480 U. S. 700
March 31, 1987
In 1970, a Supreme Court decision held that the Cherokee Nation and other Indian tribes were given virtually exclusive rights to a portion of the Arkansas River by some old treaties. On the strength of this ruling, the Cherokees sought to obtain compensation under the takings clause for damage that the United States had caused to sand and gravel in the river while working on some channel project.
Unanimously, the Supreme Court rejected the arguments of the Cherokees. Rehnquist explained that the United States still retained a navigational servitude in the Arkansas River even after signing the treaties with the Indian tribes. As far as I can make out, “navigational servitude” essentially means ‘the right to do whatever the **** you want without any consequences whatsoever.’ Court precedents established that the navigational servitude was a part of the commerce clause power of the United States, and that it required absolutely no compensation to property owners. Furthermore, even the aforementioned 1970 ruling that the Cherokees relied on suggested strongly that full navigational servitude rights were retained by the United States. Thus, the United States was immune from having to provide compensation.
So far as I can tell, the existing precedents were correctly applied. That doesn’t change the fact that this decision was utterly atrocious as a matter of natural justice. I loath all manifestations of sovereign immunity in the law, especially this navigational servitude nonsense. No earthly government should have this sort of control over rivers, and far less should one be able to cause grave damage without even being held financially responsible.
