Appendix — Arizona v. California

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eS ae

RECEIVED

oy LODGING J wesse

f a OFFICE OF THE CLERK

SUPREME COURT, U.S.

ee eee

The Metropolitan Water District of Southern California

May 24, 1982

Clerk of the Supreme Court

Supreme Court of the United States

1 First Street, N.E.

Washington, D.C. 20543

Dear Sir:

Arizona v. California, et al., No. 8

Original, October Term 1981] |

Enclosed are 11 copies of the Opinions of

Solicitor Margold--1936, Solicitor Weinberg--1968,

Associate Solicitor, Indian Affairs--April 12, 1974,

and 11 copies of the Amended Complaint, Motion to Dismiss

and Order thereon in The Metropolitan Water District of

Southern California, et al. v. United States, et al.,

Civil Action No. 81-0678-GT(M), which we ask be lodged

in the above-entitled action, with one copy of each being

returned to me in the enclosed self-addressed stamped

envelope as a conformed copy.

The Opinions of Solicitors Margold and Weinberg*

are referred to in footnote 30 of the Brief of the State

Parties in Support of Their Exceptions to the Report of

Special Master Tuttle ("State Parties’ Brief"). The Margold

Opinion is referred to in footnote 22 and the We’ nberg

Opinion in footnote 23 of the Brief of the California

Agencies in Support of Their Exceptions to the Report of

Special Master Tuttle ("California Agencies' Brief"). The

parties have requested that the Court take judicial notice

thereof. The Associate Solicitor Opinion of April 12, 1974,

is referred to in footnote 47 of the California Agencies’

Brief and the Court has been asked to take judicial notice of

the Opinion.

*The Weinberg Opinion refers to enclosures accompanying the

Opinion. We have been unable to locate these items, but will

lodge such enclosures with the Court if they become available.

1111 Sunset Boulevard, Los Angeles, Calif. / Mailing address: Box 54153, Los Angeles, Calif. 90054 / Telephone: (213) 626-4282

The Metropolitan Water District ot Southern C alitorma

Clerk of the Supreme Court -2- May 24, 1982

The pleadings in The Metropolitan Water District

of Southern California, et al. v. United States, et al.,

which we have also enclosed, are referred to in footnote 41

of the State Parties' Brief and are also referred to in

footnote 12 of the California Agencies’ Brief. The Court

has been asked to take judicial notice thereof.

Also enclosed for filing is the original and

one copy of a certificate of service indicating that these

documents have also been served upon the interested parties.

If you should have any questions regarding

this matter, please contact me at your earliest convenience.

very ~— yours,

Cl (L% oS

rl Boronkay

General Counsel (

Enclosures

cc: Per Certificate of Service

— >

M. 28198, ;

.. +. * 2°. SOLICKFOB's cPinion |

P * bd . °

a .

»A a

Re Pere . 7s

Did the agreement of Decexber 4, 1893,

‘ as ratified by the act of August 15,

1894 (28 Stat. 352), extinguish the

Indian title to the non-irrigable lands.

within the Yuma Indian Reservation. |

JAN =2 123

. 22198,

C&PY - PO! Ye- STRAUS.

UNITED STATES / (re

DEPARTMENT OF THE INTERIOR ae

. —

OFFICE OF THE SOLICITOR

WASHINGTON

>nO>5:8

—_~

|“

tid the agreswment of I acenber 4, 1'935, as retie

fied by the act of \ucust 15, 1f94 (2 Svat. 352),

exting iat the Inéiiun ti‘ le to t.e 10: -irsigsdle

len¢s within the Yum Indien ‘eevrvation. ©

Assuring thet: the posuessory rig te of the ‘I:.diuns |

in the non-irrienble_ lund continuec, is the tribe

entitled (1) to the wrlue of the Innd taken for a

rigtt of way for the -ll-Americen Canrl located

across the non-irri¢pauie lend of tie >ecervetion as

@etadlished by Lxecut.ve order «ff “anuary 9, 1834

(2) to recover ¢auives as a Pee lt of ssepnge and

alkali, end to requim a bend t i: sure prevention

of, and payrent for, ouch cansgt (:) to recover

Ganuges for failure of the casei (“) to the value

of mineral depoe!tc w thin the r1i¢ht cf way (5) ;

to payhent for sinc «4d srivel taken from the non-

irrigabie lancts. cutsive of the :ig:t of way and used

for the canal or utete non-usecdle by the construction

of the canal (6) tc mquire dricvee over the canal

to render eccess:b-2 :and ené gravel deposits lo-

cated on the nor~-irrivable lax: ané (7) toa

royalty from the d&« velop srt of hy.roclectric power.

The agreement with ths Yuma Iadian. as retified by

' the act of Awcuss 15, 1634, supra, extinguished the

Indian title to she noneirrig¢g.d_e -encs of the Tuma

Reservetion.

That the non-irrigetl«e a-ee will not DSecane a part of

the public da ain until opened to iisposition under

the general lend luvs dy presidential proclamation.

“hat the cleims esserted ir b heif of the In-

‘fens, listed above uvder Tos. 1, 4, f, 6, and

7, ell cf which depenc fir ce ognitior upon

che establishment of “né-ar t tlie to the non-

iyrigeble lands, cannct >e su teined.

“hat the lisbility of the > isl Irrigetion

_ District fo: damages cecasioned by. seepece,

eanel troaks, ete., (cle. ms 2 an. & stove) de- ~

penéa uzon ths ordinary ~ul+s of ne, “Ligence,

and thet the. Secretary of tre Interior is rith-

out authority to exact a “bond froz the District

"| overiag ite contingent” iieoi2 ity in this re-

_ Sect. °

2698.

ee © oe ©

. ’

UiIT=ED ESTATES

at om -— =-—— 7°? = - AS

oe Sle cz o Seas 6) o ae db week

Cifice :f the Sclisitor

aad «2

Tas aington

Th lecretary of the Interior.

uy, dear M.-Secretary: , *. :

TO. -.ave subzitted to me for an crinion two Questions orezcunéed

‘

_ by, the Cormzissione: of Infian Affairs in ‘cis letter oF Octetsr 2, 1935, |

fe question: ere er follows: -

-~-*.

. "1. Did the Act of august 15, 19%¢ (28 Stat., 332),

which ratified the egreement with the Indians hereinatove

“ele-res 1, actually either.in lew or fact mevze the noz-

r ~roisatle lands ceded by the Indicns through the provisions

of tre agreement a pert of the pudlic domain so as to

extingviena eny right, title, or interest therein, legal

oF eluitedle, which may have vested in then? ;

2. assaming thet such legislation did not return the

+|aads to the pubdlic domain, or did not extinguish such

right, title, or interest, is there any reason why this

office is not entitled to request, for the benefit of the

intians, any or all of the various features set forth in our

+€.t2r of Mey 10, 1935 to the Comaissioner of the Pureau of

Ze tlametisnl

Th: iitpece which gives rise to these questiors is due to the con-

struction by tre Sueau of Reclamation of the All-:merican Canal from the

n@zerorcs at tre Imverial Dam across the Colorado Diver at a point 12

miles usscreaz from the City of Yuma, Arizona, thence scathwesterly

on the Califorsia side of the Coloredo River +o the boundary line be-

tween California and ijexico. The All-American Canal in its course

iM. £8196.

~2£sribei crosses the length of the disputed Yuma Iniian Reserva-

2 risat of wry for the canal wac assuzed by the Indian Cffice

“s¢ Indian tritdel lanés for which ccempensation should be allowed

“ic from the avproprietion :ade for the construction of the All-

“er osnel. The claims fer :omper.sation ané for guarantee acei:.:

-: Comeges from the operatioz: of the canal ere set forth in a let-

ter 2 ted Ney 10, 1925, frem the Somwdcsioner of Inéian sffeirs to

lows:

‘value of the’ lands occupied ty the right-of-way throuzh the

p.m Scio.er of the Sureaun of Reclamation. fe clains ere as frl- °

“:2 2 of Tang. a . . a Ms ; ; ade” . : are ° e.

I. atcoréance with the apbreisel of October 29,. 1934,"'the

‘Fort Yiwaa Indian Reservatior. and the cash remaneration gue

*.1e@ Yona Indians therefor is fixed at $2,602.50 on the

tasis of $1.50 por acre. ; .

2. Iemige af a Result of Seepace and glie}i

Froviding seepage conditione on the Fort Yume Retervation

&°2@ agsrevated or intensified by the All-American Canal,

tae District agrees to prosecute ciligently the construction

co such intercepting Grains, installation of pwaping plants

-AClating necessary transiaission lines, or construction of

sch cthir works as are necessary to control widergrowd

vater aflecting the Indian irrigation project, The cost of

[peratior aad maintenance of such dreinsge works, including

¢lestric.1 energy if required, shall be borne by the District.

-2 -Tior to the effective operation of such drainage works

‘ny I:ncicn lard is made unproductive by water logzine, from

‘lk-1li © cther cavses as a result of operation of the said

ancl, te Inéian cor Indians affected shell de compensated

-or losses suffereé during the time such land is wiproductive.

~anigcs, either temporary or permanent, to Indian lend as a

consecue..ce of the operation of the all-American Cenal shall

I, 25196.

wtosined ant POLTIe t meade thirefor at euch time ané

. £2. BAe. 2S the Scesutary @:es1 xrescz.be. A bond

is 22 @.ouat of ¥20%', 069 shell t= curcisneé by the District

to ingure duetallation avd cyeretio: oF Grainage worxs and

pajuert of secnnges.

Dereses Fei (ing from Ze+lise oF 2 “a.

In the event cf failure of che Al -..%6-ican Jexal soa eis’

cease whi.tsoever resulting i: ‘ies. az: or Ezs.s>action >

adjesent Infticn lends ané pr-yp:rty, ths You irdieas ver

be reinburs:d ty the Distric: “o: a:.y an@ a.l Camages re-

sulting from failure.of the ca.al, Such Senage shall te

* @etermine: cud payment me?. sh refo: et gs:ck time andixn -

such mancer as tae Secrets , S..abl ire -coride. |

- ° .

if thane ¢ the constracti on of che hile. yaesican Canal cr at

ehy time there shokld be discovare? or encountered within

the right-of-re? any mineral’ deposits, either placer_or

ledse, of such value in tue opinion of the Ragerwrpec cen yt of °

Indien Affairs as to justify reccvery, such <ineral deposits

Shal. be and become ty ots ef tne Tosa Intiens, and th

Commissioner of Indien Affaire, =n szhalf of the Yuna Indians,

shall mexe saci aprengiaes its as te say deen oe pgs and

proper to recover sach mineral dino: its in such a way as not

to impede or hinder the construction or ope ration of tho

Canal.

The Yume Indians shall de prié at tue rate cf 10¢ per yard

for all send and gravel -ek-n from che Picacho Wash pit and

the pits in Sections 19 :nd 2¢, sor use on the All-Ameri-

Can Canal Ce.straction werk ard “or ary and all sand and

gravel within econenic i:mizs of recovery iz. such pits made

nom-useble as the resvit of tt2 “anil corstraczion. The

extent end valae of devo its «xc vereé out :f <nhe Cenel and

wasted or ccvered un, or ot -ervi-e iacée inaccersible shall

be determined oy a rotates cipoinreé dy tie Secretary,

one member ‘o de Selecte. ty the Tosa India> Tribel Council,

one member co be selectei t+ tne District and one to be

selected by tie other two mamior: end paymert therefor

~~)

e-s1l be made ic. such mouncs ar %.:

ir: dses 4cross fen)

“n order that the hill anc mes

‘itn, whereon are sever:l ex.2 :

vorits of considerable va ue

valley it is required tha t.

70° t to the Yucca Indians, Tout

as. Cenel, located appt ox: 72

"ach, (2) md,

16 S., 2 21 °'3., and (4). fe:

26> frac Junction. = Sigragiy e

sigs shell be -elected <-y @ -2,""€

-£ ladien Affairs, wen tne * 2¢

Seé location, exc. type af e~purten

ective’vicinities “above ae:.%3 .%

tyéroelectric.Fower Deveicrme it

“ne contract of Decezber -, x2,

2né& the: Imperial Irrigatica ci: tr

sorsibdilities, on the All-Jmerican

the District, subject to rro ‘thos

other agencies, the privil ge at +

sy contract or otherwise tuch row

‘a es across the All-

y .8

Sec. 16, =. 1 ~@9 2.

“

o- tie Indier seserva-

sara ané gravel <ce-

accezsitle from the

suctveé, free of

md» Dy Ss iiaiethis

“o lows: (2) Picack>

2: Ze, ‘/3) Sec. es,

.% 168..8. 2B. °

1c cations. -or these -cross--

&:..te-ive of ti.e Conmmissi:

ver

tion vf “the Cane:, incluc-

at structures ‘in’ ‘the re-

ad ire Seteraiznod.

octveen the United States

ct recognises power.

Cenal and reserves to

s lor gp pee by

> time of utilizin

2r ” possibilities as may

2xist upon said canal belew ené ast including the Sjprhon

Srep site. Present plens csontemp.

ete the develomient of

29,200 KW at the Filot Xnc> site in addition to a possible

* Sevelopment of 5,000 HW at the Synhen Drop site, the

lat-

“er being reserved to the Jnited States.

Tre All-American Qanal right-of-way through the reserva-

sion, accordingly is, in fact, a valuable power site.

4s one of the considerations for srenating of tho said

right-of-way, it is believed tre

District should pay

2s rentel for the use of e11 power sites alone said

tar.al within the reservation delow S$

Sypnon Drop, annual

“herges in the amount of ene acller ($1) ver + Bnet

°f installed generator carpacitr,

such payments for any

>orer unit to be mede for each caleniar year from and

efter the first of Jaruary next following the date of

waich the unit is placed in comaercial operation.

%. 26198.

7% 12 believed the Yome Indians are ilk] ‘dee cutitled

.. ental fo> $2.2 elie at Syphon am sis.ce th: rover

_exereteé at thie site is reserved t the Tri-ec States

“ne egreemert will te necessarily t “eondtieous tne Brees of

teclemation end the 2ffice of Indien .fi-irs né si.ould

- ontein the sase prevision for rental per lor ey.m Pr

“er year of all generator cepecity in aciicic. t> ne

: resent installed cepacity of 1,00¢ X"."

after some negotiations between the t.rezar, n “uy 5, 1955,

xe Cennissioner of the Bureau of Reclemat:or. acvi ec tis “om issioner

f rnéian Astaire that the land taken for rignt of wey cor th: Alle

ame se

.sievtean Cenal was net suscepti dle to irrigatior, ze cit-e -9 son-

‘rr: gedle land wes vested in the Unites § Stetes ty viryu- OF the act.

of aagert 2 25, , 18% (28 Stat. 332), ‘that the lent inmuské sigh t part

of the oases domain, and that, therefore, the — T@tane hicd no

‘utsrest in the lend. ; Sa

Ca July 6, 1885, President arthur by Zxecutiv: crdir cet aside,

a tract of country ir the Cenvitery of Arizona des-ri sec dy metes and

tvou.ds as beginning at a point in the channel of tre co: sr: do River,

opposite tne mouth of the Gile River, thence up the crerne- of the

Gile River to the range line between rerges 19 an@ 2C of the Sile

end Salt River meridian, thence north on tne range line to the first

standard parallel south, thence west on the sarall:l to the C-lorado

River, thence down the channel of Color:io River t> the plece of be-

ginning to de used as a reservation for the "ama ad such cther

indians as the Secretary of the interior muy see f.t to settle thereon.

Sn the follovixg Cansary 2, 1224, dy Executive srier the Presiczent

Cniceled the reservetion in Arizona a..d created « resexvetion for

the cone Ivéieng in Califorsia. Tris Sxecative order reservat.oz.

1.2 Telitorain side of the river cocpriees ths eves waicn is tne

escgeet ef cade cnicion.

ue nex reservation is écscribed in tne Sc:ecutive order es te-

gimnice et a pois.t in the midéle of the Colorado River, due east of

the x ander corner to Secs, 19 and 30, T. 15 §.; 2. 24 5., S. E

bd!

wey Se Ler sees

(these. est on ti.2 line betwen Secs, 15 and 30 to the re“ge line

between. Tp:. Zs e:d 24 Rs thersce continuing west on .the eects

. £

. ‘

. . ° . *.

‘line to a point, w anieh,: waen surveyed, mill be the.corner of Sec. 22,

23,.28 and 27 in 7. 15°§., 3. 21 3., thence south on tie line between

Secs, 25 and 27 in seid township to the intersection cf the interna-

-tionel doundery, thence easterly on the international boundary to th

middle of the Chenrel of the Colorado River, thence up said river

in the middie of the channel to the point of vagianing,

Tre erca of the reservation was not changed until an agreement)

mace Deceuber 4, 1€95, at Fort Yuma, Arizona, between the Indians

ané *hree Comisctioners representing the United States. These Com-

micsior.ors «ore che representatives of the Office -f Indien Affairs

ani cht estrezen. nade with tue Indiaxs was saprosed =o be for their.

venerit. Tre first paregraph of Article I of the «srvexent is as

follows:

2@198,

Orne sate Tome J:.élans, <.9n the 67.*4t2on8 i.-rae

o &. @F Oeaeeceed, £3 . ae: ssowtir wil celgani¢c ¢

t -@ yeoeee StHt06 O24 taste 25%, totit, 21.88, : 2b izutere

é t ix a8 to ac.€ over te: £21: ssingedec:23:4 tr: ct of

¢ 2.037 22 Gan’ cdege Comsy, Cree, O: te dl: eh34 s7 @x:8.-

t v. erdey of Ses 7 ARK, 8. = tees. Baz. ret e284 ef See

fot, hoon describes its tcutiaries ac foilew:: 7° * "

2 7 it3s nthe To Se serve... 0s @- te51: 92.28 Saucy :,

27% S.@ i] of the agreexe:.t srs-iies, o40:.¢ 2t er th =,7, th.t

"Sach and every mexzer sf said “ua Snéials ce.1 >0

£ & t.2d to “select and locete uron e.it r-seowetion ma i

t 3 iring Sevotions five acres cf lani, waist. eh.2l. t. t.- . :

“ 3 + 38 te

, Sach Indian if sevcralty. = * * " ree mits :

(cae . @2 in the irr Lgntle @llets::nt "as i..troe 24 ¢. tien acre. of

deri ze le lard tritee.act cf Merch 3,151] (3¢ Stat. 2°38).

