# Appendix — Arizona v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1867%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 460 U.S. 605 ## Text 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 — > ¥ AB 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, i mr 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. Se 4. By “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 7 +€.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. ov ¢ . 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 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 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 a “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, 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 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. a 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 ll Mu. 28198. these decisions in sc far as the non-irrigadle lanés arc conccrned ae pe 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, 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 12 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 14 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 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 « 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. 16 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 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 17 revairins the Dietrict to give bone, tien of sc.er in tho Sceretary wich mar be invekcdé as acthorizing nix ~o wis, ail Tigts3 ta cna old silitary reservasion lan@s in Cali?crnia to t=z¢ thread cf tue Colorado River. In return eacz ae Incien was tc se allotted a s=ealil tract 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 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 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 : - - 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. m 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-* . _o 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 ad 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 _f _' 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 i 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 Z 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* “ -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). ——_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 2 . 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 a 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 7 Swamp and Overflowed Lands Acts of 1850 and 1866. 43 . "1 . . « “ > ‘’ . ‘ ; 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... 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." } c, ” » 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: - G@e. river In 1870 manifestly did no more than describe generally the nelghborhood of the boundary corner. 7 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 o or on yet WwW WN ’ N NWN NK NY NY WN WN ND F&F FY FY YF FY YY YY YY YY 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, Ve 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 Nv N NY NY KN NY NN KN KY KF YE OY Oe Oe Oe oe oe oxy oO F&F ® WH eY COC CO DBs FD YH &® WwW HK KF OO 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. /// o ownv op wet WwW N NY NY WN WN WK NN WN WN WN FY FY KY FY FY YY FY KY YY 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// a o on op yw fe WwW ND & NY N NH NK WN NN KN FY &§ + FY ee ee o vv ® WH eH CO 8 DBs fF YY & WwW DH KF OO N ~N N @ 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, 4. 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 o ono ww & 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Register (June 10, 1970)), promulgated pursuant to the Colorado 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 /// o on fon Yef WwW ND 10 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 /// o oO ns DOD VY & WN YN KR KY KH NY NN NN KN KY KY YY He ee he ee 2 YI. owewnnweroeeesxsau»nebrwense.eos 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. /// /// o on op we WwW NN Ff ee ee ee ee ee oy on vw &® WHR KF O ~ wo Nv N NY NY NY NY N N WN ovrnFy e2® Ww N FY Oo 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 /// * o onvroee yw *& WwW N ’ NY WN WN N WN ND FY FY FY FY YY YY ee ee ow ® WwW NH KY Oo 8 em OSNhlUOlUlUlCUlhlUalUNlUrK COO N wy N @ 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. o ony on vw & WwW ND ’ NW NH KH HK WN WN NN KY KY YP Ye oe oe oe oe oe oxy ovwve®wnrw YF ow @B ys ower wn & Oo 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. o on op wet WwW WN F YN KN KN NY NHN KN NN KY KY HY YY Oe oe oe oe oe oy Oo WV ® WH FY CO 8 Bs oO VY & WwW DH KY CO 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. a*s o oO nN OD YY & WwW N F Ny’ N NY WD WD WN WN WN N FY FY KY YF YY YY YY YY & oy ow ® WHY CO 8 Osi oO YY & WN KF OO 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. o ont oO Yf WN & NY N NY NY KH ND WN NN KN FY FY FY YY Ye ee ee ovo wv ® WHY OC 8 BONY OD HY ® WH KF CO 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). 