# Petition — Jicarilla Apache Tribe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 995

## Text

‘Geet
yy A Zi
79-475 t ED

SEP 20 1979

IN THE
; MICHAL 90
Supreme Court of the United TOOK TR

OCTOBER TERM, 1979

No. 79—

JICARILLA APACHE TRIBE,
Petitioners,

V.
UNITED STATES OF AMERICA, et al.,
Respondents,
and

mae STATE OF NEW MEXICo,
Amicus Curiae.

PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH

CIRCUIT

ROBERT J. NORDHAUS
LESTER K. TAYLOR
Nordhaus, Moses & Dunn
800 American Bank of Commerce
200 Lomas Boulevard, N.W.
Albuquerque, New Mexico
87-102
Telephone: (505) 843-9440

Counsel for Petitioner
Jicarilla Apache Tribe

OF COUNSEL:

ROBERT S. PELCYGER
Native American Rights Fund
1506 Broadway
Boulder, Colorado 80302
Telephone: (303) 447-8760

PRESS OF Byron S. ADAMS, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

Page
OPINIONS TEBLOW . ww wc ccc ccc ccc cc ccccces 2
Po le ta 2
QUESTIONS PRESENTED 2... cc ccsccccescccces 2
STATUTES INVOLVED. ......----eeeeeeeeeees 3
STATEMENT OF THE CASE........--02eseee08 6
REASONS FOR GRANTING THE WRIT..........- 9
ee 6 aii a rr 27
APPENDICES

Appendix A

Jicarilla Apache Tribe v. United States of
America, et al., Order of Hon. H. Vearle
Payne, District Judge .........----++++05 la
Appendix B

Jicarilla Apache Tribe v. United States of
America, et al., Opinion of the Tenth Circuit

Court of Appeals ..........-- se ee rere eens 3a
Appendix C

Jicarilla Apache Tribe v. United States of
America, et al., Complaint ...........--++-- 43a
Appendix D

State of New Mexico ex rel. Reynolds v.
United States, et al., Complaint...........- 53a

ii

TABLE OF AUTHORITIES
CASES: Page

Arizona v. California, 373 U.S. 546 (1963), decree,
376 U.S. 340 (1964), supplemental decree,
—___ U.S. ___, 99 S. Ct. 995, 58 L.Ed.2d 627
RSS Pea ke sew lye sa yy x 22, 26

Bowles v. Willingham, 321 U.S. 503 (1944) ...... 22
Bryan v. Itasca County, 426 U.S. 373 (1976). 12,24,25

Cappaert v. United States, 426 U.S. 128
og ACERS EES Nee ap Fe 9,17, 33

EA RIGS IREISSS Psa eee oan ee 9,14
Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) ..... 9,10,13

15, 17, 18, 20, 22, 25, 26

Fisher v. District Court, 424 U.S. 382 (1976)..... 11
Gillespie v. United States Steel Corp., 379 U.S.

ME ok Pork 6 Dre od ene oko oben 6s 19
McClanahan v. Arizona Tax Commission, 411
Beis BOO UEIOD. bk 6 hc bdwadedce 11, 13, 14, 15, 23
McKay v. Kalyton, 204 U.S. 458(1907)......... 23
Minnesota v. United States, 305 U.S. 382
BE Oe ee ae 15, 16, 17, 21, 22
Moe v. Confederated Salish and Kootenai Tribes
Mune... 95
Morton v. Mancari, 417 U.S. 535 (1974)....... 16, 22

Northern Cheyenne Tribe v. Adsit and United
States v. Tongue River Water Users Associa-
tion, Civil No. 75-20 Blg. in United States
District Court for the District of Montana... 18

Oneida Indian Nation v. Count i
; y of Oneida, 41
ROR 8 rao te i i‘ a 23

nk a a Rn a Rm Reem
.

iii
Page

Organized Village of Kake v. Egan, 369 U.S. 60
I. 355 own ow edn Shaw Ae ECS Rea 13,14

Rice v. Olson, 324 U.S. 786 (1945) .........-6-- 23

State of New Mexico ex rel. Reynolds v. Lewis, 88
N.M. 636, 545 P.2d 1014 (1976) ..........-- 9

State of New Mexico ex rel. Reynolds v. United
States et al., No. 75-184, District Court for

San Juan County, New Mexico......... 7, 8, 26
Tennessee Valley Authority v. Hill, 437 U.S. 153
SEs vovc css bovucas bo oNg bh ee Veena ens 16
United States v. Chavez, 290 U.S. 357 (1933) .... 11
United States v. Kagama, 118 US. 375 (1886).... 23
United States v. Nevada, 412 U.S. 534 (1973).... 22
United States v. New Mexico, 438 U.S. 696
| nee Terre e tee eS ae e 24
United States v. Rickert, 188 U.S. 432 (1903).... 12
United States v. Sandoval, 231 U.S. 28 (1913).... 12
United States v. Sutton, 215 U.S. 291 (1909). .... 12
Warren Trading Post v. Arizona Tax Commis-
sion, 380 U.S. 685 (1965). ... 2... ee eee eee 11
Washington v. Washington State Commercial
Passenger Fishing. Vessel Assn., —_ USS.

___, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) ... 24

Washington v. Yakima Indian Nation, ___ USS.
___, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) .. 12,13

Williams v. Lee, 358 U.S. 217 (1959). ......... 11, 24

Williams v. United States, 327 U.S. 711
Usa ice arche ke openssh uweee s 11

Wilson v. Omaha Indian Tribe, ___. U.S. ___, 99
S.Ct. 2529, 61 L.Ed.2d 153 (1979) .........- 24

iv
Page

Yoder v. Assiniboine and Sioux Tribes of the Fort
Peck Indian Reservation, 339 F.2d 360 (9th

Cir. 196@....... + céawacede eee 20
STATUTES:
eo Pane ge ee 10
ye er Pe Be 23
36 Stat. 557

(New Mexico Enabling Act)......... 3,9, 11,14
OF Boat. SOB ..6:2. +05 ck kane 14
67 Stat. 588

(Public Law 83-280) .......... 12, 138, 14, 15, 24
73 Seek. BBD... eve vckse Cucki ease 23
26- U0. FOGG... ok ip nunendeeeeeeee 23
MU BA; SOG «sii cdacdeane ee 16
96 U.S.C. S1SRRD «0s cei 15
55 UB. SAG ook dni cee ee Areas aed 15
$8 U.S.C. IGG). «

eet owky

9

reversed the dismissal of the injunctive suit against
the Secretary of the Interior. The court held that the
Indian disclaimer provisions in New Mexico’s Ena-
bling Act and Constitution do not preclude the adju-
dication of Indian water rights in New Mexico’s
courts because the disclaimer is limited to matters of
a proprietary, as opposed to governmental, nature.
App. at 40a-41a.* The Tribe seeks review of the dis-
missal of its quiet title action.

REASONS FOR GRANTING THE WRIT

“It is probable that no problem of the Southwest
section of the Nation is more critical than that of
scarcity of water.’’ Colorado River Water Conserva-
tion District v. United States, 424 U.S. 800, 804
(1976), hereafter referred to as ‘‘Colorado River.” In
Colorado River, the Court unanimously held that the
McCarran Amendment, 43 U.S.C. § 666, did not di-
vest the federal courts of jurisdiction to adjudicate
federal and Indian water rights,‘ but that it did au-
thorize the adjudication of the water rights of two
Indian reservations in Colorado in the courts of that
state. In resolving the resulting choice of forum ques-
tion, the six-justice majority held that the federal
district court properly dismissed a water rights suit
filed by the United Statés in favor of a Colorado state
court proceeding in the particular circumstances of
that case. Justices Stewart, Blackmun and Stevens
dissented from the dismissal of the federal suit on the
grounds, inter alia, that issues of federal law should

3 The New Mexico Supreme Court reached the same conclusion
in State of New Mexico ex rel. Reynolds v. Lewis, 88 N.M. 636,
545 P.2d 1014 (1976). But see Chino v. Chino, 90 N.M. 204, 561
P.2d 476 (1977).

‘ See also Cappaert v. United States, 426 U.S. 128, 145 (1976).

10

be decided by the federal courts and that ‘‘a federal
court is a more appropriate forum than a state court
for determination of questions of life-and-death im-
portance to Indians.” 424 U.S. at 862.

This case, like Colorado River, presents the ques-
tion whether Indian water rights will be adjudicated
in federal or state courts. There are three important
features that distinguish this case. First, the New
Mexico Enabling Act and Constitution, unlike Colo-
rado’s, contain express prohibitions on the exercise of
state jurisdiction over Indian lands.° Second, in this
case the federal court suit was initiated by a federally
recognized Indian tribe pursuant to 28 U.S.C. § 1362
while Colorado River involved an action brought by
the United States under 28 U.S.C. § 1345. Colorado
River specifically left open the question of “whether
similar considerations would permit dismissal of a
water suit brought by a private party in federal dis-
trict court.’’ 424 U.S. at 820 n.26. See also 424 USS.
at 827 (Stevens, J. dissenting). Third, in this case all
of the private water rights on the stream system had
previously been adjudicated. The only objective of the
state initiated state court suit was to adjudicate the

water rights of the United States and its Indian
wards. .

The issues presented in this suit are of a recurring
nature. Their resolution at this time will result in the
more efficient and expeditious handling of many com-
plex suits that are now pending or can reasonably be
expected in the federal and state court systems. More-
over, the Colorado River decision has produced mis-

*'The only mention of Indians in Colorado's Enabling Act or
Constitution is the provision in the Enabling Act, 18 Stat. 474,
that states: ‘The Constitution shall be republican in form and

make no distinction in political rights on account of race or color,
except Indians not taxed

aoe © |

Eh tl Tt NE Bo Sate

SAL ABE LD aN Mes RD nara Be

Pes eda tebe MTs the &

11

chievous consequences that probably were not
anticipated. For this reason too, it should not be ex-
tended to the different circumstances presented here.

1. New Mexico’s Enabling Act and Constitution
provide that Indian lands “shall be and remain sub-
ject to the disposition and under the absolute en
diction and control of the Congress of the Unit
States.’’ This disclaimer was expressly made ane
ocable without the consent of the United States an

the people of said State.” Supra at 3.

This Court has long looked to and relied on the
Indian jurisdictional disclaimers in the enabling acts
and constitutions of New Mexico and other western
states in holding that states lack governmental <r
diction over Indians and Indian lands. Fisher v. ; <6
trict Court, 424 U.S. 382, 386 and n.8 (1976) = a
court had exclusive jurisdiction over an Indian a ped
tion proceeding arising on the reservation); so
Clanahan v. Arizona Tax Commission, 411 U.S. ’
175-176, n.15 and 177-178 (1973) (state lacked 2st
to tax the income of Indians who live and work on : e
reservation); Warren Trading Post v. Arizona “a
Commission, 380 U.S. 685, 687 n.3 (1965) (state lacke
power to levy a sales tax on transactions between a
licensed reservation trader and reservation rigs
Williams v. Lee, 358 U.S. 217, 222-223 and n.10 (195 :
(state court lacked jurisdiction of a civil suit agains
reservation Indians for goods sold to them by a non-
Indian business on the reservation); Williams v.
United States, 327 U.S. 711, 714-715 n.10 (1946) —.
lacked criminal jurisdiction over offense committ
by a non-Indian against an Indian); United oon 2
Chavez, 290 U.S. 357, 360 and 365 (1933) (state lac ma

criminal jurisdiction over non-Indian charged wi

12

larceny within Indian reservations); United Sta
Sandoval, 231 U.S. 28, 36-38 (1913) (state nent
er to Prosecute non-Indian for introducing intoxicat-
ing liquor into Indian country); United States v.
Sutton, 215 U.S. 291, 295 (1909) (state lacked power
to prosecute non-Indians for introducing intoxicating
liquor into Indian country); and United States v. Rick-
ert, 188 U.S. 432, 440-441 (1903) (state lacked power
to tax allotted Indian lands).

Congress has also recognized that the Indian juris-
dictional disclaimers in state enabling acts and con-
stitutions preclude the states from exercising
governmental jurisdiction over Indian reservations
The Act of August 15, 1953, Public Law 83-280 67
Stat. 588, authorized five named non-disclaimer states
to exercise limited jurisdiction over civil causes of
action and criminal offenses in Indian country except
for three named reservations. Sections 2 and 4.° It
gave the remaining states an option to assume juris-
diction over criminal offenses and civil causes of ac-
tion. States whose constitutions or statutes contained
organic law disclaimers of jurisdiction were dealt with
in Section 6; all others were covered by Section 7. See
Washington = Yakima Indian Nation, U S

, __, 99 S.Ct. 740, 746-748, 58 L.Ed.2d 740.
750-752 (1979). Section 6, which is quoted ae i
gin,’ recognizes that the assumption of civil and crim-

* The scope of jurisdiction conferred by
B : the A
of Bryan v. Itasca County, 426 U.S. 373 (1976). ee

? : ‘
= | ip bere vey. the provisions of any Enabling Act
a Roce Alma of : oe the consent of the United
8 is y given to the people of any State t

where necessary, their State constituti 4 or taper
q stitution or existing stat-
utes, as the case may be, to Prater i Swe

: y be, e any legal
to ~ assumption of civil and crimina juntediction ac.
cordance with the provisions of this Act: Provided, That

ERS DAP BA PRA GEN ATED, i OR LISD BY Ns a itt 0 0 *

OEE. ODT i AD eB

LED ah ORONO, Bi me LR 22 ihn Re meh We mee

aD BA 5 SA INE Die te ot meee Fe

13

inal jurisdiction by disclaimer states requires three
measures: (1) repeal by the United States of the Indian
disclaimers in state enabling acts; (2) consent of the
United States to the amendment of the disclaimers in
state constitutions or statutes; and (3) the actual
amendment of their constitutions or statutes by the
people of the states.* Otherwise, the disclaimers would
stand as ‘‘legal impediment{[s]"’ to the assumption of
the civil and criminal jurisdiction conferred by Public
Law 83-280. See also S. Rept. No. 669, 83d Cong., 1st
Sess. 6 (1953); 99 Cong. Rec. 10782 (1953).°

If, as held by the Court of Appeals (App. B), the
disclaimers are limited to matters of a proprietary
nature, Section 6 of Public Law 83-280 would be mean-
ingless and Washington v. Yakima Indian Nation,
supra, would not have been necessary. The lower
court’s reliance on Organized Village of Kake v. Egan,
369 U.S. 60 (1962) (App. at 36a-37a), is misplaced. As
explained in McClanahan v. Arizona Tax Commis-
sion, supra:

In Egan, we held that “‘ ‘absolute’ federal juris-
diction is not invariably exclusive jurisdiction,’’

the provisions of this Act shall not become effective with
respect to such assumption of jurisdiction by any such
State until the people thereof have appropriately amended
their State constitution or statutes as the case may be.

