The opinion
MERRILL, Circuit Judge,
dissenting:
For the reasons set forth in my dissent in Northern Cheyenne Tribe v. Adsit, 668 F.2d at 1090, I dissent from the Court’s holding that the disclaimer clauses in the Arizona Statehood Act and the State Constitution deprive the state courts of jurisdiction to establish and adjudicate the reserved water rights of the United States held by it in trust for the Indian tribes.
Further I dissent from the Court’s holding that wise judicial administration, as that term is used in Akin, does not call for dismissal of the federal suits. Here no suit seeks general adjudication of a stream system. In the suits brought by San Carlos Apache Tribe, Payson Community of Yavapai-Apache Indians and Fort McDowell Mohave-Apache Indian Community, the prayers are for adjudication only of the reserved rights of the plaintiff Tribes. The Salt River Pima-Maricopa Indian Community *1099 suit prays only to enjoin state court action and seeks no adjudication at all. Thus, at best, the suits constitute piecemeal adjudication of the streams. While the rights held for Indians would be established, the rights of the other water users on the streams would not.
In these circumstances, principles of wise judicial .administration clearly counsel against federal adjudication of the Tribes’ claims. The Akin Court regarded the McCarran Amendment itself as the most important factor favoring state proceedings over federal. It stated:
The clear federal policy evinced by that legislation is the avoidance of piecemeal adjudication of water rights in a river system. ... [T]he concern .. . with avoiding the generation of additional litigation through permitting inconsistent dispositions of property ... is heightened with respect to water rights, the relationships among which are highly interdependent. Indeed, we have recognized that actions seeking the allocation of water essentially involve the disposition of property and are best conducted in unified proceedings.... The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.
424 U.S. at 819, 96 S.Ct. at 1247. The Court also quoted from the legislative history of the McCarran Amendment to this effect:
In the administration of and the adjudication of water rights under State laws the State courts are vested with the jurisdiction necessary for the proper and efficient disposition thereof, and by reason of the interlocking of adjudicated rights on any stream system, any order or action affecting one right affects all such rights. Accordingly all water users on a stream, in practically every case, are interested and necessary parties to any court proceedings. It is apparent that if any water user claiming to hold such right by reason of the ownership thereof by the United States or any of its departments is permitted to claim immunity from suit in, or orders of, a State court, such claims could materially interfere with the lawful and equitable use of water for beneficial use by the other water users who are amenable to and bound by the decrees and orders of the State courts.
Id. at 810, 96 S.Ct. at 1242, quoting S.Rep.No. 755, 82d Cong., 1st Sess., 4-5 (1951).
In fact, however, the suits now before us would not even constitute piecemeal adjudication; rather, they would result in no effective adjudication at all. Since the suits do not seek general adjudication of the stream systems involved, the McCarran Amendment does not provide the consent of the United States to be sued. Dugan v. Rank, 372 U.S. 609, 617-19 , 83 S.Ct. 999, 1004-05 , 10 L.Ed.2d 15 (1963). Yet, on every stream system involved in these suits, the United States claims reserved rights. Similarly, on some of the stream systems, the rights of other Indian tribes are involved. They too are immune from suit. California v. Quechan Tribe of Indians, 595 F.2d 1153 , 1155 (9th Cir. 1979). As a result, an adjudication of the rights of the plaintiff Tribes would accomplish nothing since it could have no binding effect on the absent claimants.
In my judgment wise judicial administration would not tolerate the confusion which these suits would create and the havoc they can be expected to play with the state’s statutory efforts to deal with its problems of water scarcity — problems faced not just by Indians, but by every resident of the state; problems of such awesome dimensions that the state’s efforts to solve them should have federal respect and encouragement.
For these reasons I would hold that wise judicial administration as a matter of law demands the dismissal of these suits and would affirm the district court.