15 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. o ov op Yee WwW ND & NY N KH KY NY KN KN KN KN KF FY YY YF YY ee sae epeeeeereegeew2weeeeekveet 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. o oO nN Oo YY & WwW NH we ee ee ee ov owe WN YF CO 86 OSI OO UV &® WKH KF OC 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// 17. o onrsoeaeiyw#s#e} WwW N Fe ee Ce ee ee . » 4 ~ oa. 5 n. LBR contract no. 14-06-303-3171, executed September 21, 1971, consisting of a license issued to the County of Imperial, California, for a refuse disposal dump. A “ve ee —_—_——_— ~- . ** _a ew . cer © eee yerre + tee 8 ee ©. LBR contract no. 14-06-300-2283 issved to the State of Arizona for fish and wildlife management at Mittery Lake. P- LBR contract no. 14-06-303-3369, executed January l, 1972, consisting of a lease to O.L. Reynolds for a mobile’ home park. aa .-@G- LBR contract no. 14-06-303-3438 issved to the Quechan Tribe May 7, 1974 pursuant to the Act of June 17, 1902 (32 Stat. 388) as amended by Act of August * 1939 (53 Stat. 1187). — = 2 O02 0 mers 00 wore os yw b '_ @+@ ee @ » 2 a . owd metheeplene . ——— ‘~« i . ta: * EXHIBIT 2. . 44, ; jilimabaainiiee oe "Ne eee dane « se eam Guted. -5- . Tt. BLM permit no. LA 055165 for a right of way for "Gila ‘Drop €4° power transmission line and access road; approved July 23, 1942 pursuant to Act of December 5, 1924 (43 Stat. 672); amended May 19, 1971. Ss. BLM permit no. LA 077775 for a right of way for the All-American Canal including appurtenant structures and operating telephone line, issued pursuant to §4(p) of the Act of December 5, 1924 /*3 Stat. 704; 43 U.S. §417). t. BLM permit no. R-03272 ©: a right of way for the Upper and Lower Reservation ievees issued May 31, 1963 pursuant to §4(p) of the Act of December 5, 19524 (43 Stat. 704; 43 U.S.C. §417). u. BLM permit no. R-1278 for a right of way for a drainage Gitch issued December 19, 1968, pursuant to §4(p) of the Act of December 5, 1924 (43 Stat. 704; 43 U.S.C. §417). v. Bureau of Land Management (BLM) Permit no. LA040525 for a right of way for a power transmission line granted to Southern Sierra Power Company March 23, 1927 pursuant to the Act of February 15, 1901 (31 Stat. 790. wv. BLM Permit no. LA022892 issued July 24, 1913 pursuant to the Act of March 4, 1911 (36 Stat. 1253) to Pacific Telephone and Telegraph for a telephone line. x. BLM Permit no. 732756 °K" ELV 75022-07 and 12771-22 issued to the Catholic Church for a Mission site by Departmental authority of June 8, 1921. y- BLM Ser. No. R0329, right-of-way grant to the Imperial Irrigation District, as specified in BLM decision of April 9, 1962, for Imperial Laguna Drain No. 2. z.- BLM Ser. No.. LA 0164552, right-of-way grant .to the Imperial Irrigation District, “as specified in BLM deci- sion of November 10, 1960, as amended December 5, 1960, ~ for an electrical transmission line. *. “eee - e+omece Gs | 1* ceemee wer ¢ rt . e . 2 © oof -6- @a. BLM Ser No. LA 0164553, right-of-way grant to the -Imperial Irrigation District, as specified in BLM deci- sion of August 13, 1964, for an electrical transmission line. bb. BLM Ser. No. R2331, right-of-way granted to the California Division of Highways, as specified in BLM Gecision of June 12, 1970, as amended April 25, 1973, and May 29, 1975, for Interstate Route 8. cc. BLM Ser. No. R2704, right-of-way granted to the Supervisors of Imperial County and the State of California, approved on October 24, 1930, noted in General Land Office letter 1396492 "°F" IBC of December 16, 1930, for a high- way. . 6c. BLM Ser. No. LA 0153352, right-of-way granted to Southern Pacific Pipe Lines, Inc., as specified in BLM Gecision of December 29, 1959, for a cathodic protection unit. ee. BLM Ser. No. 83430, right-of-way granted to Southern Pacific Railroad Company by the Act of March 3, 1871, 16 Stat. 573, and confirmed by section 17 of the Act of " August 15, 1894, 28 Stat. 335, for a railroad. ff. BLM agricultural and residential use permits, BLM Ser. Nos. 1C-1(A), 1C-2(A), 1C-3(A), 1C-S(A), 1C-9(R), 2A-25(A), 2A-30(A),*/ 2C-3(A), 2C-4(A), 2C-S(A), 2C-6(A), 2C-9(A), 2C-14(A), 2C-15(A), 2C-25(a)*/ 2C-31(A),*/ 2C-32(A), 2C-35(A), 2C-37(A), 2C-38(R), 2C-41(R), 2C-42(R), 2C-43(R), 2C-44(R), 2C-45(R), 2C-46(R), 2C-48(R), 2C-51(R), 2C-58(R), 2C-CM-4(R), 2C-CM-5(R), 2C-LD-5(R), 3C-TH-1(R), * 3C-TH-2(R), 3C-TH-4(R), 3C-TH-5(R), 3C-TH-6(R), 3C-TH-7(R), 3C-TH-8(R), 3C-TH-10(R), 3C-TH-11(R), 3C-TH-12(R), 3C-TH-13(R) r) 3C-TH-13a(R) r 3C-TH-13b(R) + 3C-TEB-14 (R) ’ "7 The determination by BLM to terminate these permits is ing appealed by the permittees in Power v. Frizzell, No. 75-708 (D. Ariz:). Pending a decision on this appeal, the permittees" rights are preserved for the remainder of their terms. s —e = oe es om aa ® cum ”. «J- a - 3C-TH-17(R)- 3C-TE-26(R), 3C-TB-29(R)- 3C-TH-30(R), 3C-TH-30a(R), 3C-TH-32(R)- 3C-TH-43(R), 3C-TH-45(R). 