, and Management of Trust Funds.--
            (1) Establishment.--There are hereby established in the 
        United States Treasury 3 separate tribal trust fund accounts 
        for the benefit of each of the Indian Nations, respectively, 
        for the purpose of receiving all appropriations made pursuant 
        to section 5(c), and allocated pursuant to section 5(d).
            (2) Availability of amounts in trust fund accounts.--
        Amounts in the tribal trust fund accounts established by this 
        section shall be available to the Secretary for management and 
        investment on behalf of the Indian Nations and distribution to 
        the Indian Nations in accordance with this Act. Funds made 
        available from the tribal trust funds under this section shall 
        be available without fiscal year limitation.
    (b) Management of Funds.--
            (1) Land acquisition.--
                    (A) Trust land status pursuant to regulations.--The 
                funds appropriated and allocated to the Indian Nations 
                pursuant to sections 5(c) and (d), and deposited into 
                trust fund accounts pursuant to section 6(a), together 
                with any interest earned thereon, may be used for the 
                acquisition of land by the 3 Indian Nations. The 
                Secretary may accept such lands into trust for the 
                beneficiary Indian Nation pursuant to the authority 
                provided in section 465 of title 25, United States 
                Code, and in accordance with the Secretary's trust land 
                acquisition regulations at part 151 of title 25, Code 
                of Federal Regulations, in effect at the time of the 
                acquisition, except for those acquisitions covered by 
                paragraph (1)(B).
                    (B) Required trust land status.--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, 2002, if--
                            (i) the land proposed to be acquired meets 
                        the Department of the Interior's minimum 
                        environmental standards and requirements for 
                        real estate acquisitions set forth in 602 DM 
                        2.6, or any similar successor standards or 
                        requirements for real estate acquisitions in 
                        effect on the date of acquisition; and
                            (ii) the title to such land meets 
                        applicable Federal title standards in effect on 
                        the date of the acquisition.
                    (C) Other expenditure of funds.--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 paragraph (2).
            (2) Investment of trust funds; no per capita payment.--
                    (A) No per capita payments.--No money received by 
                the Indian Nations hereunder may be used for any per 
                capita payment.
                    (B) Investment by secretary.--Except as provided in 
                this section and section 7, 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.
                    (C) 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 
                educational activities, economic development, social 
                services, and land acquisition. Land acquisition using 
                such funds shall be subject to the provisions of 
                subsections (b) and (d).
            (3) 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 or Legislature of 
        the Indian Nation setting forth the amount and an intended use 
        of such funds.
            (4) Additional restriction on use of funds.--None of the 
        funds made available under this Act may be allocated or 
        otherwise assigned to authorized purposes of the Arkansas River 
        Multipurpose Project as authorized by the River and Harbor Act 
        of 1946, as amended by the Flood Control Act of 1948 and the 
        Flood Control Act of 1950.

SEC. 7. ATTORNEY FEES.

    (a) Payment.--At the time the funds are paid to the Indian Nations, 
from funds authorized to be appropriated pursuant to section 5(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 5(c).

            Passed the House of Representatives October 1, 2002.

            Attest:

                                                 JEFF TRANDAHL,

                                                                 Clerk.




                                                       Calendar No. 632

107th CONGRESS

  2d Session

                               H. R. 3534

_______________________________________________________________________

                                 AN ACT

   To provide for the settlement of certain land claims of Cherokee, 
  Choctaw, and Chickasaw Nations to the Arkansas Riverbed in Oklahoma.

_______________________________________________________________________

                            October 3, 2002

            Read the second time and placed on the calendar