' * g ele mv ef the ezreonentorovides-for the eil.tments tv ;

. ~ ; . . ° . =: - 7 -

spoiie@ ezont appointed by the Secretary of inn Tatcricr .n¢ a: ter |

all cf e.ch ellotments have seen made ond approved ®th:-3 :-13 eo: the

resi ia: cf said reservation which may te subject to iz: ie ae :2n' snall

be cis sted of by the Secretary of the In:erior ty sale t: raice

setile-s at the eppraised value of the land, Suphesic © cpr ii: 4)

&-ticle VI of the agreement provices that

"AY] lands upon said recervatio. taot can not ts im

mr. ceted are to be open to settlumcnt wider the ises

lind laws of the United Statcs."

avticle VII srovides

"There shall be excerte2 sro. tie sp-reticn if this

ecree.ent a tract of lend, including the sallding:, sic -aace

. the hill on the nortz side <2 *1.e Cclo acs iver, fcrmerly

—— eee

Tort Yume, now used as an Indian t¢2.0c1, so icnsz «8 the

*s @ Tu.4lt bw vad for reli ricas, edacetiosal, ¢..4 .o7Trttel

= 373e8 for enié fv.dia:s, en a Sastcer grect :f iané

4 stent to tue nill is hereby; set aside af e fom. irr -aid

s¢..9¢1; che grant for tr seal site and tne scnosl farm

5. t29 exceed in ell one-half section, or inrsee ws i: ed ard

cwenty esres."

Sa i:‘e a.nd sonfirmed the agreeqer.t made with tne I: fiunte o. Dseo>

se. 4, .352. The ect also proviced for expendi ture ef *ar.4s to C.irry

cu. t

ot gasceptitle of irrigation shall become e part cf th

--> terms of the agreement,

“~~ Soaien rad received an allotmen: ang to apr. ai

ene Sori

y whe ext of august 15, 1634 (22 Stat. 332), Suz e:#

or .to slot tne Lands bascept: itle to irrigetior w:tii each.

ge>le :ands to waite settlers.

ne act refers to the aisposition of the nonirrigeble ‘lends:

"Tret all the lends ceded by said agreement wrick are

“_—

>atlic demain,-ard shall be opened to settlezent ard sale

ty zroclezation of the President of the United Stutes, and

[2 subject to disposal under the provisions of tre ceneral

Faresanut to the act of June 17, 1902 (32 Stat. 322), the Sureau

of >etla-ation hes constructed the Yuma Irrization project. The

iversiozr of water from the Colorado River was accomplished the

con:tric

from. tue Sicy of Yum,

Lani lews."

It directec the Secrecary of the

e e268

aise end sil the

e 4

The fellow.ug le‘ene ze’

ion of the Leguna Dam located about eight miles unstresu

Tae main canal carries the weter from the

oe aa ca + -

Colifccnia ond of tne dam to a point near Yuma

the river in a ccaduit.

where it passes

The rosition of the canel in C-lifornie made

ander

«?

’

t°e to irrigate atost 8,300 esres of lexé in te Toma indian

ReRCrVesio. ADIT oxietely nal? of the area wat used fer Indien el-

ictrents and the remainder sold af-er aporaital te white settlers.

Tris area, consii:rabdly redaced Sy sezpeage avd cther causes, nor

ccnetitates the Reservetion Divisicn of the “we. project. After in-

vest-gation er.d after topograrhica. end sudii vi-icnal surveys of

tne reservation were made, an adm: ristretive de*erminatiqn fixed and

deoicnated the irr. gebl: eres ext fixed ara 2s crated ths area not

suscepti ble of serasetton,’ Zach of:'th: Intieis on the Yue F jcservas .

_tion ‘was allotted as a: rected tyr the acts of Co: neress of dagust 15,

1894, ané arch $, is “oe and the renuainixng irrigable lends ons

rpraised and sold, at pudlic sale. Forever, at no-time have the non-

irrigebdle lands been opened to settlement anc ssle by proclenstion

of the President es provided in the ebove-qucted parazravh of the act

of August 15, 1894.

It is reasonably evident, i thirk, -that the non-irrigeble lands

did not become a part of tne public cGomair at the time of execution

and ratification of the arreement with the Irdixns. Article VI of

the asreement merely says the: 211 lends uror ssid reservation that

cannot be irrisateé "are to t2 cpen to settlement under the generel ianc

laws of the United States." The time of cpening the lands to settle-

ment is not specified, but sc.re future izte vas apparently in con

templeation, because ao classification of the lands into irrigable

M. 28198.

axa neon-irrigabdle had then been made ani until there ras such a

Clas ification the particular lanés which were to se subject to set-

tienent uncer the general land laws could uct te icerviriecé, The

ratifying act is :xore specific. It previies chat she mn-irriga>le

lanés "shall becene a part cf the public d-xcin, aid shril be ofen to

sett_emzny end sale by proclamation of ths Fresident :f th Urited

States, ac be sudject to disposal under the provisicxs of the general

land laws". The _— use of ‘the future tezse in this ‘eclaration

= ¥ ‘

is inconsistent with the view thet the laris decame & tof the

public orain ‘mediately, and bearing in ming that tne wo: ds “publie

; donain® os public lands" are habitual ly vsee in’ Fideral legislation,

_ to Sescrive sich ‘lands as are subject to sale or di spe sal ‘enaan the

general lana laws, (Nevhall v. Sanger, $2 3. S. 761, 765; 20 Le De 367)

it seexs chat Congress intended that the ron-irrigable “anis should be-

come a pact of the pubdlic domain on the seme date sheet «he; are made ,

scdjcct to settlement and disposition under said general lend laws

by p: csidGential proclamation. In this vier, the non-irrigable lands

will net decome a part of the pudlic domain -ntil such =roclamation

icsuxs.

Tne fact that the non-irrigable land: hve net 2et become part of

tre ~ullis comain is not, however, decisive -f “hc q esticn at hand.

T.e yaestior is ene of owership as betwen he Urit-d stetes and the

M. 28198.

Indians and this depends primarily upon tho provisions of the agree-

wut of 1933 as ratificd by Congress. It is argucé by the Indian

O:fice that the non-irrigable lands nave been contimsously etminis-

t rei as a part of the Indien Reservation since execution ari rati-

=: sevion of the agreement; that the lands nave deen leased for erazing

ai sining purposes; and that the peeanete. from ne leaseés nave een

¢ vered into the Federal Treasary for the >denef rit of the Yura iné:ans.

Bt :his atzinistrative : ecog: itior of Incian evens is not comm.

t: ee ing (Zarrig v. Bell, 2547. $. 123, 109; Tapp ¢ r. Stuart, © Fed, -

a pr. 23), end. must: giv? vay if in conflict th the plain terns of

£2 2 mes: % and ratify!: ng act. - The ovivtalitinn' st of the egroqent , .

a i ‘act! received sudelitectitien in two ‘cases decided kagust 2, 1935,

i: t..0 district court of the United States in and for the Sout? ern

D strict of California. See Uniteé States v. Sid Johnson and !'rs.

5-4 zohnson; United States v. ¥. C. Galker and Mrs. M. C. Walker (un-

r-perted). These were ejectment suits brought by the United states

against squatters on lands within the reservation which were s.scoptible

of irrigation. While non-irrigable lands were not involved, the de-

cisions interpreted the agreement and act as vesting full title in the

United States immediately subject only to the rights specifically re-

served in the Indians, which reserved rights, as will hereafter te shown,

extend to the irrigable lands only. The inference to be drawn from

Mu. 28198.

these decisions in sc far as the non-irrigadle lanés arc conccrned

is ties the relingsis.cient by the Indians bec:me e-fective immediately

rather tnean at some future date, and this, I hAink, is *1e correct vier.

article I of the agreement declares that the 'Yv a iniiens, uron

the ccnéitions hereinafter exoressedé, do herewy surre-der ané reli:.gquish

to the Taited Sta-es all their right, title, -leim ar :ut-:rest in ans

to" all of tne leds within the yegezvation bDeuniaties. Tie lerg.age

_ imports “in clear and Pe “ecise terms a present nemesis on shrent er cession

si of w= interest of the indians in ‘the sesereat ‘or linds. Tre

relingristcnt or cession is nade sabicct to tae cond sions thsreiz- .

after stez.4, “bat. those “conditions in no way qaalicy tat atsolute

natare ‘of the relingzishment or cession with’ respect, ~o ‘the hon-i: tr

-rigable “ands. Tre conditions ssborietly affecting t-e eehingaScheent

or céssion have to do only with the irrigable lands, <utjecting —

to allotments in severalty to the individual Indians mé sale for the

benefit of txe Indians as a whole. As to the irrigable lands, there-

fore, the céesion or relinquishment was not absolute, brt in trust .

for the use and benefit of the Indians. The benefici2l ownership cf

the Inciazs in the irrigable lands thus contimueé not:wit=standing the

relinguisimment or cession. Sec Ash Shec> Com:any v. Inited Siates,

252 U. S- 159. Neither the agroement nor the ratifying act, however,.

contains any word or clause qualifying or limiting the «Ssolute cession

Mw. 26198.

made of the nen-irrigatle lands by Article I of the agreecezt. eth

reecmnize that those lands are to become a part of the petlic é-mein

a6 be disposed of under the general land laws. ‘The wirés *’-er 3b;

gatrenier a.d relinquish", as applied to the non-irrigabdle lanés,

eraples vith tse declaration that such lands shall see-me a "pert of

te sutlis iconain" and "be opened to settlement and sale", +iti-u- tae

_ re -:rvation of any interest in the Indians and unace sm anieé by ax;

ecnéition in- the nevure of a trust, exptess or implica, O-v2 ue J

inner? an abesl late extdingu! shnent of all th: interest of-tne Ir: dens

® ¥

“dh and to that e} ass ¢2° Tends. In such a situation, ‘there is r

mathority to depart. from the plein ‘seve of the agrecnent ani act. -in.

Urited States v. Choctaw Nation, 179 Uv. Ss. 494, the corte:tion a3

made trat a treaty, the temas of which made an absolute cestiozr,’

should de entesereted to create-a trust for the bencfit of tre In“ians.

The Court rejected the contention, saying anong other ‘hires (; age £35

"Sat if the words used in the treaty of 1236, rzascn-

adly interpreted, import deyond question an aberl tc, v2-

ecnéitioral cession of the lands in question tc tie ‘nized

S-ates free from any trust, then the court cannot ar -n¢

tie treaty or refuse to carry out the intent of tue car ties,

as gat-ered from the words used, merely because o..e -a ty

to it neld the relation of an inferior ené was 20 itic:il-

os pendent toon the other, or because in the juc su nt o: t..e

axt the Indians may have been overreacsed. “> clic -her-

wise would de practically to recognize an auth ri-y in oh

Courts nct only to reform or correct treaties, m-. to cet-r-

miné ciccticns of mere policy in the treatment of the indians

vaich it is the function alone of the lcogislative bran: «f

tre Severnment to determine."

; : M. 28198,

Walle the irrigable or non-irrigable character of the lands within

the reservaticn had not been determined on the date of the agreenent

of relinraistrent or céssion, it is clear that the taking effect of

the reli:.yaishsent or cession was n-t pestycned until classification

of the lands es sion-irrigable. In -his resect, the situation is

Closely analog2us to that involvca -n the é-%.ts of swump lands madc

to the States by the act of Scptenb. r 28, 125¢ (¢ Stat. 519), That

act, like the xgr“ement under- corsi “er: tH! om, vas ‘2 the usual terms

of a grant in rra¢ senti, “and there, as hero, the charac or ¢ f the

Janis ras Zetermine4 * a: sabsequert dete. The ¢: “urts have xniformty

raiea that the States’ bécane Annediately in” ‘ested with 4n. inchoate

title which tecene perfect, as ‘of the- date -f the ast, when the land

ras identified and the patent iscaed (se: s ited Siete v. Minnesota,

270 U.S. 181, 203, 205). Applying a lik: rle here, the relinquisment

of the Indians, as and rhen the non-irrigatle character of the lands

was determined, became fully effective as of the date of the agreement.

The case of United States v. La Chapelle (61 Fed. 152), which

has been called to my attention as suppo-ting the claim of Indian

ownership of the non-irrigable lends, is not in point. In that case,

an agreemert had decn entered into detwe n the Sccretary of the In-

terior and Chief Noses, purporting to re-resert the Indians of the

Columbia Reservation. Under the provisicns of the agreement, the

uM, 22198,

Indians, ix ecnsiésration of a saz of money, a recd to remcve te

ex.other veservacicn and that the Celumtia Reservation sould de

o-ereé t> settlement, except that amy Indians who desired %o re ain

rig.t de e> in which event lands not exceeding 640 acre: t> «ac-

fcnily ¢.c:1. te <lected for them. The lands were thr. wn o en te

git lenent db fcere allotment selections had deen made. —he I: iiane

v2.0 resann-d on tis lands did not aciaio% “ledge the aatho- ity (2 Thief

Noses to rep: ee nt them. . Taite men at te:pted. to $2 zttie on ¢: 2 | ay is

and were reei Be ae {y the tethene, wherearon the indians’ were £0: cicly

removed by the ~nt-ed ‘States troors and izpri soned. Daring biter

_lmpri sonient, »the white’ settlers seized their impre venents, eot-led

on the land ené filed homestead declarations which were firs: ere pted

and late> cacelec. Suits were then brought by the Tnived S ates to

oust the set=lers from possession. ‘The court ruled *hat the Pres: dent

was withous autLority to open the lands to settlerent one she home-

stead laws until efter allotment selections had beon mede fe the

Indians; that the opening of the lands was premature; that te lads

haé not decome a zart of the public domain; ané that tle Intiars whe

reraineé cn she linés were not bound dy the «<greesert <ntered “nto

with Gniez Koses “fer the reason that they n:ver cav2 “ner as:eré,

ané Moses hei no zathority to represent them". Tie r ling ‘s withe:t

applicaticn here for the reason, first, that *t)er. Kas deen no prem-

ture opening of the lands in the Yuma Reservat-on te settleren: under

%. 23198.

the general lané lars; sees.d, me cucetic:n is raise? as to the va-

licity ef the arre. ment vith the Yuma Indiz

”

latiens of the agr-enent have teex carrie: crt br tie “nited Scates

ard t..0 Iinégiims have received avd acceztei the alle’ me:te a i cther

venefite promise: & “nex. In this situation, the cre si-n -- ané is is

ere Upor ¥. madch che decision in the Le Caapelle cus his mo decring --

is vi-ther the Indian title to ‘tne remaining lewis la-cei es non-

irrigable tas dign ‘extis “ished. Tne gets ters 0: tue Tura cerce- :

me-t wseqaire +het ‘that anette de asicnered in the x? a . ¥

at follows frea wha: fas deer said that the ¢2: ime a-se-te ex.

vbehalf of the Incians ‘end Listes above unéer Nos. 1, 4, 5, €, end 7,

‘all of-riich depené for recognition upon the estadl: sfs-ens cf the

indian title to the non-irrigable lands, cannet be “28° ainec.

Regarding the liability of the United states o> tiat of the Im

perial Irrigation District for damazées caused by sev pare, pcreclation,

or breaxs in the canal (see claim listed abcve as N-s. 2 and 3), the

lar does not make the concern engaged in the carriace cf irrigeticn

water an insurer of others against damage from breacing, overflow,

seepage or other escape of the rater. The famous E-glish c-se of

Rylands v. Fletcher (L. R. 3 H. L. S30}, declared ti.nt ama. biilis a

réservoir cr other works to hold water at his peril. TInis :s not the

law in the Fest. ‘The ditch owner is not li: dle mercly beca:se the

break or escape occarred, bat only if it occarred through his negligence.

weiées:iné v. Msclume, ete. Somras: (1° Fic. 3:7; Fuller v. Flatt

=: ‘

Courts (2 Fae. 129). In the cpecation ¢f a camcl the orfinary role

ef negligexce azplies, nazel;, tx..t tnore =:s: b- a failure tc use

tre care vice. an ordinary rruser: ras. woul. : ave taicen unger the cir-

Cometancese FEarizer v. Grees (1% CA. $7, & Fac. 22). Until the

all-smerican Canal is completed e.6 used. i: - ill te impesscidle to tell

wnetier scepage will rescslt. A&A tre:x in ths . al night ocecar iz “2-

precsdented Cee ess arise. "IZ aczies- tl ‘canbe ensur for any

rears wadle th: canal is | deine Cf+: G* r az. : Avte.sed ty the Im-

perial Irrigatic:. District, a S24 ment ore g* te cisteiet could be

sati sfiea unéer the Celifc =nia lars. Iz the reaitime, I deo not ‘think

the Secretary cf the Intericr hae any gichacricy <e veanire the District

to give bond in the anount ef $202,000 or in any other amount guarantee-

ing the continzent liability ef the District. Ko statutory provision

of wnich I am aware emporers the Secrete>y to exact such a bond. In

the abdsence of sacha statctory provisicz, the District cannet be com-

pelled to give bond unless the odlisation sc to do is imposed by its

existing contract with the United States under rhich the United States

is constracting the All-American Canal for the District at the expense

ef the District. That contract, which fixed in éctail tne rignts ané

obligations of the parties both defore and after the District takes :

over the operation and maintenance of the caral, contains no provision

revairins the Dietrict to give bone,

tien of sc.er in tho Sceretary wich mar be invekcdé as acthorizing

nix ~o <xact a deni.

Wale. t.¢ District has not agzecd

vicw of t-.¢ cxistirg contract, ie

Azproveé! Jaruary 8, 1936. .

(322) T. } + Walters, .

First Assistant Secretary.

111379

The ¢blisc7i-

. 28198.

ner Geos it contain any rescrva-

% to sive Dera, therefore, is onc

70 2s-am: ané which cannot now, in

aiorcod whihnect its consent.

ios 2c fully,

‘ Yatton R, Mergolé, ~~. °

§ licitor.

€ €) IN REPLY REFER TO

“66-1032. 33

UNITED STATES F-0c-193 3253

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SOLICITOR

WASHINGTON OC 25249

fi 2 2 iss

Mescrarcus

To: Secretary of the Interior

Fron: Solicitor

Subject: Status of Land in T. 16 S., R. 22 and 23 E., SH Proposal for

Lease to Yuca County, Arizona

I have completed my review cf the status of certain land in T. 16 S.,

R. 22 and 23 E., SHi proposed for lease to Yuma County for park, airport

and recreational purposes.