3C-TH-47(R)- 3C-TE-50(R). 3C-TH-51(R)- 3C-TH-52(R), *3C-TH-53(R), 3C-TH-54(R), 3C-TH-55(R), 3C-TR-56(R)- 3C-TE-57(R)- 3C-TB-58(R), 3C-TH-59(R)- 3C-TH-61(R), 3C-TH-62(R)- 3C-TB-63(R), 3C-TH-64(R), 3C-TB-65(R)- 3D-TH-66(R), 3C-TB-67(R), 3C-TH-68(R), 3C-TH-69(R), 3C-TR-70a(R), 3C-TA-71(R), 3C-TH-7la(R)- 3C-TH-71b(R), 3C-TH-72(R)- 3C-TB-72a(R). 3C-TB-77(R)- 3C-TB-78b(R), 3C-TE-79(r)- 3C-TE-81(R), 3C-TH-82(R)- 3C-TH-83(R)- 3C-TH-84(R)- 3C-TB-B5(R), 3C-TH-86(R)- 3C-TH-87(R), 3C-TH-88(R), 3C-TB-89(R), 3C-TH-92(R)- 3C-TH-93(R)- 3C-TH-94(R), 3C-TH-95(R)- 3C-TH-96(R), 3C-TH-97(R)- 3C-TH-98(R)- 3C-TB-991*'. og. BLM Ser. No. R05651, right-of-way, 85 specified in BLM 6ecision of August 25, 1964, for @ transmission line. ! hh. BLM Ser. No- $3450, right-of-way grant to the Southern pacific Railroad approved June 18, 1907. $i. BLM Ser. No- 63488, right-of~ ay grant to the Southern Pacific Railroad approves December 18, 1928, for station grouncs. 53. BLM Ser. No. 83484, right-of-way grant to the Inter California Railway approved February 10, 1910. kk. BLM Ser. No. $3441, amended right-of-way grant to the California Highway Commission approved Qctober 10, 1927, for a highway. 11. Federal Power Commission Power Project 589 right of way issved to the Sovthern Sierra Power Company and successors for transmission line ané appurtenant structures, issved May 10, 1926 pursuant to $24 of the Act of June 10, 1920 (41 Stat. 1063). mm. Federal Power Comnission Power Project 31397 right of way issved to Nevada Electric Co. July 1, 1938 pursuant to §24 of the Act of June 10, 1920 as amended by Act of August 26, 1935 (49 Stat. 838) for power transmission facilities. e- Lad . ._ owe yf °°" ote «« + | — ae —_—_" a ee + Or OF ager renee ene —" Ante —_ = - o— «.- % wres k's esl *ns #008, oni * eS OO ere adem ® egep lt =. mn. Federal Power Commission Power Site 614 right of way for power transmission facilities issued to Coachella Valle; Electric Company May 2, 1917 pursuant to Act of June 25, 1910 (36 Stat. 847). oo. A right of way granted to Southern Pacific Railroad Company pursuant to the Act of March 2, 1899, 30 Stat. 990 and confirmed in part by the Act of January 24, 1923, 42 Stat. 1172 and approved on July 29, 1926. © Excluding, however, those rights granted in the Riverside Park Lease with Yuma County (contract #14-010002-0007) to which lease the Tribe has withheld its consent and may instead terminate upon payment by the Tribe of fair compensation for all improvement, if any, which have been constructed on those lands since the effective date of the lease. 3. There is hereby excepted from the provisions and’ effect of Paragraph II hereof all rights and interests in lands in the so-called Bard area, opened to private settlement purusant to section 25 of the Act of April 21, 1904 (33 Stat. 189, 224). As to all rights-of-way listed above which are not on lands listed in paragraph 4 of this Order and which were issued under the assumption that the lands involved were not Indian lands, I hereby grant a right-of-way pursuant to the avthority vested in me by the Act of February 5, 1948, 62 Stat. 17, 25 U.S.C. §§323-28, each such grant - being for the unexpired term of the original grant and subject to precisely the same terms and conditions as contained in the original grant. The Tribe has given its consent to these grants in Resolution R-19-77 dated September 29, 1977 and, purusant to 25 CFR §1.2, I hereby waive the requirements of 25 CFR part 16] pertaining to these rights-of-way, since I-find that such waiver is in the best interest of the Quechan Indians. EXHIBIT 2 48. PP e.. Stak “\e tones’ ® tee As to all other permits, leases and other rights and interests listed above which are not on lands listed in paragraph 3 of this Order and which were issved under the assumption that the lands involved were not Indian lands, the Tribe has avtorizeé and consented to issuance of such permits, leases and other rights and interests in Resolution R-19-77 dated September 29, 1977, and I hereby approve the same, pursvant to