Petition — Arizona v. San Carlos Apache Tribe of Ariz.

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Office - Supreme Court, U.S.

S§1-2147 FILED

No. MAY 12 \992

ALEXANDER L. STEVAS.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

Tue State OF ARIZONA, ET AL.,

Petitioners,

versus

San CarLos APACHE TrRiBz Or ARIZONA AND THE

Navaso TRIBE OF INDIANS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Ropert K. CorsBin JENNINGS, STROUSS & SALMON

The Attorney General M. Byron Lewis .

Russell A. Kolsrud John B. Weldon, Jr.

1275 West Washington 111 West Monroe

Phoenix, Arizona 85007 Phoenix, Arizona 85003

Assistant Attorney General ‘Tel. (602) 262-5814

Tel. (602) 255-1640 Attorneys for Petitioners Salt

Attorneys for Petitioners River Valley Water Users’

State of Arizona and Association and Salt River

Arizona State Land Project Agricultural

Department Improvement and Power

STEPHENS and TOoLEs District

Bill Stephens Evans, KITCHEL & JENCKES,

1010 East Jefferson P.C.

Phoenix, Arizona 85034 Alvin H. Shrago

Tel. (602) 253-1010 363 N. First Avenue

Attorneys for Petitioners Phoenix, Arizona 85003

City of Phoenix and City Tel. (602) 262-8843

of Prescott, Arizona Attorneys for Petitioners

Phelps Dodge Corporation

and Phelps Dodge Industries,

Inc.

Il.

QUESTIONS PRESENTED FOR REVIEW

DO THE DISCLAIMERS IN ARIZONA’S ENA-

BLING ACT AND CONSTITUTION DEPRIVE ITS

STATE COURTS OF JURISDICTION TO ADJUDI-

CATE WATER RIGHTS CLAIMED BY THE

UNITED STATES FOR INDIAN TRIBES, NOT-

WITHSTANDING THE McCARRAN AMEND-

MENT AND THIS COURT’S HOLDING IN

COLORADO RIVER WATER CONSERVATION

DISTRICT V. UNITED STATES?

DID THE ARIZONA DISTRICT COURT COR-

RECTLY DETERMINE THAT CONSIDERATIONS

OF WISE JUDICIAL ADMINISTRATION RE-

QUIRE ADJUDICATION OF ALL CONFLICTING

WATER RIGHTS IN A COMPREHENSIVE STATE

GENERAL ADJUDICATION, RATHER THAN

THROUGH PIECEMEAL FEDERAL ACTIONS?

* Pursuant to Rule 28.1, Rules of the Supreme Court of the United

States, petitioners Phelps Dodge Corporation and Phelps Dodge In-

dustries, Inc., hereby submit the following list of corporate

subsidiaries (except wholly-owned subsidiaries) and affiliates:

Alambres y Cables de Panama, S.A.; Alambres y Cables Venezolanos,

C.A.; Apache Powder Company; Asian Cable Corporation Limited;

Bisbee Queen Mining Company; Cables Electricos Ecuatorianos, C.A.;

Cobre Cerrillos, S.A.; Conducen, S.A.; Conductores Electricos de Cen-

tro America, S.A.; CONELEC, S.A.; Electroconductores de Honduras,

S.A. de C.V.; FACELEC, S.A.; Industria de Electroconductores, S.A.;

Manila Pilares, S.A. de C.V.; Metal Fabricators of Zambia Limited;

PDTL Trading Company, Limited; Phelps Dodge Philippines, Inc.;

Phelps Dodge Svenska Metallverken International Corporation;

Phelps Dodge Thailand Limited; South Australian Uranium Corpora-

tion Pty. Limited; Southern Peru Copper Corporation; Southern Peru

Copper Sales Corporation; Viem Metal Works, S.A.; Woodlawn Prop-

erties Pty. Limited. Phelps Dodge Corporation is the parent company

of which Phelps Dodge Industries, Inc., is a wholly-uwned subsidiary.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........

TABLE OF AUTHORITIES CITED

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED -_

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT.............

I THE DECISIONS BELOW CONFLICT

WITH THE DECISIONS OF THIS COURT

AND THE COURT OF APPEALS FOR THE

TENTH CIRCUIT AS TO THE SCOPE OF

STATE COURT JURISDICTION GRANTED

BY THE McCARRAN AMENDMENT. ..........

A. The Ninth Circuit’s Decisions Contradict

This Court’s Inierpretation of the Mc-

Carran Amendment.

B. The Ninth Circuit’s Decisions Reject This

Court’s Interpretation of the Western Dis-

claimer Provisions and Conflict with the

Tenth Circuit’s Interpretation of the

Identical Disclaimer Provisions. ................-.

C. The Ninth Circuit’s Decisions Ignore the

Express Terms of Public Law 83-280 and

Reject Its Interpretation by This Court in

Colorado River and by the Tenth Circuit

in dicarilla Apache Tribe v. United

States.

iii

TABLE OF CONTENTS

II THE DECISIONS BELOW RAISE SERI-

OUS AND RECURRING PROBLEMS

CONCERNING EFFORTS BY THE

STATES TO ADJUDICATE WATER

GEREIUEETUTEL casssunennssssnensnsssssesnsssvssenevesnseensenessnasnsenssns 22

Se SITES consensessecscsensssnsesenesseneseseeneeseeseennse 26

APPENDIX

A. Opinion of the United States Court of Ap-

peals for the Ninth Circuit in San Carlos

Apache Tribe v. Arizona, 668 F.2d 1093. ...... A-l

B. Opinion of the United States Court of Ap-

peals for the Ninth Circuit in Navajo Nation

v. United States, 668 F.2d 1100. ................0+ B-1

C. Opinion of the United States Court of Ap-

peals for the Ninth Circuit in Northern

Cheyenne Tribe v. Adsit, 668 F.2d 1080. ....... C-1

D. Order of the United States District Court for

the District of Arizona, dated April 17,1980. D-1

E. Opinion and Order of the United States Dis-

trict Court for the District of Arizona, 484

SUTIN TTI -insiitsetipnicipeisanenesiaipanisenisnsenmaedeensetien E-1

F. Senate Report No. 755, 82d Cong., Ist Ses-

sion, dated September 17, 1951. ................... F-1

G. Order of Superior Court of Maricopa Coun-

ty, Arizona, dated March 24, 1982. ................ G-1

H. Order of the Superior Court of Apache

County, Arizona, dated March 25, 1982. ...... H-1

TABLE OF AUTHORITIES CITED

Cases Page

Arizona v. California, 373 U.S. 546 (1963) ............... 6

Colorado River Water Conservation District v.

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

Earle v. McVeigh, 91 U.S. (1 Otto) 503 (1876) ........... 25

Fort McDowell Mohave- Apache Indian Community

v. Salt River Valley Water Users’ Association,

No. CIV 79-267 PHX VAC (D. Ariz., filed

April 13, 1979) - 9

Gila River Indian Community Petition for Removal,

No. CIV 79-183 PHX VAC (D. Ariz., filed

March 7, 1979) ..... 8

dicarilla Apache Tribe v. United States, 601 F.2d

1116 (10th Cir.), cert. denied, 444 U.S. 995

(1979) 9, Passim

Lone Wolfe v. Hitchcock, 187 U.S. 553 (1903) ........... 15

Mescalero Apache Tribe v. Jones, 411 US. 1

(1973) 17

Navajo Nation v. United States, 668 F.2d 1100

(9th Cir. February 24, 1982) 1-2,2,10,11

Navajo Nation v. United States, No. 79-276 PCT

VAC (D. Ariz., filed April 17, 1979) 9

New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir.

1976, cert. denied, 429 U.S. 1121 (1977) ...........-00+0 25

Northern Cheyenne Tribe v. Adsit, 668 F.2d 1080

(9th Cir. February 22, 1982) 1,2,11,23,25

Organized Village of Kake v. Egan, 369 U.S. 60

(1962) 16,17,18,26

Owens Equipment & Erection Co. v. Kroger, 437

U.S. 365 (1978) 24

TABLE OF AUTHORITIES CITED (Cont.)

Cases Page

Payson Community of Yavapai-Apache Indians v.

State of Arizona, No. CIV 79-187 PCT VAC (D.

Ariz., filed March 7, 1979) 8

Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125

(1974) 24

Puyallup Tribe v. Washington Department of

Game, 433 U.S. 165 (1977) 17

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) .. 15

Salt River Pima-Maricopa Indian Community Peti-

tion for Removal, No. CIV 79-184 PHX VAC (D.

Ariz., filed March 7, 1979) .... 8

Salt River Pima-Maricopa Indian Community Peti-

tion for Removal, No. CIV 79-185 PHX VAC (D.

Ariz., filed March 7, 1979) ........cccccscccccssscssscesecsseeeee s

San Carlos Apache Tribe v. Arizona, 668 F.2d 1093

(9th Cir. February 23, 1982) 1,2,10,11

San Carlos Apache Tribe of Arizona v. State of Ari-

zona, No. CIV 79-186 PHX VAC (D. Ariz., filed

March 7, 1979) 8

San Carlos Apache Tribe v. State of Arizona, No.