* Washington v. Yakima Indian Nation, supra, holds that Pub-
lic Law 83-280 does not impose on disclaimer states the obliga-
tion for the People to amend their state constitutions and that
the question of whether action by the state legislature is suffi-
cient to assume jurisdiction over Indian country presents a ques-
tion of state law.

* Significantly, in conferring limited civil jurisdiction, Section
4 of Public Law 83-280, 28 U.S.C. § 1360(b), explicitly excludes
the adjudication of Indian property rights, including water
rights, in state courts. See Colorado River, supra, 424 U.S. at
812 n.20; and n.12, infra.

Tele a se

14

and that this language in federal legislation [i.e.
the Indian disclaimer provisions in hake pene i
acts] did not preclude the exercise of residua
state authority. [citation omitted]. But that hold-
ing came in the context of a decision concernin
the fishing rights of nonreservation Indians. [ci-
tation omitted]. It did not purport to provide
guidelines for the exercise of state authority in
areas set aside by treaty for the exclusive use and
control of Indans.

411 U.S. at 176 n.15, emphasis in original. The lower
court ignored McClanahan’s relegation of Kake to
nonreservation situations. Its efforts to distinguish
McClanahan (App. at 38a-39a) are clearly unavail-
ing. :
In holding that the Indian jurisdictional disclaimers
are limited to matters of a proprietary nature, the
decision below conflicts with numerous decisions of
this Court and is also incompatible with Congress’
treatment of the disclaimers in Public Law 83-280.

2. So far as the issues in this case are concerned
the disclaimers in New Mexico’s Enabling Act and
Constitution have not been revoked or amended by
the United States or by the people, or the legislature
of New Mexico.'' The McCarran Amendment does not

"In Chino v. Chino, 90 N.M. 204, 561 P.2d 476 (1977), the
New Mexico Supreme Court expressly recognized that Mc-
( en had “narrowed” Kake v. Egan to non-reservation sit-
uations.

''We know of three instances when Congress expr -
pealed the disclaimers in New Mexico's Enabling ee amie
gave its consent to the Amendment of New Mexico's Constitu-
tion. Section 3 of the Act of August 15, 1953, 67 Stat. 586, gives
the consent of the United States to the repeal of the provision of
New Mexico s Constitution relating to the sales of intoxicants
to Indians. Pursuant to this authorization, the people of New

15

mention “Indians,” ‘Indian water rights,’’ or ‘‘state
courts.”’ On its face, it is purely and simply a waiver
of the sovereign immunity of the United States in
water adjudication suits. Unlike Public Law 83-280,
it does not purport to confer subject matter jurisdic-
tion on state courts nor does it repeal, modify or even
mention the disclaimer provisions.

Colorado River held that Indian water rights are
included in the McCarran Amendment’s waiver of the
sovereign immunity of the United States.'? But in

Mexico amended Section 1 of Article XXI of their Constitution
at a special election held September 15, 1953. Section 6 of Public
Law 83-280, quoted supra at n.7, and Section 404 of the Act of
April 11, 1968, 25 U.S.C. § 1324, are identical. New Mexico has
never accepted the jurisdiction offered by the latter two laws
and, in any event, they expressly exclude the adjudication of
Indian water rights in state courts. See note 9, supra; and 25
U.S.C. § 1322(b).

'? On the authority of Minnesota v. United States, infra, the
McCarran Amendment’s waiver of sovereign immunity should
be limited to suits in federal courts. See infra at 16-17. It
should also be noted that Public Law 83-280 was enacted only
eleven months after the McCarran Amendment and, as pointed
out supra at n. 9, it includes a provision that specifically pro-
hibits the adjudication of Indian water rights in state courts.
This provision is inexplicable unless Congress assumed that state
courts lacked jurisdiction over Indian water rights even after the
enactment of the McCarran Amendment. See McClanahan v.
Arizona ‘Tax Commission, 411 U.S. 164, 177 (1973). Public Law
83-280 also shows that Congress recognized that grants of juris-
diction over Indians to state courts must be express. Of course,
there is no such explicit grant in the McCarran Amendment.

In Colorado River, the Court stated that the McCarran
Amendment is more specific than Public Law 83-280 and is there-
fore controlling. 424 U.S. at 812 n.20. We respectfully submit
that this conclusion was erroneous. Public Law 83-280 specifically
denies jurisdiction of state courts to adjudicate Indian water
rights whereas the McCarran Amendment simply waives sover-
eign immunity with regard to adjudications of all water rights
“owned” by the United States and does not mention either In-
dians or state courts.

16

applying the McCarran Amendment in the disclaimer
states, effect must also be given to the Indian juris-
dictional disclaimers. There is, of course, a “cardinal
rule that repeals by implication are not favored.” Ten-
nessee Valley Authority v. Hill, 437 U.S. 153, 189-
190 (1978); Morton v. Mancari, 417 U.S. 535, 549
(1974). Morton v. Mancari also teaches that:

In the absence of some affirmativ j

e showing of an
intention to repeal, the only permissible justifi-
cation for a repeal by implication is when the
earlier and later statutes are irreconcilable .. .

417 U.S. at 550, and that:

The courts are not at libert i

y to pick and choose
among congressional enactments, and when two
statutes are capable of co-existence, it is the duty
of the courts, absent a clearly expressed congres-

sional intention to the con
effective. trary, to regard each as

417 U.S. at 551. In this case, the McCarran Amend-
ment and the Indian jurisdictional disclaimers are not
irreconcilable. Effect can be given to both by holding
that in the disclaimer states the adjudication of In-
ou ger rights must take place in the federal
rts, at least until the disclai isi
repealed, modified or Piss sh gaan oie cea

This position is also strongly supported by Minne-
sota v. United States, 305 U.S. 382 (1939). In that
case, the Court construed 25 U.S.C. § 357 which sub-
jects allotted Indian lands to condemnation under the
laws of the state where located in the same manner
as land owned in fee. The Court held that this statute
constitutes a waiver of the government’s sovereign
immunity but that the condemnation suits permitted
by the statute must be brought in federal courts be-

i» SPD? ees et hee) @

17

cause “the judicial determination of controversies
concerning [Indian lands] has been commonly com-
mitted exclusively to federal courts.” 305 U.S. at 389.
This result was reached even though the statute ex-
pressly made state substantive law applicable in the
condemnation suits. The argument for exclusive ju-
risdiction in the federal courts is stronger in our case
because nothing in the McCarran Amendment sub-
jects Indian water rights to state substantive law.
Colorado River, 424 U.S. at 813; Cappaert v. United
States, 426 U.S. 128, 145-146 (1976). Minnesota shows
that the McCarran Amendment’s waiver of sovereign
immunity can and should be reconciled with the juris-
dictional disclaimers by limiting the waiver to suits
in the federal courts when indian rights are being

adjudicated.

The Court of Appeals erred by holding, in essence,
that the McCarran Amendment repealed the Indian
jurisdictional disclaimers by implication (see App. at
35a-36a) even though the two statutes are not irrec-
oncilable and are capable of coexistence. In so doing,
the rules framed by this Court for applying two stat-
utes that relate to the same subject were ignored.

3. Three years of experience under the Colorado
River decision have demonstrated that it has led to
the filing of much unnecessary as well as duplicative
litigation in both the federal and state courts and that
it has made the handling of such already complex
litigation even more difficult, expensive, and time-con-
suming.

Colorado River holds that there is concurrent juris-
diction in the federal and state courts to adjudicate
Indian water rights in non-disclaimer states and that

|(|!

18

the determination of whether an adjudication should
proceed in federal or state courts depends in part upon
a particularized analysis of the unique facts and cir-
cumstances of each case. One such factor is the extent
to which a case has progressed in either the federal or
state courts. 424 U.S. at 820. Not surprisingly, after
Colorado River the states and their water users as
well as the United States and the Indian tribes have
tried to establish footholds in their preferred forums.
This has led to the filing of many cases that would
not otherwise have been brought and to extensive
procedural maneuvering designed to prevent the state
or federal court from reaching the merits of the case
or even getting the cases ready for trial.'* Colorado
River has also added several more years of litigation
on the already difficult, expensive, time-consuming
and cumbersome water adjudication process by pre-
senting the state and federal courts with the threshold
issue of whether to exercise jurisdiction or to defer to
the alternative forum. In one case in Montana," for
example, a motion to dismiss the federal suit was
brought prior to the Colorado River decision and is

'* Subsequent to Colorado River, more than twelve lawsuits
involving the adjudication of Indian water rights have been ini-
tiated in Montana, New Mexico, Arizona, Wyoming and Wash-
ington. In most of these situations duplicative litigation is
pending in both the federal and state courts and each forum has
been, or probably soon will be, requested to dismiss in favor of
the other. These five states, as well as Utah, Kansas, Oklahoma,
North Dakota, South Dakota, Alaska, and Idaho are subject to
Indian jurisdictional disclaimers in their enabling acts or state
constitutions. The non-disclaimer western states are Colorado,
California, Oregon, Nevada, Nebraska and Texas.

'*Northern Cheyenne Tribe v. Adsit and United States v.
Tongue River Water Users Association, Civil No. 75-20 Blg. in
the United States District Court for the District of Montana.

RBS Hi Ket tt

PARI Ae

rab ts tte Gy

19

still pending more than three years later. If the federal
court suit is dismissed, a two or three year appeal
process seems inevitable.

None of the Indian water rights cases pending in
the courts of the disclaimer states has yet gone to
trial. From the standpoint of promoting economy of
judicial resources in this specific case as well as gen-
erally throughout the western states, it is propitious
for the disclaimer issue to be resolved sooner rather

than later.

4. In its current posture, this case is appropriate
for Supreme Court review. See, e.g., Gillespie v.
United States Steel Corp., 379 U.S. 148, 152-154
(1964). There is a justiciable controversy between the
Jicarilla Apache Tribe and the United States on the
merits. The only rights left to adjudicate are those of
the Tribe and the United States. As the Court of
Appeals stated, the San Juan diversion claim and the
general water rights adjudication “‘do not arise from
a ‘common nucleus of operative facts.’’’ App. at
42a. The diversion claim does not involve the quan-
tification of the Tribe’s or the government's water
rights. A decision as to the propriety of the diversions
would not obviate the need to settle the question, of
vital importance to the disclaimer states and the
tribes, of the proper forum for adjudication of the

Tribe’s water rights.

The decision of the Court of Appeals below, that
the courts of disclaimer states have jurisdiction to
adjudicate Indian water rights, is an important and
clearcut ruling which will have a direct bearing on
other water rights cases pending in the disclaimer
states of New Mexico, Montana, Arizona, Wyoming
and Washington. Here, as in Gillespie, supra, “the

20

eventual costs . . . will certainly be less if [this Court]
now pass[es] on the questions presented here rather
than send the case back [to the federal and state court]
with those issues undecided.’ 379 U.S. at 153. There
is also “ample reason to view [the Tribe’s claims for
quiet title and injunctive relief] as severable. .. .”” and
there is no doubt that the lower courts’ jurisdictional
“ruling was fundamental to the further conduct of the
case.”’ Id. For all of these reasons, this case warrants
review at this time.

5. This case, unlike Colorado River, was brought in
federal court by an Indian Tribe pursuant to 28 U.S.C.
§ 1362. The McCarran Amendment applies only to the
United States, not to Indian tribes. Therefore, the
considerations that led to dismissal of the govern-
ments suit in Colorado River are not present in this
suit which was initiated by the Tribe. Section 1362
and its underlying policies must govern this choice of
forum question. As noted supra at 10, this issue was
— left open in Colorado River. 424 U.S. at 820
n.26.

¥

28 U.S.C. § 1362, enacted in 1966, provides for fed-
eral question jurisdiction in the federal district courts
over civil actions brought by Indian tribes, without
regard to the amount in controversy. Its legislative
history demonstrates that it was prompted by Yoder
v. Assiniboine and Sioux Tribes of the Fort Peck In-
dian Reservation, 339 F.2d 360 (9th Cir. 1964), which
held that Indian tribes could not bring property rights
litigation in federal court without satisfying the
$10,000 amount in controversy criterion. The Reports
of the Senate and House Committees cite four crucial
eaerly in support of the bill that was eventually en-
acted.

Tere om

30 SO, TATU ABPAS ed 24

21

First, “traditionally, the matters concerning Indian
lands under trust allotments fall within the exclusive
control of the Federal Government. The judicial de-
termination of controversies concerning such lands
commonly is committed to the Federal courts. Min-
nesota v. United States, 305 U.S. 382 (1939).’’"