authority contained in the Act of May 11, 1938, c. 198, §1, 52 Stat. 347, 25 U.S.C. §396a, the Act of Avgust 15, 1894, c. 290, §1, 28 Stat. 305, 25 U.S.C. °§402, the Act of July 3, 1926, c. 787, 44 Stat. 894, 25 U.S.C. §402a, and the Act of August 9, 1955, c. 615, §1, 69 Stat. 539, 25 U.S.C. $415, each such pernit, lease or other right or interest being fot the unexpired term and subject to precisely the same terms and conditions specified in the original instrument. Pursuant to 25 CFR §1.2, I hereby waive the requirements of 25 CFR parts 131, 151 and 171 pertaining to these permits, leases and other rights and interests since I find that such waiver is in the best interest of the Quechan Indians. 4. There is hereby excepted from the provisions and effect of Paragraph II hereof fee title in the United States without being held in trust for the Quechan Tribe to the works and appurtenances including but not limited to the works described in the following subparagraphs a throug! r constructed pursuant to congressional authori- zation, including the Reclamation Act of June 17, 1902 (32 Stat. 388), acts amendatory and supplementary thereto, and the Boulder Canyon Project Act of December 21, 1928 (45 Stat. 1057), and fee title in the United States, without being held in trust for the Quechan Tribe, to lands occupied by all of said works and appurtenances, and there is also reserved the right of the United States, its licensees and contractors, to operate, maintain, and reconstruct said works and pia nae seine including but = limited to: EXHIBIT 2 - 49. men etee «* ore © teeters © were’ Po Naren ee tome ww a -\ a. The All-American Canal, ané all appurtenances (including but not limited to the Pilot Knob Check and Wasteway back to the Colorado River) as generally shown on Drawing No. 35-300-48, and Drawing No. 35-303-2127 attached hereto and incorporated herein by reference. b. Laguna Dam Protection and Security Zone as shown on Drawing No. 423-300-704 attached hereto and iancorpor- ated herein by reference. c. Laguna Settline Basin, Sediment Disposal Area and Security Zone, aS Shown anc named as “Channel” anc most of the “Wildlife Area” on the above Drawing No. 423-300-704. 6. Yuma Main Canal, California Wasteway, and Colorado River Siphon. “The general location of the Yuma Main Canal and California Wasteway as shown and named on the above Drawing No. 35-300-48. The Siphon under the Colorado River is identified as "Siphon" on enclosed Drawing No. 212-303-1100 attached hereto and incorporated herein by reference. e. Detention Reservoir Opposite Wash Overpasses on All-American Canal. At present there is only one area defined as a “Detention Reservoir,” that being the Detention Reservoir as shown on Drawing No. 35-303-2127, basically existing below the All-American Canal. This reservoir is erroneously depicted as being part of the patented Bard area on the map referred to in Paragraph I hereof. £. Upper and Lower Reservation Levees. The locations of the Upper and Lower Protective Levees are shown on Drawing No. 35-300-48; however, the Upper Levee is denoted only as “Reservation Levee." Both Levees are properly Genoted on Drawing No. 35-303-2127. g- Old Yuma Main Canal. The general location of this facility, a large portion of which is utilized as an inter- ceptor Grain, is shown on Drawing No. 212-303-1100. EXHIBIT 2 50. ——— am 6 © * S@@+e @.. ¢« “@ere = meee eee ou Oe Oy ee Sree Gee om fg © er ne "38:3 2 @ e tlomnomee sbanemey- od a.:', af ee a ee ee ae ee . -jl- h. Irrigation Canals and Laterals in Reservation ' . Division Yuma Project. Drawings NOS. 35-303-2127 an 35-300-46 show these irrigation facilities. i. All Drainage Channels as Presently Exist. Drawinc Nos. 35-303-2127 and 35-300-48 indicate these facilities. j. Siphon Drop ané Pilot Knob Power Plants Tocether with Related Transmission Lines and Appurtenances. Both the Siphon Drop and Pilot Knob power plant locations are shown on Drawing No. 35-300-48, respectively named "Siphon Drop Power Plant" and "Pilot Knob Power Plant." In both cases, related facilities and appurtenances such as the Pilot Knob Drop, residences, other buildings, and related transmission lines and communication lines are - not identified on any drawing. k. Well Clusters. Several well clusters are placed along the Colorado River flood plain in conjunction with the U.S. Geological Survey, the purpose of which is a study , to measure return flows. There is no reproducible drawing that would show as a composite the locations. The general locations are shown by “blue” lines on Grawing No. 35-300-4! 