For convenient reference, the lanis involved will be referred to as_

sevarate tarcels. Parcel Cre consists of land in Sections 25 and ju,

T. 165., R. 22 =. and in Secticns 30 end 31, T. 16 S., R 23 £., SA,

lying between the uvrer reservation levee and the present Arizona-California

State lize. Parcel Two consists of lands in Section 36, T. 16 S., R. 22 =.

end in Secticn 31, T. 16 S., 2. 23 E., SHi, lying on bota sides of the

present channel cf the Colorado River ctecween the upper reservaticn levee

ané the artandoned 1953 chancel.

For reasons hereafter set forth, I nave concluded that tne proposed

leese is lesally wnsbdjectionable if Parcel One is excluded.

Both parcels are accreticns to lands of the olé Fort Yima Militarr

Reservation formerly within the Yum2 Indian Reservation. Tne issue

presented is whether tne Cu2chan Tribe of the Fort Yuma Reserveticn

thereby has such a bdeneficial interest in either oarcel es to render its

inclusion in the provosec lease legally inadvisable. Clsims for ccazen-

sation cn accounts of botn rarceis are exSraced within the ection awaitins

decision ty the Inaian Claims Cormissicr entitled Tre Guechen Triste <2

the Fort Y¥.rc2 Reservation. Caiifornia v. Tne Unite? States cl Acerca.

Docket No. 3E..

By an act of Ausust 15, 1594 (26 Stat. 232), the Conzress ratified an

asreezment of Dececter 4, 1693 with she Yut2 Indiers under which tae

Indiass cec3d, inte> wis, ail Tigts3 ta cna old silitary reservasion

lan@s in Cali?crnia to t=z¢ thread cf tue Colorado River. In return eacz

Incien was tc se allotted a s=ealil tract <f irrisacls land cut of tne

ceded lands. The cede? surplus irricacis lard was tc be sold for the

benefit of the Indians. All cf tne ceded ianis “nat suscepticle cf

irrigation” were ts cecso=2 2 part 2° the public denain.

O O

At the tine the 1094 act «2s passed, it was contemplated that

irrigation facilities would te constructed 0; a private comneny.

That venture faile2. Ther2upon, in 1954 Congress made prevision

for the inclusica sf the irrisedie lanés ef tire Yuma reservation

in the Yana Federal Recle-ation orojecs tering uncertaken purszant

to the shen recently enacted Reclamation Act of June 17, 1902 (32

tat. 303).

Section 25 of the act of April 21, 1904 (32 Stat. 224) stimlated

that certain of the irricable lands should be allotted to the

Indiens and the remainéer of such lands were tc be disvosed of under

the reclamaticn law, cut with a surcharse for credit to the Indians.

The 1904 act left unaffected the stipulation of the 1094 act that

extinguished the Indian interest in any nen-irrigable lends. Sol. Op.

H-28198, January 8, 1936.

We have then e situation in which, if the 1593 esreement and the

subsequent acts of 1694 and 1904 emorace accretions to the former

reservation lends, to the extent that these eccreted lends are

themselves irrig2ble, the quecnan Indians would rossess a beneficial

interest in them. Conversely, whether or nct the accreted lends ere

within the cccress of the asreen nt end the statutes, the Indians

bave no interes<z in non-irrisa’ lands.

Since disposition o? lands which are non-irrisable ray te effected

free and clear of any clains of the Quechan indians, whatever may

be the outccre of the orsceedings in Docxet 320 and any subsequent

judicial review therec?, the questicn of irrizability is central to

a determination of wnether to preceed with tne sroposed lease.

The act of 1904, eas above noted, provides for inclusion of the

irrigable lands in the Yuta Federal Reclamation sroject. Consecuently,

irrigability is to te determined in accordance with the oractices and

standards of the Burea: c? Reclamation.

By memorandum to you cf Arril 3, copy ettached, in pursuance of your

request of March 22, the Commissioner of Reclamaticn reverted thas

the lends included in Farcel Two are non-irrigatle. Y/ Consequently,

Be reached an icenticsi conclusica with respect to an additional sarcel

embraced in the prorosed lease described as Lot 19, $.23, 7.85, 2-23.

Since this land lies south of the 2s2ndoneéd 1953 river channel ani die

not accrete to the 2mmer reservaticn lenis, ics intlusios in the lease

does not present any issue as to Indian cisirs.

S's ins or ail

inclusion of Parcel Two in the lease does not present any issue of

Indian rights. |

Parcel One is considered by the Ccx=missicnir to oe irrigable.

Consequently, if the position of the Qucchan Tribe in Docket 320

is upheld, the Quechan Tribe would nave on interest in its disnosition.

A disposition other than as provided in tne 19C4 act, particulariy

@ disposal as under the rroposed 1l42se, would apoear to be inconsistent

with the Indian interest. That being tae case, I cannot recomend

the inclusion of Parcel One in the proposed lease.

In light of the foregoing, I reccmmend that:

(1) Yume County be advised that Parcel One must be eliminated

from the proposed lease, and that it be approved with

that modification;

(2) The Indien Claims Commission and the parties in Docket 320

be advised respecting the irrizability deterninaticns

of tne Commissioner of Reclamation in crder that they nay

be given such consideraticn es may de warranted in that

proceeding; and

(3) By your endorsement in the space vrovided below, you ap-

oy Cormissioner Doniny's determinations of April 3,

19638.

Appropriate letters of notification to Yira County, the Indian

Claizs Comissicn, the Department cf Justice and the Quechan Tride

are enclosed fcr your use.

Solicitor

Enclosures

The determinations made by the Commissioner cf Reclamaticn in his

nenorandum » had ot 2 acril 3, Sgee, ere aps cvet

Te We 5 f. a

See attached list

for distribution

( Ss

UNITED STATES

DEPARTMENT OF THE INTERIOR

. ; _« BUREAU OF RECLAMATION

lis Chores s be WASHINGTON, 0.C. 20240

5" v4.2 1908

SOLICITOR, APR 3- 1968

Mexorandum

Tos Secretary of the Interior

Froas Commissioner of Reclazation

Subjects Status of Land in Township 16 South, Ranges 22 and 23

East, SDM, Under Act of April 21, 190% (33 Stat. 189)-=-

Yuna Psoject

Responsive to your lilerch 22, 1968, momoranduna subject as above, a owe

£icld review has been mace of the lands discussed in Deputy Solicitoz

Weinberg's March 21, 1968, memorandum on the samo subject.

On the basis of that review and an analysis of available lend classi-

fication data, wa find that lend porcel one identified 2s Sections 25

and 36, Township 16 South, Range 22 Las t, and Sections 30 and 51,

Township 16 South, Raace 23 Cast, San Bernardino Mcricica, lying.

between the upper reservation levee end the Aricona-California stcte

line is irrigableo. Land parcel two consisting of Section 36, Towne

ship 16 South, Range 22 East,: and Section 31, Township 16 South,

Range 23 Last, Sen Bernardino Meridian, lyiag betrccn the upper

teservation levee and the present Colorado River channel wes also.

cxenincé. Although arcble soil profiles are distsibuted throughout

this parcel, the lend is isolated, contains toxic salt concentrae

tions, and is subject to flooding. Accordingly, parcel two is

dotermined to be nonirrigable. The third parcel of land, lying -

south of the prescat Coloraco Rives chennel in the same sections

as parcel two is also held to ba nonirrigcble. Land in parccl three

has few, if any, arable soil profiles, and is characterised by high

water tables, and toxic salt and alkali conditions. This parcel is

only slightly above the present water surface of the river, end

accordingly, is subject to flooding. =

During the field exeninstion, review wes clso made es to the

irrigability of Lot 19, Section 23, Township & South, Renge 23

West, Gila and Salt River Mosidian, lyiag to the couth of the cban-

doned 1953 river channel and included ia the loasa to the couaty, ~

Althoush coils moking up the s.-seacly cultivated lands are srcdle,

the parcel is ccteraincd to tbe noaivricable cus to probcblca free

quent flooding, ir cceuch es the icsd lics ca the siver cice ct the ;

ecxistiag levee. ’

Please edvise 13 we cca Ss Ge Luscucr <«.-iccance in secerd to these

lands.

%SGDY FLOYD E. DOMINY

cc:

Lee» Solicitor

Assistscat Scexctasy, Vater anc Power Develogmeat

Regionsl Director, Goulder City, Nevada

Regional Solicitor, Los Anseles, Californie

Associate Solicitos, Reclexzation aad Power

IN REPLY REFER TO:

‘ Im the 1870 Executive Order anc the 1890 Executive Order,-

c. To: 5 Al So { Ie I tor a “> 2,2 7h “ "%& . ear “4 sie 2S Se 2s.° > a oe “4

a |

“an Executive Order of President Grant, dated March 30, 1870.

OFFICE OF THE SOLICITOR is

* “." WASHINGTON, D.C. 202: lee ee

pS trgke i aE

; e ° ee

. d ° eo @? . -

Memorandum . “ : ea | oes

From: ' Assoctate Solicitor, Indian Affairs

Subject: Boundary of the Fort Mojave Hay and Wood Reserve

2. Facts and Background —

| watt * REET PA del MRR TE

‘As Statement of the Conflict” . 2 a ee, ee

The Camp Mojave Military Reserve and the Reserve for

Hay and Wood were established "for military purposes" by,-

The two reserves are located on bottomlands of the Colorado

River where the boundaries of the states of Nevada,

California and Arizona come together. By an Executive Order

dated September 19, 1890, both reserves were transferred

to the Department of the Interlor to be held In trust as %

@® reservation for the Fort Mojave Indian Tribe. The

;

boundary description of the two reserves as contalned

is as follows: ia: ry Ee Oe.

bel

Camp Mojave--Commencing at a post marked

"U.S." in mound of earth situzted i. 83°

- SI" 37” &., 65.95 chains distant from the

.”° flagstaff et the post; thence variation

mew we ee Or ec er

oa ee "39 Wor 66 VGeserq Geuern ve or Fre on

; ) chatr- to a post marked "U.S." "n mound of

| sonds thence north 56° 5i' 32" . 232.60

chatns to a post marked "U.S." in mound of

coarse gravel; thence north 335° C8' 28" E.

240.00 cheizs to a post marked "U.S." in a

- .. mound of coarse gravel, neer the west bank

' of Beaver Leke;. thence south s6° St° 32” €.

-"' 232.60 chains to the point of commencement.

The said boundaries containing 5,582 acres,

- § rood, 24 perches, a little more or less..

‘ Camp Mojave Hay and Wood Reservation--

Commencing 2t a post marked "U.S." in mound

of earth situated south 10° 43" 41" E. :

347<52 chains distant from the flagstaff at

Camp Mojave and about 20 chains southwest

‘o-, from the point where the road crosses the

rie tat. top of the mesa; thence variation 14° o8s'

° =" 28" east, south 1° 04" 28" W., 272.50 chains

_ to a post marked "U.S." in a mound of earth

os near the quartermaster's corrali; thence south °

“Sire - 76° 417' 28" W. 228.50 chains to a post marked

tees 7 MULLS." In a mound of earth near the left bank

“tp fh. tS .of the Colorado River; thence north a 6@S* ip

oe se'-25° 32" W. 362.70 chains to a post marked "U.S."

" . |m @ mound of earth near the left bank of the

: ’ Colorado River; thence south 88° 45" 32" E.

' | 369.00 chains to the post at the point of

5 commencement. The said boundaries containing

‘ 9,114.81 acres, more or less.!/

The present controversy concerns the western boundary of

the Hay and Wood Reserve. The language of the War

“~~ Department Order, relled upon In the Executive Order,

describes the boundaries of each reserve In terms of |

courses and distances and by reference to the amount

of acreace enclosed. Reference In each description |

Is also made to posts placed at each corner.: In the

case of the Hay and Wood Reserve, the. reference to the

posts marking the western border locates them as being

“near rmne tert Vahk LOF Cassi VSNK OF THE VLOTOTseco

. River.” But th existence of this referw :e creates

en Inconsistency in the description; if the courses

ond distances and acreage specified In the order are”

. followed, the western boundaty of the Reserve must.

necessarily be located west of the flood plain of the

Colorado River.’

—— —— _ —— —_—_—

The Fort iadeen Tribe and the Bureau of Indian Affairs

-construe the order as locating the reservation boundary

west of the Colorado River.2/ The Bureau of Land Management

Interprets It as creating the river as the reservation’ S

western peundery. 3/ At Issue between the Indtans and BLM

-Is the equitable ownership to approximately 3500 acres

of land. This Issue has not been definitively resolved —

between the respective Bureaus, and conflicting Inter-

—— ——- -

pretations and actions have persisted over the years.

' Accordingly, 1 recommend that this matter be submitted

to the Secretary for final determination. = = — | «s..:

“> owt: ?

oe have carefully reviewed the factual background

of this long-standing controversy and have considered.

the pertinent legal principles. | recommend that the

Secretary Issue an order recognizing the equitable title

of the Fort Mojave Tribe to the full 9,114.81 acres

specified in the 1870 order. The reasons for my recommen-

dation follow.

a . °- ° . a» .

oe - VTe. *s °*38 “~ 2 pee : <i" » ~*

{

Wee cee Wheeler Survey

Prior to issuance of the 1870 executive order, the area

‘which became the Hay and Wood Reserve wes surveyed by —

Lieutenant George Wheeler of the U.S. Army.3a/ Lt. Wheeler

spent two ions surveying the Hay and Yood Reserve in

january 1869, and he took notes of his survey.3b/ During

the same general period, and In rapid succession, Wheeler

also surveyed over a dozen other military reservations In

the area... “~ . : he

- > - - 7 ~ ©

4 e*e* . e » =a¢ ° a - - *e

- - . 7 “Pte 2 es

e *e a

_Thirteen months after. his survey was completed,4/ Lt. Wheeler

os Se a -

and an assistant -- Mauran -- drew a map depicting the Hay

- and Wood Reserve. The map was drawn in San Francisco using

Wheeler's notes. The 1870 map depicts the boundaries of

the Hay and Wood Reserve, and It shows the Colorado River

as running along the western boundary of the reserve. Its

.- @twenstons, however, and Its relationshIp to Fort Mojave

are scaled to conform to the courses and distances and

‘the acreage specified in General Order Number 19. The map

therefore depicts a physical impossibility, since a

reserve of the dimensions portrayed and traced out at the

Indicated latitude and longitude could never have been

‘established east of the Colorado River.

Littie Is known of the circumstances surrounding the actual

drawing of the 1870 wheeler map. The map was drawn by

~ 7.

a Fd. R, Mauran, 0° * of Whooler's assistants, snd It Is slgnod

by Lt. Wheeier. Any records describing the creation of the

Va. map wore probably lost In the. San Francisco earthquake.

“2” However, It seems Ikety that the map would have beon drawn

. by reference to Wheeler's notes and to whatever maps the

‘. Army Headquarters had at Jts disposal In San Francisco at

that time. Atl of the maps available to the Army command

In San Francisco In 1870 contained erroneous locations of

tho Colorado River. 5/ Hence, the most IIkely explanation

| ef the 1870 Wheeler map Its that Wheeler's survey notes

were traced onto a map that erroneously located the

Colorado River west of Its true longitude.

‘2. The 1870 Order seen ane oar ot do oaks eee

The boundary deseriptions of tne two Fort Mojave reserves

appeared first in a communication from the Headquerters

of the Milltary Division of the Pacific tn San Francisco

to the Adjutant General of the U.S. Army In Washington,

0. C.6/ = The letter Is dated March 12, 1870, and deseribes

@lght separate reserves that were surveyed by Wheeler

during his assignmert In 1868 and 1869. 16 eceanmeede

that all elght be formally senctioned os allitery reserves,

President Grant's March 30, 1870, Executive Order adopted the

descriptions of the reserves therein without change. Since

the letter was written after the 1870 map was drawn, the

most reasonable conclusion Is that the reference to the

e-*

lott bank of the Colorado River crept Into the descrip-

‘ tlon at this point. The letter Is signed by Mejor General

George Thomes, no+ by Lt. Wheeler; It Is probable that

he or his aide Inserted the reference to the river in the

_ boundary description after ee the aye: 1870 Wheeler

‘Map. “a * 4 —*?- a on. z ¥ Seer: wes tr « ." ~ aM, a; : ? ite “os 2%. “fhe | = 2 Es ~_* -

3. ~ The 18°09 Transfer of the Reserve to. the Department of

the Intertor

When the two reserves were transferred to the Department

of the Interior in 1890, no new survey was ordered. ‘The. .:

Executive Order of September 19, ont, merely approves the

, Fecommendation of the Acting Secretary of War 7/ which er

“Feconmended that "the Milltary Reservation of Fort Mojave,

Arizona, be transferred and turned over ve the Oepartnent

of the faterior for Indlan “senso!” ery Hence, the

éertonraphte error created in February 1870, received

formalization as an executive order In September 1890.

The latent ambiguity contained In the Executive Orders

went undisvoered until (1903. 8/ on eos i

. -_9 Fe

” 2 se ee ° * % “ere, “a % wee

a ’ See oo .* e © . .

; “e «+e - .

-_ -_ . . . e 7 ° - . - °°

. . 7 % .- ‘. - . ** ee *s%

4. Subsequent Administrative Actions

Stnce 1903, however, the Inconsistencies In the reservation's

boundary description have been recognized by agencies of

this Department.9/ In that year, tne Geological Survey

- - - - SF ST ce cee ae

_' The Genera! Land Office conducted another survey In 1928..

« @® . °

Fequested a clarif Ication of the boundary Quest! on prior

‘to completing official maps ‘et the area.!0/ The BIA

‘responded that the boundary was the Wheeler Line In the

western foothIiiIs, regardless of the true position of

_ the Colorado River in 1869 or’in more recent times.11/

. The General Land Office apparently took a contrary pos!tion,

as it ordered a. reservar of the reservation in 1905. The

special tastructions issued by the Surveyor General to John

‘Fisher, the surveyor, told him to survey the east, and south

‘ eidibietes of the Hay and. Wood Reserve and to treat the

‘Colorado River as the western boundary of the entire reserva-

tion, Including Camp Mojave, the Hay and Wood Reserve and

the. Intermediate tract.12/ [No offictal plat was prepared

adopting this survey. The 1905 survey Is significant,

tat tt In that it confirmed the location of the flagstaff

used by Wheeler. J eee Oe : ‘

“" The Instructions to Surveyor Sidney Blout prejudged the

Issue In dispute: — Blout was Girected to determine where

the Colorado River otenae tn. 1869 end establish the

western boundary of the hehinien Ina lIne along the

eastern bank of the old river course.13/ Blout resurveyed

the Hay and Wood Reserve accordingly, and the resultant

official plat was edcpted by the General Land Office in

January 1931.