Second, ‘“‘the issues involved in cases involving trib-
al lands ... are Federal issues” and “particularly as
to this class of cases it is appropriate that the actions
be brought in a U.S. district court.’’"®

Third, ‘‘{t]here is great hesitancy on the part of the
tribes to use State courts. This reluctance is founded
partially on the traditional fear that tribes have had
of the States in which their reservations are situat-

ed.”"!”

Fourth, “‘[fJederal courts have more expertise in de-
ciding questions involving treaties with the Federal
Government, as well as interpreting the relevant body
of Federal law that has developed over the years.’’"*

The legislative history of Section 1362 conclusively
shows that Congress intended for cases of this kind
to be heard in the federal courts. Congress was aware
of Minnesota v. United States, supra, and approved
of its holding that federal courts have exclusive juris-
diction over controversies involving Indian property
rights. The Indians’ ‘‘traditional fear’’ of state courts
was recognized and respected and federal courts were
deemed to be more qualified to interpret and apply

's H.R. Rept. No. 2040, 89th Cong., 2d Sess. 2 (1966).

'6 Id.
‘1S. Rept. No. 1507, 89th Cong., 2d Sess. 2 (1966).

'* Td.

i

22

the relevant body of federal law that has developed
over the years. Since Section 1362 jurisdiction was
not involved in Colorado River, the Court’s opinion
did not mention Section 1362, its legislative history,
or its underlying policies.

Considered in light of its legislative history, the
federal court jurisdiction conferred by Section 1362
should be deemed exclusive. Minnesota v. United
States, supra. Cf., Bowles v. Willingham, 321 U.S.
503, 511-512 (1944). Assuming arguendo that Section
1362 jurisdiction is not exclusive, effect should be
given to both the McCarran Amendment and Section
1362 by adjudicating the water rights of the Jicarilla

Apache Tribe in federal court. Morton v. Mancari,
supra.

‘6. In Colorado River, the Court suggested that In-
dian water rights were not endangered by their ad-
judication in state courts because their determination
presents federal questions that can be reviewed by
the Supreme Court. 424 U.S. at 813. The Tribe re-
spectfully disagrees.

The quantification of Indian water rights hinges on
critical factual determinations involving such matters
as the amount of “‘practicably irrigable”’ acreage with-
in a reservation, the amount of water required to ir-
rigate that acreage, and the amount of water needed
to maintain and preserve fisheries and other reserva-
tion resources. See, e.g., Arizona v. California, 373
U.S. 546, 600 (1963); United States v. Nevada, 412
U.S. 534, 536 (1973); and Cappaert v. United States,
supra, 426 U.S. at 141. These matters of “‘life-and-
death importance to Indians,” Colorado River, 424
U.S. at 862 (Stewart, J. dissenting), should not be

ROL NOT MRE SO Sac ite vi oa Dera

23

entrusted to state courts. While the Supreme Court
may review and correct erroneous legal determina-
tions, it is difficult, if not impossible, to overcome the
effects of a factfinder’s partiality.

“The policy of leaving Indians free from state ju-
risdiction and control is deeply rooted in the Nation’s
history.”” McClanahan v. Arizona Tax Commission,
411 U.S. 164, 168 (1973), quoting Rice v. Olson, 324
U.S. 786, 789 (1945). Both the Indian jurisdictional
disclaimers and 28 U.S.C. § 1362 are manifestations
of this policy.’ As this Court noted almost one
hundred years ago, “[bJecause of the local ill feeling,
the people of the States where {Indian tribes] are
found are often their deadliest enemies.” United
States v. Kagama, 118 U.S. 375, 384 (1886) (upholding
the exclusive jurisdiction of federal courts over cer-
tain crimes committed by Indians on a reservation).”
That this situation has remained virtually unchanged
is shown by the inclusion of a disclaimer provision in
Section 4 of the Alaska Statehood Act, 72 Stat. 339
(1958), and by Congress’ enactment of 28 U.S.C. §
1362 in 1966. See supra at 20-22. The inability of state
courts to render fair decisions in Indian property
rights disputes is further demonstrated, rather con-
clusively, by the contemporaneous western Washing-
ton fishing rights controversy. See Washington v.

' See also 25 U.S.C. § 345; McKay v. Kalyton, 204 U.S. 458
(1907); and Oneida Indian Nation v. County of Oneida, 414 U.S.
661, 667 and 678 (1974). We are not aware of any laws that
subject Indian property rights that are held in trust or are sub-
ject to restrictions against alienation to state court jurisdiction.

“The Act providing for the admission of North Dakota, South
Dakota, Montana and Washington to the Union, 25 Stat. 676,
which includes an Indian disclaimer, 25 Stat. at 667, was enacted
in 1889, only three years after the Kagama decision.

WM

24

@

~

Washington State Commercial Passenger Fishing
Vessel Ass'n, _. ~U.S. ___, 99 S.Ct. 3055, 61
L.Ed.2d 823 (1979). In another recent case, this Court
took cognizance of the Indians’ and the government’s
legitimate concerns about the impartiality of state
courts in Indian matters.

The United States fears a hostile and unfavorable
treatment at the hands of state law, but as we
have said the legal issues are federal and the fed-
eral courts will have jurisdiction to hear them.
Adequate means are thus available to insure fair
treatment of tribal and federal interests. [empha-
sis added, citation omitted].

Wilson v. Omaha Indian Tribe, ___ U.S. ’ ‘
99 S.Ct.2529, 61 L.Ed.2d 153, 170 (1979). The nega-
tive implication is that fair treatment cannot be in-
sured in state courts.”!

The policy of leaving Indians free from state juris-
diction and control, embodied in the Indian disclaim-
ers and Section 1362, is no less urgent or necessary
today than it was 100 years ago. If this longstanding
policy is to be changed, it should be done expressly
by Congress. Bryan v. Itasca County, 426 U.S. 373,
389-390 (1976); Williams v. Lee, supra, 358 U.S. at
223. In enacting the McCarran Amendment in 1952,
Congress did not find or declare that Indians could
receive fair treatment in the courts of the disclaimer
states, and Public Law 83-280 (1953)? and 28 U.S.C.

ee in New Mexico and many other western states, state court
judges are directly responsible to the local electorate. The water
rights claimed by Indian tribes in the arid west are large and are
adverse to practically everyone else. See, e.g., United States v.
New Mexico, 438 U.S. 696, 699 and 705 (1978).

*? See supra at nn. 9 and 12.

—-

SLPS RROD A BY PRE LOBE REA SILOS EA cites

25

§ 1362 demonstrate that Congress intended for Indian
property rights to be adjudicated in the federal courts.
The lower courts erred by failing to recognize or to
give effect to this policy.”

7. Colorado River held that “‘[iJn assessing the ap-
propriateness of dismissal in the event of an exercise
of concurrent jurisdiction ... [njo one factor is nec-
essarily determinative; a carefully considered judg-
ment taking into account both the obligation to
exercise jurisdiction and the combination of factors
counseling against that exercise is required... . Only
the clearest of justifications will warrant dismissal.”’
424 U.S. at 818-819. In this case, neither the district
court nor the Court of Appeals ever addressed any of
the relevant factors. The district court held, contrary
to Colorado River, that state court jurisdiction is ex-
clusive. App. at 2a. The Court of Appeals rejected the
contention of the Tribe and the United States that
the state court lacked jurisdiction, but never consid-
ered ‘‘the appropriateness of dismissal.”

There is one aspect of this case that makes dis-
missal of the Tribe’s federal suit particularly unjus-
tified. The only purpose of the state court suit

8 Even assuming arguendo that the McCarran Amendment
evinced a policy of subjecting Indian property rights to adjudi-
cation by state courts, this Court has held that Indian statutes
enacted in furtherance of policies that have been discarded must
be applied and construed in light of intervening laws that imple-
ment different, and to some extent conflicting, policies. Bryan v.
Itasca County, 426 U.S. 373, 386-387 and 388 n.14 (1976); Moe
v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 477-
479 (1976). In this case, the subsequent enactment of Public Law
83-280 and 28 U.S.C. § 1362 show that current congressional
policy calls for the adjudication of Indian property rights in the
federal courts.

Mi)

26

initiated by the State of New Mexico (Reynolds, su-
pra) is to adjudicate the San Juan River system water
rights held by the United States on its own behalf
and on behalf of the Jicarilla Apache, Ute Mountain
and Navajo Indian Tribes. See supra at 7. All other
water rights have already been adjudicated. Jd. There-
fore the adjudication of water rights has already been
fragmented; the policy of the McCarran Amendment
to avoid piecemeal adjudications (Colorado River, 424
U.S. at 819) is not served by the lower courts’ dis-
missal of the Jicarilla Tribe’s action. In this case, as
in Arizona v. California, supra, 373 U.S. at 597-601,
decree 376 U.S. 340 (1964), supplemental decree,
___._; U.S. ___., 99 S.Ct. 995, 58 L.Ed.2d 627 (1979),
the Indian rights decreed by the federal court can
readily be integrated with previously decreed private
rights.

27

CONCLUSION

The petition for a writ of certiorari should be grant-
ed.

Respectfully submitted,

ROBERT J. NORDHAUS
LESTER K. TAYLOR
Nordhaus, Moses & Dunn
800 American Bank of Commerce
200 Lomas Boulevard, N.W.
Albuquerque, New Mexico

87102

Counsel for Petitioner
Jicarilla Apache Tribe
OF COUNSEL:

ROBERT S. PELCYGER

Native American Rights Fund
1506 Broadway

Boulder, Colorado 80302

September 20, 1979

APPENDIX

ae
ef

la

APPENDIX A
IN THE

United States District Court

FOR THE DISTRICT OF NEW MEXICO

CIVIL No. 75-742P
JICARILLA APACHE TRIBE,

Plaintiff,
V.

THOMAS S. KLEPPE, SECRETARY OF THE INTERIOR OF
THE UNITED STATES OF AMERICA; DENVER-RIO
GRANDE WESTERN RAILWAY Co., MANUELITO GARCIA,
ESTEBAN GOMEZ, OLAN CROWLEY, LEOPOLDO
MARTINEZ, RAFAEL JARAMILLO, JOSE F. MARTINEZ,
JOSE I. GARCIA, CLOTILDA MUNOZ, and all unknown
claimants of interest to water in the Navajo River and
waters tributary thereto in the State of New Mexico,

Defendants.

ORDER

This matter came to be heard on the Suggestion of Want
of Jurisdiction filed herein by the State of New Mexico as
Amicus Curiae. The Court takes judicial notice of the pen-
dency of the case of State.of New Mexico, ex rel. S. E.
Reynolds, State Engineer v. United States of America, et
al. (No. 75-184) in the New Mexico District Court for the
County of San Juan, a case brought by the State as a
general adjudication of rights to the use of water in New
Mexico from the San Juan River and its tributaries, in-
cluding the Navajo River. The Court further takes judicial
notice that the United States of America was joined as a
defendant in said adjudication under the authority of the
McCarran Amendment, 43 U.S.C. § 666, both in its own.
behalf and on behalf of the Navajo, Ute Mountain Ute,
and Jicarilla Apache Tribes of Indians.

age ae Fe a Se
+ pes — Fag.

2a

The Court concludes that the New Mexico District Court
for the County of San Juan has exclusive jurisdiction to
proceed to determine all rights to the use of water in New
Mexico from the San Juan stream system, including the
claims of the United States on behalf of the Jicarilla
Apache Tribe to the waters of the Navajo River. Section
75-4-6, N.M.S.A. (1953 Comp.), states that ‘‘[t]he Court in
which any suit involving the adjudication of water rights
may be properly brought shall have exclusive jurisdiction
to hear and determine all questions necessary for the ad-
judication of all water rights within the stream system
involved ...’’ This provision is binding on the United
States as a defendant in State of New Mexico, ex rel. S.
E. Reynolds, State Engineer v. United States of America
(No. 75-184, supra), by virtue of 43 U.S.C. §666, which
provides in part that “[t]he United States, when a party
to any such [stream adjudication], shall (1) be deemed to
have waived any right to plead that the state laws are
inapplicable or that the United States is not amenable
thereto...’ In light of the United States Supreme Court’s
decision in Colorado River Water Conservation District et
al v. United States, 424 U.S. 800 (1976), the effect of
N.M.S.A. §75-4-6, made applicable to the United States by
43 U.S.C. §666, is to preclude this Court from the contem-
poraneous exercise of its concurrent jurisdiction.

IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Plaintiff’s complaint herein be, and her-
eby is, dismissed for lack of jurisdiction over the subject
matter. This Order shall be without prejudice to Plaintiff
to assert in the case of State of New Mexico v. United
States of America, et al., No. 75-184 in the New Mexico
District Court for the County of San Juan, any claims it
may have raised in the instant complaint.

/s/ H. Vearle Payne

UNITED STATES DISTRICT JUDGE

3a

APPENDIX B
PUBLISH

No. 77-1737

JICARILLA APACHE TRIBE,
Appellant,

Vv.

UNITED STATES OF AMERICA, et al.,
Appellees,

STATE OF NEW MEXICO, ex rel. S.E. REYNOLDS, State
Engineer,
Amicus Curiae.

Appeal from the United States District
Court for the District of New Mexico (D.C.
No. 75-742-P)

Submitted: March 12, 1979

Lester K. Taylor of Nordhaus, Moses and Dunn, 200 Lo-
mas Boulevard N.W., Albuquerque, New Mexico, for Ap-
pellant.

Edward J. Shawaker, Department of Justice, Washington,
D.C., (James W. Moorman, Assistant Attorney General;
Victor R. Ortega, United States Attorney; Charles N.
Estes, Jr., Assistant United States Attorney, Albuquer-
que, New Mexico; Dirk D. Snel, Department of Justice,
Washington, D.C., on the brief), for Appellee.