1. Parker-Davis 161-Kv Transmission Line. This line traverses the area from its crossing of the Colorado River westerly to the Knob Sub-station. The location is shown on Drawing No. 35-300-48. m. Boundary Pumping Plant 34.5-Kv Transmission wine. This line interties the Valley Division's bouncary pumping plant, the Yuma County Water Users’ Association Headquarter Building, California Wasteway, Siphon Drop, and Imperial Dam, and is shown on Drawing No. 35-300-48. mn. Interconnecting Telephone, Electrical, and Remote Control Lines to Project Features. These features, which are appurtenances to other project facilities, are not con- tained on any cGrawings but are largely within rights-of-way of other project features. EXHIBIT 2 51. * “8,* wee a a ee ee ee ee . ——— ee © Oe e Ohare t. 8, . oe oe * * Ore 4 aim — -— Bee, oh Bede Ce e 02°90 oa 040 ssi -N anh am . . - 2 , * $Pe.c00@ ee . ©. Senator Wash Dam 69-Kv Transmission Line. Locatic shown on Drawing No. 35-300-48. p- Collector Line (Sovth Gila Drainage). Location shown on Drawing No. 35-300-4% by “blue” pencil line ex- tending from the Colorado River to Sovth Gila Levee. g. Sovth Gila Levee (including Main Ovtlet Drain Extension). Location shown by Grawing No. -~300-48. r. Gavging Station. Location shown by “blue” pencil mark below the letters "ol" in the word “Seminole” on Drawing No. 35-300-48, below the Winterhaven townsite. Provided, however, that should any of the above works (excepting the works described in subparagraphs a., d., and j. hereto), be abandoned or cease to be used in connect with authorized Reclamation projects by the United States as Getermined in writing by the Secretary of the Interior equitable title therto shall revert to the Tribe, in all instances where the Tribe owns equitable title to lands immediately adjoining said works. A survey of the location: and extent of the areas occupied by the works referred to above ancd the material sites referred to in paragraph 7 below will be made as promptly as possible by the United States without cost to the Tribe, and the results of that survey shall be reported to the Tribe, with any dispute thereon referred to the Secretary. 5. There is hereby reserved to the United States, its offi agents, employees, contractors, patentees, “licensees, and holders of other rights, the right of ingress to, passage over and egress from Such Lands over existing or relocated roadways at all times for the purpose of exercising the rights specified in this Order and for all lawful purposes in connection with the maintenance ané operation of all Reclamation works; provided however that new roadways will not be constructed on reservation lands without consent of the Tribe, and that existing roadways may be relocated by the Tribe at its own expense so long as they are adequat: for the purposes served by the original roadway. EXHIBIT 2 52 . — ' «- ha 2 oo i Gy 7 3 | a> 6. The Tribe's equitable title to Such Lands within the ; ‘ * £1004 plain of the Colorado River, including Laguna Dam 4 South Recreational Area, shall be subject to the rights = . of the United States under the Act of June 28, 1946, 60 Stat. 338. The Tribe shall not construct or install or as s+ permit the construction or installation of any permanent ". cite improvements on Such Lands within the flood plain or floodway ""* "+ as shown by "red" coloring on Drawing No. 423-300-1036 (Bureau of Reclamation, Flood Plain Information--Colorado i ‘ River-Imperial Dam to San Luis, Plate 3 (Avgust 1973)), attached hereto and incorporated herein by reference, nor will the Tribe permit said lands to be-used in any manner inconsistent with or contrary to the purpose or intent of Executive Order No. 11296. Pe + etme ** =e . -™ ell tule --* 7. There is hereby reserved to the United States the right to continue in exclusive possession of all presently used material sites located within the now-recognized reservation boundaries, of sand, gravel, fill, clay and rock necessary for operation and maintenance of its project works, provided however that if the sites are abandoned or the use thereof is changed in any substantial manner by the United States, possession shall revert to the Tribe > at its option. Provided further that the United States ’ shall pay to the Tribe the fair market value of any and all materials removed from these sites from and after the date of this Order, and shall make regular periodic reports to the Tribe concerning the value of all materials removed. —" oO et #8 ee ole wens . = é See ent arseweem oo seed . — eo: . IV. MISCELLANEOUS PROVISIONS 1. Nothing contained herein shall prevent the Tribe from recovering whatever compensation it may be determined is appropriate in any proceeding now pending or hereafter brought against the United States for past use of Such . Lands. ‘ a . ai hee OF OOM Se nae Otree 9a oh ngs eee eee _ . Pe EXHIBIT 2 53. a om, . 