Several aspects \f the Blout survey deserve mention. .

The new plat reduces the size of the original Wheeler

ae plat by 3,500 acres, which Is In excess of 3535 percent

of the originally specified 9,114.81 acres. Secondly,

the courses and distances for the Blout plet do not

correspond to those of the Wheeler plat. Thirdly, the

“truncated Hay and Viood Reserve does not stand In the

- = game -retation to the Fort Mojave Military Reserve as did

Wheeler's Hay and Wood Reserve. Hence, the Blout survey

created 2 reserve that Is substantially different from

that described In the Order of 1870. _ ¥ ee

In 1941, the GLO ordered enother survey of the lands that were

- > removed from the Hay and Wood Reserve by the Blout Line. 14/,

These lands were accordingly surveyed and subdivided by

Vander Meer and thereafter, as pert of the public domain,

awalted disposal under the varlous public land laws.

Other agencies have accepted the BIA position. The U.S. *

Geological Survey has subsequent to the 1928 survey

treated the western weonteed of the Reserve as extending

beyond the Colorado River; the 1950 Needles Quadrant of

California and Arizona map clearly Identifies the full

9,114.8! acres as an Indian reservation. 14a/ More

recently, the United States took the position before

the Suprere Court in Arizona v. Califor-iz2 (No. 9 Original,

October Term 1959) that “the specification In the Executive

--- tribe's favor. 376 U.S. 340, 345 (1964).

boundarles defl 4d by courses and distanc : is con-

' trolling"!5/ This case was commenced to allocate the waters

of the lower Colorado River between the states of that

region. The United States as a party claimed water rights

- for. federal lands In those states, Including the Ft. Mojave

‘indian Resorvetion. This required the Special Mester to

hear evidence as to the size of the Hay and- Wood Reserve.

White the Special Master held against the contention of the

United States on this point and concluded that the 1928 |

Genore! Land Office survey correctly determined the

western boundary of the Hay and Wood Reserve, 16/ the

- Supreme Court rejected his holding on the grounds that ign

It was unnecessary for resolution of the case. Artzona ve

Callforni2, 373 U.S. 546, 60! (1963). Instead, the Court

used the lesser screage of the Blout Survey for determining

the tribe's water allocation, subject to enlargement if

- the boundary dispute were subsequently resolved in the ‘

> .-o

The Secretary has not approved the plats created 2s fy oe

Of the Blout survey. In May, 1957, however, the Secretary

did approve the Constitution and aytoue of the Ft. Mojave

Tribe, which provide es foliows ‘(Article 11): aap The ‘

authority of the Fort Mojave Tribe shall extenc to the

following land areas:. . . « the so-called Hay and jlood

Reserve. .. containing approximately 9,114 acres, more

. pa .

B, . a . . @« . 5 : , .

. ° . _ :

’ “or less. . .” «. place substantial welgh on this. action

by the Secretary (as did the United States In Its brief

sa Arizona v. C2itforniz2,!7/). His approval of the tribal

constitution and bylaws Is neither a minIisterlal nor an

Incidental action -- It Is required by statute 18/,

“Indicates his non-acceptance of the 1928 survey and a

contrary administrative interpretation of the 1879

Exécutive Order, and In my view supercedes the 193! GLO

aperevet of the Slour survey because that survey Is incompa-

tible with the tribe! Ss constitution and bylaws.

“tl. Legal Sostyets a. +. a

+ = ess @.se i a

‘

The fegal qenesen to be resetves concerns. “Interpretation #7

76 «°.% 30 2 aire

>of the latent of the 1870 and se96 executive ofders. That

Intent, it clearly appears, wes to eseete a reserve as

surveyed by Lt. Wheeler. I! conclude from a detailed analysis

of Wheeler's notes and techniques, as follows, that Wheeler

- Surveyed a reserve of 9114 acres, and that the 1870 order

“Intended to establish a reserve of that size. Accordingly,

-the courses and distances ples the ecreage description

better describes ‘the Intent of the order than does the call.

to monuments. nae

A. The Intent of the 1870 Order cd a

Clearly, the drafters of the 1870 order intended to create

® reserve @s surveyed by Lt. Wheeler. The most likely

conclusion - based upon Wheeler's notes, his surveying

. = ° * . - * - , eo. . -*

. : AY ere oe ae oe ee ee ~ + 4%

. . « e. °. .

‘

;

-techniques and the terrain of the erea - .'s that Wheeler

' did survey a 9,114.81 acre reserve that spanned the

Colorado River. Bes

This conclusion is further substantiated by Independent

evidence of the understanding in the local community at

the time as. to where the boundaries of the reserve were.

There Is correspondence from 1872 referring to timber

taken from that portion of the reserve lying west of the

Colorado River. 182/ ' Peay

. s b ‘ : . . i ia . i v-

. : ‘~ -

° ae e . *« "+ Pte d wo *. * O's* 0° © —_ ara ™ - ~

- - ° “ .

ee os S, he °@ 6 A soe °@ - 2 o% « e

° « : ieee “y

Wheeler's notes taken on the scene at thea time when the

survey was sats describe the terrain and his techniques,

and preserve his cruclal notations. At least some of

these notes have been recovered from the Nationa! Archives

and have been thoroughly studied and analyzed. Wheeler's —

” survey technique was to establish corner posts for the )

‘reserve and then to determine @ course and distance

description for the reserve. HIs determinations were

made by taking sitings Pel the corners from two different

points outside the reserve through an Instrument from

which anguler readings could be obtelned. Using the

‘tangles so read, distances and acreage could be accurately

. ° «

~~. 4

determined by trigonometry.19/ MLR a tS

In his notes for the Hay and Wood Reserve, nine

describes the establishment of Corner | and the two

surveying stations for taking sites’ to the corners/20/

The actual readings for the sitings from one of these

y Stotions to Corners Il, 111, and IV are recorded. The

readings from the other station ar2 not Included.21/

There Is no description of the location of the Colorado

River In relation to the corners, nor is there a descrip-

“tlon of the tand tn the vicinity of Corners II! and IV.

In the vicinity f the Hay and Wood Reser » ‘the Colorado

' River flows through an alluvial plain approximately

five miles wide.22/ “The plain, or bottomlands, are

rich In vegetation. On elther side of the plain, the

terrain ascends several hundred feet to a sandy, barren -

plateau. Moving away from the river, the plateau |

ultimately gives way to rocky foothII!Is and mountains. | a

In contrast to the bottomlands, vegetation on the plateaus

and foothiIIis Is sparse or non-existent.

--, oe ‘ 2s ©

Lt. Wheeler established stations from which to survey the

‘Hay.and Wood Reserve on the barren plateau to the eest of

the, alluvial plain. 23/ Looking west from these polnts, e

‘he ‘stted his tnstrument at three different corners and

recorded the angles *: each. Two corners, Numbers III

and IV, were marked by tires. The third, Corner Il,

was marked by a flag.

= establish Corners I!!! and IV as advocated by the BIA,

Wheeler's men - but not necessarily Wheeler or Mauran--would

have had to cross the Colorado River. The river is not,

however, visible fron the siting stations on the eastern plateau

but Is concealed by the dense follage that carpets the bottom-

londs. It Is probable that Wheeier himself never 2pproeched

the river in the vicinity of the Hay and vlood Reserve, and

that he therefore had no personal recollection of Its

location.

= Corners fit an- tv were pot chosen arbit- arity. While

“Shere is no proof as to what caused the selection of these

spots, the two points are logical locations for surveyors

using Wheeler's techniques. Both points are high enough

above the flood piain to acke possible their use as siting

‘points. Corner It! is 120 teet above the flood plain; :

_ Corner IV Is 320 feet above the flood plain. Here It °

must be pointed out that, when siting to etees, It Is

aeseesory that the base of the fire be visible be ‘order

to obtain an accurate reading.24/. If, Instead, fires had

been lighted on the east bank of the river, they would

have been hidden from the sight of one standing on the

° eastern plateau. In addition to being of proper patgnr,

* both corners can be aligned with an Identifying feature

‘of the terrain. A line from Corner 111 through Corner I]

Is In alignment with Boundary Cone, a prominent peak to

the east long used as a natural landmark. Corner IV Is

‘due west cf the Corner 1, and, similarly, a line from Corner.

WV through Corner | is also In alignment with Boundary Cone.

A line between Corners a and I, while enclosing send

uplands, is set far sooush west so as to include a bulge

In the dottomlands. It Is no further west than necessary

to Include all of the bottealends located between the

north éad south boundarles of ‘the Reserve.25/ ~ ae

° . +. j

%..°

"28.

Wood Reserve mo’

. and his party maine south of the fort slong an estab! ished

ecross the river to set up fires at what would become ie

-Gorners I!I1 and IV.

taken at Station 2 (of which there is no record) to readings

“ taken at Station 3 and, using trigonometry, computed the

SOO S - a |

probably went as follow 26/ “heeler

road on the plateau to the east of the river. At’a point

where the road began to descend the plateau into the

‘river's bottomlands, Wheeler ‘established his first siting

station. From there and a second nearby station, he took

sitings to the flagstaff at the fort In order to establish

his position. He then measured off a distance of 24 chalns

down the plateau and Into the bottomlands to establish

He then returned to the. plateau and established

Next he sent some of hi's men

Corner Se

@ third siting stetion.

His -men were to locate Corners I!! and

1¥v by reference to Corners | and I! and to natural terrain

lil and

features. Wheeler then took readings to Corners II,

Subsequently, he compared readings

iV from stations 2 and 3.

courses and distances contained in the boundary description.

The avallable evidence supports this conclusion.

The

plateau and the road in ‘the vicinity of Corner | have been

located and they conform to the sketches in Wheeler's notes.

The original flagstaff at Fort Mojave was relocated by the

1905 Fisher survey. Using the readings in Wheeler's notes,

e* “< “a

‘ ° nae” i. ‘ ” Bind .* , . fe. " ee ! as: oe" 7

2 Se oe Mt wg ean tilitenss a

- dies ‘ . uf *y. Wn, 4 ae +. . me . 5 7° o*e “"

“ Bis 2 _* . * tere tL eye | ’

‘ . &, oa ie ; us to ie . ws. De

ae 15

* » °

i his siting statl s on the plateau can be ¢ ustablished

to corners II, tll, and !V conform to the readings In

Whecler's notes. ue dad ete > -e~u**

~*~

| -, by. reference to the flagstaff. Sitings from these stations

( A BIA survey team using modern Intrumer’s has resurveyed

| the reserve following Wheeler's notes.27/ The resultant plat

ts Identical to the plat on the Wheeler map, and angular

roadings and terrain features correspond to those in Wheeler's

| nates. The acreage within this plat Is 9114 acres.

B. The Call to Courses and Distances Plus Area

Should, i'n these Circumstances, Prevail Over

Pas eels * The Call te Monuments

While It is true that a call to monuments in a boundery

description should generally prevail over courses and

: distances, the latter must prevail over monuments In

cases where the courses and distances better indicate

| the Intent of the grantor.28/ As the. Supreme Court

i has stated:

».2 »* S\¢

> ee . *. ee%

Re Fi Os Os od - bd Geman Oe oem assy cogs.

a . ; - Ss P bal ad > |

lis it 1S true that, as a general ~-ule,

montuwents, natural or artific.sl, referred

to In a deed conzrol, on its construction,

| father than courses and distances; but this

; rule Is not inflexible. It yields whenever,

’ taking ell tne particulars of the deed

together, it would be absurd to apply it.

oes: .For Instance, if .the rejection of a call

-- #" "3 = €or a monument would reconcile other parts

s -: of the description, and leave enough to

‘* Identify end rencer certain the land which

the sheriff intended to convey, it would

certainly be ebsurd to retain the false call,

and thus defeat the conveyance. (Emphasis

.suppiied.) White v. Luning, 93 U.S. 514,

524 (1876). <r :

Ad .

"Se =

Continuing, the Court noted: “hee oa igh” adh Da

"It would therefore be mainifestiv wrona, not

to say aosurc, To retain tne cail tor tne tence,

end reject tne call for course and distance.

oie tite. t.* The: reason why monuments, as 2 ceneral thina, if

2 ¥ * + Fhe determinetisn cr tsundaries ccntrol courses

and distances, !S, tTnat Tnev are less ii2sle To

mistakes; tut TAS ruié ceases wiTnN Tae reeson tor

; it. st tney are inconsistent witn The cails ror

°° - .° @Fher monuments, and it is apparent from all the

ee Other particulars in the deed that they were

a inadvertently inserted, the reason for retaining

them no longer exists, and they will be rejected

es false and repugnant." (Emphasis supplied)

Other courts have held that preference for monuments cannot

be applied where the existence of the monument cannot be

‘established and proved. Hanson v¥. Red Rock, 4 S. Dak. 358,

7 N. W. Ji (1893). Further, where the menument referred

to Is a natural object and its position or-shape has

changed over time, the boundary described by courses.

“a *

SSS aoa Ee eee ee ee eee - i Tr

. - —_—

> ——_sss Es - ere ; Se ee Oa Ce ee ES ae © SSS om Cee came

and distances and acreage should prevail. Smith v.

Hutchison, 104 Tenn. 394, 58 S.W. 226 (1900). See also

Luginbuh! v. Hammond, 179 Cal. App. 2d 350, 3 Cal.

Rptr. 582 (1960).

in this case, none of the posts referred to as monuments

in the 1870 Executive Order hes ever been discovered and

the Colorado River is a natural monument which has under-

gone radical changes over time.29/ The rules of comparative

dignity of calls in @ boundary description are rules of

construction adaptable to the circumstances and the in-

tention of the conveying Instrument. United States v.

Redondo Development Company, 254 Fed. 656 (8th Cir. 1918);

Ewart v. Squire, 239 Fed. 34 (4th Cir. 1916). They ere

not to.be applied so as to defeat the intent of the

grantor. White v. Luning, 93 U.S. 514 (1876).

The Intent of the 1870 Executive Order Is clear upon

reference to the specification within the Order of a

total quantity of 9,114.81 acres. When there is doubt

of its true description, designation of quantity may be

properly considered, Chapman & Dewey v. St. Francis,

232 U.S. 186, 197 (1914). Fle!ld v. Columbia, Fed. Case

No. 4764, 4 Sawy. 523 (1864). And it may have controlling

welght, particularly if there is uncertainty in the

specific description. Montene Mining Co. v. St. Louis

Mining & Milling Co., 183 Fed. 51 (9th Cir. 1910).

The Suprene Court in Ainsae v. Unitec Stores. sus*2eined

the all-controlling factor of intent saying:

-* -

So monuments control courses and distances,

and courses and distances control quantity,

but where there is uncertainty in specific

description, the quantity named may be of

decisive weight, and necesserily so if the

Intention to convey only so much and no

- l*.. . more Is plain. 161 U.S. 208, at 229 Lael 4

eg? ~* €1895).30/ . _— :

Nor does the addition of the words "more or less" detract

from the significance of the specification within the

Executive Order of a quantity of 9,114.8! zecres. Used In*

‘

connection with quantity, these words are merely words

. of safety and precaution, intended to cover some slight or

unimportent Inaccuracy. 6 Thompson on Real Property,

Sec. 3355. The Supreme Court has specifically rejected

. the words "a little more or tess" when used in | erent

which clearly expreszes the quantity. United States Vv.

Fossat, 61 U.S. (20 How.) 413, 427 (1957).

in Interpreting the Executive Orders of 1870 and 1890,

moreover, any ambiguities should be construed In favor” ”

of the Mojave Indians. It Is well settled that In any

treaty or agreement with an Indlan tribe, anbI guou:

lar.guage Is to be construed In favor of tha Indlens or

as the Indians would have understood It. Alaske Pacific

Fisherles v. United States, 248 U.S. 78 (1918); Choctaw

Nation v. Oxlahora, 397 U.S. 620 (1970).

a . | 4 , 19 e

Nor Is this rule of construction strictly !imited to

Interpretations of treaties. The Supreme Court has

stated In a case Involving an executive agreement:

"But In the Government's dealings with

the Indians the rule is exactly the

contrary. The construction, instead of

being strict, is liberal; doubtful expressions,

Instead of being resolved in favor of the

“United States, are to be resolved in favor of a

weak and defenseless people, who are wards of

the nation, end dependent wholly upon its pro-

tection and good faith. This rule of construc-

tion has been recognized, without exception,

for more than a hundred years and has been

applited in tax cases." Choate v. Trapp, 224

U.S. 665 at 675 (1912).

The same rule applies when construing statutes that 7 a

apply to Indians. Menominee Tribe v. United States,

391 U.S. 404 (1968); Squire v. Capoeman, 351 U.S. |

(1956); United States v. Santa Fe Pec. R., 314 U.S. 359,

(1941); Bennett County v. United Stetes, 394 F. 2d 8

(8th Cir. 1968); Drummond v. United States, 131 F.2d

"568 (10th Cir. 1942). ee Pate

Reid hy brn Chirrmnliter

fle My Abe

. ‘

Copy to: . . at. >

Mr. Lindgren Yd

Mr. Striegel

. Commissioner Thompson

Mr. LaFollette Butier

. Mer. Veeder

- Mr. HUcHale

eee ; . . (

1/ The 1870 Executive Order Included withIn the military

reserve: . “?

"The Intermediate trect lying between

the Hay and the Post Reservation,

bounded on the West by the Colorado

gitewt ies. River and on the East by a line running

7 ss *e f€pom Station | of the Hay and ‘ood

, Reserve to Station | of the Post Reserve."

Inadventently, this Intermediate tract was not expressly

transferred by the 1890 order. It was, however,

specifically included within the Ft. Mojave Indian |

Reservation In 1903. Executive Orders Relatina to Indlan

Reservations: From Mav 14, 1855, to July 1, 1912, p. 12°

49 ee eg ETL ed

. sé ts

'- "This "Intermediate tract" clearly belongs to the tribe.

2/ Memorandum, March 14, 1973, BIA Area Director Phoenix

to Commissioner, Indian Affairs; Memorandum, August 28,

1973, Assistant to the Secretary for Indian Affairs to

“the Solicitor. | a . oe) ee

rm~. ° - *

= ° - ~ . ° . e

The efforts of the Mojave Tribe to have their equitable |

title to this ftand recognized have been of long standing.

Beginning in 1910, the State of California petitioned |

_the General Land Office to obtain title to some of the

bottomlands located on the western bank of the Colorado

River and within the Hay and Wood Reserve as claimed

by the tribe and BIA. The state claimed these were

- public lands, and subject to claim by It pursuant to the

Swamp and Overflowed Lands Acts of 1850 and 1866. 43

. .