CIV 79-269 PHX CAM (D. Ariz., filed April 16,

1979) iS)

State ex rel. Reynolds v. Lewis, 88 N.M. 636, 545

P.2d 1014 (1976) 15

United States v. District Court in and for Water

Division No. 5, 401 U.S. 527 (1971) 18

United States v. District Court of Eagle County, 401

U.S. 520 (1971) 18

United States v. New Mexico, 438 U.S. 696 (1978) ... 23

TABLE OF AUTHORITIES CITED (Cont.)

Cases Page

Washington v. Yakima Indian Nation, 439 U.S. 463

(1979) " 19

White Mountain Apache Tribe v. Arizona, 649 F.2d

1274 (9th Cir. 1981) 16

White Mountain Apache Tribe Petition for Remov-

al, No. CIV 79-182 PHX VAC (D. Ariz., filed

March 7, 1979) 8

Williams v. Lee, 358 U.S. 217 (1959) 17,18

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Page

United States Code

25 U.S.C. § 1322 4,19

25 U.S.C. § 1324 5

SHUG § BGBEGR) ccccccsccssssssssszsssscsssessssecessevssssesssoress 2

28 U.S.C. § 1331 9,24

28 U.S.C. § 1332 9

28 U.S.C. § 1345 24

28 U.S.C. § 1362 9,24

28 U.S.C. § 1441 9

28 U.S.C. § 2201 9

28 U.S.C. § 2202 9

43 U.S.C. § 666 3,6,7,12

United States Statutes at Large

25 Stat. 676, 677 (1889) (N. Dakota, S. Dakota,

Montana, Washington Enabling Acts) .............. 14

26 Stat. 215 (1890) (approving Idaho Constitution,

Art. 21, § 19) 14

26 Stat. 222 (1890) (approving Wyo. Constitution,

Art. 21, § 26) 14

28 Stat. 107, 108 (1894) (Utah Enabling Act) ........ 14

34 Stat. 267, 270 (1906) (Okla. Enabling Act) ........ 14

36 Stat. 557, 558-559 (1910) (N. M. Enabling Act,

§ 2) 14,15

36 Stat. 557, 569 (1910) (Ariz. Enabling Act) ......... 2,8,14

67 Stat. 588 (1953) (Public Law 83-280) ............ 11,Passim

72 Stat. 339 (1958) (Alaska Enabling Act) ............. 14,17

73 Stat. 141 (1959) (Amending 72 Stat. 399) .......... 14,17

Arizona Constitution

Article XX, § 4 3,8,14

New Mexico Constitution

Article XXI, § 2 15

Arizona Revised Statutes

A.R:S. § 45-231, et seq. 7

A.R.S. § 45-251, et seq. 7

Rules of the Supreme Court

Rule 19.4 1

Rule 28.1 i

OTHER MATERIALS

Senate Report No. 755, 82d Cong., Ist Sess.(1951).... 6,12

Hearings on S.18 Before the Subcommittee of the

Senate Committee on the Judiciary, 82nd Cong.,

Ist Sess. (1951) 21

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Tue State Or ARIZONA, ET AL.,

Petitioners,

versus

San Car_os Apacue Tripe Or Arizona AND THE

Navaso Tripe Or INDIANS, ET AL.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners State of Arizona, Arizona State Land Depart-

ment, the City of Phoenix and the City of Prescott,

Arizona, Salt River Valley Water Users’ Association, Salt

River Project Agricultural Improvement and Power Dis-

trict, Phelps Dodge Corporation and Phelps Dodge

Industries, Inc., respectfully pray that a writ of certiorari

issue io review the judgments and opinions of the United

States Court of Appeals for the Ninth Circuit entered in

these proceedings on February 23 and 24, 1982.'

Each of these petitioners was a party to one or more of

the Arizona appeals decided by the Ninth Circuit in San

Carlos Apache Tribe v. Arizona, 668 F.2d 1093

(February 23, 1982), and Navajo Nation v. United States,

' Pursuant to Rule 19.4, Rules of the Supreme Court of the United

States, these petitioners seek review of two companion cases decided by

the United States Court of Appeals for the Ninth Circuit one day apart

which involve identical questions.

668 F.2d 1100 (February 24, 1982). The respondents to this

petition for writ of certiorari will be the Indian tribes which

were appellants before the Ninth Circuit — namely, the

San Carlos Apache Tribe of Arizona, the Payson Commu-

nity of Yavapai-Apache Indians, the Salt River Pima-

Maricopa Indian Community, the Fort McDowell Mohave-

Apache Indian Community and the Navajo Nation aka the

Navajo Tribe of Indians.

OPINIONS BELOW

The opinion of the Court of Appeals in San Carlos

Apache Tribe v. Arizona is reported at 668 F.2d 1093, and

the opinion in Navajo Nation v. United States is reported

at 668 F.2d 1100. (App. A and B, infra, at 1-13, 1-4). The

order of the district court in Navajo Nation v. United

States was not reported. (App. D, infra, at 1). The opinion

of the district court relating to all of the other cases is re-

ported at 484 F.Supp. 778 (D. Ariz. 1980). (App. E, infra, at

1-15).

JURISDICTION

The judgments of the Court of Appeals were entered on

February 23 and 24, 1982, and this petition for certiorari

was filed within 90 days of those dates. This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Section 20 of the Federal Enabling Act of June 20,

1910, 36 Stat. 557, 569, provides in pertinent part:

And said convention shall provide, by an ordinance

irrevocable without the consent of the United States

and the people of said State-

* Since the opinions in these two cases relied heavily upon the rea-

soning and analysis in Northern Cheyenne Tribe v. Adsit, 668 F.2d 1080

(9th Cir. February 22, 1982), a copy of that opinion is included as Ap-

pendix C, infra, at 1-22.

Second. That the people inhabiting said proposed

State do agree and declare that they forever disclaim

right and vin to the unappropriated and ungranted

said boundaries owned or held by

cy ation ok tndin cian Go din os Gil to oth

shali have been acquired through or from the United

States or any prior sovereignty, and that until the title

of such Indian or Indian tribes shall have been extin-

2. Article XX, Section 4 of the Arizona Constitution pro-

vides in pertinent part:

Fourth. The people inhabiting this State do agree

and declare that they forever disclaim all right and ti-

tle to the unappropriated and ungranted public lands

lying within the boundaries thereof and to all lands

lying within said boundaries owned or held by any In-

dian or Indian tribes, the right or title to which shall

have been acquired through or from the United States

or any prior sovereignty, and that, until the title of

such Indian or Indian tribes shall have been extin-

guished, the same shall be, and remain, subject to the

disposition and under the absolute jurisdiction and

control of the Congress of the United States.

3. United States Code, Title 43:

Section 666. Suit for adjudication of water

rights — Joinder of United States as defendant; costs

(a) Consent is hereby given to join the United States

as a defendant in any suit (1) for the adjudication of

rights to the use of water of a river system or other

source, or (2) for the administration of svch rights,

where it appears that the United States is the owner of

or is in the process of acquiring water rights by appro-

priation under State law, by purchase, by exchange, or

otherwise, and the United States is a necessary party

to such suit. The United States, when a party to any

such suit, shall (1) be deemed to have waived any right

to plead that the State laws are inapplicable or that

the United States is not amenable thereto by reason of

its sovereignty, and (2) shall be subject to the judg-

ments, orders, and decrees of the court having

jurisdiction, ard may obtain review thereof, in the

same manner ad to the same extent as a private indi-

vidual under like circumstances; Provided, That no

judgment for costs shall be entered against the United

States in any such suit.

(b) Summons or other process in any such suit shall

be served upon the Attorney General or his designated

representative.

authorizing the joinder of the United States in any suit

or controversy in the Supreme Court of the United

States involving the right of States to the use of the

water of any interstate stream.

4. United States Code, Title 25:

Section 1322. Assumption by State of civil jurisdic-

tion—Consent of United States; force and effect of

civil laws.

(a) The consent of the United States is hereby given

to any State not having jurisdiction over civil causes of

action between Indians or to which Indians are parties

which arise in the areas of Indian country situated

within such State to assume, with the consent of the

tribe occupying the particular Indian country or part

thereof which would be affected by such assumption,

such measure of jurisdiction over any or all such civil

causes of action arising within such Indian country or

any part thereof as may be determined by such State

to the same extent that such State has jurisdiction

over other civil causes of action, and those civil laws of

such State that are of general application to private

persons or private property shall have the same force

and effect within such Indian country or part thereof

as they have elsewhere within that State.

(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any In-

dian or any Indian tribe, band, or community that is

held in trust by the United States or is subject to a

restriction against alienation imposed by the United

States; or shall authorize regulation of the use of such

property in a manner inconsistent with any Federal

treaty, agreement, or statute, or with any regulation

made pursuant thereto; or shall confer jurisdiction

upon the State to adjudicate, in probate proceedings or

otherwise, the ownershig or right to possession of such

property or any interest therein.

5. United States Code, Title 25:

Section 1324. Amendment of State constitutions or

statutes to remove legal impediment; effective date

Notwithstanding the provisions of any enabling Act

for the admission of a State, the consent of the United

States is hereby given to the people of any State to

amend, where necessary, their State constitution or

existing statutes, as the case may be, to remove any

legal impediment to the assumption of civil or criminal

jurisdiction in accordance with the provisions of this

subchapter. The provisions of this subchapter shall not

become effective with respect to such assumption of

jurisdiction by any such State until the people thereof

have appropriately amended their State constitution or

statutes, as the case may be.