8 Se eee 7 a 4 . ._* ’ ‘> od #0 Bowmen. ccs *4, ° es ade + @ tee eo Ooo PEN a 7) am oi . Bees -l4- 2. Any claim for vater rights in addition to that amount presently enjoyed under Arizona v. California, asserted in relation to Such Lands will be predicated Only upen the criteria heretofore employed in Arizona v. California. 3. This Order determines the respective interests to Such Lands of the Onited States and the Gvechan Tribe, oe odie @= a — do*.c- e ere @ eet «Fe . -— ee —— ee aomeee oe @ «—-_“, Chemese @retie ane’ ae. ahd sere cee + 10+ © ‘ ome ’ . cares tes **e*e oor ae camel extieecoes & © o-0aamdesran dwcte Macatois © os aout Pe ee © ome ote — . ‘acireren = ~ oan ? ‘ 2 oon teem gst i © @ @ree wrmee + oh subject to the provisions of Paragraph III of this Order. This Order does not affect any claim of the State of Arizon: or the State of California or any successor of interest thereof may have to Such Lands. 4. All permits, patents, leases, rights of way and other rights and interests to Such Lands in existence on the date of this Order which are not enumerated or are not correctly enumerated in Paragraph III (2) of this Order shall, upon submission to the Office of the Secretary of the Interior and the'Quechan Tribal Council, within 90 days of this Orde: be corrected or added to the enumeration in said Paragraph | if determined to be valid by the Secretary after ‘having given notice and an opportunity to be heard to the Quvuechan Tribe. 5. All agencies of the Department are hereby directed prom to take all necessary steps to implement the Opinion of the Solicitor and the terms of this Order. Setretary of the Interior Attachments EXHIBIT 2 54. UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF THE SOLICITOR WASHINGTON, D.C. 20240 prec 20 878 To : Secretary Fron : Solicitor Re : Title to Certain Land Within the Boundaries of the Ft. Yuma (now called Qechan) Indian Reservation The Quechan Indian Tribe, the Bureau of Indian Affairs, i/ and the Chairman of the Senate Committee on Interior and Insular Affairs, 2 have requested this Department to reconsider the legal] question o whether the Quechan Tribe retains ownership of approximately 25,000 acres of non-irrigable Jand within the boundaries of their 1884 Execo- tive ion. ‘This question has been consicered on two previous occasions by the Solicitor, sages, hed in the issuance of opinions in 1936 (M-28198), and 1977 (M-36886), which have concluded that title to this ceted to the United States by virtue of a was vncon iated 1893 cession agreement and an 1894 statute, ratifying such orowant. (28 Stat. 332). Prior to the issuance of the 1977 Splicitor's opinion, a Graft Solicitor's Opinion to the opposite effect was widely cirqlated. That opinion con- Clucé that 1893 agreement_and )894 rati 5 statute provided for a conditional cession o! non-irrigable land at the conditions were not fulfilled, anc the Ye cession of the non-irrigable land had there- ore not been effected. Department files on this subject reveal that the draft opinion was seriously considered, and that extensive preparations were mace for the issuance of a ccision in favor of the tribe. ‘The February 1976 decision by the Solicitor upholding the 1936 opinion was an unexpected event. The Senate Subcommittee on Indian Affairs held Memo Of November 15, 1977, from Acting Assistant Secretary for Indian Affairs to Associate Solicitor for Indian Affairs. letter of February 8, 1977, from Senator Henry Jackson to Honorable Cecil Andrus, Secretary of the Department of the Interior. EXHIBIT 3 55. ! | 2s -2 hearings in May ané June of 1976, to air the con and learn the legal basis of the 1976 decision by the Solicitor. In those hearings, the Secretary agreed to direct the Solicitor to prepare a written legal opinion supportirs the 1976 decision. A written opinion, M-36886, was published on January 17, 1977. The sharp and continuing divergence in legal views with respect to this issue have persuaded me that the matter merits reconsi@ration. Accord ingly, I directed review of the Department's files and all previously prepared legal) opinions to provide an independent evaluation of the Quechan claim to the 25,000 non-irrigable acres. ) Having reviewed that poms = I conclué@ that the 1893 agreement ané 1894 rati sta ided for a mnditional cession of the nor irrica acreage. the conditions articulate the agreemen ch incluced the allotment tend irrigation of irrigable land to the Indians of irrigable land to the