Does the Muscogee Creek Nation own the Arkansas River bed?

I speculated a couple of days ago about the possibility that the Muscogee Creek Nation owns the Arkansas River bed and could build a dam there if they pleased (with Corps of Engineers permission).

On Facebook, attorney Greg Bledsoe called my attention to additional information that clarifies the status of the river. These issues had surfaced in 2006 in connection with The Channels proposal to build islands in the river between 11th and 21st Street.

Bledsoe wrote in 2006, on the Tulsa Now forum (links added):

The Muscogee Creek Nation has announced that it claims to own the bed of the Arkansas River between 11th and 21st Streets in Tulsa....

[September 6, 2006, story in the Tulsa World: "Tribe's claim of river disputed"]

However, this contention appears to rely on cases regarding the Cherokee, Choctaw and Chickasaw Nations--not the Creek Nation. The main difference between the Creek Nation and the other tribes is that an earlier U.S. Supreme Court case involving the Osage Nation determined that the Arkansas River above the Grand River (at Three-Forks-Ft. Gibson) was non-navigable. The land below the Grand was determined to be navigable and these tribes were determined to own the river bed. I think they were paid large sums of money by Congress as part of a settlement.

See Brewer Oil Co. v. United States, 260 (1922).

This concept is important because under the common law (made applicable to Indian Terr. by Congress) water rights (riparian) law says that the abutting land owner to a non-navigable river also owns to the middle of the river.

Unless there is a reservation by the parties or some other clear intention expressed by the parties at the time the land is transferred--in this case from the Creek Nation to its individual members (allottees)-then the person(s) who now own that land next to such a river also own to the middle of the river.

This was decided in an important series of cases in 1927.

In United States v. Hayes, et al, 20 F.2d 873 (8th Cir. 1927), cert den 275 U.S. 552 and 275 U.S. 555 the Eighth Circuit Court of Appeals made the following ruling:

"From all the above considerations, we conclude that in was the intention of all of the parties that the title of these riparian allottees conveyed by meander lines should extend to the thread of the stream and that no interest or title was reserved in or retained by the Creek Nation."

The parties appealed this to the United States Supreme Court which declined to take the case. This would appear to close the door on this issue.

I would be interested in others commenting on why the Hayes case has not conclusively decided the issue of who owns the Arkansas River in this area of Tulsa County. Perhaps there is a legal theory I am missing.

Who owns the Arkansas River in Tulsa County could also have important implications for the South Tulsa bridge issue.

Here is the 10th Circuit Court of Appeals ruling in INDIAN COUNTRY, U.S.A., INC., and Muscogee (Creek) Nation v. STATE OF OKLAHOMA ex rel. the OKLAHOMA TAX COMMISSION.

There is an Arkansas Riverbed Authority, "created jointly by the Chickasaw, Choctaw and Cherokee Nations to administer the tribally owned stretch of the Arkansas River between Muskogee, Oklahoma, and Ft. Smith, Arkansas." As Bledsoe notes, this is a different situation because of the navigability of the river once it passes the mouth of the Verdigris. Here is the what the authority says about its origins.

After years of negotiation following the Supreme Court ruling, the tribes were able to reach a settlement agreement with the United States government over the use of the riverbed. Late in 2002 the Congress passed the Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act whereby the Tribes received payment for past damages and for the value of dry-bed claim areas in the lower reach of the river in exchange for a relinquishment of all claims to their dry bed claim areas that were occupied by third parties. The three tribes gave up those lands to private citizens, including some members of the Cherokee, Choctaw and Chickasaw Nations, who occupy approximately 7,750 acres of tribal dry bed riverbed land. This settlement keeps the federal government from having to pursue court action to remove those Oklahoma citizens from that land. Those court proceedings would be very costly to the government as well as the individuals involved, and would take many years to resolve.

The Supreme Court ruling was in 1970, Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970). You can read more about the history of ownership for the navigable section of the Arkansas River in Oklahoma here.

Today Bledsoe writes:

A review of the above authority [appeals court ruling] would seem to settle the matter for most of the riverbed, but it appears to me that the Creek Nation may have a credible claim to ownership of the riverbed to the "thread of the stream" or the middle of the river abutting the Mackey site land [site of the Creek Nation casino]. Half a dam does not a dam make as the other side of the river was certainly owned by others and is not "Indian Country" even if some of it is now owned by the tribe.