“ > ‘’ . ‘ ; 4

e s . _*

U.S.C. S 987. while the state's petition was rejected

» In 1910, because GLO acknowledged the

of the reservation was unsettled, the

‘Its claim after the 1928 Blout survey.

western boundary

State reasserted

This led ultimately

to an administrative adjudication In which the Tribe Jn-

“tervened. 8 IBLA 164 (1972).

The results of this determination are

present purposes. The Board held oge!

fs & “2. e sd ,” e a *

inconclusive for

nst the State on

the ground that the lands were not "swamp and overf lowed”

- fands under the act; but did not pass

on the tribe's

claim to equitable title. The BIA, however, resurveyed

¥,

“the land and its expert witness, Rupkey, testified In the

. tribe" s behalf at the hearing. His testiaony is referred

to In the footnotes herein as "Rupkey

Testimony."

3/ The latest memorandum ‘espousing this position ts

_from Clark L. Gumm to Members of the Fort Mojave

-=*-Task Force, dated May 18, 1971...

< e

Fed

. - e ° . *

- . # ~-se in &

-Ba/ The lands withIn the Mojave Valley, Including the

lands presently In dispute, were part

of the lands

“aboriginally possessed by the Mojave Tribe, and were

held by the tribe In "Indlan title.”

219, 253. _- ,

7 Ind. Cl. Comm.

* o« ates e mh. ek ~ **.¢ ' ~ wS. e ® iy? - é

PS SS a Sa? ™ Tae’: *

CE a ee

“3b/ Lt. Georgy M. Wheeler, Survey Notes 1868-1869,

Books Nos. 2, 10, National Archieves, Record Group 77,

Records of the Office of the Chief of Engineers.

4/ Ourtng these thirteen months, Wheeler was occupled on

: 8 grueling exploratory mission In southern Nevada unrelated

to his surveys In 1868 and eorty 1869. WHEE Tam H. Goetzmann,

Exploration and Cesire (Alfred A. Knopf tenia p. 399, 468.

5/ =—‘The maps of the Lower Colorado River available In 1870

to the creators of the Wheeler Map were all slightly erroneous.

Three maps known to have been available to the Army In San

Francisco at that time have been recovered from the National

Archives. The first Is the result of an 1855 survey of the

- Seseed Stendare Parallel North in Callforni2 by Henry

Washington. This line runs east and west terminating In

the vicinity of Corner IV of the Hay and Wood Reserve.

it Is known that Mr. Washington used a defective surveyor's

_chatn so that all his measured distances were reported too

short. Rupkey Testimony supra, Tr. p. 1394. Hence, In.

reporting the location of the Colorado River, Washington

a it two and one-half miles west of where it ectuelly

was In 1855. This would place the river where it never

could have been In the foothi lis west of the alluvial plain.

+. An extensive fi d survey of the Lower Cr “2rado was under-

taken by Lt. J. C. Ives In 1858. Goetzmenn, Army Exoloration

«*

‘tn the frericen vest, 1803-1863 (Yale 1959), p. 380-393.

The Nationa! Archives- contains two maps that were prepared

as a result of this survey. The first map, known as the

lves-ChurchI!1 map, was not published as part of the Ives

‘Feport. It é0es, however, locate the Colorado River

epproxtactely one and a half alles west of Its true location.

- Ceallforniz, 8 MLA 164,. 192-203 (1972).

Rupkey Testimony, supra, Tr. p. 1594. See also Memorandum

from Clark L. Gumm tomembers of the Fort Mojave Task Force,

May 18, 1971 Chereafter "BLM Memorandum") p. 5; State of

st teen, apne Et ge

The second map, dubbed the Ives map of 1861, Is the one

: that accompanies tves’ final report. It depicts. the natural

contours In greater cetall than the first map, and It contains

@ correction for latitude and longitude. Despite the reloca-

tion of the Lower Colorado further eastward, however, the

‘second map still contains errors with respect to the river's

proper location. Memorandum from Clerk L. Gumm, Chief,

Division of Cadastral Survey to Regional Solicitor, Los

Angetes, California, July 22, 1971; See also U.S. Geological

Survey, The Deposits of the Colorado River on the Fort

MoJave Indlan Reservation In California 1850-1969 (1970)

ne. 3, p- 10. Hence, the Hay and Wood Reserve plotted on

elther of these maps Ifes to the east of the Colorado River.

. Pacific to Adju ant General, U.S. Army, | shington, DO. C.

' March 12, 1870, National Archives, Record Group 49.

-9/ 1 attach relatively I!ttle weight to correspondence

_ the first Reservation Superintendent, after the land was

transferred to this Department,. steted in a letter to the

". Commissioner of Indtan Affairs dated December 8, 1891,

the tota! ecreage of the Hay and Wood Reservation Is

7/ The tetter Is from the Acting Secretary of Wer, L. A.

- Grant, to the President, dated septenter 18, 1890. This

“type of executive order vests the same type of equitable

title In the Indlans as a more forma! definitive executive

order. Department of the Interior, Federal Indian Law

(1958) p. 620. Poepligh’, uit tee Katacwonane gears f+,

8/ Letter from Acting Director, Geological Survey to

the Secretary of ‘the Intertor July 9, oe oe r

* aechtves, Record Group No. 48. cc “ ‘Se

: A L b : ° b x *s Big * $, * ‘ os %e fi .. z a °

and documents that do not show any awareness of the

potential for conflicting Interpretations. For example,

= -

that "the Hay and Wood Reservation Is located... entirely

: e ” . Be é

on the East Bank of the Colorado River. ... . The

Colorado River. . . Is the western boundary of the Hay and

—_

Wood Reservation." However, the same letter states that

"9,114.81."

}

”

» Pi i ‘. 4, ‘ a PO, “s a. Yt. eg - ° ae, “oe” -~ « *. o6,"°

4 :

SOO STARE tints ce MIRREN, AMY Rants

A :

. , we . 2. ”

“WaT tf ) wa. et hoe BO eee * Keies, bi ¢3°". “edacen oe ‘2s om “ ;*

10/ Willlam H. Goetzmann, Army Exoloratior tn the American

Wost, 1803-1863. (Yale 1959) pp. 380-393.

Si/ Letter from Commissioner of Indtan Affairs to the

Secretary of the Interlor, July 16, 1903, National Archives,

Record Group No. 48. This BIA position may not have been

consistently held throughout all the Intervening 70 years.

For example, the Commissioner of Indlan Affairs concurred in

@ February 27, 1929, letter from the Acting Assistant

-Commisstoner of the General Lend Office to the Secretary

‘-

—————— ee

“map accompanying” them and stated:

of the Interior, which letter stated (based on a 1928 GLO

survey to be discussed infra) that the western boundary

as established by the courses and distances in the 1870

Wheeler Map was erroneous.

12/ See Memorandum from Area Oirector to Commissioner

of Indlan Affairs, March 14, 1973, supra Note | attachment

Exhibit C.

13/ id., Attachment Exhibit D. The Instructions, dated

January 7, 1928, referred to "a.-.small topographic

it wlll be observed that cornors !11

‘ and IV fall on ground so high as to

prociude any possibility of the river

" . + having flowed to the west thereof in 1869.

This condition can only bo explained by

assuming serious errors in the lengths

res; vation for hay and wood.- You will,

: ' ; the: <fore, run said boundarie on their

= : record courses out only so fer to the

aes as will place the west boundary in ~

@ position that conditicns on the ground

Indicate as its orobable position In 1869.

14/ State of California, 8 IBLA 164, 183 (1972). ya

‘« a's ' P - ° * Bie > - <

14a/ A later map covering a much larger area and entitled

"Western United States, 1:259,000, Needles," tone ohn the

yebtera boundery as being In accordance with Blout's sur-

vey. This later map: serves only to prove the Inconsistency

with which one branch of the. Department has dealt with the

Issue. Geological Survey has two current maps which cover

the Fort Mojave Indian Reservation, the 1950 Needles “

Quadrant and the above referenced map. Yet, the maps shige

the boundary in different places.

15/ Memorandum of the United States Re Fort Mohave

Iindlan Reservation Boundary, p. }.. tie

eee -16/ Special Master's negert, PP+ 282-83. The Spectal

Master premised his conclusion on the conclusiveness of

-? the GLO survey and Its Immunity to judictal review. ;

However, any lack of judictal pour to review the surver

Is Irrelevant for the present. purposes, because the Secretary

of the Interior unquestionably has the power to set aside

- @rroneous surveys by the GLO. Knight v. United Stetes Lend

Association, 142 U.S. 161 (1891).: [| -

. a

. » . —

a *. . © - i * ° a

com

—. o

—— tt ee rs _ =. eee 6 ee

- .

——a + ee - - -—- ~~. « SO SE ee ee ee @Gweece

. * @e*

_- SE LI Le YS + oo.

_—— a eee —<— ©@* Ge oo @ocemes ute > G@e<o @ Ghee oo

_— “ee mwrrs

gine vspeciat Maser BIS9 CONCIUCES hat He FL SUiVey

‘ correctively du.ermined the boundary wit. respect to

monuments as against courses and distances and area.

Special Master's Report pp. 285-287. For the reasons

.discussed Infra, | have Senapuces that the Special

; Be 2 ECOME -5b5 ph. %.

Master was In'error. a B85: LTT Ee

. ?

¢° st.

17/ Memorandum of the United States Re Fort Mohave

Indian Reservation Boundary. p. 10. eae ne ae +e .

- 44B/ -25:ULS.C. § 476. Rn ae ary

-°* $§8a/ Letter from Captain Pond, Camp Mojave to Headquarters,

“March 24, 1872, National Archives, Record Group 393, Ft.

“s & ao ro tae <a « ‘

"= Mojave, Arizona, Letters sent. OO et eere ae ee et

" 49/ Rupkey Testimony, supra n.Jl, Tr. pp. 1391-1395.

3, 20/ Survey Notes, supra, n.3.

zu Not all of the notebooks used on the Wheeler bebe

‘tlon were avallable from the Natlonal avebtuds. ’ it ts

bel leved that one of whee. kept by elther Wheeler or one

of his colleagues, records ‘the aissing readings from

Station No. 2. one

—_

22/ State of California, 8 {BLA 164, 181-182; See also

U.S. Geological Survey, the Deposits of the Colorado River

on the Fort Mojave Indian Reservation In California, 1850-

1969 (1970) p. 8.

eee “em . ee (*eeee . c+ OF Cree 68 88+ C8 Oe aw ep eeese aoe ——- * owe ee ee ow Of -

bree: re ( =

/ survey Notes» supra-» n. de

e Hemorancum from Area Director,

- P of e

6° on,

24/ Se

ate p. 16.

terrain feature

25/° ‘The ¢acts of the

r the Needles Quad

al survey maps fo

50) and the Need!

roduced by the Bl

g IBLA 164 (1972)~

-. Geologic

es Quadrant,

#rom exhibits intr

of Caltfornia,

state

Z6/ Rupkey Testimony, SUPTS» no. I.

27/ This resurvey W25 accomp!ished @5

preparation of the case

of Caltfornia, IBLA 70-150,

ported in 8 IBLA 164 (1972).

1 authorities on t

Tiffany s2ys:

as in other aa6e8s

28/ Al

om propositions-

tion by boundaries,

as Inferred from the term

the grantor,

ontroltting consider

y have formulated a

Is the ¢ ation, and

the courts ma

tenons of the

¢ance of vartous e

Ing at this

ded as 2ids tn arriv

: Inten

Sec. 995, P

4 Tiffany. 3d ed.,

A for the hearings In

part of the

of the Ft. Mojave

the decision of whic

‘Mtn the case of

s to the relative tm

desc

suora, Note !,

s are taken from

rant, calif.

Arizona; and

Tribe In State

h .Is re-

——-

+ these

he subject suppor ;

a descrip~

the Intention of

s of the description,

any .rules which

por

ription are merely

** ##e

Intention”

D- 94-95. ie

_—- ——

—~ +o

—o-

——J

(

—E - _ ee elle

‘° “Thompson Ir: hl works on Real Property, Pe the

Importance of the letention of the parties formulating

the document containing the description, in these words:

me * * the generel rules as to the greater or lesser degree

of wel ght and control to be Given to one form of descrip-

tion as compared with another are not absolute but are

mere alds to be. used in the construction of the deed to

discover the real Intent of the parties, such Intent

. mot merely a descriptive or directory call.

* being the thing which governs where there Is latant

ambigutyi": 6 Thompson on Real evar rts 1962 Replacement,

‘Sec. 3021, p. 442. Py te SN ae

It is well established that for a call to a natural sy

“pbJect to be controlling, it must be a locative call and

Locative calls

are defined as specific calls, descriptions, or marks of

location, referring te lendserks, physical objects, ar

other points by which the land can be exactly located and

‘Identified. Descriptive or directory calls are those which

merely direct the neighborhood wherein the different specific

calls may be found. I1 Corpus Juris Secundum, Boundaries,

Sec. 4. The reference to a marked post In a mound near the

river In 1870 manifestly did no more than describe generally

the nelghborhood of the boundary corner.

The Indefiniteness of "near" is well Illustrated by the case

of Creech v. Johnson, 116 Ky. 441, 76 S.W. 185 (19035)

‘" © ° Cumberland Gap ‘ The Court there, In ¢ struing the

patent, "reversed" the calls so‘as to give effect to the

' ~ Intent to grant 2 specified number of acres, even

the result was to locate the corner In question five miles

from Cumberland Gap, the Court holding that such location :

might reasonably be spoken of in the survey, as "near

Cumberland Gap." See also Mizell v. Simmons, 79 N.C. 182

capa (1878), to the effect that courses and distances must

preval!l over a call "to or near” the head of a certain creek.

* More specifically, the California Court of Appeals has

“guled that the expression "near the river" Is not the ;

equivalent. of a description reading "at the river bank" ae

_ and refused to hold that that language fixed the river bank

as a controlling monument. San Pedro, L.A. & S.L. R. Co. v.

Stmmons Brick Co. 45 Cal. App. 57, ¥87 P. 62 (1919).

38/ Accord: Security Land & Exploration Co. v. Burns,

_ 193 U.S. 167, 179-180 (1904).

_* eee

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oy.) nweiwnr & o 8 @s ow ee WW KF CO

Cari Boronkay, General Counsel

Warren J. Abbott, Assistant General Counsel

Karen L. Tachiki, Deputy General Counsel

Attorneys for The Metropolitan Water

District of Southern California

1111 S: nset Boulevard

Box 54) 53, Los Angeles, California 90054

(213) 626-4282

Maurice C. Sherrill

Redwine and Sherrill

Attorneys for the Coachella

Valley Water District

Suite 1020

Security Pacific Plaza

3737 Main Street

Riverside, California 92501

(714) 684-2520

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

THE METROPOLITAN WATER DISTRICT

OF SOUTHERN CALIFORNIA, a public

agency of the State of California

and the COACHELLA VALLEY WATER

DISTRICT, a public agency of the

State of California,

Plaintiffs,

THE UNITED STATES OF AMERICA,

JAMES WATT, as Secretary, United

States Department of the Interior,

Defendants.

Plaintiffs allege:

CASE NO. 81-0678-GT(M)

FIRST AMENDED COMPLAINT FOR

REVIEW OF ADMINISTRATIVE

ACTION, FOR DECLARATORY,

INJUNCTIVE AND OTHER RELI&£r

INTRODUCTION

1. Plaintiff, The Metropolitan Water District of

Southern California (hereinafter referred to as “Metropolitan")

seeks review of 3 orders of the defendant Secretary of the

o onvr on yet |W ND

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Interior (hereinafter referred to as "Secretary”) purporting to

establish the boundaries of the reservations of the Fort Yuma

(Quechan), Fort Mojave and Colorado River Indian tribes

(hereinafter sometimes referred to as the "three tribes").

2. Metropolitan further seeks a declaration that

certain lands of the bed of the Colorado River within the State

of California, hereinafter described, which either the secretarial

orders complained of purport to place within the boundaries of

the reservations of the three tribes or are otherwise claimed by

the United States to be within said reservations, are lands

owned by the States of California and Arizona, respectively, in

their sovereign capacity and are not a part of the reservations

of the three tribes.

3. Plaintiff, the Coachella Valley Water District

(hereinafter referred to as "Coachella") seeks a review of the

order of the Secretary purporting to establish the boundary of

the reservation of the Fort Yuma tribe only.

4. Coachella further szeks a declaration that certain

lands of the bed of the Colorado River within the State of

California, hereinafter described, which the order of the Secretary

purporting to establish the boundary of the Fort Yuma Indian

Reservation, purports to place within the boundaries of the Fort

Yuma Indian Reservation, are lands owned by the State of

California in its sovereign capacity and are not a part of the

Fort Yuma Indian Reservation.

5. Plaintiffs challenge defendants' orders and

seek declaratory and injunctive relief.

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ou ow ® Where OO ob Bs ow & WwW DH KY OO

JURISDICTION AND VENUE

6. This court has jurisdiction pursuant to the

Administrative Procedure Act, 5 U.S.C. §§701-706; 28 U.S.C. §1331

(Federal Question); and 28 U.S.C. §2201 (Declaratory Judgment).

7. Venue is proper in this court pursuant to

28 U.S.C. §1391(e) (3).

8. Plaintiffs have exhausted all administrative

remedies and have no adequate remedy at law.

PARTIES

9. Metropolitan is a public agency established

pursuant to the Metropolitan Water District Act (Cal. Stats.

1969, Ch. 209, as amended; Deering's Water Uncodified Acts 9129(b);

West's Water Code Appendix 109-1) having its principal place

of business at 1111 Sunset Boulevard, Los Angeles, California.

10. Metropolitan is engaged in the development,

storage, and delivery of water at wholesale to its 27 member

public agencies for municipal and domestic use. The member

public agencies are all located in Southern California and consist

of 14 cities, 12 municipal water districts and a county water

authority. Metropolitan's service area extends into the counties

of Los Angeles, Orange, Riverside, San Bernardino, San Diego,

and Ventura and encompasses a population in excess of 12 million

persons, approximately one-half the population of the State of

California.

11. Coachella (formerly known as the Coachella Valley

County Water District), is a public agency of the State of

California, organized and existing pursuant to the provisions of

t//

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NY N NH NK WN NN KN FY &§ + FY ee ee

o vv ® WH eH CO 8 DBs fF YY & WwW DH KF OO

the County Water District Law (Section 30000, et seq. of the Water

Code) having its principal office at Coachella, California.