Richard A. Simms, Special Assistant Attorney General,
State Engineer’s Office, Santa Fe, New Mexico, for the
State of New Mexico, Amicus Curiae.

re etre CT ne I

4a

The Jicarilla Apache Tribe, residing on a Reservation in

the State of New Mexico, appeals from a sua sponte Order.

entered July 19, 1977, dismissing the Tribe’s complaint
filed December 12, 1975.'

A detailed recitation of the multi-faceted litigative his-
tory will facilitate our review.

Litigative History
a. State Action

Prior to the filing of the Tribe’s complaint in the case at
bar, the State of New Mexico, by and through its State
Engineer, filed, on March 13, 1975, a complaint in the New
Mexico State District Court for the County of San Juan
seeking a general water rights adjudication pursuant to
New Mexico statutes of all the water rights and uses, both
surface and underground, of the San Juan River Stream
System, which includes the San Juan River and its tribu-
taries. That action, entitled State of New Mexico, ex rel.
Reynolds, State Engineer v. United States of America, et
al., San Juan County District Court, No. 75-184, was pend-
ing on December 12, 1975 when the instant suit was filed.
In that action, the United States of America was named
as a party defendant pursuant to the McCarran Amend-
ment, 43 U.S.C.A. §666(a), in its own behalf and on behalf
of its wards, to-wit, three Indian tribes, including the Ji-
carilla Apache Tribe, hereinafter referred to as Tribe, who
use and occupy federally owned Indian Reservation lands
within the stream system in the State of New Mexico.

On April 14, 1975, the United States filed its petition
for removal of the action to federal district court. Simul-
taneously, the United States moved to dismiss the Indian
water rights adjudication from the state court’s jurisdic-
tion on the premise that the removal jurisdiction of the

' The State of New Mexico filed an Amicus Curiae Suggestion
for Want of Jurisdiction.

5a

federal district court was derivative from the San Juan
County District Court and that the state court lacked
jurisdiction to adjudicate the rights of the United States
for its Indian wards. The State of New Mexico and some
defendants moved to remand.

On October 23, 1975, the federal district court entered
an order remanding the cause to the state district court
for San Juan County. The Court found that the state court
was vested with jurisdiction over the water rights of the
United States, as fiduciary on behalf of the three Indian
tribes.

The United States again petitioned to remove the pro-
ceeding from state court to federal district court. The court
denied the petition for removal and granted the motion to
remand to the district court of San Juan County based on
an express finding that the state court had jurisdiction to
adjudicate both the Indian and non-Indian water right
claims of the United States. The United States, following
this remand, filed a motion to dismiss in the District Court
for San Juan County alleging that the state court lacked
jurisdiction over the claims on behalf of the three Indian
tribes because of alleged conflicts of interest confronting
the United States in adequately representing the Indian
wards. The members of the Tribe moved to appear amicus
curiae in support of the United States’ motion to dismiss.
The motion was denied. The United States was directed to
assert and file water right claims on behalf of the three
tribes.

Thus, when the instant action was filed, the jurisdic-
tional dispute, i.e., general adjudication of water rights
between state court vs. federal court, had been presented
several times.

b. Federal Action

The Tribe’s complaint, filed on December 12, 1975, in
the case at bar, was two-pronged in terms of relief sought.

NN a eae en Sse

6a

First, it sought a general adjudication of water rights on
the Navajo River System and its tributaries, for use in the
State of New Mexico. Second, it sought injunctive relief
against the Secretary ot the Interior and the United States
to restra‘» the Secretary from diverting water from the
Chama-Rio Grande River system through the San Juan-
Chama Project insofar as such diversions are in excess of
the amounts of water which can be beneficially used by
parties who have contracted with the Secretary of the
Interior for said waters. The Tribe alleged, inter alia, that
the diversions by the Secretary violated provisions of the
Upper Colorado River Compact.

In its Answer to the Tribe’s Complaint, the United
States pleaded inter alia, (a) that the United States owns
lands in the watershed of the Navajo River and its tribu-
taries administered by the Secretary [of Interior] and var-
ious government agencies, for which the United States
claims the right to impound and divert the waters of the
Navajo River and its tributaries, which claims are adverse
to the claims of the Tribe. .... Included in said lands are
lands administered by the Bureau of Land Management,
lands on which public watersheds and springs are located
reserved for public watering purposes, and National Forest
lands; and (b) that the United States claims the right to
impound, divert and use waters of the Navajo River and
its tributaries [and has done so] but denied that the diver-
sions of the waters from the rivers for the San Juan-Chama
Project [reclamation] are adverse to and jeopardize the
rights of the tribe. (Emphasis supplied.) [R., Vol. I, pp. 10,
11.]

Motions to dismiss were also filed. In partial—but sig-
nificant—resistance to the Motion to Dismiss in the case
at bar, the Tribe argued, inter alia:

Plaintiff [Tribe] alleges that this Court has jurisdic-
tion under 28 U.S.C. $1362 and 43 U.S.C. §666(a).

Ta

28 U.S.C. §1362 states:

The district court shall have original jurisdiction
of all civil actions brought by any Indian Tribe or
band with a governing body duly recognized by the
Secretary of the Interior, wherein the matter in con-
troversy arises under the Constitution, laws or trea-
ties of the United States.

43 U.S.C. §666 is the McCarran Amendment.

28 U.S.C. §1362 enables Indian tribes to bring suits
in federal court to protect property granted them by
the Federal Government when the United States has
declined to act in their behalf. Standing Rock Sioux
Indian Tribe v. Dorgan, 505 F.2d 1135 (C.A. 8, 1974).
Poafpbitty [sic.] v. Skelly Oil Co., 390 U.S. 365 (1968).

The plaintiff has on numerous occasions demanded
that the United States or its appropriate agency take
action to protect the Tribe’s water rights and that the
Secretary and his agencies cease wrongful diversion
of water from the Navajo and Little Navajo Rivers in
violation of the rights of the Tribe ... the United
States has ignored these demands ... the issue of
Pleintiff’s rights to the water claimed [as against the
alleged improper diversion by the United States] can-
not be raised in that (State) Court ... The Jicarilla
Apache Tribe is not a named party in the (State) case
... The United States of America is a named party
... The plaintiff herein cannot, because of its sover-
eign immunity, be joined as a party ... The United
States as the named defendant is the only party which
can protect the Tribe’s water rights in (the State ac-
tion)... This places the United States in the position
of making claims against itself; an obvious conflict of
interest ... The United States ... is charged [under
the McCarran Amendment] with the duty of repre-
senting the Bureau of Reclamation, the National Park
Service, the Bureau of Land Management, the Bureau

8a

of Sport Fisheries and the three Indian tribes previ-
ously named, in their adverse claims to the waters
... The conflicts of interest inherent in the position
of the United States cannot be resolved (in the State
Court proceeding) . . . Jn this case, claims are asserted
against the Secretary separate from the issues of ad-
judication of water rights. .. . (Emphasis supplied.)

[R., Vol. 1, pp. 34-36.]
Hearing Below

The District Court conducted a hearing July 5, 1977, on
the State’s Suggestion of Want of Jurisdiction. The Court
observed that the Tribe ‘... is claiming that the United
States doesn’t represent them... [and]... that they have
sovereignty separate and apart from the United States.”’
[R. Vol. II, p. 7.] With respect to the alleged ‘‘conflict of
interest’’ problem, the Court requested that the parties
address the question whether, without assuming jurisdic-
tion for general adjudication of water rights on the system,
the Court should independently entertain jurisdiction of
that portion of the Tribe’s suit involving the trans-moun-
tain diversion, i.e., the diversions through the San Juan-
Chama Project. [R., Vol. 11, p. 12.]

a. Jurisdiction Relative to General
Water Rights Adjudication

In the course of the hearing the State contended, relat-
ing to the general water rights adjudication, that this could
only be accomplished in one forum and that the state court
action was pending prior to the instant suit. Further, the
State argued that the United States is the actual claimant
on behalf of the Tribes by virtue of the McCarran Amend-
ment. [R., Vol. II, p. 18.] Counsel for the Tribe challenged
the jurisdiction of the state court] to adjudicate the Tribe’s
claim that the Secretary of the Interior and the Bureau of
Reclamation are diverting waters from the San Juan-Cha-
ma project in contravention of the Colorado River Compact
and the rights of the Tribe. [R., Vol. II, pp. 21-24.]

9a

In response to the Tribe’s contention, the Court sug-
gested and later urged that the case be bifurcated in such
a manner that the Federal District Court would ‘. . . hear
the questions that involve the trans-mountain diversion
separately.’’ [R., Vol. II, pp. 24, 45.] After the Court or-
dered the dismissal, counsel for the Tribe inquired, ‘“Might
I ask are you dismissing the entire complaint?’’ to which
the Court responded, ‘Yes, I tried to get you to stay in
about the trans-mountain water diversion, but you disa-
greed with that."’ [R., Vol. II, p. 47.]

The Court’s discourse with counsel for the United States
in the course of the hearing relative to the jurisdictional
issue applicable to the guardianship responsibilities of the
United States deserves special note:

MR. ESTES: ... the United States did not ask to
be sued in this particular case, but, now that we have
been I haven’t seen anything that convinced me that
this Court does not have the jurisdiction. I think there
is general agreement that over the matter of the San
Juan—Chama diversion--whether or not those diver-
sions are within keeping of the law, there seems to be
an agreement that the Court could decide that matter.

THE COURT: Now, here is their argument. You
are guardians of the Apaches and the Navajos and
the Utes and, therefore, there is a conflict of interest.

You can’t represent any of them and, therefore,
they come in on the basis of the decision where our
circuit court said that where there is a conflict of
interest, the Tribes can get their own lawyers and I
have let them proceed on this basis. I don’t think the
court went so far as to say that you weren’t still the
guardian of them. They did say where there was a
conflict of interest they could get their own lawyers.

— :

10a

MR. ESTES: You have stated that accurately. In
this case, we have to deal with the situation that goes
one step further. The United States has normally in
the New Mexico district of San Juan County asserted
that we recognize the conflicts are extremely strong
and have disclaimed the power to recognize the Indian
Tribes in this case. [Emphasis supplied.]

The fact remains that the Tribes feel since the
United States has conceded that it was not proper for
us to represent them that that does give them some
impetus to bring an action to establish their rights.

THE COURT: Well, if they go ahead --the Jicarilla
and Apache Tribes--and they do establish their
rights, then you may have to abdicate your guardian-
ship over them.

MR. ESTES: No, Your Honor, nowhere in the law-
suit have we felt that we have to do that. That is
really all I have to add.

I might say a word about the practical problem that
you can’t take one stream that is a tributary to an-
other and adjudicate it separately.

THE COURT: If you mean by that that we don’t
intend to adjudicate the whole thing, the Rio Grande
River, we are going to adjudicate it eventually and we
have to do it by section and eventually we will have
the other rights determined.

MR. ESTES: Proceeding rather similarly to what
Your Honor is suggesting--if that could be followed
here--it does seem to me that, if some arrangements
were made for representation downstream, then a way
could be found to adjudicate that decree.

THE COURT: That is why I suggested bifurcating
the case, but counsel, for the Indians, they don’t agree
to this. I said we could bifurcate the case and hear the

lla

questions that involve the trans-mountain diversion
separately, and they said ‘‘no,’’ that it has to be done
in the one as well as in the other.

[R., Vol. II, pp. 43-45.]

We believe that the above-quoted portion of the hearing
transcript discloses that notwithstanding the Federal Dis-
trict Court’s offer and suggestion that it hear and deter-
mine those ‘‘conflicts’’ between the Tribe and the United
States involving the diversions of water from the Chama—
Rio Grande River system through the San Juan—Chama
Project [the matter alleged by the Tribe to arise under
laws of the United States invoking the original jurisdiction
of the Federal District Court pursuant to 28 U.S.C. § 1362,
supra], such offer was rejected by Tribe simply and only
to preserve the exclusive original jurisdiction over general
adjudication of water rights contention.

b. Jurisdiction Relative to Diversion

The State also argued at the motion hearing that in view
of the Akin decision [Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976) ] and the
specific language of the McCarran Amendment, the state
court is the proper forum, under the circumstances, in
which to adjudicate the various water right claims, includ-
ing those of the United States on behalf of the Tribe. [R.,
Vol. II, pp. 9-10.] Both the State and the Court viewed the
controversy involving the trans-mountain diversion of
water through the Chama River Project by the United
States (involving the alleged conflict of interest between
the United States and the Tribe) as severable from the
general ajudication of water rights then pending before the
state court.

After the Court ruled against the Tribe’s contention that
the Navajo River is not legally part of the San Juan River

Po te

12a

system subject to adjudication in New Mexico, the follow-
ing colloquy occurred:

MR. SIMMS (for State): I know in the pleadings
they [Tribe] said it [the Navajo River] is a separate
river [from the San Juan River in New Mexico], but
counsel just got up and said it has been litigated as
to the rights on that river in the state suit.

THE COURT: What is your position on that?

MR. TAYLOR (for Tribe): Our position, Your Hon-
or, is that the Navajo River--it lies in Colorado, goes
through the San Juan River. It is physically a tribu-
tary of the San Juan. Our contention is that it is
legally not because...

THE COURT: Well, I am going to rule against you.
It is part of the stream system. I don’t think there
can be any question of it being part of the San Juan
River stream system...

MR. SIMMS: The fact that it is a part of the stream
system goes to the importance of the exclusive juris-
diction (for general adjudication of water rights) of
one court. Referring to the map, the river comes down
from Colorado in here, hits the San Juan River, and
goes right back into Colorado here. There are all kinds
of water rights here, some federally owned and some
privately owned and no rights in Colorado on the Col-
orado portion of the Navajo River.

