Who Owns the Arkansas River in Tulsa County?

[Bledsoe]

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

See:  http://www.tulsaworld.com/NewsStory.asp?ID=060906_Ne_A6_Tribe73451

Other participants in the forum have suggested that this claim may have merit.

See:
http://www.tulsanow.org/forum/topic.asp?TOPIC_ID=4810&whichpage=5&SearchTerms=creek%2Criver

Post by BASleuth on 9/5/06 on page 5 of the above thread.  


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),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=260&page=77  

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 hasve important implications for the South Tulsa bridge issue.