When Andrew Jackson moved the Indians out of Georgia 150 years ago, he entered into an obligation that another southern president named carter is trying to duck.

For Indians of the Cherokee, Chickasaw and Choctaw tribes of Oklahoma, it is new insult - added to historic injury.

It has taken the three tribes more than 60 years just to get the United States to admit that land and resources taken away in a federal river projected actually belonged to them.

"Now, they want to take it away without paying us a cent," says Ross Swimmer, principal chief of the Cherokee Nation. "If people do not think the government tries to cheat Indians anymore - then they just haven't heard about this case."

The dispute between the government and Indians dates back to an 1838 treaty that was born in hatred and signed amid trickery.

In 1830, President Jackson decided to uproot thousands of Indians in southeastern states and send them west to make room for more settlers.

Jackson wanted to consolidate the Indians and segregate them into what he called "The Land of the Red Man." Translated into Choctaw, that phrase becomes one word: Oklahoma, which eventually became the name of the Indian's new homeland.

Several tribes were forced to leave their homes and were herded west by soldiers. The trip was called the "Trail of Tears" because of the thousands of men, women and children who died on the harsh journey. Of the 18,000 Cherokees forced to march, 6,000 perished.

Despite the inequities, the final treaty contained a unique clause. Unlike previous treaties with Indians, this treaty gave the tribes title to their new lands rather than setting up a government-owned reservation.

The Indians settled into their new homeland and established villages. They began charging tolls along the only navigable river in the area - the Arkansas River.

Then, shortly before statehood in 1907, Congress approved the Curtis and Dawes Acts, which required all tribal land to be allotted to individual Indians. Tribal members rolls were closed and all Indians on those rolls received pieces of land; they were sold to whites.

A year after oklahoma became a state, the Cherokees asked for permission to charge tolls along the Arkansas River once again.

The state refused, saying the Indians no longer owned the riverbed. But the Cherokees claimed the valuable property was still theirs because the government had goofed when it allotted land.

When that was done, surveyors titled the land from the riverbanks instead of from the center of the river. The Cherokees claimed the riverbed had not been allotted and therefore was still Indian property.

The state asked for an opinion from the federal government and the secretary of the interior issued a memo saying the state owned the land.


THE INDIANS disagreed, but they were so disorganized they did little until two powerful U.S. senators, Robert S. Kerr of Oklahoma and John McClellan of Arkansas, convinced Congress to undertake what then was the largest water project ever proposed by the Army Corps of Engineers.

Congress agreed in 1946 to dredge, damn and change the course of the Arkansas river, at a cost of $1.2 billion, to make it navigable from Tulsa to the Mississippi River.

In 1966, the Cherokees filed suit against the government seeking compensation for losses of land, oil, gas, sand, gravel and other resources in the riverbed that had been destroyed by construction. The two other tribes joined the suit.

Two lower courts ruled against the Indians, but the U.S. Supreme Court held in 1970 that the tribes did own the property. Congress ordered the Interior Department to determine the value of the land and resources. The estimate: $177 million.

The Cherokees filed an immediate claim for damages they said they suffered when the corps removed 40 million tons of salable sand and gravel from the river to make it deep enough for barges.

Interior Department officials and the tribes's leaders agreed unofficially on an $8.4 million settlement.

That was nearly three years ago. So far, nothing has been paid.

In a letter last June to a House subcommittee,, Interior Secretary Cecil andrus said the settlement was "fair and just compensation" and he promised to seek funds to pay the Cherokees in 1980 for the sand and gravel losses. But Interior and OBM officials have decided on a new approah, Andrus told a recent Senate hearing.

Martin Seneca, a Bureau of Indian Affairs official, explained: Since the waterway is important to interstate commerce, the government may have the authority under police powers and rights of navigation servitude to confiscate the riverbed without compensation to protect national security interests.

This week, Sen. Henry Bellmon (D.Okla) received copies of a report Andrus got from attorneys investigating navigation servitude statues. The attorneys said the Department of the Interior could refuse to pay all cliams because it has "no constitutional obligation to pay", but they urged Andrus to pay the Indians anyway, because of several precedents.

Despite the report, Assistant Secretary for Indian Affairs Forrest Gerard told Congress, the Department of the Interior will not seek any extra money to pay the Indians.

Publicly, Interior Department officials refuse to say why Andrus is taking such a hard line, especially since his job includes protecting Indian land. Privately, they say he has no choice.

They say OBM told Andrus that if he wanted to pay the claim, the funds would have to come from other BIA programs.

"The reason this is a hot potato is not the $8.4 million," a BIA official says, "It's the rest of the claims everyone is afraid of. No agency wants to set a precedent of paying and get stuck with all the other claims for gas, oil, coal, et cetera."

"They just don't want to pay us." Swimmer says. "Carter is not acting much differently from Andrew Jackson."