Indians, the sale of »f Surplus to settlers uncer stri escribed conditions, the. constnuct ion_of an irrigation Ganat, 7 “aid te ing of non-irrigable ited States. No lump sum, compensation, was . ! Background Facts The Fort Yuma Reservation was created by executive order on January 3, 31884. (1 Kappler, Indian Affairs—Laws and Treaties 832.) In 1893, the Quechan Indians sent a petition to the President and to Congress in which they indicated a willingness to ceé their rights in their reservation in return for receiving allotments of irrigated land. (S. Exec. Doc. No. 68, 53rd Cong., 26 Sess. 14-16 (1894)). ‘he Indians expressed belie? that they would improve economically if they had smaller, individal units of irrigated land, suitable for farming. In 1893, an agreement was negotiated providing for the allotment of irrigable land, the sale of surplus irrigable lané weer strictly pre- scribed conditions, the holding of sale proceeds in trust for the tribe ané the opening of non-irrigable acres to settlement under the general land laws of the United States. ere was no other ision for @ was ratified by Congress 4 (28 Stat. 332). ‘The ratifying act further provided that construction Of an irrigation canal (the right-of- way for which had been granted in an 1893 statute) would have to be commenced within 3 years of the date of passage of the act or the right- of-way would be forfeited In addition, each adit male was to receive free water for ] acre of his allotment over a 10-year period During the following decade, allotment did not occur, the President did not proclaim the non-irrigable lands a part of the public dmain and open to settlement, and the irrigation cana] was not built. ‘hen, in 1902, Congress passed the Reclamation Act. In 1904, mincful of the continuing and unsatisfied need for irrigation on both the Fort Yuma and Coloradéd River Reservations, passed an Indian Appropriations Act which extended the benefits of the 1902 Reclamation Act to those two reservations, and which provided for the allotment of irrigable land to tribal members and for the sale of surplus irrigable land to non-Indians (33 Stat. 224). ‘The terms under the 1904 Act for the sale of surplus lands and for holding of proceeds differed significantly from those in the 1893 agreement and 1894 ratifying act. ‘The 1904 Act was amended in 1911] to increase the allotments to 10 acres. (36 Stat. 1063.) Allotment of irrigable lands was completed by 1912. ‘he _irrigable land were fully disposed o! . he 25,000 non-irrigable acres =~ “were not returned to public dbmain, Opened to settlement and dis- posed of. They are the subject of this opinion. ile the majority of these lands continue to be non-irrigable, it is estinated that between 5,000 and 5,500 acres, the Ei of which are in California, are “practicably* irrigable- -4- Legal Analysis - 1893 Agreenent and 1894 Statute . The resolution of the title tion turns lieve, on the correct SH of the nt the rati statute. Case aw establishes that when interpreting federal agreements and statutes pertaining to Indian affairs, one mst consider the legislative history, as well as surrounding ciramstances and subsequent adninistrative practices, to determine what the parties intended, and in particular, what the Indians understood the agreement to mean. In so ding, dubtful expressions are to be resolved in the Indians’ favor. 3/ Clearly, such interpretative approach is appropriate in a case such as this where the trustee is examining and interpreting a transaction involving valuable assets of its ward, and in which the trustee is the other party to the transaction, who stands to gain from the disposition of the-assets other than to the tribe. As stated in the case of Navajo Tribe v. United States, 364 F.246 320, 322, 323 (Ct. Cl. 1966): Since the Department of the Interior had an obligation to safeguard the property of the Navajos when they were dealing with third O parties, it is clear that an even greater @ity existed when the Department itself entered into transactions with the Indians . .. . Because of this and because of the Gvernment's special dty toward the Indians, the various dealings must be care- fully scrutinized. Neither the nt nor the rati tute is sufficiently clear with regard to the cession non-irrigable land to compel one — interpretation over another. ‘The actual = of the cession Article ; is: _ Article I. ‘he said Yuma Indians, upon the conditions hereinafter expressed, é> hereby surrencer and relin- quish to the United States all their right, title, « 37 Menominee Tribe v. United States, 39] U.S. 404 (1968); United States ay V. Santa Fe Pacific R. O., 314 U.S. 339 (1941); Antoine v. Washington. 