12. The territory of Coachella consists of approximately

650,000 acres principally being lands within Riverside County, Calif-

ornia, but also including lands within Imperial County, California,

and San Diego County, California. 5 cities are included within the

territory of the District. The public activities of Coachella in-

clude the provision of irrigation and domestic water, agricultural

drainage, water conservation, sanitation service and flood control.

One of the principal activities of Coachella is to provide irrigation

water to approximately 60,000 acres of agricultural lands.

13. Defendant, James Watt, is the Secretary of the

Interior and is charged by statute with the supervision and

management of the United States Department of the Interior.

14. The United States is the owner of and trustee for

the reservations of the three tribes and therefore has an interest

in this litigation. The Secretary of the Interior acts on behalf

of the United States in administering these lands.

15. The United States, acting through the Secretary

of the Interior, enters into Colorado River water delivery

contracts under authority of the Boulder Canyon Project Act.

(45 Stat. 1057 (1928) as amended; 43 U.S.C. §§617-617t.) The

Act prohibits the use of stored water, except by such contracts.

Section 5 of the Act, 43 U.S.C. §617(d), provides, in pertinent

part, as follows:

"The Secretary of the Interior is hereby

authorized, under such general regulations as he

may prescribe, to contract for the storage of water

in said reservoir and for the delivery thereof at

such points on the river ... as may be agreed upon,

o on oO YY & WN KH

N N N N NY N N N N FY FY FY FY FY YY YY YY SY eB

o vr oyvrre® wn KY OF Ob Os oye wn Ff o

for irrigation and domestic uses ... . No person

shal have or be entitled to have the use for any

purpose of the water stored as aforesaid except

by contract made as herein stated.”

16. A major portion of Metropolitan's water supply

is obtained pursuant to a contract that Metropolitan has

executed with the Secretary of the Interior, in accordance with

the Boulder Canyon Project Act. That contract, dated April 24,

1930, provides, in part, for delivery of a permanent Colorado

River water supply at Parker Dam for the use of Metropolitan.

17. Metropolitan's diversion and use of Colorado River

water results in the principal municipal and domestic use of

Colorado River water within the State of California.

18. All of the irrigation water supplied by Coachella

is obtained pursuant to a contract that Coachella executed with

the Secretary of the Interior on October 5, 1934, in accordance

with the Boulder Canyon Project Act. That contract provides,

in part, for delivery of Colorado River water at Imperial Dam

for the use of Coachella.

19. Coachella's diversion and provision of Colorado

River water for irrigation constitutes the principal irrigation

water supply within the Coachella Valley Water District.

20. The Colorado River water delivery contracts

entered into by the Secretary of the Interior are subject to

and controlled by the Colorado River Compact entered into among

the states of Arizona, California, Colorado, Nevada, New Mexico,

Utah and Wyoming, as approved by Section 13(a) of the Boulder

Canyon Project Act. The Compact, among other matters, sets

///

ow N

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forth a division of the waters of the Colorado River between the

Upper Basin (specified portions of the states of Arizona,

Colorado, New Mexico, Utah and Wyoming) and the Lower Basin

(specified portions of the states of Arizona, California, Nevada,

New Mexico and Utah). Pursuant thereto, the Compact, in part,

apportions to the Upper and to the Lower Basins, respectively,

the beneficial consumptive use of 7.5 million acre-feet of water

per annum.

21. On March 9, 1964, the United States Supreme Court

Gecreed in Arizona v. California, 376 U.S. 340, 342, that if

sufficient mainstream water is available, the states of Arizona,

California and Nevada would be entitled to 7.5 million acre-feet

of water per year. Of that 7.5 million acre-feet of water,

California is apportioned 4.4 million acre-feet of water per year.

The decree further provides that in the event the Secretary

determines surplus water is available below Lee Ferry, California

is entitled to one-half of said surplus.

22. Under the authority granted by Arizona v. California,

supra, the Colorado River Basin Project Act (43 U.S.C. §1501,

et seg. (1968)) and the 1970 Criteria for Coordinated Long-Range

Operation of Colorado River Reservoirs (Vol. 35, No. 112 Federal

River Basin Project Act of September 1968, the Secretary may

release surplus and/or unused apportioned water. Pursuant

thereto, the Secretary and agencies of the State of California

have entered into contracts which allow those agencies to divert

in excess of the 4.4 million acre-feet of water per year. When

///

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the Central Arizona Project commences operation in 1985, the

operating criteria for the Colorado River reservoirs, provide

that California may be restricted to its basic apportionment

of 4.4 million acre-feet of water per year, plus one-half of any

surplus waters available as determined by the Secretary.

23. The priorities of the California diverters are

as set forth by the Secretary of the Interior in the 1931

General Criteria and in the contracts executed with each of said

Giverters. The first three priorities, in which Metropolitan

has no interest, total 3.85 million acre-feet of water per year.

The fourth priority, held by Metropolitan, is for 550,000 acre-feet

of water per year, for use on the Coastal Plain of Southern

California. The fifth priority, also held by Metropolitan, is

for 662,000 acre-feet of water per year for use on the Coastal

Plain of Southern California. Metropolitan has no interest in

the remaining priorities. Thus, to the extent that water is

available, Metropolitan is entitled to divert a total of

1,212,000 acre-feet of water per year. However, when California's

entitlements are restricted to 4.4 million acre-feet of water

per year, Metropolitan will be limited to a diversion of 550,000

acre-feet of water per year less any other diversions by persons

or entities that have higher priorities than Metropolitan.

24. Coachella is one of the parties entitled to water

under the third priority, the other principal party being the

Imperial Irrigation District. The first three priorities,

sometimes entitled "agricultural priorities", have a total

entitlement of 3.85 million acre-feet of water annually. No

///

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specific number of acre-feet of water is allocated in each of

such priorities, the limitation of each priority being based

on area of use. Pursuant to an Agreement of Compromise under

date of February 14, 1934, the Imperial Irrigation District has

a prior right to the entitlement to water in the third priority

over Coachella. Thus Coachella has the last right to water under

the agricultural priorities and must suffer any diminution of the

3.85 million acre-feet annual entitlement. Currently, the

agricultural water use by those agencies in the agricultural

priorities exceeds 3.85 million acre-feet annually. This is

possible because there is currently surplus water available.

Such surplus water may not be available, however, when the

entitlement of the California agencies is restricted to 4.4 million

acre-feet annually.

25. The second priority is to the Yuma Project of

the United States Bureau of Reclamation for beneficial use upon

not exceeding a gross area of 25,000 acres of land located in said

project in California. Presently, approximately 15,000 acres

are being irrigated in the Yuma Project, including approximately

7,000 acres within the Fort Yuma Indian Reservation (Quechan

Reservation). To the extent the Fort Yuma Reservation is enlarged

by action of the Secretary of the Interior, there exists a

possibility that additional water under the second priority will

be put to use on such additional lands. This would reduce the

water supply available to Coachella whose entitlement is in the

last agricultural priority, that is, the third priority.

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26. Pursuant to Arizona v. California (1963) 373 U.S. 546,

600-601, 10 L.Ed.2d 542, each of the three tribes is entitled

to divert Colorado River water on the basis of practicably irrigable

acreage on their reservations with a priority date for said

diversion for each parcel of each reservation the date each such

parcel was established as part of the reservation. Each of the

reservations of the three tribes was created prior to Metropolitan's

date of priority.

27. Moreover, the 1964 decree in Arizona v. California

(1964) 376 U.S. 340, 346, provided that the amount of water

legally diverted pursuant thereto to the reservations of the three

tribes is to be charged against the water appropriation of each

state on the basis of the number of practicably irrigable

reservation acres within each state.

28. The 1964 decree in Arizona v. California, supra,

at 344-345, sets forth the interests of the three tribes.

Those interests were subsequently specified in Article II(A)

of the January 9, 1979 supplemental decree Arizona v. California

(1979) 439 U.S. 419, 428, 58 L.Ed.2d 627, wherein the court

provides as to the interests of the three tribes in California,

as follows:

Annual

Diversions Net Priority

Defined Area of Land (acre-feet) Acres Date

23)

Yura Indian Reservation 51,616 7,743 Jan. 9, 1884

24)

Colorado River Indian 10,745 1,612 Nov. 22, 1873

Reservation 40,241 6,037 Nov. 16, 1874

3,760 564 May 15, 1876

25)

Fort Mojave Indian 13,698 2,119 Sept. 18, 1890

Reservation

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To the extent those rights relate to acreage in California, those

entitlements for diversion of Colorado River water are prior in

right and time to those of Metropolitan.

29. Any purported changes in the boundaries of the

three tribes which add practicably irrigable acreage to the

respective reservations of the three tribes within California, and

purport to be retroactive to the date such acreage was established

as a part of the reservation, would add to the quantity of Colorado

River water which each tribe would be entitled to divert from the

Colorado River with a priority date which precedes the priorities

of Metropolitan. Such diversions would diminish the quantity of

water Metropolitan is entitled to divert each year from the

Colorado River in any year in which California is restricted to

4.4 million acre-feet of water or less.

30. The issues as to the Fort Mojave and Colorado

River Indian Reservation boundaries were raised in the original

proceedings in Arizona v. California (1963) 373 U.S. 546, 10 L.Ed.2d

542, where the Special Master resolved them generally in favor of

the California Parties. However, the Supreme Court concluded

that there was no necessity to make such boundary determinations

at that time, but left the issue open for future adjudication.

Subsequently, the United States moved to reopen and modify the

Gecree in Arizona v. California and requested, in part, a

determination as to the number of practicably irrigable acres

in each of the reservations based upon the boundaries as defined

by the secretarial orders herein challenged. In these pending

proceedings, the Special Master has declined to determine the

///

10.

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boundaries of the reservations of the three tribes and instead

has assumed that for purposes of water allocations, the boundaries

as defined by the secretarial orders herein challenged were proper,

and indicated that adjudication of the boundaries should be

determined in a separate proceeding. (Arizona v. California,

October Term 1979, No. 8, Original, Memorandum and Report on

Preliminary Issues, Elbert P. Tuttle, Special Master, August 28, 1979,

pp. 36-41.)

31. The secretarial orders complained of herein purport

to increase the size of the respective reservations of the three

tribes retroactively to the date of the creation of each

reservation with the result of adding acreage within the State of

California which may be regarded as practicably irrigable to each

reservation. Therefore, they directly adversely affect the

interests of Metropolitan.

32. The secretarial orders complained of herein purport

to include land of the bed of the Colorado River within the

reservations of the three tribes. In addition, irrespective of the

secretarial orders complained of, the United States claims land of

the bed of the Colorado River within the reservations of the

three tribes. The United States holds land under navigable waters

in trust for future states, to be granted to such states when

they enter the Union and assume sovereignty on an equal footing

with the other states. Consequently, these lands of the bed of

the Colorado River belong to the States of California and Arizona,

respectively. The secretarial orders complained of herein and

the claims of the United States include such lands within the

///

ll.

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reservations of the three tribes with the result of adding lands

in the State of California to each reservation claimed to be

or which may be claimed to be practicably irrigable with a priority

date prior to Metropolitan and Coachella, therefore directly,

adversely affecting the interests of Metropolitan and Coachella.

FIRST CLAIM FOR RELIEF

(Fort Yuma Indian Reservation)

33. The Fort Yuma (Quechan) Indian Reservation was

established by Executive Order dated January 9, 1884. A copy

of the Executive Order is attached hereto, incorporated herein by

this reference and marked as Exhibit l.

34. Title to certain reservation lands was immediately

and unconditionally ceded to the United States by virtue of a

negotiated 1893 cession agreement with the Quechan Indian Tribe

and an 1894 Act of Congress ratifying the agreement. (28 Stat. 286,

332.)

35. Three Department of Interior Solicitors’ opinions

over a 4l-year period (Margold--1936, Weinberg--1968, Austin--1977)

rejected the Indians' claims to reservation boundaries which

included the land ceded by the 1893 agreement.

36. On December 20, 1978, Secretary of the Interior

Cecil D. Andrus issued an order declaring the 1893 cession

agreement and the 1894 ratifying statute of no effect, due to

the alleged failure of the United States to fulfill the alleged

conditions of the 1893 agreement. Copies of the Order and the

Solicitor's Opinion upon which the order is based, are attached

hereto, i---rporated herein by this reference and marked,

///

12.

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respectively, Exhibits 2 and 3. Therein, the Secretary purported

to restore the boundaries of the Fort Yuma Indian Reservation to

the boundaries as they were created by Exhibit 1 hereof.

37. The December 20, 1978 order of the Secretary is

inconsistent with past secretarial orders and Department policy

and action. ~

38. The December 20, 1978 order of the Secretary

is not based upon substantial evidence and incorrectly interprets

the 1893 agreement and 1894 ratifying statute. It is arbitrary,

capricious and unreasonable, and therefore is illegal and void.

39. By issuing the December 20, 1978 order, the

Secretary has acted and continues to act outside his statutory

powers to the detriment of plaintiffs.

* 40. An actual controversy has arisen and now exists

between plaintiffs on the one hand, and the United States and

the Secretary on the other hand, concerning the location of

the boundary of the Fort Yuma Indian Reservation. A fortiori,

an actual controversy has arisen and now exists between plaintiffs

on the one hand, and the United States and the Secretary on the

other hand, as to the Colorado River water entitlement of the

additional land encompassed by the December 20, 1978 order.

As a result of that order, the United States, the Secretary, and

the Quechan Tribe through the United States, are claiming that

those additional lands are a part of the reservation, some of which

they allege are practicably irrigable and therefore entitled

to additional water rights.

///

13.

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41. Plaintiffs desire a judicial determination and

declaration as to the boundaries of the Fort Yuma Indian Reservation

for the purpose of proper allocation of Colorado River water

pursuant to the Boulder Canyon Project Act and Arizona v. California,

Supra, at 546.

42. Plaintiffs further desire a mandatory injunction

to require the Secretary to set aside the December 20, 1978

secretarial order at issue and to prevent the unauthorized use

of Colorado River water on any land declared to be outside the

reservation boundaries.

43. The declaration and injunction are necessary and

appropriate at this time so that plaintiffs can protect their

rights to Colorado River water and can determine what portion,

if any, of their existing Colorado River entitlement may be

reduced in the future by valid Indian reservation diversions.

Such information is vital, at this time, to enable plaintiffs to

make projections of the availability of water to meet the future

needs of their service areas.

SECOND CLAIM FOR RELIEF

(Fort Yuma Indian Reservation)

44. Plaintiffs incorporated by this reference each and

every allegation contained in paragraphs 1 through 36 inclusive

hereof.

45. The December 20, 1978 secretarial order, Exhibit 2

hereof, purporting to restore the boundaries of the Fort Yuma

Reservation purports to include certain lands of the bed of the

Colorado River in its last natural course as a part of the Fort

Yuma Indian Reservation.

14.

1 46. Plaintiffs are informed and believe and thereon

2 allege that the State of California is the owner of certain

3 portions of the west half of the bed of the Colorado River in its

4 last natural course. Therein, the lands more particularly

5 Gescribed as:

6 Parcel Yuma A: Beginning at a point in the

mid-channel of the abandoned bed of the June 1920

7 Colorado River on the Arizona-California state boundary

in Section 30, Township 16 South, Range 23 East,

8 S.B.M. (A-1); thence upstream along the mid-channel

of said abandoned 1920 river channel to a point where

9 it again intersects the California-Arizona boundary

in Section 7, Township 8 South, Range 22 West,

10 G. & S.R.M. (A-2); thence east along the state

boundary to the mean high-water line of the California

11 bank of the abandoned bed of the said 1920 river

channel (A-3); thence downstream along the mean high-water

12 line of said bank of the abandoned 1920 river channel

to a point where it intersects the California-Arizona

13 state boundary in Section 30, T. 16 S., R. 23 E.,

S.B.M. (A-4); thence easterly along said state boundary

14 to its intersection with the mid-channel of said

abandoned river bed, the point of beginning (A-1).

Parcel Yuma B: Beginning at a point where the

16 present Arizona-California state boundary intersects

the mid-channel of the abandoned bed of the 1920

17 channel of the Colorado River, immediately prior to

the June 1920 avulsive change in the course of said

18 river, in section 23, T. 16 S., R. 23 E., S.B.M. (B-1);

thence upstream along said mid-channel of said

-19 abandoned river bed to a point where it intersects

with the easterly extension of the north line of Section 15,

20 T. 16 S., R. 23 E., S.B.M. (B-2); thence westerly along

said extension of the north line of said Section 15 to

| 21 the mean high-water line of the west bank of said

abandoned 1920 channel of said river (B-3); thence

22 downstream along said mean high-water line of the

west bank of said abandoned 1920 channel of the Colorado

23 River to its intersection with the present California-

Arizona state boundary (B-4); thence easterly along

24 said state boundary to its intersection with the

mid-channel of said abandoned 1920 bed of said river,

25 the point of beginning (B-1).

26 ///

27 ///

28 ///

15.

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Parcel Yuma C: Beginning at the point where

the mean high-water line of the west bank of the

Colorado River, as surveyed by the U. S. Geological

Survey in 1902-03, intersects the easterly portion

of the northerly boundary of the Fort Yuma Indian

Reservation (C-1); thence southeasterly along the

easterly portion of said northerly boundary to its

intersection with the mid-channel of the 1902-03

course of the Colorado River (C-2); thence downstream

along said mid-channel of the 1902-03 Colorado River

to its intersection with the easterly extension of

the north line of Section 15, T. 16 S., R. 23 E.,

S.B.M., (C-3); thence westerly along the north line

of the easterly extension of said Section 15 to its

intersection with the mean high-water line of the

west bank of the 1902-03 course of the Colorado River

(C-4); thence upstream along the mean high-water

line of the west bank of the 1902-03 course of the

Colorado River to the point of beginning (C-l).

Parcel Yuma D: Beginning at a point on the

international boundary between the United States

and Mexico where it intersects the mid-channel of

the present course of the Colorado River (D-1);

thence upstream along said mid-channel of said river

to the point where the California-Arizona state

boundary turns northerly, in Section 36, T. 16 S.,

R. 22 E., S.B.M., to leave the channel of said

river (D-2); thence northerly along the course of

said state boundary to the point where it intersects

the mean high-water line of the California (north)

bank of said river (D-3); thence downstream along

the mean high-water line of the California bank of

said river to the point where said mean high-water

line intersects the international boundary between

the United States and Mexico (D-4); thence easterly

along said international boundary to the point of

beginning (D-1)

and depicted on Exhibit 4, attached hereto and incorporated

herein by this reference, which the secretarial order complained

of purports to include within the Fort Yuma Indian Reservation

in the State of California, are lands belonging to the State of

California in its sovereign capacity and are not a part of the

reservation.