STATEMENT OF THE CASE

Arizona, like Colorado, New Mexico and most other west-

ern states, follows the doctrine of prior appropriation in

defining relative water rights in the stream systems of the

state.’ In these states, the only meaningful way to adjudi-

cate relative water rights is in a general adjudication, in

which all potential claimants are joined and in which each

claimant’s water right is determined vis-a-vis the right of

every other claimant.

Historically, the process of comprehensive river system

adjudication was often frustrated in the western states by

the impossibility of joining the United States as an involun-

tary defendant. Ir 1952, Congress recognized the

importance of compelling the United States’ presence in

these actions through its enactment of the McCarran

Amendment, 43 U.S.C. § 666, which permitted the United

States’ involuntary joinder in comprehensive river system

adjudications.‘

Application of the McCarran Amendment's special

waiver of the United States’ sovereign immunity is particu-

larly important in Arizona where the United States controls

extensive land holdings. Indeed, Arizona’s Salt and Verde

rivers, which provide all of the surface water for the State’s

rapidly expanding municipal and industrial population in

the cities of Phoenix, Tempe, Mesa, Scottsdale, Chandler,

Glendale, Peoria, Sun City and Tolleson, as well as much of

the Salt River Valley’s irrigation water, are bordered up-

stream by extensive federal lands, including four Indian

reservations. Additional federal lands and reservations are

scattered across the 13,000 square mile watershed which

feeds these critical river systems.

* In Arizona v. California, 373 U.S. 546, 555 (1963), this Court ex-

plained that under the doctrine of prior appropriation, “the one who first

appropriates water and puts it to beneficial use thereby acquires a vested

right to continue to divert and use that quantity of water against all

claimants junior to him in point of time. ‘First in time, first in right’ is

the short hand expression of this lega! principle.”

* See, Senate Report No. 755, 82d Cong., Ist Sess. (1951) (App. F

infra, 1-19).

On April 26, 1974, the Salt River Valley Water Users’

Association invoked Arizona’s statutory general adjudica-

tion procedure’ by filing a petition with the Arizona State

Land Department to determine the conflicting rights to the

use of water of the Salt River and its tributaries. It filed a

similar petition on February 25, 1976, for the Verde River

and its tributaries. On February 17, 1978, Phelps Dodge

Corporation filed two petitions—one to determine conflict-

ing rights to the use of water in the Gila River® and the

other to determine conflicting rights to the use of water in

the Little Colorado River.’

In January and February of 1979, process was served by

certified mail on approximately 12,000 known potential

water claimants in the Salt River general adjudication, in-

cluding the United States." In July, 1981, process was

similarly served on some 58,000 known potential wer

claimants, including the United States, in the Little Colo-

rado River general adjudication. The United States was

joined pursuant to the McCarran Amendment, 43 U.S.C.

§ 666(b), to adjudicate not only its own rights, but also

those rights it holds on behalf of its Indian wards. Service

* A.R.S. § 45-231 et seg. In 1979, the Arizona legislature refined the

statutory general adjudication procedure which had been in effect in Ari-

zona for over fifty years. These revisions are codified at A.R.S. 4 45-251

et seq. In accordance with these amendments, the Salt, Verde, Gila and

Little Colorado general adjudications were transferred from the State

Land Department to the Arizona Superior Court, where they are pres-

ently pending.

* The Salt and Verde rivers are the major tributaries to the Gila

River, the drainage area of which covers more than half the area of the

State of Arizona.

’ The drainage area of the Little Colorado River covers another 19%

of the State of Arizona, as well as 5,297 square miles within the State of

New Mexico. The Navajo Indian Reservation is situated on the Little

Colorado watershed in both Arizona and New Merxico; the Hopi Indian

Reservation is located entirely on Arizona’s share of that watershed.

* Service of process upon known potential claimants to the Verde

River has not yet occurred; however, it is anticipated that approximately

80,000 persons will be served by certified mail as potential claimants.

of process on unidentified potential water claimants was

also effected by publication in numerous newspapers of

general circulation throughout the affected areas. On

November 25, 1981 the Arizona Supreme Court consoli-

dated the adjudications of the Salt and Verde rivers into

the Gila River system adjudication.

After service of process in the Salt River general adjudi-

cation, the six Indian tribes on that watershed filed actions

in the Arizona district court to stop the general adjudica-

tion in state court. The White Mountain Apache Tribe, the

Gila River Indian Community and the Salt River Pima-

Maricopa Indian Community filed removal petit-

ions.’ Other tribes filed complaints in the district court

seeking declarations that the Arizona state courts lacked

jurisdiction to adjudicate Indian water rights due to Arizo-

na’s Enabling Act and constitutional disclaimers of “all

right and title” to Indian lands. See, Act of June 20, 1910,

36 Stat. 557, 569; Ariz. Const. Art. XX, § 4. These tribes

also requested the district court to enjoin any further pro-

ceedings in the state courts.'"° Two other tribes took a

different approach. The Fort McDowell Mohave-Apache

Indian Community sought a declaration only of its water

rights in the Verde River in a “defendant class ac-

* White Mountain Apache Tribe Petition for Removal, No. CIV

79-182 PHX VAC (D. Ariz. petition filed March 7, 1979); Gila River

Indian Community Petition for Removal, No. CIV 79-183 PHX VAC (D.

Ariz. petition filed March 7, 1979); Salt River Pima-Maricopa Indian

Community Petition for Removal, No. CIV 79-184 PHX VAC (D. Ariz.

petition filed March 7, 1979).

” Salt River Pima-Maricopa Indian Community v. State of Arizona,

No. CIV 79-185 PHX VAC (D. Ariz. complaint filed March 7, 1979); San

Carlos Apache Tribe of Arizona v. State of Arizona, No. CIV 79-186

PHX VAC (D. Ariz. complaint filed March 7, 1979); Payson Community

of Yavapai-Apache Indians v. State of Arizona, No. CIV 79-187 PCT

VAC (D. Ariz. complaint filed March 7, 1979). The San Carlos Apache

Tribe and the Payson Community of Yavapai-Apache Indians also

sought removal of the state general adjudication in the alternative.

tion.”"' This approach was also followed by the San Carlos

Apache Tribe with respect to its claim to the Salt

River."* None of these actions sought a comprehensive

river system adjudication of all relative water rights.

Finally, the Navajo Tribe filed a complaint in federal

court seeking a general adjudication of all conflicting water

rights in the watershed of the Little Colorado River,"* but

it promptly filed an amended complaint to convert its ac-

tion into another “defendant class action” after the State of

Arizona moved to dismiss the complaint.'*

The district court’s jurisdiction over the tribes’ removal

actions was asserted pursuant to 28 U.S.C. § 1441. Jurisdic-

tion over the other tribal actions was asserted pursuant to

28 U.S.C. §§ 1331, 1332, 1362, 2201, 2202 or combinations

thereof.

Motions to remand and motions to dismiss these actions,

grounded principally on this Court’s decision in Colorado

River Water Conservation District v. United States, 424

U.S. 800 (1976), were promptly filed by the petitioners. The

district court, the Honorable Valdemar A. Cordova presid-

ing, permitted extensive briefing and oral argument on the

issues. After this Court denied a writ of certiorari to the

Tenth Circuit Court of Appeals in Jicarilla Apache Tribe v.

United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444

U.S. 995 (1979), Judge Cordova, in reliance upon Colorado

River and Jicarilla Apache Tribe, held that the proceedings

" Fort McDowell Mohave-Apache Indian Community v. Salt River

Valley Water Users’ Association, No. CIV 79-267 PHX VAC (D. Ariz.

complaint filed April 13, 1979).

" San Carlos Apache Tribe v. State of Arizona, No. CIV 79-269

PHX CAM (D. Ariz. complaint filed April 16, 1979).

" Navajo Nation v. United States, No. 79-276 PCT VAC (D. Ariz.

complaint filed April 17, 1979).

“ The Navajo Tribe explained to the Ninth Circuit that it had con-

verted its lawsuit from a general adjudication to a “defendant class

action” in order “to obtain a federal court determination of the Navajo

Nation’s federal rights.” Opening Brief of Appellant Navajo Nation, at

11.

in the Arizona courts were general adjudications in which

all federal water rights, including those held on behalf of

Indians, could properly be determined pursuant to the

McCarran Amendment. Specifically, Judge Cordova

adopted the reasoning of the Tenth Circuit in Jicarilla

Apache Tribe: “To hold now that the Arizona disclaimer

clauses and similar clauses contained in the enabling acts of

six other Western states bar general water rights adjudica-

tions in the State court would defeat the [McCarran]

Amendment’s objective.” (App. E at 10). He also held that

“{t]hose rights which are State created will be determined

by State law and Federal law will be applied to determine

those rights which derive from Federal law.” (App. E at 13).