420 U.S. 194 (1975), Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). The conclusions of this opinion flow from premises which differ from those in the 1936 and 1977 opinions in two fundarental respects: | (a) a finding that the dcuents, rather than being clear, contain ® ambiguities in critical areas; and (b) canons of construction applied 2 here are those which are uniquely applicable to controversies involving 7 : Indian rights as opposed to those which may apply to controversies : generally. i : EXHIBIT 3 EAR, MRE MET Her ~ = --F . = Departrent of a Affairs Ee es e aor bee a eS and in holding rents_in tmist for the tribe. an di , The results of an intensive file review, condcted in 1975 by staff of the Solicitor's Office and ctailed below, show a clear and basically consistent history of adninistration of the non-irrigable land by the Bureav of Indian Affairs prior to the 1936 Slicitor's Opinion. This adninistrative history was acknowleded in the 1936 Gpinion. Maps of the area issved between 1894 and 1936 inclucé the Fort Yuma Indian Reservation and depict its boundaries as declared in the 1884 Executive Order. 8/ ‘The Bureav of Land Management's plat records, as well as the Ly E.g., U.S.G.S. map, “Coloradé River from Black Canyon, Ariz.-Nev. to Arizona-Sonora Boundary,” surveyed in 1902 and 1903 (Exhibit Ce) RO-13, Quechan Tribe v. United States, Indian Claims Commission Docket No. 320 [hereinafter cited as Claims Exhibit }); U.S.G.S. map “Yuma Quadrangle, California-Arizona,* edition of April 1905 (BIA Files, Phoenix); 1936 reprint of April 1905 U.S.G.S. map (Claims Exhibit RO-13); U.S. Reclamation Service maps ‘| of the Yuma Project in its annwal reports to Congress (e.9g., Third Annual] Report: 1903-04, at 192-193 (2d ed 1905); Fifth annual Report: 1906, at 100-01 (1907)); U.S. Reclamation Service Map No. 16774 (January 1916) (Yuma Project File 154-D, A610158; File 154, “*Lands~General,” A609223); U.S. Reclamation Service Map No. 1747] (1917) (Yuma Project File 154, “Land-General,* A609224, 2-328). ‘The latter two maps, Which were prodoed after issuance of the Indian trust allotment patents on February 5, 1914, show the Indian Allotments (or Indian Unit) and continue to depict the entire area encompassed by the 1884 Executive Order as the Yuma Indian Reservation. ‘The field notes, reports and official plat of survey prepared by General Land Office Surveyor John L. Warboys between 193] and 1934, as well as the uncerlying assignment instructions (Special Instructions Group 264, California) repeatedly refer to, affirm and adpt the "West Boundary of the Yuma Indian Reservation" as described in the 1884 Executive Order and fixed by the Ingalls survey in 1895; and General Land Office Special Instructions Group 281, relating to T. 16 S., R. 23 E., S.B.M., dated April 15, 1932, refers to "that portion of the Yuma Indian Reservation lying between the Reclamation Levee and the abandbned channel of the Mloracd River" (Claims Exhibit RO-13 and supporting cbaments). Addi- tional maps recognizing the continued existence of the reserva- yt as described in the 1884 Executive Order are listed in note ra. , EXHIBIT 3 63. -——- _-_ _ ae - = . —_————eeer + ‘ 4 -10- original daments signed at the Secretarial level, show that all rights of way issved by the Department across the non-irrigable land (except those which may have been issved by the Bureau of Reclauation within its own rights of way) were issued uncer statutory authority pertaining to Indian reservations. 9/ ‘The Commissioner of Indian Affairs issued 37 “Map of the Definite Location of the Southern Pacific Railroad in the Yuma Indian Reservation, California,® G.L.O. no. 506131-1915, surveyed December 1906, subnitted to the Indian Agent, Yuma Indian Reservation, March 13, 1907, and approved by Acting Secretary of the Interior George W. Woodruff on June 18, 1907, subject to the provisions of the Act of March 2, 1899 (30 Stat. 990, as amencd&d, 25 U.S.C. §§ 312-18) (BIA Files, Phoenix) (the BIM plat record for section 36, T. 16 &., R. 22 E., Record issuance of another right-of-way to the railroad under the 1899 Act, with jurisdic tion in the BIA on July 29, 1926 (R. 1359, S 3492)); “Map of the Definite Location of the Inter California Railway in Yuma Indian Reservation, California,” received by Superintendent Euan, Yuma Indian Reservation, September 30, 1909, and approved by the Department February 10, 1910, under the Act of March 2, 1899, with the schedble of compensation to the Indians required by th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1867%3A12. Public record. Not legal advice.