///

16.

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47. The December 20, 1978 order of the Secretary

is inconsistent with past secretarial orders and Department

policy and action.

48. The December 20, 1978 order of the Secretary is

not based upon substantial evidence and incorrectly interprets

the 1893 agreement and 1894 ratifying statute. It is arbitrary,

capricious and unreasonable, and is illegal and void.

49. By issuing the December 20, 1978 order, the

Secretary has acted and continues to act outside his statutory

powers to the detriment of plaintiffs.

50. An actual controversy has arisen and now exists

between plaintiffs on the one hand, and the United States and

the Secretary on the other hand, concerning the inclusion of the

lands referred to in paragraph 46 within the boundaries of the

Fort Yuma Indian Reservation. A fortiori, an actual controversy

has arisen and now exists between plaintiffs on the one hand, and

the United States and the Secretary on the other hand, as to

the Colorado River water entitiement of the additional lands

so encompassed. As a result of that order, the United States,

the Secretary and the Quechan Tribe through the United States,

are claiming that those additional lands are a part of the

reservation, some of which they allege are practicably irrigable

and therefore entitled to additional water rights.

51. Plaintiffs desire a judicial determination and

declaration as to whether these lands, more particularly described

in paragraph 46 herein, are or are not a part of the Fort Yuma

Indian Reservation for the purpose of proper allocation of

4//

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Colorado River water pursuant to the Boulder Canyon Project Act

and Arizona v. California, supra, at 546.

52. Plaintiffs further desire a mandatory injunction

to require the Secretary to set aside that portion of the

December 20, 1978 secretarial order at issue, which purports

to include certain lands of the bed of the Colorado River belonging

to the State of California within the Fort Yuma Indian Reservation

in the State of California, and to prevent the unauthorized use

of Colorado River water on any land declared to be outside the

reservation boundaries.

53. The declaration and injunction are necessary

and appropriate at this time so that plaintiffs can protect their

rights to Colorado River water and can determine what portion,

if any, of their existing Colorado River entitlement may be

reduced in the future by valid Indian reservation diversions.

Such information is vital, at this time, to enable plaintiffs to

make projections of the availability of water to meet the future

needs of their service areas.

THIRD CLAIM FOR RELIEF

(Fort Mojave Indian Reservation)

54. Metropolitan incorporates by reference each and

every allegation contained in paragraphs 1, 2, 5, 6 through 10,

13 through 17, 20 through 23, and 26 through 32, inclusive

hereof.

55. An Executive Order dated March 30, 1870,

established and defined the Fort Mojave Indian Reservation,

consisting of the Camp Mojave Reserve and the Camp Mojave Hay and

///

18.

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Wood Reserve. A copy of the Executive Order is attached hereto,

incorporated herein by this reference and marked as Exhibit 5.

The Executive Order provides as follows:

"Camp Mojave. Commencing at a post marked

U.S. in a mound of earth situated N. 83° 31' 37" E.

68.99 chains distant from the Flag staff at the

Post. Thence variation 14° 08' 28" East. South 33°

08' 28" W. 240.00 chains to a post marked U.S. 1”

a mound of sand. Thence N. 56° 51' 32" W. 2252.60

chains to a post marked U.S. in a mound of coarse

gravel. Thence N. 33° 08' 28" E. 240.00 chains

to a post marked U.S. in a mound of coarse gravel

near the West bank of Beaver Lake. Thence S. 56°

51' 32" E. 232.60 chains to the point of commencement.

The said boundaries containing 5582 acres 1 rood

24 perches, a little more or less."

"Camp Mojave Reservation for Hay and Wood--

Commencing at a post marked U.S. in mound of earth

situated S. 10° 43' 41" E. 347.52 chains distant

from the Flag Staff at Camp Mojave and about 20 chains

S.W. from the point where the road crosses the

top of the Mesa. Thence variation 14° 08' 28" East.

S.°1° 04' 28" W. 272.50 chains to a post marked

U.S. in mound of earth near the Quartermasters

Corral. Thence S. 76° 17' 28" W. 228.50 chains

to a post marked U.S. in mound of earth near the

left cor of the Colorado River. Thence N. 23° Ol'

° . chains to a post marke eS- in a

mound of earth near the left bank of the Colorado

River. Thence S. 66° 45° 32° EB. 369.00 chains

to the post at the point of commencement. The said

boundaries containing 9,114.81 acres, more or less."

(Emphasis added.)

56. The 1870 order was based upon a survey conducted

by Lt. George Wheeler. The description used in the Wheeler.

survey was adopted in the order.

57. The map prepared by Lt. Wheeler using his survey

notes depicts the boundaries of the Camp Mojave Hay and Wood

Reserve and shows the Colorado River running along the western

boundary of the Camp Mojave Hay and Wood Reserve.

///

19.

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58. By Executive Order dated September 19, 1890,

the Camp Mojave Hay and Wood Reserve was transferred to the

Department of the Interior to be held in trust for the Mojave

Indian Tribe. A Copy of the Executive Order is attached hereto

as Exhibit 6 and incorporated herein by this reference. The

1890 Executive Order did not alter the description of the Camp

Mojave Hay and Wood Reserve.

59. As noted above, in the original Arizona v. Californi

supra, proceedings, the Special Master held as to the boundaries

of the Camp Mojave Hay and Wood Reserve generally in favor of

the California Parties.

60. On June 3, 1974, the Secretary issued an order

findinc the western boundary of the Camp Mojave Hay and Wood

Reserve to be located west of the flood plain of the Colorado

River. Copies of the Order and the Solicitor's opinion upon

which the Order is based are attached hereto, incorporated herein

by this reference and marked, respectively, as Exhibits 7 and 8.

61. The June 3, 1974 order of the Secretary is not

based upon substantial evidence and is not supported by the

description of the Camp Mojave Hay and Wood Reserve and the

circumstances surrounding its creation. It is arbitrary,

capricious and unreasonable, and therefore is illegal and void.

62. By issuing the June 3, 1974 order, the Secretary

has acted and continues to act outside his statutory powers to

the detriment of Metropolitan.

63. Metropolitan is informed and believes and thereon

alleges that th. Secretary is delivering Colorado River water to

///

20.

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lands located west of the left bank of the Colorado River in

its last natural course.

64. An actual controversy has arisen and now exists

among Metropolitan, the United States and the Secretary concerning

the location of the western boundary of the Camp Mojave Hay and

Wood Reserve. A fortiori, an actual controversy has arisen and

now exists among Metropolitan, the United States and the Secretary

as to the Colorado River water entitlement of the additional

lands encompassed by the June 3, 1974 order. As a result, the

United States, the Secretary and the Fort Mojave Indians through

the United States are claiming additional lands as a part of

the reservation, some of which they allege are practicably irrigable

and therefore entitled to additional water rights.

65. Metropolitan desires a judicial determination and

declaration as to the boundaries of the Fort Mojave Indian

Reservation for the purpose of proper allocation of Colorado

River water pursuant to the Boulder Canyon Project Act and

Arizona v. California, supra, at 546.

66. Metropolitan further desires a mandatory injunction

to require the Secretary to set aside the June 3, 1974 secretarial

order at issue and to prevent the unauthorized use of Colorado

River water on any land declared to be outside the reservation

boundaries.

67. The declaration and injunction are necessary and

appropriate at this time so that Metropolitan can protect its

rights to Colorado River water and can determine what portion,

if any, of its existing Colorado River entitlement may be reduced

///

21.

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in the future by valid Indian reservation diversions. Such

information is vital, at this time, to enable Metropolitan to

make projections of the availability of water to meet the future

needs of its service area.

FOURTH CLAIM FOR RELIEF

(Fort Mojave Indian Reservation)

68. Metropolitan incorporates by reference each and

every allegation contained in paragraphs l, 2, 5, 6 through 10,

13 through 17, 20 through 23, 26 through 32, and 55 through 60,

inclusive hereof.

69. The June 3, 1974 secretarial order, Exhibit 7

hereof, defining the boundaries of the Fort Mojave Indian

Reservation purports to include certain lands of the bed of the

Colorado River in its last natural course as a part of the

Fort Mojave Indian Reservation.

70. Metropolitan is informed and believes and thereon

alleges that the State of California is the owner of certain

portions of the west half of the bed of the Colorado River in

its last natural course. Exhibit 9, attached hereto and

incorporated by this reference, depicts the alleged boundary of

the Hay and Wood Reserve as claimed by the secretarial order and

depicts the lands more particularly described as:

Parcel Mojave D: Beginning at the point where

the —channel of the abandoned bed of the 1947 course

of the Colorado River intersects with the westerly

extension of the northerly boundary of the Hay and

Wood Reserve of the Fort Mojave Indian Reservation (D-1);

thence westerly along the extension of the northerly

boundary of said Hay and Wood Reserve to its

intersection with the mean high-water line of the

west bank of the abandoned bed of the 1947 course

of said river (D-2); thence downstream along the

mean high-water line of the abandoned bed of the 1947

22.

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Therein, this land which the secretarial order complained of purport

to include within the Fort Mojave Indian Reservation in the State of

California is land belonging to the State of California in its

sovereign capacity and is not a part of the reservation.

alleges that the State of Arizona is the owner of certain portions

of the east half of the bed of the Colorado River in its last

natural course. Therein, the land more particularly described as:

and as depicted on Exhibit 9 attached hereto and incorporated

herein by this reference, which the secretarial order complained

course of said river to its intersection with the

mean high-water line of the west bank of the present

course of the Colorado River (D-3); thence downstream

along the mean high-water line of the west bank of

the present course of the Colorado River to its

intersection with the westerly extension of the

southerly boundary of said Hay and Wood Reserve (D-4);

thence easterly along said extension of the southerly

boundary of said Hay and Wood Reserve to its intersection

with the mid-channel of the present course of the

Colorado River (D-5); thence upstream along the mid-channel

of the present course of the Colorado River to its

intersection with the mid-channel of the abandoned bed of

the 1947 course of the Colorado River (D-6); thence upstream

along the mid-channel of the abandoned bed of the 1947

course of said river to its intersection with the westerly

extension of the northerly boundary of the Hay and Wood

Reserve, the point of beginning (D-1).

71. Metropolitan is informed and believes and thereon

Parcel Mojave C: Beginning at the point where the

mid-channel of the abandoned bed of the 1947 course of

the Colorado River intersected the westerly extension of

the northerly line of the Hay and Wood Reserve of Fort

Mojave Indian Reservation (C-1); thence downstream along

the mid-channel of the 1947 course of said river to its

intersection with the mid-channel of the present course of

the Colorado River (C-2); thence upstream along the mid-

channel of the present course of said river to its inter-

section with the westerly extension of the northerly line

of said Hay and Wood Reserve (C-3); thence westerly along

the extension of the northerly boundary of said Hay and

Wood Reserve to the mid-channel of the abandoned bed of

the 1947 course of the Colorado River, the point of

beginning (C-l).

23.

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of purports to include within the Fort Mojave Indian Reservation

is land within the State of California, but belongs to the State

of Arizona in its sovereign capacity and is not a part of the

reservation.

72. The June 3, 1974 order of the Secretary is

not based upon substantial evidence. It is arbitrary, capricious

and unreasonable, and therefore is illegal and void.

73. By issuing the June 3, 1974 order, the Secretary

has acted and continues to act outside his statutory powers

to the detriment of Metropolitan.

74. Metropolitan is informed and believes and thereon

alleges that land claimed by the United States to be a part

of the Fort Mojave Indian Reservation in the State of California,

irrespective of the secretarial order is land belonging to the

State of California and is not a part of the reservation. Said

land is more particulary described as:

Parcel Mojave B: Beginning at the point where

the mean high-water line of the west bank of the

abandoned bed of the 1947 course of the Colorado

River intersected with the California-Nevada state

boundary (B-1); thence downstream along the mean

high-water line of the west bank of said river to its

intersection with the westerly extension of the

northerly boundary of the Hay and Wood Reserve

of the Fort Mojave Indian Reservation (B-2);

thence easterly along the extension of the northerly

boundary of said Hay and Wood Reserve to its intersection

with the mid-channel of the abandoned bed of the 1947

course of said river (B-3); thence upstream along

the mid-channel of the abandoned bed of the 1947

course of said river to its intersection with the

California-Nevada state boundary as it existed in

1947 (B-4); thence northwesterly along said state

boundary to the point of beginning (B-1)

and is depicted on Exhibit 9 hereof.

///

24.

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75. Metropolitan is informed and believes and thereon

alleges that land claimed by the United States to be a part

of the Fort Mojave Indian Reservation irrespective of the

secretarial order is land within the State of California, but

belongs to the State of Arizona and is not a part of the

reservation. Said land is more particularly described as:

Parcel Mojave A: Beginning at the point where

the mid-channel of the present course of the Colorado

River intersected the southeasterly extension of

the California-Nevada state boundary (A-1); thence

downstream along said mid-channel of the present

course of said river to its intersection with the

westerly extension of the northerly boundary of

the Hay and Wood Reserve of the Fort Mojave Indian

Reservation (A-2); thence westerly along said

extension of the northerly line of said Hay and Wood

Reserve to its intersection with the mid-channel

of the abandoned bed of the 1947 course of said

river (A-3); thence upstream along the mid-channel

of the abandoned bed of the 1947 course of said

river to its intersection with the California-Nevada

state boundary as it existed in 1947 (A-4); thence

southeasterly along the extension of said state

boundary to the point of beginning (A-1)

and is depicted on Exhibit 9 hereof.

76. An actual controversy has arisen and now exists

between Metropolitan, the United States and the Secretary

concerning the inclusion of the lands referred to in paragraphs 70,

71, 74 and 75, within the boundaries of the Fort Mojave Indian

Reservation in the State of California. A fortiori, an actual

controversy has arisen and now exists between Metropolitan,

the United States and the Secretary as to the Colorado River

water entitlement of the additional lands so encompassed. As

a result of the June 3, 1969 secretarial order and the claim

of the United States, irrespective of the secretarial order to

///

25.

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lands of the Colorado River bed in its last natural course, the

United States, the Secretary and the Fort Mojave Indian Tribe

through the United States, are claiming that these additional lands

are a part of the reservation, some of which they allege are

practicably irrigable and therefore entitled to additional water

rights.

77. Metropolitan desires a judicial determination and

declaration as to whether these lands, more particularly described

in paragraphs 70, 71, 74 and 75 hereof, are or are not a part

of the Fort Mojave Indian Reservation in the State of California,

for the purpose of proper allocation of Colorado River water

pursuant to the Boulder Canyon Project Act and Arizona v. California,

supra, at 546.

78. Metropolitan further desires a mandatory injunction

to require the Secretary to set aside that portion of the June 3,

1974 secretarial order at issue, which purports to include certain

lands of the bed of the Colorado River in its last natural course

belonging to the States of California and Arizona, respectively,

within the reservation in the State of California, and to prevent

the unauthorized use of Colorado River water on any land declared

to be outside the res ?rvation boundaries.

79. The declaration and injunction are necessary and

appropriate at this time so that Metropolitan can protect its

right to Colorado River water and can determine what portion,

if any, of its existing Colorado River entitlement may be

reduced in the future by valid Indian reservation diversions. Such

///

26.

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NN NY WN RH WY WN WN WN N FY FY FY YY YY KY KY KY FY

information is vital, at this time, to enable Metropolitan to

make projections of the availability of water to meet the future

needs of its service area.

FIFTH CLAIM FOR RELIEF

(Colorado River Indian Reservation)

80. Plaintiff Metropolitan incorporates by reference

each and every allegation contained in paragraph 1, 2, 5, 6 through

10, 13 through 17, 20 through 23 an¢ 26 through 32, inclusive

hereof.

81. The Colorado River Indian Reservation was

established by the Act of March 3, 1865. (13 Stat. 541, 559.)

82. The boundaries of the reservation were subsequently

modified by various Executive Orders, including the Executive

Order of May 15, 1876, a copy of which is attached hereto as

Exhibit 10 and incorporated by this reference, which provided,

in pertinent part:

"Beginning at a point where La Paz Arroyo

enters the Colorado River, 4 miles above Ehrenberg;

thence easterly with said arroyo to a point south

of the crest of La Paz Mountain; thence with said

mountain crest in a northerly direction to the

top of Black Mountain; thence in a northwesterly

@irection over the Colorado River to the top of

Monument Peak, in the State of California; thence

southwesterly in a straight line to the top of

Riverside Mountain, California; thence in a direct

line toward the place of beginning to the west

bank of the Colorado River; thence down said west

bank to a point opposite the place of beginning;

thence to the place of be Tenth “es

Emphasis added.

83. The 1876 Executive Order established a portion

of the boundary of the reservation which changes as the course

of the Colorado River changes, except when such changes are due

///

27.

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to avulsion (sudden and perceptible loss or addition to land

by action of water, or sudden change in the bed or course of a

stream).

84. As noted above, in the original Arizona v.

California, supra, proceedings, the Special Master held as to

the Colorado River Indian Reservation boundaries, generally

in favor of the California Parties.

85. The Secretary, in an order dated January 17, 1969,

declared that the 1876 Executive Order created a permanent, unchang-

ing boundary along the west bank of the Colorado River as it existed

in 1876. Copies of the Order and the Solicitor's Opinion upon

which the order is based, are attached hereto, incorporated herein

by this reference and marked, respectively, as Exhibits 11 and 12.

86. The January 17, 1969 order of the Secretary is not

based upon substantial evidence and erroneously interprets the 1876

Executive Order. It is arbitrary, capricious and unreasonable,

and therefore is illegal and void.

87. By issuing the January 17, 1969 order, the Secretary

has acted and continues to act outside his statutory powers to

the detriment of Metropolitan.

88. Metropolitan is informed and believes and thereon

alleges that the Secretary is delivering Colorado River water to

lands west of the western bank of the Colorado River in its last

natural course in the area described as:

" .. . thence in a northwesterly direction over the

Colorado River to the top of Monument Peak, in the State

of California; thence southwesterly in a straight line

to the top of Riverside Mountain, California; thence in

a direct line toward the place of beginning to the west

bank of the Colorado River; thence down said west bank

to a point opposite the place of beginning; ... -"

28.