Accordingly, Judge Cordova granted the petitioners’ mo-

tions to remand and the motions to dismiss the tribes’

federal actions. In the Navajo Tribe’s lawsuit, Judge Cor-

dova denied the motion to dismiss, but stayed the federal

proceedings pending determination of the Navajo Tribe’s

water rights in the state court general adjudication on the

Litt!e Colorado River.

The remand of the removal cases was not appealed. The

other five cases were appealed by the tribes to the Court of

Appeals for the Ninth Circuit. These appeals were consoli-

dated for oral argument before Presiding Judge Merrill and

Judges Choy and Ferguson on July 15, 1981. The Ninth

Circuit also scheduled twelve consolidated appeals from the

Montana district court, involving similar issues, for hearing

later that day, although the Montana appeals were never

formally consolidated with the Arizona cases.

Reversing the district court, the Ninth Circuit rendered

its split decisions on February 23 and 24, 1982, in San Car-

los Apache Tribe v. State of Arizona and Navajo Nation v.

United States. The two judge majority relied on its

February 22, 1982 decision on the twelve Montana appeals

in Northern Cheyenne Tribe v. Adsit in holding that, not-

withstanding the McCarran Amendment, the Arizona state

courts lack jurisdiction to determine water rights held by

the United States on behalf of its Indian wards.

Rejecting the Tenth Circuit’s decision in Jicarilla

Apache Tribe v. United States, upon which the district

court had relied, the Ninth Circuit carved out an exception

to the McCarran Amendment’s grant of state court jurisdic-

tion by holding that Arizona’s disclaimer provisions

preclude its state courts from adjudicating Indian water

rights. The court held that the state courts could properly

assert such jurisdiction only if Arizona had complied with

the procedures set forth in Public Law 83-280 even though

it conceded that Public Law 83-280 “does not purport to

limit the special consent to jurisdiction given by the Mc-

Carran Amendment.” (App. C at 5). Accordingly, the two

judge majority remanded the actions to the district court

for the sole determination of whether Arizona had assumed

jurisdiction under Public Law 83-280. (App. A at 11). Judge

Merrill dissented in all three decisions, and further ob-

served in the Arizona appeals that:

{iJn my judgment wise judicial administration would

not tolerate the confusion which these suits would cre-

ate and the havoc they can be expected to play with

the state’s statutcry efforts to deal with its problems of

water scarcity —- problems faced not just by Indians,

but by every resident of the state; problems of such

awesome dimensions that the state’s efforts to solve

them should have federal respect and encouragement.

(App. A at 13).

As a result of the Ninth Circuit’s decision in San Carlos

Apache ‘iribe v. State of Arizona, the state court on

March 24, 1982, stayed all further proceedings in the con-

solidated Gila River system adjudication until further

review by this Court. (App. G, infra, at 1-2). Likewise, as a

result of the Ninth Circuit’s decision in Navajo Nation v.

United States, the state court stayed all further proceed-

ings in the Little Colorado adjudication, including the

May 1, 1982 deadline for filing statements of, claimant, n-

til further resolution of the issues by this Court. (App. H,

infra, at 1).

REASONS FOR GRANTING THE WRIT

THE DECISIONS BELOW CONFLICT WITH THE

DECISIONS OF THIS COURT AND THE COURT OF

APPEALS FOR THE TENTH CIRCUIT AS TO THE

SCOPE OF STATE COURT JURISDICTION GRANTED

BY THE McCARRAN AMENDMENT.

A. The Ninth Circuit’s Decisions Contradict This

Court’s Interpretation of the McCarran Amendment.

Through its 1952 enactment of the McCarran Amend-

ment, Congress gave its consent to “join the United States

as a defendant in any suit (1) for the adjudication of rights

to the use of water of a river system or other source ....”

43 U.S.C. §.666(a). This amendment waived the sovereign

immunity of the United States in comprehensive state and

federal proceedings so as to permit the meaningful determi-

nation of all conflicting water rights.'"* In Colorado River

Water Conservation District v. United States, 424 U.S. 800

(1976), this Court acknowledged that “(t]he clear federal

policy evinced by [McCarran] is the avoidance of piecemeal

adjudication of water rights in a river system,” 424 U.S.

819, and held that “(t]he consent to jurisdiction given by

the McCarran amendment bespeaks a policy that recognizes

‘* In enacting the McCarran Amendment, the Congress was particu-

larly concerned about the inability to adjudicate water rights in a

meaningful manner whenever any water claimant claimed immunity

from joinder in the adjudication proceedings:

It is apparent that if any water user claiming to hold such right by

reason of the ownership thereof by the United States or any of its

departments is permitted to claim immunity from suit in, or orders of,

a State court, such claims could materially interfere with the lawful

and equitable use of water for beneficial use by the other water users

who are amenable to and bound by the decrees and orders of the

State courts.

S.Rep. No. 755, 82d Cong., Ist Sess., at 5 (1951).

the availability of comprehensive state systems for adjudi-

cation of water rights as the means for achieving these

goals.” Id.

This Court also held unequivocally in Colorado River

that this policy of avoiding piecemeal adjudications re-

quired that all federal water rights, including those held by

the United States on behalf of Indians, be subject to state

court jurisdiction in proceedings under the McCarran

Amendment. After analyzing “not only the amendment’s

language, but also its underlying policy”, 424 U.S. at 811,

this Court concluded that McCarran’s consent necessarily

reached water rights held on behalf of Indians:

[t}hus, bearing in mind the ubiquitous nature of

Indian water rights in the Southwest, it is clear that a

construction of the [McCarran] amendment excluding

those rights from its coverage would enervate the

amendment’s objective.

Id.

Attempting to distinguish Colorado River, the Ninth Cir-

cuit here carved out a debilitating exception to McCarran’s

grant of jurisdiction by holding that the congressional grant

of state court jurisdiction embodied in McCarran did not

extend to the State of Arizona because Arizona had agreed,

as conditions to its admission, to “forever disclaim all right

and title .. . to all lands lying within said boundaries owned

or held by any Indian or Indian tribes” and that such lands

shall “remain subject to the disposition and under the abso-

lute jurisdiction and control of the Congress of the United

States....”"* (App. A at 7-8). These conditions were satis-

fied through the verbatim inclusion of the Enabling Act’s

language in the Arizona Constitution. Ariz. Const. Art. XX,

§ 4. The Ninth Circuit held that until this constitutional

disclaimer is expressly repealed in the manner required

under state law, state court jurisdiction to adjudicate fed-

eral claims for Indian water rights is barred in Arizona,

notwithstanding the McCarran Amendment. (App. C at 8).

Apparently unaware that identical disclaimer and Public

Law 83-280 arguments had been unsuccessfully asserted

before the Court in Colorado River,’ the Ninth Circuit

took the step this Court refused to take in Colorado River

“to enervate the amendment’s objective” by excluding In-

dian water rights from its ambit.

B. The Ninth Circuit's Decisions Reject This Court's

Interpretation of the Western Disclaimer Provisions and

Conflict with the Tenth Circuit's Interpretation of the

Identical Disclaimer Provisions.

The Ninth Circuit conceded that its interpretation of the

McCarran Amendment and the Arizona disclaimer provi-

sions conflicts with the Tenth Circuit's interpretation of

McCarran and New Mexico's identical disclaimer

“ The New Mexico and Arizona Enabling Acts were both contained

in the Act of June 20, 1910, 36 Stat. 557. The first eighteen sections ap-

ply to New Mexico; the remaining sections apply to Arizona.

Idaho, Montana, North Dakota, South Dakota, Utah, Washington and

Wyoming have Enabling Acts or constitutional disclaimers essentially

identical to Arizona’s and New Mexico's. See North Dakota, South Dako-

ta, Montana and Washington Enabling Acts, 25 Stat. 676, 677 (1889);

Idaho Const. Art. 21, § 19, ratified by Congress, 26 Stat. 215 (1890); Wyo.

Const. Art. 21, § 26, ratified by Congress, 26 Stat. 222 (1890); Utah Ena-

bling Act, 28 Stat. 107, 108 (1894). Related provisions are present in the

Oklahoma and Alaska Enabling Acts. See Oklahoma Enabling Act, 34

Stat. 267, 270 (1906); Alaska Enabling Act, 72 Stat. 339 (1958), as

amended by 73 Stat. 141 (1959).

" Amicus Curiae Brief of Southern Ute Indian Tribe (and 14 tribes

or other Indian organizations) filed in Coloradu River, at 6 and 23-26.

provisions” in Jicarilla Apache Tribe v. United States,

601 F.2d 1116 (1979), cert. denied, 444 U.S. 995

(1979)."° Charging that the Tenth Circuit “refused to rec-

ognize the distinction between states with constitutional

disclaimers and those without,” (App. C. at 9), the Ninth

Circuit rejected the Tenth Circuit’s determination that the

McCarran Amendment granted all states, including the

nine western disclaimer states, subject matter jurisdiction

in comprehensive proceedings to adjudicate all federal

claims of water rights, including those held on behalf of

Indian tribes. In this regard, the Ninth Circuit overlooked

this Court’s repeated holdings that Congress has plenary

authority over Indians and Indian lands,” a power that

Congress exercised through “the special consent to jurisdic-

tion given by the McCarran amendment.” Colorado River,

424 US. at 812, n. 20.

In Jicarilla Apache Tribe, the Tenth Circuit did not, as

claimed by the Ninth Circuit, ignore the “jurisdictional dis-

tinction” created by the disclaimer. Rather, the Tenth

Circuit first analyzed McCarran’s legislative history and the

previous emphasis by this Court on that legislative history

in Colorado River to conclude that the United States was

intended “to represent, as guardian, the federally reserved

“* New Mexico's admission was subjected to identical conditions. See

Section 2 of New Mexico’s Enabling Act, 36 Stat. 557, 558-559 (June 20,

1910). These identical conditions were also included in the New Mexico

Constitution. N.M. Const. Art. XX, § 2.