THE COURT: I will tell you what worried me a
little bit was whether they are trying to stop the
United States from that trans-mountain water diver-
sion over into the Chama River.

MR. SIMMS: It is the other half of the Jicarilla
suit.

13a

THE COURT: Isn't there a suit pending that raises
the question? [1]

MR. SIMMS: There is a suit pending in the district
court of Colorado which raises similar questions, and
the Jicarillas have participated in that litigation also
but, to go on here...

* * *

THE COURT, Let me ask you another question.
Should I in this suit determine the trans-mountain
diversion question without relation to the water rights
that are being adjudicated on the San Juan?

MR. SIMMS: \ think counsel for the Jicarillas could
best answer that question.

Our only interest is that this Court lacks jurisdic-
tion insofar as the adjudication of rights, which is
being done in state court.

As to the other part of the Jicarilla cause, we have
no interest and the state is not suggesting a want of
jurisdiction insofar as that portion of their cause is
concerned. (Emphasis supplied.)

* * *

... as to the statement that the State of New Mex-
ico has no authority except as administrator for water
diverted by non-federal entities, once adjudication is
completed in the San Juan court ... the court would

'!On March 17, 1975, Tribe filed a Motion to Intervene in a
suit filed in the United States District Court for the District of
Colorado entitled Schutz v. Stamm, No. 74-M-318, seeking ad-
judication of its rights to the use of the waters of the Navajo
River and its tributaries and injunctive relief against the Secre-
tary of the Interior as a result of diversion of water under the
San Juan-Chama Project. That motion was granted but only
insofar as it related to the injunctive relief sought against the
Secretary of the Interior.

l4a

appoint the state engineer to administer those waters
if need be. Jf the court did appoint a water master,
the water master would have to administer that river
in accord with the priorities of all of the federally
owned rights and all of the [other] rights of the people
on the San Juan and on the Navajo. (Emphasis sup-
plied.)

* * *

MR. SIMMS: . .. All claimants to the rights to use
of the waters of the San Juan River stream system
must of necessity be before the [one] court. The United
States is the actual claimant on behalf of all three
Tribes.

* * *

MR. NORDHAUS (for Tribe): Our contention is
that most of the waters that are stored and impound-
ed in Navajo Lake at the Federal Reclamation Project
are not subject to the jurisdiction of the state; that
before this stream comes back into New Mexico, it
actually becomes part of a major federal project over
which the state engineer does not have jurisdiction
[over the federal user].

[R., Vol. II, pp. 12-19.]

Tribe’s prayer for injunctive relief thus related to di-
versions of water through the San Juan—Chama [Recla-
mation] Project by the Secretary of the Interior in alleged
violation of the provisions of the Upper Colorado River
Compact, the Reclamation Development Act of 1974 and
the San Juan—Chama Project Act. [R., Vol. I, p. 14.] This
portion of the Tribe’s complaint, as we have previously
noted, was the primary “vehicle’’ employed in a ‘‘boot-
strapping” sense to convince the Court that it had pendent
jurisdiction to entertain the Tribe’s complaint by virtue of
28 U.S.C. $1362, supra.

15a

Based on $1362, supra, the Tribe urged that assuming
arguendo the San Juan District Court had jurisdiction, the
federal district court should still exercise its pendent jur-
isdiction discretion in order to “... prevent multiple liti-
gation and its attendant cost to the Jicarilla and Apache
Tribes.” [R., Vol. II, p. 28.]

The Dismissal Order

The District Court’s order dismissing Tribe’s Complaint
predicated on the State’s Suggestion for Want of Jurisdic-
tion followed extensive pleadings, briefing and oral argu-
ments. The Court found and concluded, inter alia, that: an
action was pending in the New Mexico State District Court
for the County of San Juan at the time Tribe filed the
instant action; the state action, entitled State of New Mex-
ico, ex rel. S.E. Reynolds, State Engineer v. United States
of America, et al., No. 75-184, is a case brought by the
State for the purpose of a general adjudication of rights to
the use of the water in New Mexico from the San Juan
River and its tributaries, including the Navajo River; the
United States of America was joined as a defendant in the
state adjudication proceeding under the authority of the
so-called McCarran Amendment, 43 U.S.C. §666, both in
its own behalf and on behalf of the Navajo, Ute Mountain
Ute, and Jicarilla Apache Tribes of Indians; the state dis-
trict court has exclusive jurisdiction to proceed to deter-
mine all rights to the use of the water in New Mexico from
the San Juan stream system, including the claims of the
United States on behalf of the Tribe to the waters of the
Navajo River; Section 75-4-6, N.M.S.A. (1953 Comp.) pro-
vides that ‘(T]he Court in which any suit involving the
adjudication of water rights may be properly brought shall
have exclusive jurisdiction to hear and determine all ques-
tions necessary for the adjudication of all water rights
within the stream system involved ...”’ which Provision
is binding on the United States as a defendant iw the state
action by virtue of 43 U.S.C. §666, which provides in part
that “|t]he United States, when a party to any such

16a

[stream adjudication] shall (1) be deemed to have waived
any right to plead that the State laws are inapplicable or
that the United States is not amenable thereto’; in light
of Colorado River Water Conservation District, et al. v.
United States, supra, the effect of N.M.S.A. §75-4-6, is
made applicable to the United States by 43 U.S.C. §666,
precluding the Federal District Court from the contempor-
aneous exercise of its concurrent jurisdiction.

Issues on Appeal

On appeal, Tribe contends that the District Court erred
in dismissing its Complaint in that: (1) the Federal District
Court for the District of New Mexico has exclusive juris-
diction to adjudicate the water rights of the Tribe inas-
much as (a) the New Mexico Enabling Act and
Constitutional Disclaimer precludes state court jurisdic-
tion, and (b) the McCarran Amendment does not repeal
the Disclaimer provision, (2) the Federal District Court has
exclusive jurisdiction of the Tribe’s claim against the Sec-
retary of the Interior for wrongful diversion of water
through the San Juan—Chama Project, and (3) the Federal
District Court has pendent jurisdiction (which it may de-
cline to exercise) to adjudicate the claims of the Tribe to
the Navajo River, as a stream system separate from the
San Juan River Stream System. Further, Tribe argues that
the order is final and appealable.

The United States also appeals, contending that (1) the
state court lacks jurisdiction to adjudicate the water rights
of Indian tribes in New Mexico in light of the Disclaimer
language contained in the New Mexico Enabling Act and
the State Constitution, which have not been repealed, (2)
the Federal District Court is not bound by state statutes
giving state trial courts exclusive jurisdiction, and (3) this
court has appellate jurisdiction.

The State of New Mexico, ex rel. S.E. Reynolds, State
Engineer, has filed an amicus brief. It also presented oral

17a

argument on appeal. It is the contention of the State that:
(1) The District Court for the County of San Juan, New
Mexico, is vested with exclusive jurisdiction to adjudicate
the rights to the use of the waters of the San Juan River
stream system in that, (a) the Federal District Court lacks
jurisdiction either on the basis of the exclusive jurisdiction
rule or discretionary considerations of wise judicial admin-
istration, (b) the Disclaimer provisions of the New Mexico
Constitution are irrelevant to the adjudicatory jurisdiction
of the San Juan County District Court, and (c) there are
no provisions in the New Mexico Enabling Act or the
Executive documents establishing the Jicarilla Reserva-
tion which make the Reservation an exclusive federal en-
clave; (2) the Jicarillas cannot be heard to complain of the
District Court’s dismissal of their claim against the Sec-
retary of the Interior inasmuch as that claim was dis-
missed at the urging of the Jicarillas: (3) the determination
of the water rights of the United States on behalf of the
Jicarilla Apache Tribe cannot be bootstrapped out of the
San Juan adjudication in the guise of an injunction action
against the Secretary of the Interior; and (4) the District
Court’s order dismissing the Jicarilla action should have
been reviewed by writ of mandamus rather than by appeal.

I.

Tribe argues, and we agree, that the practical effect of
the District Court’s dismissak order is the termination of
the entire case in Federal District Court. There was noth-
ing tentative, informal or incomplete about the order.
In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949), the Court stated that the finality requirement
should be given a “practical rather than a technical con-
struction.’’ Here, the order of dismissal disposed of the
whole case, including the Tribe’s contention that because
of federal law the state court was without jurisdiction to
adjudicate the water rights of the Tribe.

18a

Furthermore, the record establishes that this isssue is
capable of repetition--evidence the previous jurisdictional
disputes and attendant orders involving ‘he proper forum.
We believe that the order falls ‘‘four square’’ within the
so-called collateral order doctrine of Cohen and Swift and
Company Packers v. Compania Colombiana Del Caribe,
S.A., 339 U S. 684 (1950) which identify these three char-
acteristics of an order as meeting the “finality” require-
ment: (1) the order must be final in terms of determination
of the claim of right separable from the rights asserted in
the action (complaint), (2) the issue or issues determined
by the order must be too important to be denied review in
that present and serious questions of unsettled law are
involved, and (3) the primary issue of jurisdiction is of
such general importance beyond the immediate concern of
the litigants that it requires settled determination. The
“finality’’ requirement was given a broadened base for
appellate review purposes in Gillespie v. United States
Steel Corp., 379 U.S. 148 (1964), where the court re-af-
firmed the Cohen test of ‘‘practical rather than a technical
construction” and went one step further. It determined
that courts of appeal have the power to answer questions
(and decide issues) fundamental to the further conduct of
the case in those instances of ‘‘marginal’’ finality. The
Cohen rule was again re-affirmed in Eisen v. Carlisle &
Jacquelin, 417 U.S. 156 (1974). See also: Sherman v. Amer-
ican Fedejation of Musicians, 588 F.2d 1313 (10th Cir.
1978); Seiffer v. Topsy’s International, Inc., 520 F.2d 795
(10th Cir. 1975), cert. denied, 423 U.S. 1051 (1976).

In accepting Tribe’s contention that the practical effect
of the order is termination of the entire case in federal
court, we reject the State’s contrary contention. State con-
tends that because both the Tribe and the United States
are in agreement on the issues on appeal (just as they were
aligned in the District Court), there is, in truth, no contro-
versy between the parties and thus no real, substantial

19a

“case or controversy"’ between those who appear as ad-
verse parties to the suit. The State, accordingly, refers to
the alignment as one of “tactical convenience’”’ and a “‘con-
trived appeal in which there is no adversity’ and the at-
tendant absence of a justiciable controversy on appeal.
[Supplemental Memoranda of Amicus Curiae, p.6.] Predi-
cated thereon, State contends that the Tribe’s sole review
of the order of dismissal was by mandamus pursuant to
Rule 21 of the Rules of Appellate Procedure. [Supplemen-
tal Memorandum of Amicus Curiae, p. 4.] This argument
fails, in our view, simply because the Tribe’s complaint
satisfies the threshold requirement of Art. III of the Con-
stitution that one who seeks to invoke the power of the
federal courts must allege an actual case or controversy.
Tribe contends, inter alia, that under federal law and a
specific statute (28 U.S.C. §1362), the Federal District
Court has original and exclusive jurisdiction relative to the
general water rights adjudication. The Supreme Court has
held that when Congress enacts statutes creating legal
rights, the invasion thereof creates standing even though
no injury would exist without the statute. Linda R.S. v.
Richard D., 410 U.S. 614 (1973); Trafficante v. Metropoli-
tan Life Ins. Co., 409 U.S. 205 (1972). The Tribe argues
that inasmuch as it is not a named party to the State
District Court (San Juan County) proceeding and because
the United States as a named defendant is the only party
who can protect the Tribe’s water rights in the state pro-
ceeding, the Tribe is threatened with real and immediate
injury in fact because the “... United States [is] in the
position of making claims against itself; an obvious
conflict of interest.” [R., Vol. I, P. 36.] We conclude that
the threatened injury, as alleged and argued, is not ab-
stract but is real rather than conjectural or hypothetical.
Golden v. Zwickler, 394 U.S. 103 (1969); United Public
Workers v. Mitchell, 330 U.S. 75 (1947).

a wa eS ee ie a ee eee ee ee ee ee ee

20a

Further, we believe that the jurisdictional dispute is ripe
for repetitiveness in the context of water rights adjudica-
tions in the states of this Circuit alone. Accordingly, it
cannot be said that the jurisdictional claim raised is ‘‘so
insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not
to involve a federal controversy.”’ Oneida Indian Nation v.
County of Oneida, 414 U.S. 661, 666 (1974). See also: Duke
Power Co. v. Carolina Environmental Study Group, Inc.,
438 U.S. 59 (1978); Hagans v. Lavine, 415 U.S. 528 (1974).
In Bell v. Hood, 327 U.S. 678, 684 (1946) the Court stated
that ‘‘... where federally protected rights have been in-
vaded ... courts will be alert to adjust their remedies su
as to grant the necessary relief.”

Holding, as we do, that this Court is vested with appel-
late jurisdiction we turn now to a discussion and disposi-
tion of the basic substantive issues raised.

II.

Tribe and the United States contend that the District
Court erred in dismissing Tribe’s complaint and action for
want of subject matter jurisdiction because, (a) the Federal
District Court for the District of New Mexico has exclusive
jurisdiction to adjudicate the water rights of the Tribe
inasmuch as the Disclaimer [of jurisdiction by the State]
in both the New Mexico Enabling Act and the New Mexico
Constitution precludes state court jurisdiction, and (b) the
McCarran Amendment does not grant the State of New
Mexico subject-matter jurisdiction and it does not repeal
the Disclaimer provision.