1 89. An actual controversy has arisen and now exists :

2 among Metropolitan, the United States and the Secretary, concerning

3 the boundary of the Colorado River Indian Reservation. A fortiori,

4 an actual controversy has arisen and now exists among Metropolitan,

5 the United States and the Secretary as to the Colorado River

6 water entitlement of the additional lands encompassed by the

7 January 17, 1969 order. As a result, the United States, the

8 Secretary and the Colorado River Indian Tribe through the United

9 States are claiming additional lands are a part of the reservation,

10 some of which they allege are practicably irrigable and therefore

11 entitled to additional water rights.

12 90. Metropolitan desires a judicial determination

13 and declaration as to the boundaries of the Colorado River Indian

14 Reservation for the purpose of proper allocation of Colorado

15 River water pursuant to the Boulder Canyon Project Act and

16 Arizona v. California, supra, at 546.

17 91. Metropolitan further desires a mandatory injunction

18 to require the Secretary to set aside the January 17, 1969

- 19 secretarial order at issue and to prevent the unauthorized use

20 of Colorado River water on any land declared to be outside the

21 reservation boundaries.

22 92. The declaration and injunction are necessary and

23 appropriate at this time so that Metropolitan can protect its

24 right to Colorado River water and can determine what portion, if

25 any, of its existing Colorado River entitlement may be reduced in

26 the future by valid Indian reservation diversions. Such

27 information is vital, at this time, to enable Metropolitan to

28 4//

29.

1 make projections of the availability of water to meet the future

2 needs of its service area.

3 SIXTH CLAIM FOR RELIEF

a 93. Plaintiff Metropolitan incorporates by reference

5 each and every allegation contained in paragraph 1, 2, 5,

6 6 through 10, 13 through 17, 20 through 23, 26 through 32 and

7 81 through 85, inclusive hereof.

8 94. Metropolitan is informed and believes and thereon

9 alleges that the State of California is the owner of certain

10 portions of the west half of the bed of the Colorado River in its

il last natural course and within the State of California. Therein,

12 the lands more particularly described as:

13 Parcel Colorado A: Beginning at the point where

the westerly boundary of the Colorado River Indian

14 Reservation from the top of Riverside Mountain in a

direct line toward the place of beginning (as

15 described in the May 15, 1876 Executive Order of

President U.S. Grant) intersects the mean high-water

16 line of the west bank of the Colorado River (A-1);

thence downstream along the mean high-water line of

17 the west bank of said river to a point where the mean

high-water line of the west bank of the present course

18 of the Colorado River intersects with the mean high-water

line of the abandoned bed of the Colorado River as it

19 existed immediately prior to the alleged avulsion caused

by the Olive Lake Cut in February 1920 (A-2); thence

20 southerly to the mid-channel of the present course of

the Colorado River in Section 14, T. 4N., R. 22 W.,

21 G. & S.R.M. (A-3); thence upstream along the mid-channel

of the Colorado River to the point of intersection

22 of said mid-channel with the extension of the aforesaid

westerly boundary of said Reservation from the top of

23 Riverside Mountain toward the place of beginning as

described in the 1876 Executive Order (A-4); thence

24 northerly along said extension of the westerly boundary

of the Reservation from the top of Riverside Mountain

25 to the point of beginning (A-1l).

26 ///

27 ///

28 ///

30.

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///

Parcel Colorado B: Beginning at the point on

the mean high-water line of the west bank of the

present course of the Colorado River where it intersects

with the mean high-water line of the abandoned bed of

the Colorado River as it existed immediately prior to

the alleged avulsion caused by the Olive Lake Cut in

February 1920 (B-1); thence downstream along the mean

high-water line of said abandoned bed of said river

to a point in Section 12 T. 6 S., R. 23 E., S.B.M., where

it intersects with the mean high-water line of the

west bank of the present channel of the Colorado

River (B-2); thence northerly along the mean high-water

line of the west bank of the present channel of said

river to its intersection with the mid-channel of the

abandoned bed of the 1920 channel of said river (B-3);

thence upstream along the mid-channel of the abandoned

bed of the 1920 channel of said river to a point where

it intersects the mean high-water line of the west

bank of the present course of said river, opposite

the point of beginning (B-4); thence easterly to the

point of beginning (B-1l).

Parcel Colorado D: Beginning at a point on the mean

high-water line of the west bank of the abandoned bed

of the Colorado River, as it existed immediately prior to

the Ninth Avenue Cut in 1943, where it intersects

the’ mean high-water line of the west bank of the

present course of the Colorado River in Section 24,

T. 6 S., R. 23 E., S.B.M. (D-1); thence downstream

along the mean high-water line of the west bank of

said abandoned 1943 channel of the Colorado River to

a point where said mean high-water line intersects

the westerly extension of the south boundary of the

Colorado River Indian Reservation in Section 23, T. 6 S.,

R. 23 E., S.B.M. (D-2); thence easterly along said

westerly extension of the south boundary of said

Reservation to its intersection with the mid-channel

of the abandoned bed of the 1943 course of the Colorado

River (D-3); thence upstream along the mid-channel

of said abandoned river bed to the point where it

intersects the mean high-water line of the west

bank of the present course of the Colorado River (D-4);

thence northwesterly along the mean high-water line

of the west bank of the present course of the Colorado

River to its intersection with the mean high-water line

of the west bank of the abandoned 1943 channel of said

river, the point of beginning (D-1).

31.

o on op yet WwW N ef

Parcel Colorado F: Beginning at the point where

the mid-channel of the abandoned bed of the 1920

channel of the Colorado River intersects with the mean

high-water line of the west bank of the present course

of said river, in Section 12, T. 6 S., R. 23 E.,

S.B.M. (F-1); thence downstream along the mean high-water

line of the west bank of the present course of the

Colorado River to its intersection with the mid-channel

of the abandoned bed of the 1943 course of said river

in Section 24, T. 6 S., R. 23 E., S.B.M. (F-2); thence

northeasterly to the intersection of the mid-channel of

the abandoned bed of the 1943 course of said river with

the mid-channel! of the present course of said river (F-3);

thence upstream along the mid-channel of the present

course of the Colorado River to its intersection with

the mid-channel of the abandoned bed of the 1920 course

of said river (F-4); thence westerly along the mid-channel

of the abandoned bed of the 1920 course of said river to

the point of Xeginning (F-1)

and as depicted on Exhibit 13, attached hereto and incorporated

herein by this reference, which lands the United States claims

to be a part of the Colorado River Indian Reservation irrespective

of the secretarial order complained of are lands within the

State of California and belong to the State of California in its

sovereign capacity and are not a part of the reservation.

95. Metropolitan is informed and believes and thereon

alleges that the State of Arizona is the owner of certain portions

of the east half of the bed of the Colorado River in its last

natural course and within the State of California. Therein,

the lands more particularly described as:

Parcel Colorado C: Beginning at the point where

the mid-channel of the abandoned bed of the Colorado

River as it existed immediately prior to the alleged

avulsion caused by the Olive Lake Cut in February 1920

intersects with the mean high-water line of the west

bank of the present course of the Colorado River in

Section 14, T. 4 N., 22 W., G. & S.R.M. (C-1); thence

downstream along the mid-channel of said abandoned

bed of the 1920 course of the Colorado River to the

point where said mid-channel intersects with the mean

high-water line of the west bank of the present

course of the Colorado River (C-2); thence northerly

along the mean high-water line of the west bank of

32.

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the present course of the Colorado River to its

intersection with the mean high-water line of the

east bank of the abandoned 1920 channel of said

river (C-3); thence upstream along the mean high-water

line of the east bank of the abandoned bed of the 1920

course of the Colorado River to a froint where said

mean high-water line intersects with the mean high-water line

of the west bank of the present course of the Colorado

River in Section 15, T. 4 N., R. 22 W., G. & S.R.M.,

opposite the point of beginning (C-4); thence easterly

to the point of beginning (C-l).

Parcel Colorado E: Beginning at a point where

the mean high-water line of the east bank of the abandoned

bed of the Colorado River as it existed immediately prior

to the Ninth Avenue Cut in 1943 intersects with the

mean high-water line of the west bank of the present

course of the Colorado River in Section 24, T. 6 S., R.

23 E., &S.B.M. (E-1); thence northwesterly to the point

where the mid-channel of said abandoned bed of the 1943

course of the Colorado River intersects with the mean

high-water line of the west bank of the present course

of the Colorado River (E-2); thence downstream along

the mid-channel of the abandoned bed of said 1943 course

of said river to a point where it intersects the

westerly extension of the south boundary of the Colorado

River Indian Reservation in Section 23, T. 6 S., R. 23 E.,

S.B.M. (E-3); thence easterly along the westerly

extension of the south boundary of said Reservation to

its intersection with the mean high-water line of the

east bank of the abandoned bed of the 1943 course

of the Colorado River (E-4); thence upstream along

the mean high-water line of the east bank of the

abandoned bed of the 1943 course of said river to the

point of beginning (E-1)

and depicted on Exhibit 13, attached hereto and incorporated

herein by this reference, which land the United States claims

to be a part of the Colorado River Indian Reservation

irrespective of the secretarial order complained of, are lands

within the State of California, but belong to the State of

Arizona in its sovereign capacity and are not a part of the

Reservation.

96. An actual controversy has arisen and now exists

between Metropolitan, the United States and the Secretary

///

33.

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concerning the inclusion of the lands referred to in paragraphs

94 and 95 within the boundaries of the Colorado River Indian

Reservation. A fortiori, an actual controversy has arisen and

now exists between Metropolitan, the United States and the

Secretary as to the Colorado River water entitlement of the

additional lands so encompassed. The United States, the Secretary

and the Colorado River Indian Tribe through the United States,

are claiming that these additional lands are a part of the

reservation, some of which they allege are practicably irrigable

and therefore entitled to additional water rights.

97. Metropolitan desires a judicial determination and

declaration as to whether these lands, more particularly described

in paragraphs 94 and 95 hereof are or are not a part of the

Colorado River Indian Reservation for the purpose of proper

allocation of Colorado River water pursuant to the Boulder Canyon

Project Act and Arizona v. California, supra, at 546.

98. The declaration and injunction are necessary

and appropriate at this time so that Metropolitan can protect

its right to Colorado River water and can determine what

portion, if any, of its existing Colorado River entitlement may

be reduced in the future by valid Indian reservation diversions.

Such information is vital, at this time, to enable Metropolitan

to make projections of the availability of water to meet the

future needs of its service area.

///

34.

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WHEREFORE, Metropolitan and Coachella pray for judgment

against the defendants as follows:

(a) As to the First Claim for Relief, Metropolitan

and Coachella pray:

(1) that the December 20, 1978 order of the

Secretary be declared in error and void;

(2) for a determination and declaration that

the boundary of the Fort Yuma Indian Reservation be

determined in accordance with the 1893 agreement and

the 1894 ratifying statute;

(3) for the issuance of a permanent injunction

requiring the Secretary to set aside the December 20, 1978

order and prohibiting the use of Colorado River water

on lands found to be outside the boundaries of the Fort

Yuma Indian Reservation.

(b) As to the Second Claim for Relief, Metropolitan

and Coachella pray:

(1) that the portion of the December 20, 1978

order of the Secretary which purports to include the

lands of the bed of the Colorado River described in

paragraph 46 hereof, as within the Fort Yuma Indian

Reservation in the State of California, be declared

in error and void;

(2) for a determination and declaration that

the lands more particulary described in paragraph 46 hereof

are not a part of the Fort Yuma Indian Reservation in

the State of California;

///

35.

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(3) for the issuance of a permanent

injunction requiring the Secretary to set aside that

portion of the December 20, 1978 order of the Secretary

at issue which purports to include within the Fort Yuma

Indian Reservation in the State of California, certain

lands of the bed of the Colorado River belonging to

the State of California as described in paragraph 46 hereof,

and to prohibit the use of Colorado River water on

lands found to be outside the boundaries of the Fort

Yuma Indian Reservation.

{c) As te the Third Claim for Relief, Metropolitan

prays:

///

(1) that the June 3, 1974 order of the Secretary

fixing the western bowndary of the Camp Mojave Hay and

Wood Reserve west of the flood plain of the Colorado

River be declared in error and void;

(2) for a determination and declaration that

the western boundary of the Camp Mojave Hay and Wood

Reserve is the left bank of the Colorado River in its

last natural course, excluding the lands of the bed

of the Colorado River;

(3) for the issuance of a permanent injunction

requiring the Secretary to set aside the June 3, 1974

order at issue and prohibiting the use of Colorado River

water on lands found to be outside the boundaries of

the Camp Mojave Hay and Wood Reserve.

36.

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(ad) As to the Fourth Claim for Relief, Metropolitan

prays:

(1) that the portion of the June 3, 1974

order of the Secretary which purports to include certain

lands of the bed of the Colorado River as described in

paragraphs 70, 71, 74 and 75 hereof, within the Fort

Mojave Indian Reservation in the State of California,

be declared in error and void;

(2) for a determination and declaration that

the lands more particulary described in paragraphs 70,

71, 74 and 75 hereof are not a part of the Fort Mojave

Indian Reservation in the State of California;

(3) for the issuance of a permanent injunction

requiring the Secretary ‘o set aside that portion of

the June 3, 1974 order of the Secretary at issue which

purports to include within the Fort Mojave Indian

Reservation in the State of California, lands of the bed

of the Colorado River as described in paragraphs 70, 7l,

74 and 75 hereof, and to prohibit the use of Colorado

River water on lands found to be outside the boundaries

of the Fort Mojave Indian Reservation.

(e) As to the Fifth Claim for Relief, Metropolitan

prays:

(1) that the January 17, 1969 order of the

Secretary interpreting the western boundary of the

Colorado River Indian Reservation to be along the west

bank of the Colorado River as it existed in 1876 be

Geclared in error and void;

37.

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(2) for a determination and declaration that

the western boundary of the Colorado River Indian

Reservation described as:

" . . . thence in a northwesterly direction over

the Colorado River to the top of Monument Peak,

in the State of California; thence southwesterly

in a straight line to the top of Riverside Mountain,

California; thence in a direct line toward the

place of beginning to the west bank of the Colorado

River; thence down said west bank to a point

opposite the place of beqinning; ....

be declared to be the west bank of the Colorado River

in its last natural ccurse;

(3) for the issuance of a permanent injunction

requiring the Secretary to set aside the January 17. 1969

order at issue and prohibiting the use of Colorado River

water on lands found to be outside the boundaries of

the Colorado River Indian Reservation;

(f) As to the Sixth Claim for Relief, Metropolitan

prays:

///

(1) for a determination and declaration

that the lands more particulary described in

paragraphs 94 and 95 hereof are not a part of the

Colorado River Indian Reservation in the State of

California;

(2) for the issuance of a permanent injunction

to prohibit the use of Colorado River water on lands

found to be outside the boundaries of the Colorado

River Indian Reservation;

38.

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(g) As to all aforesaid Claims for Relief, Metropolitan

and Coachella pray for:

(1) costs of suit incurred herein; and

(2) for such other and additional relief as

the Court deems appropriate.

The Metropolitan Water District of Southern

California

Carl Boronkay, General Counsel

Warren J. Abbott, Assistant General Counsel

Karen L. Tachiki, Deputy General Counsel

Coachella Valley Water District

Maurice C. Sherrill

Redwine and Sherrill

Carl Boronka

39.

—- +

‘thence west on the line be

; Executive Mansion, January 9, 1884.

In lieu of an Exccutive order dated July 6, 1883, setting apart cer-

tain Jands in the Territory of Arizona as a reservation for the Yuma

Indians, which order is hereby canceled, it is hereby ordered that the

following-described tract of country in the State of California, ex-

ecpt so much thereof as is embraced within the Fort Yuma Military

Reservation, viz, beginning at a point in the middle of the channel

of the Colorado River due east of the meander corner to sections 19

and 30, township 15 south, range 24 east, San Bernardino meridian;

t tween sections 19 and 30 to the range line

betwecn townships 23 and 24 east; thence continuing west on the sec-

tion line to a point which, when surveyed, will be the corner to sec-

tions 22, 23, 26, and 27, in township 15 south, range 21 east; thence

south on the line between sections bo and 27, in township 15 south,

range 21 east, and continuing south on the section lines to the inter-

section of the international boundary, being the corner to fractional

eections 34 and 35,in township 16 south, range 21 east; thence easterly

on the international boundary to the middle of the channel of the

Colorado River; thence up said river, in the middle of the channel

thereof, to the place of eapaeing. be, and the same is hereby, with-

drawn from settlement and sale and set apart as a reservation for the

Yuma and such other Indians as the Secretary of the Interior may see

fil to settle thereon: Provided, however, That any tract or tracts in-

cluded within the foregoing-described boundaries to which valid

rights have attached under the laws of the United States are hereby

excluded out of the reservation hereby made.

It is also hereby ordered that the Fort Yuma Military Reservation

before mentioned be, and the same is hereby, transferred to the con-

trol of the Departincnt of the Interior, to be used for Indian purposes

in connection with the Indian reservation established by this order,

said military reservation having been abandoned by the War Depart-

ment for military purposes. wes

Cuester A. Antuur.

40.

United States Department of the Interior.

OFFICE OF THE SECRETARY

WASHINGTON, D.C. 20240

DEC 20 1978

‘

r " * SECRETARIAL ORDER ’

1. SOLICITOR'S OPINION

The Solicitor has signeé an Opinion recognizing that the

1884 Executive Order boundary of the Fort Yuma Indian

Reservation, as modified by the Executive Order of Decenm-

‘ ber 19, 1900, which revoked the portion of the reserva-

* tion lying south of the Colorado River in the then

Territory of Arizona, still remains the reservation boun-

Gary. Said Opinion is hereby approved. Attached hereto

is a map. entitled “Fort Yuma Indian Reservation 1884-1974,

revised September 1974 &.D.T.," depicting the general loca-

tion of the reservation boundary today. The exact loca-

tion of the Reservation boundary shall be determined here-

after by survey in accordance with the boundaries recognizec

by this Order.

II. RECOGNITION OF TRUST STATUS OF LANDS

Except as hereinafter stated, 211 lands which prior to

this date have been managed under the jurisdiction of the

: Bureav of Land Management or the Bureav of Reclamation

7 and which the attached map indicates are within the Ft.

* Yuma Indian Reservation (hereafter referred to as *Such

{ Lands") are hereby recognized as being held in trust by

the United States for the Quechan Tribe of the Fort Yuma

Indian Reservation as of January 9, 1884. .

JII. EXCEPTIONS AND CONDITIONS

: The Solicitor’s Opinion holds that an 1893 Agreement rati-

fied by an 189

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