Per Curiam

LYNAUGH, INTERIM DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS v. PETTY

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 85-1656. Argued March 3, 1987-Decided March 25, 1987 Certiorari dismissed. Reported below: 779 F. 2d 299.

Charles A. Palmer, Assistant Attorney General of Texas, argued the cause for petitioner. With him on the briefs were Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and F. Scott McCown and William C. Zapalac, Assistant Attorneys General.

John R. Breihan by appointment of the Court, 479 U. S. 808, argued the cause and filed a brief for respondent.*

PER CURIAM.

The writ of certiorari is dismissed as improvidently granted.

*Larry W. Yackle and George Kannar filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Syllabus

480 U. S.

UNITED STATES v. CHEROKEE NATION OF
OKLAHOMA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 85-1940. Argued February 23, 1987-Decided March 31, 1987 Choctaw Nation v. Oklahoma, 397 U. S. 620, held that, under pertinent treaties with the Federal Government, certain Indian Tribes, including respondent Tribe, were granted title to the riverbed underlying portions of the Arkansas River in Oklahoma. The Government's construction of a navigable channel in the river damaged respondent's riverbed mineral interests. After unsuccessfully seeking compensation from the Government, respondent filed suit in Federal District Court, contending that the channel project resulted in a taking under the Fifth Amendment of respondent's riverbed interests without just compensation. Granting summary judgment for respondent, the court rejected, on the basis of Choctaw Nation, the Government's defense that its navigational servitude under the Commerce Clause precluded liability for the alleged taking, and held that under the relevant treaties the Government had not reserved its navigational servitude. The Court of Appeals affirmed, adopting a different analysis. It found that the Government retained a navigational servitude in the river, but that—balancing the public and private interests involved-the servitude was insufficient to protect the Government from liability to compensate respondent.

Held: No "balancing" test, as formulated by the Court of Appeals, is required where, as here, the interference with in-stream interests results from an exercise of the Government's Commerce Clause power to regulate navigational uses of waters. The proper exercise of the Government's navigational servitude is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the riparian owners' interests are subject. Contrary to respondent's contention, the decision in Choctaw Nation does not support the conclusion that respondent's title to the riverbed is unique in scope, or that under the pertinent treaties the Government abandoned its navigational servitude in the area. Moreover, the Government's fiduciary obligations in dealing with Indian tribal property do not elevate the Government's actions into a taking. The tribal interests here simply do not

include the right to be free from the Government's navigational servitude. Pp. 703-708.

782 F. 2d 871, reversed and remanded.

REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Jeffrey P. Minear argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., and Jacques B. Gelin.

James G. Wilcoxen argued the cause for respondent. With him on the brief was Paul M. Niebell.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970), the Court determined that certain treaties between the Cherokee, Chickasaw, and Choctaw Tribes and the United States granted to the Tribes fee simple title to the riverbed underlying specified portions of the Arkansas River in Oklahoma. The Court found the circumstances sufficient to overcome the "strong presumption against conveyance by the United States" of title to the bed of a navigable water. Montana v. United States, 450 U. S. 544, 552 (1981). See United States v. Holt State Bank, 270 U. S. 49 (1926). The question presented in this case is whether the United States must pay the Cherokee Nation compensation for damage to these riverbed interests caused by navigational improvements which it has made on the Arkansas River. The damage to sand and gravel deposits resulted from the McClellan-Kerr Project, approved by Congress in 1946, Act of July 24, 1946, ch. 595, 60 Stat. 634, 635-636, and designed to improve navigation by construction of a channel in the Arkansas River from its mouth at the Mississippi to Catoosa, Oklahoma. The project was completed in 1971.

After our decision in Choctaw Nation, the Cherokee Nation sought compensation from the Government. Congress refused to fund the claim after the Department of the Inte

rior and the Army Corps of Engineers concluded that the United States' navigational servitude rendered it meritless. See Department of the Interior and Related Agencies Appropriations for 1980: Hearings Before a Subcommittee of the House Committee on Appropriations, 96th Cong., 1st Sess., pt. 7, pp. 379-392 (1979). Congress did, however, provide respondent with the opportunity to seek judicial relief, conferring jurisdiction on the United States District Court for the Eastern District of Oklahoma to determine “any claim which the Cherokee Nation of Oklahoma may have against the United States for any and all damages to Cherokee tribal assets related to and arising from the construction of the [McClellan-Kerr Project]." H. R. 2329, 97th Cong., 1st Sess. (1981).

The Cherokee Nation filed a complaint contending that the construction of the McClellan-Kerr Project resulted in a taking under the Fifth Amendment of the Tribe's riverbed interests without just compensation. The United States in response claimed that its navigational servitude precluded liability for the alleged taking. The District Court granted the Tribe's motion for summary judgment, finding that the decision in Choctaw Nation created a "unique situation by which a portion of the navigable Arkansas River is, essentially, a private waterway belonging exclusively to the Cherokee Nation." App. to Pet. for Cert. 26a. Because the United States did not reserve its navigational servitude in the relevant treaties, the court held, it owed the Tribe just compensation. Id., at 27a.1

'The Cherokee Nation also claimed that, whether or not the United States' actions resulted in a taking, the failure to pay compensation violated the Government's duty to engage in fair and honorable dealings with the Tribe. The District Court did not address this claim, and certified the takings claim for interlocutory appeal under 28 U. S. C. § 1292(b). The Court of Appeals accordingly did not consider the issue, and it is not before us here.

A divided panel of the Court of Appeals for the Tenth Circuit affirmed, adopting a different analysis. 782 F. 2d 871 (1986). The court rejected the District Court's conclusion that the United States' failure to reserve its navigational servitude defeated that interest. It found it "certain [that] the United States retained a navigational servitude in the Arkansas River." Id., at 876. Nevertheless, the court held that the servitude was insufficient to protect the United States from liability. Finding that "the assertion of a navigational servitude on particular waters acknowledges only that the property owner's right to use these waters is shared with the public at large," id., at 877, the court believed that the effect of the navigational servitude varied with the owner's intended use: "When the exercise of that public power affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due." Ibid. Applying this test, the court concluded that though the Cherokee Nation could not interfere with the United States' exercise of the navigational servitude, it had a right to compensation for any consequent loss of property or diminution in value."

We think the Court of Appeals erred in formulating a balancing test to evaluate this assertion of the navigational servitude. No such "balancing" is required where, as here, the interference with in-stream interests results from an exercise of the Government's power to regulate navigational uses of "the deep streams which penetrate our country in every

The dissenting judge found no support for the balancing of public and private interests, noting that “instead the issue is whether the segment or interest is within the definition and scope of the [navigational servitude] doctrine geographically...." 782 F. 2d, at 882. Relying on United States v. Rands, 389 U. S. 121 (1967), the dissent observed that privately owned riverbed interests are subject to the navigational servitude, and found "no authority and no basis for an exception to the public nature of the navigable river to create a 'private river' as plaintiff urges nor to create an exception to the application of the navigational servitude because plaintiff is an Indian tribe." 782 F. 2d, at 883.