Preliminary to our discussion and disposition of the
aforesaid contentions, we deem it necessary to analyze
some of the fundamental law relating to the unique rela-
tionship between the United States government and the
Indian tribes.

2la

Since the year 1871, Indian tribes have been subject to
the power and authority of the laws of the United States
by means of the exercise of its legislative power over them.
Prior thereto the various tribes were recognized by the
United States as possessing the attributes of separate na-
tions to the extent that treaties were entered into with
them. Thus, since 1871 the Congress has regulated Indian
affairs and the United States governn.ent serves as guard-
ian of the Indian tribes, nations, or bands. Cherokee Nation
v. Hitchcock, 187 U.S. 294 (1902). It has been said that, in
a general way, the relationship now between the United
States government and the Indian tribes is that of superior
and inferior, in that the government has assumed, in large
measure, the care and control of Indians and Indian Tribes.
Montoya v. United States, 180 U.S. 261 (1901). The para-
dox, so to speak, is that even though Indian tribes have
been held to have a [sovereign] status higher than the
states they are nonetheless limited in sovereign power to
the extent required of them by the superior sovereign, the
United States. Native American Church v. Navajo Tribal
Council, 272 F.2d 131 (10th Cir. 1959).

Congress possesses paramount power over the property
of the Indians by reason of its exercise of guardianship
over their interests. Thus, plenary authority over the tribal
relations of Indians has been exercised by Congress from
the beginning, and the power has always been deemed a
political one not subject to the control of the judicial
branch of government. Lone Wolf v. Hitchcock, 187 U.S.
553 (1903). The propriety or justification of action by the
Federal Government, legislatively mandated, relative to
Indian lands and properties is a political rather than a
judicial question and that power is plenary. Oneida Indian
Nation v. County of Oneida, supra; United States v. Santa
Fe Pacific Railroad Co., 314 U.S. 339 (1941).

It is within the power of the Congress to provide that
the laws of a state shall extend over and apply to Indian

22a

country and activities thereon, where they clearly do not
interfere with federal policies concerning the lands. Warren
Trading Post Co. v. Arizona Tax Commission, 380 U.S.
685 (1965); Organized Village of Kake v. Egan, 369 U.S.
60 (1962). The reach of the protective guardian arm of the
United States Government is such that in light of the
vulnerability of the Indian tribes and because of the special
duties assumed by the United States in their protection,
special benefits and preferences accorded Indians are not
violative of the Equal Protection principle. Morton v. Man-
cari, 417 U.S. 535 (1974). Mancari, supra, and Bryan v.
Itasca County, 426 U.S. 373 (1976), stand for the propo-
sition that statutes enacted for the benefit of the depend-
ent Indian tribes are to be liberally construed and doubtful
expressions resolved in favor of the Indians.

In McClanahan v. Arizona State Tax Comm'n, 411 U.S.
164, 172 (1973) the Court observed that modern cases tend
to “... avoid reliance on platonic notions of Indian sov-
ereignty and to look instead to the applicable treaties and
statutes which define the limits of state power” in order
to ascertain whether state action, absent a specific Act of
Congress, infringes upon the rights of the Indians to make
their own laws and to be governed by them.

We turn now specifically to the important jurisdictional
issue involving the general water rights adjudication. Sig-
nificant, we believe, is that the general water rights of the
San Juan River and its tributaries in the State of New
Mexico sought to be adjudicated include those which are
federally owned and established. Federal law governs in
determining the extent and status of such rights. See:
United States v. New Mexico, __. U.S. ___, 98 S. Ct.
3012, 46 U.S.L.W. 5010 (July 3, 1978), where the Court
said:

Recognition of Congress’ power to reserve water for
land which is itself set apart from the public domain,
[appurtenant lands withdrawn from the public domain

23a

for specific federal purpose as identified in Winters v.
United States, 207 U.S. 564 (1908); Arizona v. Cali-
fornia, 373 U.S. 546 (1963); Cappaert v. United States,
426 U.S. 128 (1976) ] however, does not answer the
question of the amount of water which has been re-
served or the purposes for which the water may be
used. Substantial portions of the public domain have
been withdrawn and reserved by the United States
for use as Indian reservations, forest reserves, nation-
al parks, and national monuments. (Emphasis sup-

plied.)
[Slip Opinion, pp. 2, 3.]

This Court has recognized that the federally reserved
water rights are subject to the management and control
of the United States but that any “... collision between
private rights and federal rights does not affect the valid-
ity of the right of the State to maintain the suit [for water
adjudication]. ... See also: Colorado River Water Conser-
vancy [sic.] District v. United States, __.._. U.S. ___ , 96
S.Ct. 1233 ... (1976).’’ State of New Mexico v. Aamodt,
537 F.2d 1102, 1108 (10th Cir. 1976), cert. denied, 429 U.S.
1121 (1977). We there further observed:

... The obligation of the United States to fulfill its
fiduciary duties to the Pueblos does not diminish the
rights of the Pueblos to sue on their own behalf. See
Poafpybitty v. Skelly Oil Co., 390 U.S. 365 ... and
cases there cited. The instant case is not like Pueblo
of Picuris v. Abeyta, 10th Cir., 50 F.2d 12 where the
private counsel for a pueblo and counsel for the United
States took contrary positions on the appeal of a case
and the court held that the Attorney General of the
United States, not the private counsel, controlled the
course of the litigation. Jbid at 14.

537 F.2d at p. 1107.

!

24a

The above recitals, we believe, provide authoritative cre-
dence to the contention that the United States is the prop-
er party defendant in any general water rights
adjudication proceeding, whether brought in federal court
or state court, relating to federally created water rights,
including those reserved for use by Indian tribes. This
does not mean that Indian tribes using the federally re-
served waters are not granted the right of intervention in
any such adjudication, to be represented by private coun-
sel independent of any possible conflict of interest. See:
State of New Mexico v. Aamodt, supra, at p. 1107. We
noted there that the Commissioner of Indian Affairs prop-
erly and fairly exercised his discretion pursuant to 25
U.S.C. §2 in authorizing that ‘‘private counsel independent
of any conflict of interest should be furnished to represent
the Indian interests.”’ We further stated that the interven-
tion on behalf of the Pueblos was one of right under Rule
24(a), F.R. Civ. P., 28 U.S.C.

A recent pronouncement by the United States Supreme
Court in the area of federal-state court jurisdiction for
general adjudication of water rights occurred in the case
of United States v. State of New Mexico, supra, (July 3,
1978). That litigation was generated when the State of
New Mexico filed a complaint-in-intervention in what was
initially a private action in a New Mexico State District
Court seeking the general adjudication of water rights for
the Rio Mimbres and its tributaries. The United States
was joined as a party defendant pursuant to the McCarran
Amendment, 43 U.S.C. §666(a). In footnote 1, the Supreme
Court recognized the state court’s jurisdictional authority
as applicable to the adjudication of all rights to the use of
water of a river system or other source including “*.. . the
reserved rights of the United States. See: United States
v. District Court for Eagle County, 401 U.S. 520 (1971);
United States v. District Court for Water Div. No. 5, 401
U.S. 527 (1971).”” (Emphasis supplied.)

25a

In United States v. State of New Mexico, supra, the
State District Court found that the United States, in set-
ting the Gila National Forest aside from other public lands,
reserved the use of such water “‘... as may be necessary
for the purposes for which [the land was] withdrawn”’ but
that such purpose[s] did not include recreation, aesthetics,
wildlife preservation or cattle grazing. The United States
was unsuccessful in its appeal to the Supreme Court of
New Mexico. The United States Supreme Court granted
certiorari ‘‘... to consider whether the Supreme Court of
New Mexico had applied the correct principles of federal
law in determining petitioner’s [the United States’] re-
served rights in the Mimbres.”’ (Emphasis supplied.) We
conclude that a careful reading of that opinion can only
lead one to conclude that the Supreme Court recognized
the jurisdiction of the state courts by virtue of the Mc-
Carran Amendment to undertake general water rights ad-
judication of a river system or other source applicable to
all federally reserved water rights, including those waters
reserved for the use of Indian tribes. In so concluding, we
observe that the only prior impediment to the joinder of
the United States as a party defendant in a state court
general water right adjudication proceeding was its sov-
ereign immunity, waived by the consent granted under the
McCarran Amendment. Sovereign immunity was the sole
and only legal impediment, our research indicates, to join-
der of the United States is a party defendant in state court
proceedings relating to federally reserved water rights,
including those waters reserved for use by Indian tribes.

In the latter sense, i.e., the reservation of water by the
United States for use by the Indian tribes, we are confront-
ed, for the first time, with the contention that because of
New Mexico’s Disclaimer, a special exception, in effect,
must be “carved out’’ from the McCarran Amendment
consent. We now address that argument.

Ee ee eh ee

26a

III.

Section 2 of New Mexico’s Enabling Act, 36 Stat. 557,
558-559 (June 20, 1910), provides in applicable part:

That the people inhabiting said proposed State do
agree and declare that they forever disclaim all right
and title to the unappropriated and ungranted public
lands lying within the boundaries thereof, and to all
lands lying within said boundaries owned or held by
any Indian or Indian tribes the right or title to which
shall have been acquired through or from the United
States or any prior sovereignty, and that until the
title of such Indian or Indian tribes shall have been
extinguished the same shall be and remain subject to
the disposition and under the absolute jurisdiction
and control of the Congress of the United States; ...

This section of the Act further states that the convenant
is “irrevocable without the consent of the United States
and the people of said State.”

Article X XI of the Constitution of New Mexico provides
in pertinent part:

PREAMBLE

In compliance with the requirements of the Act of
Congress, entitled, ‘‘An act to enable the people of
New Mexico to form a Constitution and state govern-
ment and be admitted into the Union on an equal
footing with the original states; and to enable the
people of Arizona to form a Constitution and state
government and be admitted into the Union on an
equal footing with the original states,’’ approved June
twentieth, nineteen hundred and ten, it is hereby pro-
vided:. . ..

Sec. 2.

27a

The people inhabiting this state do agree and de-
clare that they forever disclaim all right and title to
the unappropriated and ungranted public lands lying
within the boundaries thereof, and to all lands lying
within said boundaries owned or held by any Indian
or Indian tribes, the right or title to which shall have
been acquired through the United States, or any prior
sovereignty; and that until the title of such Indian or
Indian tribes shall have been extinguished the same
[lands] shall be and remain subject to the disposition
and under the absolute jurisdiction and control of the

By 1910, the date of the enactment of New Mexico's
Enabling Act, both the Congress and the United States
Supreme Court had established a procedure whereby In-
dian reservations might be created as exclusive federal
enclaves within states and territories, similar to military
reservations created under the Arsenals and Dockyards
Clause (U.S. Const. Art. I, §8, C1. 17). This procedure was
followed exclusively only with respect to the Kansas In-
dians. A different procedure was followed with respect to
the grant of New Mexico's statehood. In any event, today
there is no exclusive federal jurisdictional Indian Reser-
vation in the United States.

Public Law 280, was originally enacted by Congress as
the Act of August 15, 1953, ch. 505, §$§1-7, 67 Stat. 588,
P.L. 83-280, and is partially codified at 18 U.S.C. $1162
and 28 U.S.C. §1360, as amended. The Act authorized the
states to assume civil and criminal jurisdiction over Indi-
ans residing on Indian reservations. Sections 6 and 7 pro-
vide:

Sec. 6. Notwithstanding the provisions of any En-
abling Act for the admission of a State, the consent
of the United States is hereby given to the people of
any State to amend, where necessary, their State con-
stitution or existing statutes, as the case may be, to

~ ee ee

ald Toe eee

ll fem the ted tes ~~ te, il ee tcl
2 = os eines 7

28a

remove any legal impediment to the assumption of
civil and criminal jurisdiction in accordance with the
provisions of this Act: Provided, That the provisions
of this Act shall not become effective with respect to
such assumption of jurisdiction by any such State
until the people thereof have appropriately amended
their State constitution or statutes as the case may
be.

Sec. 7. The consent of the United States is hereby
given to any other State not having jurisdiction with
respect to criminal offenses or civil causes of action,
or with respect to both, as provided for in this Act, to
assume jurisdiction at such time and in such manner
as the people of the State shall, by affirmative legis-
lative action, obligate and bind the State to assump-
tion thereof.

This Act became law some thirteen months after the
McCarran Amendment was enacted. The McCarran
Amendment, we reiterate, grants the consent of the United
States to be joined as a party defendant in any state court
proceeding for the adjudication of rights to the use of
water of a river system or other source. The pertinent
portion of the McCarran Amendment here involved is 43
U.S.C. §666(a), to-wit:

(a) Consent is given to join the United States as a
defendant in any suit (1) for the adjudication of rights
to the use of water of a water system or other source.
... The United States, when a party to any such suit,
shall (1) be deemed to have waived any right to plead
that the state laws are inapplicable or that the United
States is not amenable thereto by reason of its sov-
ereignty, and (2) shall be subject to the judgments,
orders, and decrees of the court having jurisdiction,
and may obtain review thereof, in the same manner
and to the same extent as a private individual under
like circumstances. .. .

