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CHEROKEE NATION OF OKLAHOMA v. UNITED STATES

No. 84-2355.

782 F.2d 871 (1986)

CHEROKEE NATION OF OKLAHOMA, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

January 23, 1986.

Attorney(s) appearing for the Case

James G. Wilcoxen, Muskogee, Okl. (Paul M. Niebell, Washington, D.C., with him on brief), for plaintiff-appellee.

Jeffrey P. Minear, Dept. of Justice, Washington, D.C. (Jacques B. Gelin and F. Henry Habicht II, Washington, D.C., with him on briefs), for defendant-appellant.

Before MOORE and SETH, Circuit Judges, and MATSCH, District Judge.

JOHN P. MOORE, Circuit Judge.

This is an interlocutory appeal granted pursuant to 28 U.S.C. § 1292(b) to consider whether the assertion of a navigational servitude by the United States prevents liability for an alleged Fifth Amendment Taking of land held in fee simple by the Cherokee Nation of Oklahoma (Cherokee Nation or appellee). A second issue, whether the exercise of a navigational servitude constituted the breach...

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