” In refusing to follow the Tenth Circuit's lead in Jicarilla, the

Ninth Circuit emphasized that except for the Tenth Circuit decision, it

found no case which permitted a disclaimer state to adjudicate Indian

water rights. (App. C at 9). But see, State ex rel. Reynolds v. Lewis, 88

N.M. 636, 545 P.2d 1014 (1976). However, the converse of this statement

is even more compelling. Not even a single case supports the Ninth Cir-

cuit’s holding that disclaimer states, following McCarran’s passage in

1952, are still precluded from adjudicating federal claims for Indian

tribes. Thus, the conflict between the Ninth and Tenth Circuits is com-

* See, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977);

Lone Wolfe v. Hitchcock, 187 U.S. 553, 564-67 (1903).

rights of the Indian tribes in any state court general water

adjudication proceeding... .” 601 F.2d at 1130. Since the

United States, not the tribes, was the proper party defen-

dant in the state proceeding because it “owned” the federal

rights under Colorado River's reasoning, the Tenth Circuit

held there was no conflict between the state courts’ as-

sumption of jurisdiction under McCarran and the New

Mexico disclaimer.

The Tenth Circuit next analyzed the extent to which the

New Mexico disclaimer provisions were even relevant to the

adjudication of federal water rights in a state court. By con-

trast, the Ninth Circuit commenced its analysis with an

“analytic framework” which assumed without analysis that

the Arizona disclaimer provisions were a complete and ab-

solute relinquishment of “subject matter jurisdiction over

Indian water rights.” (App. C at 7-8). In so holding, the

Ninth Circuit interpreted the disclaimer’s “absolute juris-

diction and control” language as meaning exclusive federal

jurisdiction, an interpretation that this Court explicitly re-

jected in Organized Village of Kake v. Egan, 369 U.S. 60

(1962).

In believing that the Tenth Circuit “went too far by rely-

ing upon the distinction between proprietary and

governmental functions drawn in Kake and White Moun-

tain Apache Tribe,’ the Ninth Circuit rejected the

principle that the disclaimer of all right and title to Indian

lands is a relinquishment only of the state’s proprietary in-

terest to such lands, not its governmental interest. (App. C

at 11).

Yet, this Court recognized in Kake that the western

states’ disclaimer provisions were disclaimers of only pro-

prietary interests, not governmental interests; Kake

specifically held that “ ‘absolute’ federal jurisdiction is not

invariably exclusive jurisdiction”. Jd. at 68. Accordingly, it

" White Mountain Apache Tribe v. Arizona, 649 F.2d 1274, 1280

(9th Cir. 1981).

confirmed Alaska’s authority to regulate Indian fishing

rights despite its disclaimer of “absolute jurisdiction and

control” over Indian fishing rights. Alaska Statehood Act 4

4, 72 Stat. 339 (1958), as amended by 73 Stat. 141 (1959).

Indeed, the Supreme Court reached this conclusion on the

basis of its prior decision in Williams v. Lee, 358 U.S. 217

(1959), a case involving the jurisdiction of an Arizona court:

Indian lands in Arizona remained “under the absolute

jurisdiction and control” of the United States, 36 Stat.

557, 569; yet in Williams v. Lee, 358 U.S. 217, 220, 223,

we declared that the test of whether a state law could

be applied on Indian reservations there was whether

the application of that law would interfere with reser-

vation self-government.

369 U.S. at 67-68. Fifteen years later, this Court reiterated

“the repeatedly stated view ... that, even on reservations,

state laws may be applied unless such application would

interfere with reservation self-government or would impair

a right granted or reserved by federal law.” Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 147-48 (1973). See

also, Puyallup Tribe v. Washington Department of Game,

433 U.S. 165, 173 (1977) (Washington state court has sub-

ject matter jurisdiction to determine on-reservation treaty

fishing rights of reservation Indians). Although the Ninth

Circuit conceded below that there was no interference with

tribal self-government, it nevertheless summarily concluded

that “(t]he power of a court in a disclaimer state to enforce

a regulatory statute that may adversely affect Indians falls

far short of the power to adjudicate a direct challenge to

Indian water rights in and to the waters of streams.” (App.

C at 11).

The Ninth Circuit’s holding not only departs radically

from this Court’s previous decision in Kake on the meaning

and effect of the western disclaimer provisions, but it also

rejects this Court’s express holding in Williams v. Lee that:

absent governing Acts of Congress, the question has

always been whether the state action infringed on the

right of reservation Indians to make their own laws

and be ruled by them.

358 U.S. at 220 (emphasis added). Here, the “governing Act

of Congress” is the McCarran Amendment, which the

Tenth Circuit specifically found to be the case in Jicarilla

Apache Tribe v. United States, 601 F.2d at 1135, and

which this Court specifically held in Colorado River to be

“the most important” factor in favor of state court jurisdic-

tion. 424 U.S. at 819.

In refusing to consider the McCarran Amendment as a

governing Act of Congress, the Ninth Circuit explained that

it was unwilling to allow “federal courts to give up their

protective jurisdiction over Indian lands, including water

rights”, (App. C at 9-10), notwithstanding this Court’s con-

trary holding in Colorado River that:

[mJere subjection of Indian rights to legal challenge in

state court, however, would no more imperil those

rights than would a suit brought by the Government in

district court for their declaration, a suit which, absent

the consent of the amendment, would eventually be

necessitated to resolve conflicting claims to a scarce

resource.

424 U.S. at 812. Here, also, the adjudication of the United

States’ water rights, including those held on behalf of Indi-

ans, in the Arizona state courts will “not imperil those

rights.” Federally created rights will be determined in ac-

cordance with federal law; state created rights will be

determined in accordance with state law. See generally,

United States v. District Court of Eagle County, 401 U.S.

520, 525-26 (1971); United States v. District Court in and

rights can be comprehensively adjudicated inter sese on the

Salt, Verde, Gila and Little Colorado river systems. The

State’s paramount interest is its governmental interest in

securing a comprehensive adjudication under its “estab-

lished elaborate procedures for allocation of water and

adjudication of conflicting claims to that resource.” Colo-

rado River, 424 U.S. at 804; see also Jicarilla Apache Tribe

v. United States, 601 F.2d at 1133 (“The contention [that

the disclaimer applies only to proprietary interest] is partic-

ularly persuasive in light of the non-proprietary interest in

subjecting the United States to a state action involving a

general water right adjudication as provided under the

McCarran Amendment.”).

C. The Ninth Circuit's Decisions Ignore the Express

Terms of Public Law 83-280 and Reject Its Interpretation

by This Court in Colorado River and by the Tenth Circuit

in Jicarilla Apache Tribe v. United States.

Public Law 83-280, 67 Stat. 588, as this Court observed

in Washington v. Yakima Indian Nation, 439 U.S. 463

(1979), is a general jurisdictional statute that was enacted

to deal with the “problem of lawlessness on certain Indian

reservations, and the absence of adequate tribal institutions

for law enforcement”. Jd. at 471. Public Law 83-280 also

permitted disciaimer states to repeal their disclaimers,

where necessary, to assume the jurisdiction it authorized.

Its inapplicability to water rights adjudications, however, is

unmistakably clear from the face of the act itself, which

provides in pertinent part that:

{nJothing in this section ... shall confer jurisdiction

upon the State to adjudicate, in probate proceedings or

otherwise, the ownership or right to possession of such

property (“including water rights”] or any interest

therein.

25 U.S.C. § 1322(b).

In contrast to Public Law 83-280, the McCarran Amend-

ment is a specific jurisdictional grant for the adjudication

and determination of water rights in both state and federal

courts. In Colorado River this Court recognized that the

specific jurisdiction conferred by the McCarran Amend-

ment to adjudicate water rights, including those held on

behalf of Indians, is not limited by the general jurisdic-

tional provisions in Public Law 83-280:

[i]t does not purport to limit the special consent to

jurisdiction given by the McCarran amendment. A

contrary conclusion is foreclosed by the principle of

construction that “[w]here there is no clear intention

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority of

enactment.” Morton v. Mancari, 417 U.S. 535, at 550-

551 (1974).

424 US. at 812 n. 20.

In Jicarilla Apache Tribe v. United States, the Tenth

Circuit respected footnote 20 in Colorado River, which it

noted was “of special application here”. 601 F.2d at 1132.

The majority in the decisions below conceded that footnote

20 in Colorado River was a “crucial footnote”. (App. C at

5). Yet, after acknowledging that Public Law 83-280 “does

not purport to limit the special consent to jursdiction given

by the McCarran Amendment,” (/d.), the Ninth Circuit

nonetheless remanded the Arizona decisions to the district

court with the instruction that “[o]n remand the district

court must determine if Arizona has properly asserted juris-

diction pursuant to Public Law 280.”" (App. A at 11).