29a

The ‘“‘Disclaimer’’ terminology of the various Enabling
Acts, constitutions and statutes varies. The Colorado “dis-
claimer”’ contained in its Enabling Act exempts “Indians
not taxed’”’ from the proviso that the Constitution of the
state ‘‘shall be republican in form, and make no distinction
in civil or political rights on account of race or color.”
Enabling Act, Art. 4, Vol. I, C.R.S. 1973. Congress did not
distinguish between ‘‘Disclaimers’’ based on the language
of each in the 1953 Act. Our limited research indicates
that in 1953 there was “‘disclaimer’”’ language of various
kinds in the state constitutions of Arizona, Montana, New
Mexico, North Dakota, Oklahoma, South Dakota, Utah,
Washington and Wyoming. Some eleven states, including
Colorado and Kansas, enacted ‘‘disclaimer’’ statutes. None
of the western states assumed full jurisdiction pursuant to
the 1953 Act. In fact, six states assumed only partial
jurisdiction. Colorado, Kansas, New Mexico, Oklahoma
and Wyoming did not assume any effective jurisdiction.
Such failure, argues the Tribe, is fatal, citing to Kennerly
v. District Court, 400 U.S. 423 (1971) for the rule that the
procedures specified in Pub. L. 280 are exclusive (i.e.,
amendment of state constitutions or statutes) to the as-
sumption [by the states] of civil and criminal jurisdiction.
Furthermore, Tribe contends that the McCarran Amend-
ment neither repeals the disclaimer provisions of the var-
ious states nor grants the consent of the United States
otherwise. Thus, the Tribe argues that because the Mc-
Carran Amendment does not mention the disclaimer pro-
visions or Indians, it did not amend, modify or repeal New
Mexico’s disclaimer. Reliance is placed on language con-
tained in the case of Your Food Stores, Inc. (NSL) v. Vil-
lage of Espanola, 68 N.M. 327, 361 P.2d 950 (N.M. 1961),
cert. denied, 368 U.S. 915 (1961), for the point that the
State can only exercise jurisdiction over Indians if the
federal government has specifically granted it. This point,
while correct, in our view is inapposite.

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30a

We hold that the United States is +he proper party
defendant--and was clearly so intended to be by the Con-
gress in the enactment of the McCarran Amendment--to
represent, as guardian, the federally reserved water rights
of the Indian tribes in any state court general water rights
adjudication proceeding to which the United States is
properly named and served as a party defendant. The leg-
islative history? of the McCarran Amendment giving con-
sent to join the United States manifests the Congressional
intent to accomplish in one forum the general settlement
of water rights of many users of a river system or other
source. It is, of course, only by reason of the McCarran
Amendment, as interpreted by the United States Supreme
Court, that the United States may be so named as a party

2 “Tn 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 of [sic.] action affecting one right affects all
such rights. Accordingly, all water users on a stream, in practi-
cally 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 ma-
terially 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.”

S. Rep. No. 755 at 4-5, 82d Cong., 1st Sess. (1951).

This identical language was relied upon by the Supreme Court
in Colorado River Water Cons. Dist. v. United States, supra, for
the statement: “‘Not only the [McCarran] Amendment's lan-
guage, but also its underlying policy, dictates a construction
including Indian [water] rights in its provisions. ... Thus, bear-
ing in mind the nature of Indian water rights in the Southwest,
it is clear that a construction of the Amendment excluding those
rights from its coverage would enervate the Amendment's ob-
jective.”’ 17 (Footnote omitted.)

424 U.S. at pp. 810, 811.

3la

defendant in the state court even though the suit arises
under a state statute and the federally reserved rights
involve an interpretation and application of federal law.
The rationale for the principle was succinctly stated by the
Supreme Court in Will, U.S. District Judge v. Calvert Fire
Insurance Co., 437 U.S. 655 (1978):

It is well established that “the pendency of an ac-
tion in the state court is no bar to proceedings con-
cerning the same matter in the Federal court having
jurisdiction.’’ McClellan v. Carland, 217 U.S. 268, 282
(1910). It is equally well settled that a district court
is ‘under no compulsion to exercise that jurisdiction,”
Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942),
where the controversy may be settled more expedi-
tiously in the state court. Although most of our de-
cisions discussing the propriety of stays or dismissals
of duplicative actions have concerned conflicts of ju-
risdiction between two federal district courts, e.g.,
Kerotest Mfg. Co., v. C-O-Two Fire Equipment Co.,
342 U.S. 180 (1952); Landis v. North American Co.,
299 U.S. 248 (1936), we have recognized the relevance
of those cases in the analogous circumstances pre-
sented here. See Colorado River, 424 U.S., at 817-819.
In both situations, the decision is largely committed
to the “‘carefully considered judgment,”’ Jd., at 818,
of the District Court. °

This power has not always been so clear. In Mc-
Clellan, on facts similar to those presented here, this
Court indicated that the writ might properly issue
where the District Court had stayed its proceedings
in deference to concurrent state proceedings. Such an
automatic exercise of authority may well have been
appropriate in a day when Congress had authorized
fewer claims for relief in the federal courts, so that
duplicative litigation and the concomitant tension be-
tween state and federal courts could rarely result.

32a

However, as the overlap between state claims and
federal claims increased, this Curt soon recognized
that situations would often arise when it would be
appropriate to defer to the state courts.

“Ordinarily it would be uneconomical as well as
vexatious for a federal court to proceed in a declar-
atory judgment suit where another suit is pending
in a state court presenting the same issues, not
governed by federal law, between the same parties.
Gratuitous interference with the orderly and com-
prehensive disposition of a state court litigation
should be avoided.” Brillhart, supra, at 495.

The decision in such circumstances is largely commit-
ted to the discretivn of the District Court. 316 U.S. at
494. Furthermore, Colorado River, supra, at 820, es-
tablished that such deference may be equally appro-
priate even when matters of substantive federal law
are involved in the case. (Footnote omitted.)

437 U.S., at 662-664.

In Cappaert v. United States, 426 U.S. 128, 145 (1976)
the Supreme Court stated: ‘‘Federal water rights are not
dependent upon state law or state procedures and they
need not be adjudicated only in state courts; federal courts
have jurisdiction under 28 U.S.C. $1345 to adjudicate the
water rights claims of the United States. Colorado River
Water Cons. Dist. v. United States, 424 U.S., at 807, 809.
The McCarran Amendment, 66 Stat. 560, 43 U.S.C. §666,
did not repeal $1345 jurisdiction as applied to water
rights.”’

In our view, there exists no conflict between the state
court assumption of jurisdiction governing general water
rights adjudication, including that of federally reserved
water rights, involving the joinder of the United States as
proper party defendant to represent the interests of the
federally reserved water rights, and the Disclaimer provi-

33a

sions. The basic, fundamental reason is that the United
States is the proper party to protect all federally reserved
water rights, including those set aside for use by the In
dian tribes. ;

Moreover, in view of the McCarran Amendment and the
strong policy behind it outlined in the Colorado River opin-
ion of the Supreme Court, we feel that subject matter
jurisdiction should be recognized as allowable in the state
courts of the general water rights adjudication proceeding,
there being implicit modification of the Enabling Act to
that extent, as necessary. And the state statute, §74-4-6,
N.M.S.A. (1953) affords an adequate state court jurisdic-
tional basis, without any exception as to Indian reserva-
tions, for disposition of this water adjudication proceeding.
See: State ex rel Reynolds v. Lewis, 545 P.2d 1014 (N.M.
1976).

It follows that the waiver of sovereign immunity accom-
plished pursuant to the McCarran Amendment supports
the state’s claim here. Cappaert v. United States, supra;
Colorado River Water Conservation District v. United
States, supra. It is significant to note that in United States
v. District Court in and for Eagle County, Colorado, supra,
the United States moved to dismiss an action brought for
general water rights adjudication in a Colorado state court
based upon the contention that the McCarran Amendment
did not constitute the consent of the United States to
submit to a state court adjudication of the reserved water
rights of the United States inasmuch as the federally re-
served water rights may potentially be at war with water
rights based on the state’s appropriation system. The Su-
preme Court rejected the argument advanced by the
United States that the McCarran Amendment granted
consent to join the United States as a party defendant in
a state court adjudication proceeding only if the water
rights of the United States were acquired pursuant to state
law. The Court emphatically held that the state court was
dealing with an all-inclusive statute concerning ‘the ad-

34a

judication of rights to the use of water of a river system”’
which includes appropriative rights which the court found
to specifically include those waters reserved by the United
States for the use and benefit of Indian reservations. The
court cited Arizona v. California, 373 U.S. 546 (1963).

We believe tk at the following language in Colorado Riv-
er Water Conservation District v. United States, supra, is
clear on the effect of the McCarran Amendment to re-
served rights held by the United States on behalf of In-
dians:

... This is a question not previously squarely ad-
dressed by this Court, and given the claims for Indian
water rights in this case, dismissal clearly would have
been inappropriate if the state court had no jurisdic-
tion to decide those claims. We conclude that the state
court had jurisdiction over Indian water rights under
the amendment.

United States v. District Court for Eagle County,
401 U.S. 520 (1971) and United States v. District
Court for Water Div. 5, 401 U.S. 527 (1971) held that
the provisions of the McCarran Amendment whereby
“consent is ... given to join the United States as a
defendant in any suit (1) for the adjudication ... or
(2) for the administration of [water] rights, where it
appears that the United States is the owner ... by
appropriation under state law, by purchase, by ex-
change, or otherwise ...,’’ subject federal reserved
rights to general adjudication in state court proceed-
ings for the determination of water rights. ...
Though Eagle County and Water Div. 5 did not in-
volve reserved rights on Indian reservations, viewing
the Government’s trusteeship of Indian rights as own-
ership, the logic of those cases clearly extends to such
rights. Indeed, Eagle County spoke of non-Indian
rights and Indian rights without any suggestion that
there was a distinction between them for purposes of
the Amendment. 401 U.S., at 523.

35a

Not only the Amendment’s language, but also its
underlying policy, dictates a construction including
Indian rights in its provisions.

424 U.S. at pp. 809, 810.

Footnote 20 in Colorado River Water Conservation Dis-
trict, supra, is, in our view, of special application here:

To be sure, 25 U.S.C. §1322(b) and 28 U.S.C.
$1360(b) provide that nothing in those sections “shall
confer jurisdiction upon the State to adjudicate, in
probate proceedings or otherwise, the ownership or
right of possession of [any real or personal property,
including water rights, belonging to any Indian or
any Indian Tribe. . . that is held in trust by the United
States].’’ This provision in both sections, however,
only qualifies the import of the general consent to
state jurisdiction given by those sections. /t does not
purport to limit the special consent to jurisdiction
given by the McCarran Amendment. A contrary con-
clusion is foreclosed by the principle of construction
that ‘‘[wJhere there is no clear intention otherwise, a
specific statute will not be controlled or nullified by a
general one, regardless of the priority of enactment.”
Morton v. Mancari, 417 U.S. 535, 550-557 (1974). (Em-
phasis supplied.)

424 U.S. at pp. 812, 813.

When the Congress was dealing with the McCarran
Amendment, it was deemed to be fully cognizant of the
provisions of 25 U.S.C. §1322(b) and 28 U.S.C. $1360(b).
There is authority indicating that the Congress specifically
rejected an exemption of reserved Indian water rights from
the McCarran Amendment. The Court, in Colorado ‘River
Water Conservation District, supra, specially observed
that when the Senate Judiciary Committee rejected a De-
partment of Interior recommendation that Indian water
rights be exempted from the Act that this amounted to a
rejection of the proposition that special treatment should

36a

be accorded federally reserved water rights for Indian
users. 424 U.S. at p. 812. Furthermore, where there is no
clear intention otherwise, a specific statute will not be
controlled or nullified by a general one. Colorado River
Water Conservation District v. United States, supra;
Preiser v. Rodriguez, 411 U.S. 475 (1973); Glover Construc-
tion Co. v. Andrus, 591 F.2d 554 (10th Cir. 1979); Suther-
land, Statutory Construction, 4th Ed., Vol. 2A, $51.05.

IV.

State contends that a further basis supporting the Dis-
trict Court’s dismissal for want of jurisdiction is the prin-
ciple that the State’s disclaimer of all right and title to
Indian lands applies only to a proprietary interest in such
lands. This argument was adopted by the Supreme Court
of New Mexico in the case of State ex Rel. Reynolds v.
Lewis, 545 P.2d 1014 (1976), in reliance on Kake Village v.
Egan, 369 U.S. 60 (1962). The contention is particularly
persuasive in light of the non-proprietary intent in sub-
jecting the United States to a state action involving a
general water right adjudication as provided under the
McCarran Amendment.

Kake v. Egan, supra, involved an appeal by the Secre-
tary of Interior from a decision by the Alaska Supreme
Court upholding the denial of the Secretary’s petition to
enjoin the State of Alaska from forbidding the Thlinget
Indians residing in incorporated communities from the use
of salmon traps. The United States Supreme Court noted
that the Alaska Statehood Act contained three provisions
relating to Indian property: (a) the state must disclaim
right and title to such property, (b) the United States
retains “absolute jurisdiction and control” over right and
title of Indian property, and (c) the state may not tax
Indian property. Thus, although the terminology varies
somewhat from the New Mexico Disclaimer we conclude

37a

that, in legal effect, there is no distinguishable difference.
The Court interpreted the Alaska provisos as follows:

The provision for “absolute jurisdiction and con-
trol” [by the United States] received little attention
in Congress. ... Mr. Barney [on behalf of the Justice
Department], denied that the provision would deprive
the State of “political jurisdiction’’ over disclaimed
properties. ...

* * *

. Provisions retaining federal “‘jurisdiction’’ and
“absolute jurisdiction’’ were considered interchange-
able by at least one committee, which reported the
disclaimer in the Alaska bill as ‘‘almost identical’’
with those of the preceding 13 admission Acts. S. Rep.
No. 315, 82d Cong., lst Sess. 15 (1951).

* * *

... The Senate amendment was designed simply to
make clear what an examination of past statutes and
decisions makes clear also: that the words ‘absolute
jurisdiction and control” are not intended to oust the
State completely from regulation of Indian ‘‘property
(including fishing rights).”

