Arkansas River: December 2013 Archives

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.

Here we go again. Officials, led by an alleged fiscal conservative, are pumping us up to raise our taxes to pour concrete in the river.

[Tom] Dittus is the managing partner of the Blue Rose Café at 19th and Riverside, and wishes he had some neighbors.

"Hopefully people will see what we've done down here. We would really welcome some company down here and like to see some more development," he said.

Dittus isn't likely to get neighbors, as the section of River Parks around him is unlikely to be opened for development.

City Councilor GT Bynum said Blue Rose isn't the only sign of private investment.

"There are hundreds of millions of dollars being invested along the Arkansas River right now," said Bynum.

A lot of that money is going to the new Margaritaville hotel the Creek Nation is building at the River Spirit Casino.

If the Creeks and the George Kaiser Family Foundation are investing hundreds of millions of dollars along the river with the river in its current condition, why should the public divert money away from public safety and street repair to change the river's condition. Is the real reason to attract new investment or to satisfy the desires of politically powerful organizations that are already heavily invested?

The new task force will look at how to attract more development.

Some previous suggestions include repairing and even adding dams to keep water in the river, adding parking along Riverside, making Riverside easier to drive and creating more public-private partnerships on land development.

I seem to recall that we had an Arkansas River task force in 2004 and 2005, led by our regional planning agency, INCOG. Do we really need a new task force, or do these people just not like the results of the last one?

"It's not gonna be a river walk like in San Antonio. There'll be different types of developments in different areas, and part of it will be left natural like it is now," said Vic Vreeland, consultant for the Muscogee Creek Nation.

Veeland thinks now is the time to make it all happen.

"There's a small percentage of people that don't want to see anything done on the river. But for the most part, I think 85, 90 percent of the people want to see the river developed. The naysayer people are just the ones that they don't want to agree on how it's paid for," said Vreeland.

Ol' Vic is absolutely right that it won't be like San Antonio. The San Antonio River is about as wide as a neighborhood street and is surrounded by historic buildings and overhung with live oaks. You can see and be seen, hear and be heard on both sides of the Paseo del Rio.

A wide expanse of water isn't very interesting unless you can sail on it or watch the sunset over it. (Personal trivia: I planned my marriage proposal for the nearest spot to Tulsa where the sun would set over the water in January -- Walnut Creek State Park on the north shore of Keystone Reservoir.) Although OKC dammed the North Canadian River, the interesting waterfront development is on the artificial Bricktown Canal (about as wide as the San Antonio River). The dammed North Canadian is just a big rectangle of water bounded by a treeless shore. Not much to look at.

Water is most interesting as it interacts with the land -- waterfalls, river bends, shorelines, breaking waves, piers and boardwalks. The Arkansas River, as the water rises and falls, twisting and turning around sandbars, attracting herons and bald eagles and other wildlife, is far more fascinating than a flat monotonous expanse of water.

And a flat monotonous expanse of water is not guaranteed, even if more dams are built. The Southwestern Power Administration and the Corps of Engineers control the gates at Keystone Dam for power generation, flood control, and recreation on Keystone Reservoir. And even they are at the mercy of the weather.

What water makes it downstream from Keystone is laden with silt, which precipitates out as the river bends and broadens and as the water slows. If a dam is built, its impoundment will have to be dredged on a regular basis. Who will pay for that?

I suspect that former Jenks Mayor Vic Vreeland's new client has the wherewithal, thanks to a tax on the mathematically challenged, to build a low-water dam to benefit its new resort. A case could be made that it owns the site of the proposed dam as well and would only need permission of the Corps of Engineers to proceed. In the 1980s, when the State of Oklahoma sought to tax Creek Nation Bingo at 81st and Riverside (now the site of the Creek Nation's River Spirit Casino), a U. S. District Court found and the 10th Circuit Court of Appeals affirmed that the land had never been allotted and had never passed out of Muscogee Creek Nation ownership. (The U. S. Supreme Court denied the Oklahoma Tax Commission's petition for certiorari in the case, 87-1068.)

From a June 28, 1988, story in the Daily Oklahoman:

The Muscogee Creek bingo games are conducted in Tulsa on 100 acres along the Arkansas River . The 10th Circuit court said the land is Indian territory in the same way any reservation belongs to native Americans.

The bingo hall was located on land that had never been owned by anyone other than the tribe. It was vacant until 1984, when the tribe trucked in enough fill dirt to raise the hall above the level of the river .

The Creeks own land on both sides of that stretch of the river, with their purchase of the Riverwalk Crossing development in Jenks. If they find it advantageous to their business interests to build a dam to hold whatever water in the river trickles down from Keystone Dam and Zink Dam, then let them do the cost/benefit analysis and build it if it makes good business sense. It's hard to see how it benefits the non-Creek residents of Tulsa to spend their tax dollars to enhance the appeal of tribal-owned businesses, where sales taxes are not collected, which compete with private and city-owned entertainment venues, where sales taxes are collected.