In rejecting the extensive 20 page analysis of the Tenth

Circuit, the Ninth Circuit criticized Jicarilla Apache Tribe

v. United States for failing to recognize the distinction

between disclaimer and non-disclaimer states which Con-

gress had drawn in Public Law 83-280. (App. C at 9). It also

criticized the district court, which had relied on the Tenth

Circuit decision, for the same reason.

* No one has argued, either before the district court or before the

Court of Appeals, that Public Law 83-280 empowers states to adjudicate

federal water rights.

The district court’s decisions would rob the

disclaimer/non-disclaimer distinction made by Con-

gress of all significance and meaning .. . .

(Id. at 8).

The district court’s decision could not possibly “rob the

disclaimer/non-disclaimer distinction made by Congress” in

Public Law 83-280 of significance and meaning because

Public Law 83-280, by its very terms, is not even applicable

to adjudications of water rights. To the contrary, the Ninth

Circuit’s decisions purport to create a disclaimer/non-

disclaimer distinction in the McCarran Amendment, a dis-

tinction Congress did not see fit to draw. In fact, the

decisions below, to paraphrase the Ninth Circuit’s own lan-

guage, “rob the McCarran Amendment of all significance

and meaning” since nine of the western states intended to

be the beneficiaries of the Amendment are disclaimer

states.» Thus, the Ninth Circuit decisions render the

McCarran Amendment impotent in the very 1° zion of the

nation where Congress intended it to be utilized.

* It is clear from the legislative history that the McCarran Amend-

ment was enacted to permit the comprehensive adjudication of water

rights in those states that follow the doctrine of prior appropri-

ation — the western states — a fact further confirmed by Senator Wat-

kins of Utah (a disclaimer state):

I think we will have these hearings printed because the water rights

people out West in all the States will be very much interested in this

bill. In fact, nearly every State in the West is interested.

Hearings on S. 18 Before the Subcommittee of the Senate Committee on

the Judiciary, 82nd Cong., Ist Sess. at 6 (1951).

THE DECISIONS BELOW RAISE SERIOUS

AND RECURRING PROBLEMS CONCERNING

EFFORTS BY THE STATES TO ADJUDICATE

WATER RIGHTS

In Colorado River this Court specifically acknowledged

the water-scarcity problem in the Southwest and the steps

that several western states, including Arizona, have taken

to address the problem:

[i]t is probable that no problem of the Southwest

section of the Nation is more critical than that of

scarcity of water. As Southwestern populations have

grown, conflicting claims to this scarce resource have

increased. To meet these claims, several Southwestern

States have established elaborate procedures for allo-

cation of water and adjudication of conflicting claims

to that resource.” [Footnote 2. See, e.g., Ariz. Rev. Stat.

Ann. §§ 45-102 to 45-106, 45-141 to 45-154, 45-180 to

45-193, 45-231 to 45-245 (1956 and Supp. 1975)... .]

425 U.S. at 804. Accordingly, to give effect to the McCarran

Amendment, this Court held in Colorado River that all

water rights should be determined in the specially-designed

state court general adjudication rather than in a federal

proceeding.

By excluding federal claims for Indian water rights from

the scope of the McCarran Amendment in the nine western

disclaimer states, the Ninth Circuit will effectively frustrate

the efforts of many of these states to adjudicate all conflict-

ing water rights.“ This necessarily precludes any of the

nine western disclaimer states from administering the one

most important resource upon which survival itself de-

pends: water. In his dissent, Judge Merrill noted that these

“problems of water scarcity — problems faced not just by

Indians, but by every resident of the state [are] problems of

such awesome dimensions that the state’s efforts to solve

them should have federal respect and encouragement.”

(App. A at 13).

Unlike Colorado River, this case does not involve a choice

between a general adjudication in federal court and a gen-

eral adjudication in state court. To the contrary, here there

are no general adjudications pending in federal court,” a

crucial fact that Judge Merrill emphasized in his dissent.

In fact, however, the [federal] suits now before us

would not even constitute piecemeal adjudication;

rather, they would result in no effective adjudication

at all. Since the suits do not seek general adjudication

of the stream systems involved, the McCarran Amend-

ment does not provide the consent of the United

States to be sued. Dugan v. Rank, 372 U.S. 609, 617-19

(1963). Yet, on every stream system involved in these

suits, the United States claims reserved rights. Similar-

ly, on some of the stream systems, the rights of other

Indian tribes are involved. They too are immune from

* In United States v. New Mexico, 438 U.S. 696 (1978), involving a

general adjudication in the New Mexico state courts, this Court noted:

in the arid parts of the West, however, claims to water for use on fed-

eral reservations inescapably vie with other public and private claims

for the limited quantities to be found in the rivers and streams. This

competiton is compounded by the sheer quantity of reserved lands in

the western States, which lands form brightly colored swaths across

the maps of these States.

Id. at 699. Indeed, this Court further recognized that, because most fed-

eral reservations are situated in the high upstream lands, “[m]ore than

60% of the average annual water yield in the 11 western states is from

federal reservations.” Jd. at 699 n. 3.

* In this respect, the Arizona cases differ from the Montana cases

decided in Northern Cheyenne Tribe v. Adsit. (App. C at 1-2, 15).

suit. California v. Quechan Tribe of Indians, 595 F.2d

1153, 1155 (9th Cir. 1979). As a result, an adjudication

of the rights of the plaintiff Tribes would accomplish

nothing since it could have no binding effect on the

absent claimants. (App. A at 13).

The McCarran Amendment was enacted precisely to avoid

the ineffective piecemeal adjudication of water rights en-

dorsed by the Ninth Circuit in the decisions below.”

The conflict between the Ninth Circuit’s decisions below

and the Tenth Circuit’s decision in Jicarilla Apache Tribe

v. United States gives rise to an untenable situation in the

Southwest. The watershed of the Little Colorado River en-

compasses Navajo reservation lands in both Arizona and

New Mexico. However, even though Arizona and New Mex-

ico were admitted into the Union under the same enabling

act with identical disclaimer language in their constitutions,

the water rights of the Navajo Tribe in the New Mexico

portion of the Little Colorado River watershed can be de-

termined in a New Mexico general adjudication, but the

water rights of the same tribe in the Arizona portion of the

* By prohibiting state court jurisdiction over Indian water rights, the

Ninth Circuit’s decisions preclude meaningful adjudication of any water

rights in most of the western United States. The decisions below permit

adjudication only in the federal courts. However, because the federal

courts are courts of limited jurisdiction, Owens Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 372-74 (1978), it is not clear that a state or

private claimant of a water right arising under state law could initiate a

general adjudication in federal court since complete diversity would ob-

viously be lacking and since federal question jurisdiction arguably could

not be pleaded. See, e.g., Phillips Petroleum Co. v. Texaco, Inc., 415 US.

125 (1974) (per curiam). If it could not be pleaded, only the United

States or an Indian tribe could initiate a general adjudication in federal

court by pleading jurisdiction pursuant to 28 U.S.C. §4 1331, 1345 or

1362. This untenable situation, in which meaningful adjudication of wa-

ter rights might be impossible without the voluntary cooperation of the

United States, is precisely what the Congress intended to correct when it

enacted the McCarran Amendment.

Little Colorado watershed cannot be determined in an Ari-

zona general adjudication.”

Of course, New Mexico is only “theoretically” free to

proceed in accordance with the Tenth Circuit’s decision

because the existence of subject matter jurisdiction can be

challenged at any time—even 20 or 30 years after entry of a

final decree. See, e.g., Earle v. McVeigh, 91 U.S. (1 Otto)

503, 507 (1876) (“[T]he want of jurisdiction is a matter that

may always be set up against a judgment when sought to be

enforced, or where any benefit is claimed under it, as the

want of jurisdiction makes it utterly void and unavailable

for any purpose.”). Thus, it is imperative that the conflict

between the Ninth Circuit and the Tenth Circuit over the

subject matter jurisdiction of the western states to adjudi-

cate their most important natural resource be resolved by

this Court.

*” Furthermore, the Ninth Circuit’s holding in Northern Cheyenne

Tribe that the United States cannot assert the water rights that it holds

on behalf of Indian tribes who claim conflicts of interest, and that those

Indian tribes need not intervene in the adjudication to assert their own

rights, effectively excludes Indian water rights from determination in

general adjudications in all western states, including non-disclaimer

states such as Colorado. This holding stands in glaring conflict with the

Tenth Circuit’s holding in Jicarilla Apache Tribe v. United States that

“the United States is the proper party defendant in any general water

right adjudication proceeding ... relating to federally created water

rights including those reserved for use by Indian tribes.” 601 F.2d at

1127. It also stands in direct contradiction to the Tenth Circuit's earlier

holding in New Mexico v. Aamodt, 537 F.2d 1102, 1106-1107 (10th Cir.

1976), cert. denied, 429 U.S. 1121 (1977), that Indian tribes may inter-

vene as a matter of right in general adjudications under the McCarran

Amendment if they do not wish to have their water rights asserted by

their guardian, the United States.