369 U.S. at pp. 69-71.°

The Court, after reviewing a number of its prior deci-
sions, also observed:

These decisions indicate that even on reservations
state laws may be applied to Indians unless such ap-
plication would interfere with reservation self-govern-
ment or impair a right granted or reserved by federal
law.

369 U.S. at p. 75.

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38a

In McClanahan v. Arizona State Tax Comm'n, supra,
the Supreme Court held that Arizona had no jurisdiction
to impose a tax on the income of Navajo Indians residing
on the Navajo Reservation and whose income is wholly
derived from reservation sources. This holding was predi-
cated on the proposition that by imposing the tax, Arizona
interfered with matters which the relevant treaty and stat-
utes leave to the exclusive province of the Federal Gov-
ernment and the Indians themselves. The Arizona
Enabling Act, like that in the case at bar, whose language
is duplicated in the Arizona Constitution, disclaims state
title over Indian lands and provides that such lands remain
“under the absolute jurisdiction and control of the Con-
gress of the United States.”’ The Arizona Supreme Court,
relying upon Organized Village of Kake v. Egan, supra,
held that the Enabling Act permitted concurrent state
jurisdiction so long as tribal self-government remained in-
tact and that an individual state income tax did not inter-
fere with tribal self-government.

In McClanahan, supra, the Supreme Court, in reversing,
placed great emphasis upon the terms of the Navajo
Treaty of July 15, 1868, saying:

... [I]t cannot be doubted that the reservation of
certain lands for the exclusive use and occupancy of
the Navajos and the exclusion of non-Navajos from
the prescribed area was meant to establish the lands
as within the exclusive sovereignty of the Navajos
under general federal supervision. It is thus unsur-
prising that this Court has interpreted the Navajo
treaty to preclude extension of state law—including
state tax law—to Indians on the Navajo Reservation.
See Warren Trading Post Co. v. Arizona Tax Comm'n,
380 U.S., at 687, 690; Williams v. Lee, supra, at 221-
222.

39a

Moreover, since the signing of the Navajo treaty,
Congress has consistently acted upon the assumption
that the states lacked jurisdiction over Navajos living
on the reservation.

411 U.S. at pp. 174, 175.

Thus, while the Court in McClanahan, supra, did ob-
serve that the Arizona Enabling Act was silent on the
specific question of tax immunity, still the Congressional
intent to maintain the tax-exempt status of reservation
Indians is clear in light of the Buck Act.* Further, the
Supreme Court distinguished Organized Village of Kake v.
Egan, supra, on the basis that Kake did not purport to
provide guidelines for the exercise of state authority (for
a state to assume civil and criminal jurisdiction over Re-
servation Indians) in areas set aside by treaty for the
exclusive use and control of Indians. Even though the
Court did not suggest or imply that Arizona would ‘‘nec-
essarily be empowered”’ to impose the state tax had it
followed the procedures outlined in 25 U.S.C. $1322, et
seq., the Court obviously placed weight on the fact that
Arizona had not acted.

McClanahan, supra, held that state taxing jurisdiction
was pre-empted by applicable treaties or statutes and this
was reaffirmed in Moe v. Salish & Kootenai Tribes, 425
U.S. 463 (1976). The Court there upheld a federal district
court’s order barring Montana from imposing cigarette
sales taxes with respect to on-reservation sales by tribal
members to Indians residing thereon. Moe, supra, held
that the state tax statute ran afoul of Congressional en-
actments dealing with the affairs of reservation Indians
and in so doing quoted from United States v. McGowan,

* The Buck Act, 4 U.S.C. $105, et seg., provides comprehensive
guidance relative to state sales or use taxation applicable to
those living within federal areas. The Act specifically exempts
reservation Indians from its coverage. 4 U.S.C. $109.

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40a

302 U.S. 535, 539 (1938): “Enactments of the Federal Gov-
ernment passed to protect and guard its Indian wards only
affect the operation, within the colony, of such state laws
as conflict with the federal enactments.’’ 425 U.S. at p.
483.

In Draper v. United States, 164 U.S. 240 (1896) the
Court construed the Montana Enabling Act which con-
tained a disclaimer identical to that of New Mexico and
Arizona. The Court concluded that nothing therein could
be construed to constitute exclusive federal jurisdiction.
The significance of this opinion is, we believe, spelled out
by this language in Mescalero Apache Tribe v. Jones, 411
U.S. 145 (1973):

... The upshot [of more individualized treatment of
certain treaties and specific federal statutes, including
statehood enabling legislation as they, taken together,
affect the respective rights of states, Indians and the
Federal Government] has been the repeated state-
ments of this Court to the effect that, even on reser-
vations, state laws may be applied unless such
application would interfere with reservation self-gov-
ernment or impair a right granted or reserved by fed-
eral law. Organized Village of Kake, supra at 75;
Williams v. Lee, 358 U.S. 217 (1959); New York, ex
rel. Ray v. Martin, 326 U.S. 496, 499 (1946); Draper
v. United States, 164 U.S. 240 (1896).

411 U.S. at p. 148.

We thus conclude, as did the New Mexico Supreme
Court in Lewis, supra, and Sangre De Cristo Development,
Inc. v. City of Santa Fe, 503 P.2d 323 (N.M. 1972), cert.
denied, 411 U.S. 938 (1973), that the New Mexico consti-
tutional disclaimer of right and title to Indian lands pro-
hibits the state from asserting a proprietary interest in
Indian lands, but does not constitute a disclaimer of state
control which does not “interfere with reservation self-gov-
ernment or impair a right granted or reserved by federal

4la

law.”’ In Montoya v. Bolack, 372 P.2d 387 (N.M. 1962), the
Court said:

Congress itself has recognized that the Indians
must at some time become an integral part of the
country and gradually be assimilated into society.
... The states are authorized to enforce sanitation
and quarantine laws on a reservation, to make inspec-
tions for health and educational purposes, and to en-
force compulsory school attendance ... [citing to
express congressional enactment].

372 P.2d at 393.

We have recently stated that “In summary, the cases
stress that regulatory powers in Indian country or on In-
dian lands belong to the Congress except for inherent ju-
risdiction of the tribes. Congress may delegate this
authority to the state, but when it does so it must be in
specific terms.’’ United States v. State of New Mexico,
590 F.2d 323, 328 (10th Cir. 1978). Such delegation was
precisely the effect of th McCarran Amendment.

Conclusion-Disposition

We thus hold that the District Court did not err in
dismissing that portion of the Tribe’s complaint seeking a
general water rights adjudication of the San Juan River
stream system. We agree with the District Court’s dis-
missal of this portion of the complaint in light of the fact
that an identical action had been previously filed in the
state court and was pending when the Tribe’s complaint
was filed in the federal District Court.

We conclude, however, that the District Court erred in
dismissing that portion of the Tribe’s complaint seeking
an injunction against the Secretary of the Interior for al-
leged wrongful and excessive diversions of water from the
San Juan—Chama Project in violation of the rights of the
Tribe. We also conclude that the San Juan—Chama diver-
sion claim and the general water rights adjudication pro-

42a

ceeding do not arise from a “common nucleus of operative
fact.’’ Hagans v. Lavine, 415 U.S. 528 (1974); United Mine
Workers of America v. Gibbs, 383 U.S. 715 (1966); Durso
v. Rowe, 579 F.2d 1365 (7th Cir. 1978), cert. denied, ___
U.S. ___ (1979); Hales v. Winn-Dixie Stores, Inc., 500
F.2d 836 (4th Cir. 1974); Lanning v. Serwold, 474 F.2d 716
(9th Cir. 1973); 3A Moore’s Federal Practice, $18.07[1.-3].
Thus no pendent jurisdiction could be exercised to retain
the general water rights adjudication proceeding in the
federal District Court. At least some of the Tribe’s claims
against the Secretary of the Interior arise under federal
law. Certainly no one contends that the claims are insub-
stantial. Accordingly, we view these claims as coming
within the plain terms of 28 U.S.C. $1362 as a civil action
brought by an Indian tribe arising under the Constitution,
laws or treaties of the United States. Colorado River Water
Conservation District v. United States, supra, refers to
the “unflagging obligation of the federal courts to exercise
the jurisdiction given them.” 424 U.S. at 817. California
v. United States, 438 U.S. 645 (1978) does not dictate
otherwise. The court there held that state substantive
water law will generally apply in relation to a federal water
appropriation permit obtained from a state absent specific
Congressional directives inconsistent with state law. That
opinion does not, however, reach the state versus federal
court jurisdictional issue presented in the case at bar.

We affirm the District Court’s dismissal of the Tribe’s
complaint seeking a general water rights adjudication of
the San Juan River stream system. We reverse the District
Court’s dismissal of the Tribe’s complaint seeking injunc-
tive relief against the Secretary of the Interior relative to
the San Juan—Chama Project diversion claims, and re-
mand to the District Court for adjudication of the Tribe’s
claims relative thereto.

43a

APPENDIX C
IN THE

United States District Court

FOR THE DISTRICT OF NEW MEXICO
CIVIL NO. 75-742P
JICARILLA APACHE TRIBE,

Plaintiff,
v.

THOMAS S. KLEPPE, SECRETARY OF THE INTERIOR OF
THE UNITED STATES OF AMERICA; DENVER-RIO
GRANDE WESTERN RAILWAY Co., MANUELITO GARCIA,
ESTEBAN GOMEZ, OLAN CROWLEY, LEOPOLDO
MARTINEZ, RAFAEL JARAMILLO, JOSE F. MARTINEZ,
JOSE I. GARCIA, CLOTILDA MUNOZ, and all unknown
claimants of interest to water in the Navajo River and
waters tributary thereto in the State of New Mexico,

Defendants.

COMPLAINT

The Jicarilla Apache Tribe, hereinafter called the
“Tribe’’, for its claim against the Defendants, The United
States, the Secretary of the Interior of the United States,
hereinafter called the Secretary, and the other defendants
named herein, states as follows:

1. This is a civil action the subject matter of which is a
general adjudication of the rights of the Tribe, the United
States and other defendants in New Mexico to impound or
divert the waters of the Navajo River system and waters
tributary thereto, for use in the State of New Mexico.
This Court has jurisdiction under Section 1362 of Title 28,
and Section 666-a of Title 43 of the United States Code.

44a

2. The Tribe is an Indian tribe organized and incorpo-
rated under the laws of the United States of America (48
Stat. 987 et seq., 25 U.S.C. 476-477), residing on a reser-
vation in northwest New Mexico, established by Executive
Order of the President of the United States on February
11, 1887. Rights of the Tribe to reservation lands and
waters for use on the reservation are governed by and arise
under the Constitution and laws of the United States of
America.

3. The Navajo River and its tributaries, including the
Little Navajo River, rise in the State of Colorado, flow a
short distance through private lands in the State of New
Mexico, then through the Jicarilla Apache Reservation and
return to the State of Colorado at the boundary of the
Jicarilla Apache Reservation and the Southern Ute Reser-
vation, and constitute an independent and separate stream
system of the Upper Colorado Basin. The confluence of the
Navajo River with the San Juan River is located on the
Southern Ute Reservation in the State of Colorado ap-
proximately four miles from the boundary of the Jicarilla
Apache Reservation. The location of the Tribe’s reserva-
tion and the course of the Navajo River and its tributaries
are shown on the map attached hereto as Exhibit ‘‘A”’.

The Navajo River and its tributaries provide substantial
flow of surface water on the Tribe’s reservation. The Tribe
has appropriated water from the Navajo River for domes-
tic, municipal, industrial and agricultural uses and has
used the flow of said river for fishing and recreation since
the establishment of the reservation on February 11, 1887.

4. The Tribe, in addition to its present impoundments,
diversions, and uses of water from the Navajo River and
its tributaries, has the right under the doctrine established
in the case of Winters v. United States, 207 U.S. 564 (1908)
(Winters’ Doctrine), to impound, divert and/or use the
waters of the Navajo River and its tributaries as is or may
be necessary to satisfy the present and future needs of the

45a

Tribe, including, but not limited to propagation and har-
vesting of fish and aquatic life, irrigation, recreation, do-
mestic, municipal, and industrial uses. The Tribe claims
the right to impound, divert and/or use the waters of the
Navajo River and its tributaries including surface and
ground waters which were unappropriated on February 11,
1887, which are or will become reasonably necessary to
satisfy the present and future needs of the Tribe in fulfill-
ment of the purposes for which the reservation was estab-
lished.

5. The Defendants other than the United States and
other unknown claimants joined herein as Defendants
claim the right to impound and divert the waters of the
Navajo River and its tributaries for use in the State of
New Mexico, which claims are adverse to claims of the
Tribe. The Tribe is informed and believes and states on
such information and belief, that some of said claims have
been abandoned.

6. The United States owns lands in the States of New
Mexico and Colorado in the watershed of the Navajo River
and its tributaries, administered by the Secretary and var-
ious government agencies, for which the United States
claims the right to impound and divert the waters of the
Navajo River and its tributaries, which claims are adverse
to the claims of the Tribe and other defendants hereto.
Included in said lands are lands administered by the Bu-
reau of Land Management, lands on which public water-
holes and springs are located reserved for public watering
purposes, National Forest lands including the San Juan
National Forest in Colorado and the Santa Fe and Carson
National Forests in New Mexico. The Tribe states that its
right to the waters of the Navajo River and its tributaries
are prior to the rights of the United States to the use of
waters on said lands and other lands for which the United
States may claim rights to use said waters.

7. The United States claims the right to impound, divert
and use waters of the Navajo River and its tributaries

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46a

under the provisions of the Act of June 13, 1962, Public
Law 87-483, 76 Stat. 97, 43 U.S.C. 615pp, et. seq., known
and hereafter referred to

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0961%3A1. Public record. Not legal advice.