Ii.

CONCLUSION

The Ninth Circuit in the decisions below excluded Indian

water rights from the “special consent to jurisdiction given

by the McCarran amendment”, Colorado River, 424 U.S. at

812, n. 20, notwithstanding this Court’s acknowledgment in

Colorado River that “a construction of the [McCarran]

amendment excluding those rights from its coverage would

enervate the amendment’s objective.” Jd. at 811. To reach

this result, the Ninth Circuit rejected this Court’s holding

in Organized Village of Kake v. Egan, supra, as to the

scope of the western disclaimer provisions. Furthermore, to

bar state court jurisdiction in the nine western disclaimer

states, the Ninth Circuit expressly rejected the Tenth Cir-

cuit’s decision in Jicarilla Apache Tribe v. United States,

which dealt with New Mexico’s identical disclaimer provi-

sion from the very same Act of Congress.

The jurisdiction of Arizona and the other western states

to adjudicate the one resource upon which life itself

depends — which the Tenth Circuit upheld, but which the

Ninth Circuit barred — must be addressed and definitively

resolved by this Court. This Court should issue a writ of

certiorari to the United States Court of Appeals for the

Ninth Circuit to review, and to reverse summarily, its deci-

sions below.

Ropert K. Corsin

The Attorney General

Russell A. Kolsrud

1275 West Washington

Phoenix, Arizona 85007

Assistant Attorney General

Attorneys for Petitioners

State of Arizona and

Arizona State Land

Department

STEPHENS and ToLes

Bill Stephens

1010 East Jefferson

Phoenix, Arizona 85034

Attorneys for Petitioners

City of Phoenix and City

of Prescott, Arizona

May 1982

JENNINGS, STROUSS & SALMON

M. Byron Lewis

John B. Weldon, Jr.

111 West Monroe

Phoenix, Arizona 85003

Attorneys for Petitioners Salt

River Valley Water Users’

Association and Salt River

Project Agricultural

Improvement and Power

District

Evans, KItCHEL & JENCKES,

PC.

Alvin H. Shrago

363 N. First Avenue

Phoenix, Arizona 85003

Attorneys for Petitioners

Phelps Dodge Corporation

and Phelps Dodge Industries,

Inc.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

TABLE OF CONTENTS

Appendix A Opinion of the United States Court of

Appeals for the Ninth Circuit in San

Carlos Apache Tribe v. Arizona, 668

Appendix B Opinion of the United States Court of

Appeals for the Ninth Circuit in Na-

vajo Nation v. United States, 668

Dee GD cneceemenneneen

Appendix C Opinion of the United States Court of

Appeals for the Ninth Circuit in

Northern Cheyenne Tribe v. Adsit,

668 F.2d 1080.

Appendix D Order of the United States District

Court for the District of Arizona,

dated April 17, 1980.

Appendix E Opinion and Order of the United

States District Court for the District

of Arizona, 484 F.Supp. 778. ...............

Appendix F Senate Report No. 755, 82d Cong., Ist

Session, dated September 17, 1951. ...

Appendix G Order of Superior Court of Maricopa

County, Arizona, dated March 24,

1982.

Appendix H Order of the Superior Court of

Apache County, Arizona, dated

March 25, 1982.

A-i

C-1

F-1

G-1

H-1

A-l

APPENDIX A

Filed - FEB. 23, 1982

San Car_os APACHE TRIBE OF ARIZONA,

Plaintiff-Appellant,

The State or Arizona, a body politic; and the State

Land Department of the State of Arizona; and John M. Lit-

tle, Individually and as Acting Commissioner of the State

Land Department of the State of Arizona; and Salt River

Valley Water Users’ Association, an Arizona Corporation,

Defendants-Appellees.

Payson COMMUNITY OF YAVAPAI-APACHE INDIANS,

Plaintiff-Appellant,

Vv.

The Strate or Arizona, a body politic; and the State

Land Department of the State of Arizona; and John M. Lit-

tle, Individually and as Acting Commissioner of the State

Land Department of the State of Arizona; and Salt River

Valley Water Users’ Association, an Arizona Corporation,

Defendants-Appellees.

Sat River Pima-Maricopa INDIAN COMMUNITY,

Plaintiff-Appellant,

The State or Arizona and John M. Little, Acting Com-

missioner of the Arizona State Land Department,

Defendants-Appellees.

Fort McDowe.t Monave-Apacue INDIAN COMMUNITY, for

and on behalf of itself and its members,

Plaintiff- —

Satt River VALLEY em Users’ AssociaTion; Salt

River Project Agricultural Improvement end Power Dis-

trict; City of Phoenix; City of Prescott; City of Jerome;

ists Eee: Geeemaaiiens Otten tain Seleontees tne

Arizona Water Company; Miller Brothers Farms, Inc.;

Camp Verde Water Systems; Cottonwood Water Works,

A-2

Harold W. Bullard; and the State of Arizona, Individually

and as representative of a class composed of all others simi-

larly situated, Defendants-Appellees.

Nos. 80-5137, 80-5138, 80-5189 and 80-5219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1981.

Decided Feb. 23, 1982.

Appeal from the United States District Court for the

District of Arizona.

Before Merritt, Cuoy and Fercuson, Circuit Judges.

Cuoy, Circuit Judge:

Several Indian tribes appeal dismissal of petitions

brought in federal district court to adjudicate their water

rights in several water systems in the State of Arizona. The

district court, in a consolidated order, dismissed the suits in

favor of a state proceeding relying on Colorado River Water

Conservation District v. United States, 424 U.S. 800, 96

S.Ct. 1236, 47 L.Ed.2d 483 (1976). We reverse.

Appellants San Carlos Apache Tribe, Payson Community

of Yavapai-Apache Indians, Salt River Pima-Maricopa In-

dian Community and Fort McDowell Mohave-Apache

Indian Community (the Tribes) are federally-recognized

Indian tribes occupying reservations located in the State of

Arizona. The region is semi-desert with alluvial soils suit-

able for agriculture, but a low rainfall makes irrigation nec-

essary. The only surface water available is provided by the

Salt and Verde Rivers which are fed by a 13,000 square-

mile watershed.

Appellees include the State of Arizona, various state offi-

cials, and the Salt River Valley Water Users’ Association.

I. Historical Overview

A. Prior Appropriation

Most western states apply the doctrine of prior appropri-

ation in establishing rights to the use of water. Under this

doctrine, one acquires a right to water by diverting it from

its natural source and applying it to some beneficial use.

Continued beneficial use of the water is required in order to

maintain the right. In perioas of shortage, priority among

confirmed rights is determined according to the date of ini-

tial diversion.' This doctrine, which is based on use,

unavoidably brings the interest of state claimants into con-

flict with Indian tribes who claim water rights under the

Winters doctrine, which is based on need.

2. Winters or Reservation Doctrine

Indian water rights are created outside the system of

state law and exist independently of that system. /ndian

Water Rights: A State Perspective After Akin, 57

Neb.L.Rev. 295 (1978). In Winters v. United States, 207

U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the Supreme

Court described the nature of Indian water rights. The

Court held that each time the federal government sets aside

land from the public domain for a federal purpose it implies

a reservation of water resources to meet the needs of that

land. An implied reservation of water for an Indian reserva-

tion will be found where it is necessary to fulfill the

purposes of the reservation. They are reserved in trust to

the federal government with a priority date as of the time

the reservation was established. The United States thus

holds legal title. Arizona v. California, 373 U.S. 546, 600, 83

S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1963). Unlike the rights

accruing to non-Indians based on beneficial use and non-

use, Indian water rights are reserved for present and future

needs of the reservations. Federally reserved water rights

affect 17 states. The precise extent and nature of most re-

' See Colorado River Water Conservation District v. United States,

424 U.S. 800, 805, 96 S.Ct. 1236, 1240, 47 L.Ed.2d 2483 (1976).

A-4

served rights have yet to be determined.’

The Winters doctrine is the source of major problems for

dry, western states. As water is reserved for tribes for cur-

rent and future needs, the quantity required is unspecified.

Without jurisdiction over the tribal lands or a description

of the scope of the reserved right, states are unable to de-

velop comprehensive water allocation plans with certainty.

In 1952, Congress passed the McCarran Amendment, 66

Stat. 560, 43 U.S.C. § 666, consenting to state court juris-

diction over the United States when litigation involves

comprehensive adjudication of water rights. The amend-

ment provides that “consent is hereby given to join the

United States as a defendant in any suit (1) for the adjudi-

cation of rights to use of water of a river system or other

source, or (2) for the administration of such rights, where it

appears that the United States is the owner of or is in the

process of acquiring water rights by appropriation under

State law, by purchase, by exchange, or otherwise, and the

United States is a necessary party to such suit.” Previously,

* In Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1498, 10

L.Ed.2d 542 (1963), the Supreme Court reaffirmed the Winters reserva-

tion doctrine and further affirmed the special master’s conclusion as to

the quantity of water intended to be reserved. The finding in that case

was that the reserved water was intended to satisfy the future as well as

the present needs of the Indian reservation and enough water was re-

served to irrigate all the practicably irrigable acreage on the reservations.

In United States v. New Mexico, 438 U.S. 696, 98 S.Ct. 3012, 57

L.Ed.2d 1052 (1978), in determining the extent of an implied reservation

of water for a national forest, the Supreme Court held:

Where water is necessary to fulfill the very purposes for which a fed-

eral reservation was created, it is reasonable to conclude, even in che

face of Congress’ express deference to state water law in other areas,

that the United States intended to reserve the necessary water. Where

water is only valuable for a secondary use of the reservation, however,

there arises the contrary inference that Congress intended, consistent

with its other views, that the United Stetes would acquire water in the

same manner as any other public or private appropriator.

438 U.S. at 702, 98 S.Ct. at 3015. The Ninth Circuit applied the New

Mexico test to determine Indian reserved water rights in Colville Con-

federated Tribes v. Walton, 647 F.2d 42 (9 Cir. 1981).

A-5

the United States could not be joined in water rights adju-

dication because of sovereign immunity. The McCarran

Amendment waives the sovereign immunity in general wa-

ter rights adjudications. The purpose of the McCarran

Amendment was to eliminate the uncertainty engendered

by the inability to compel adjudication of federal water

rights. The amendment grants state courts the power to

adjudicate federal water rights.

4. Akin Decision

In Colorado River Water Conservation District v. United

States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)

(Akin),’ the Supreme Court interpreted the McCarran

Amendment. The question in Akin concerned the effect of

the McCarran Amendment upon the jurisdiction of the fed-

eral district courts under 28 U.S.C. § 1345 over suits for

determination of water rights brought by the United States

as trustee for certain Indian tribes and as owner of various

non-Indian Government claims. In Aki the Government

brought suit in the United States District Court for the

District of Colorado, invoking the court's jurisdiction under

28 U.S.C. § 1345. 28 U.S.C. § 1345 provides:

Except as otherwise provided by Act of Congress, the

district courts shall have original jurisdiction of all

civil actions, suits or proceedings commenced by the

United States, or by any agency or officer thereof ex-

pressly authorized to sue by Act of Congress.

In the suit, the Government asserted reserved rights on its

own behalf and on behalf of certain Indian tribes, as well as

rights based on state law.

* This decision was an appeal from United States v. Akin, 504 F.2d

115 (10th Cir. 1974).

A-6

Shortly after the federal suit was commenced, one of the

defendants in that suit filed an application in the state

court for Division 7‘ seeking an order directing service of

process on the United States in order to make it a party to

proceedings in Division 7 for the purpose of adjudicating all

of the Government's claims, both state and federal. On

January 3, 1973, the United States was served pursuant to

authority of the McCarran Amendment. Several defendants

and intervenors in the federal proceeding then filed a mo-

tion in the district court to dismiss on the ground that

under the amendment, the district court was without juris-

diction to determine federal water rights. Without deciding

the jurisdictional question, the district court, on June 21,

1973, granted the motion stating that the doctrine of ab-

stention required deference to the proceedings in Division

7. On appeal, the Court of Appeals for the Tenth Circuit

reversed, United States v. Akin, 504 F.2d 115 (1974), hold-

ing ti.at the suit of the United States was within district

court jurisdiction under 28 U.S.C. § 1345, and that absten-

tion was inappropriate.

Certiorari was granted and in Colorado River Water

Conservation District v. United States, the Supreme Court

held that although the district court had jurisdiction over

the action and abstention was improper, the dismissal was

nevertheless proper under the doctrine of “wise judicial

administration.”

The Court first held that in view of the McCarran

Amendment’s language and legislative history and control-

ling principles of statutory construction, the amendment in

no way diminished the jurisdiction of district courts under

§ 1345 to hear federal water rights suits. The Court found

that the effect of the amendment was to give consent to ju-

* Under Colorado law, the state is divided into Water Divisions with

adjudication of water claims within each Division occurring on a continu-

ous basis.

A-7

risdiction in the state courts concurrent with jurisdiction in

the federal courts over controversies involving federal rights

to the use of water. 424 U.S. at 808-809, 96 S.Ct. at 1241-

1242.

The Court also concluded specifically that the state court

had jurisdiction over Indian water rights under the Mc-

Carran Amendment. /d. at 809, 96 S.Ct. at 1242. This

finding was based both on the amendment’s language and

its underlying policy of avoiding piecemeal adjudication of

water rights in a river system. The Court went on to hold

that the district court dismissal could not be supported

under the doctrine of abstention in any of its forms.

The Court held finally that the dismissal was proper due

to considerations of “wise judicial administration” in a sit-

uation involving concurrent state-federal jurisdiction.

II. Issues on Appeal

1. Does the federal Enabling Act authorizing Arizona’s

admission to the Union, and the state’s disclaimer

clause in its constitution prohibit Arizona from exer-

cising jurisdiction over Indian tribes?

2. Even if the Arizona courts had jurisdiction, did the

district court improperly apply the doctrine of “wise

judicial administration” in dismissing the case?

III. Disclaimer Issue

Arizona was admitted to the Union on condition that it

disclaim right and title to and jurisdiction over Indian

lands. The Arizona Enabling Act (36 Stat. 569) provides in

relevant part:

Second. That the people inhabiting said proposed

State do agree and declare that they forever disclaim

all right and title to the unappropriated and ungranted

public lands lying within the boundaries thereof and to

all lands lying within said boundaries owned or held by

any Indian or Indian tribes, the right or title to which

shall have been acquired through or from the United

States or any prior sovereignty, and that until the title

of such Indian or Indian tribes shall have been extin-

A-8

guished the same shall be and remain subject to the

disposition and under the absolute jurisdiction and

control of the Congress of the United States.

The Arizona constitution disclaims jurisdiction over In-

dian lands providing:

FOURTH. PUBLIC LANDS,

INDIAN LANDS.

Fourth. The people inhabiting this State do agree and

declare that they forever disclaim all right and title to

the unappropriated and ungranted public lands lying

within the boundaries thereof and to all lands lying

within said boundaries owned or held by any Indian or

Indian tribes, the right or title to which shall have

been acquired through or from the United States or

any prior sovereignty, and that, until the title of such

Indian or Indian tribes shall have been extinguished,

the same shall be, and remain, subject to the disposi-

tion and under the absolute jurisdiction and control of

the Congress of the United States.

Arizona Constitution, article 20, paragraph 4.

The Tribes contend that the disclaimer provisions bar

jurisdiction over the Indians and were not repealed by the

McCarran Act.’ The district court rejected this contention

citing Jicarilla Apache Tribe v. United States, 601 F.2d

1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530,

62 L.Ed.2d 426 (1979). We disagree.

The Arizona Enabling Act and constitutional disclaimer

provisions are essentially identical to the Montana En-

abling Act and constitutional disclaimer provisions. In

reaching the conclusion that Arizona has disclaimed juris-

* The disclaimer was not an issue in the Akin case as Colorado did

A-9

diction over the Indian lands we adopt in full the reasoning

and analysis found in Northern Cheyenne Tribe v. Adsit,

No. 79-4887, slip op.p. , F.2d (9th Cir. Feb-

ruary 22, 1982).

As in the Northern Cheyenne case, we find it necessary

to remand for a determination of whether Arizona has ob-

tained jurisdiction over the Indians pursuant to Public Law

280.

IV. Application of the Doctrine of “Wise Judicial Admin-

istration”

Without much discussion, and purporting to follow the

Supreme Court’s Akin decision, the district court dismissed

the federal action “in light of considerations of federal judi-

cial restraint in State matters and judicial administration,

further giving regard to the conservation of judicial re-

sources and the comprehensive disposition of litigation.”

487 F.Supp. at 784.

The Supreme Court in Akin held that the state and fed-

eral courts had concurrent jurisdiction over controversies

involving federal rights to the use of water and that the dis-

trict court’s dismissal of the federal action was improper

under the doctrine of abstention. The Court, nevertheless,

held the dismissal proper under the doctrine of “wise judi-

cial administration.”

The Court stated that the circumstances permitting a

dismissal for reasons of wise judicial administration “are

considerably more limited than the circumstances appropri-

ate for abstention,” 424 U.S. at 818, 96 S.Ct. at 1246, and

the Court referred to the necessary circumstances as “ex-

ceptional.” The factors that the Supreme Court stated

could be considered include which court first assumed juris-

diction over the property, the inconvenience of the federal

forum, the avoidance of piecemeal litigation and the order

in which jurisdiction was obtained by the concurrent forum.

The Court stated:

No one factor is necessarily determinative; a carefully

A-10

considered judgment taking into account both the obli-

gation to exercise jurisdiction and the combination of

factors counselling against that exercise is required.

Only the clearest of justifications will warrant dis-

The Court found the dismissal to be proper, considering

such factors as (1) the state’s established single continuous

proceeding for water rights adjudication which antedated

the district court suit, (2) the apparent absence of any pro-

ceedings in the district court, other than the filing of the

complaint, prior to the motion to dismiss, (3) the extensive

involvement of state water rights occasioned by this suit

naming 1,000 defendants, (4) the 300-mile distance between

the district court in Denver and the court in Division 7, and

(5) the existing participation by the Government in Divi-

sions 4, 5, and 6 proceedings.

The Court in Akin refers to “wise judicial administra-

tion” as being proper only under “exceptional” cir-

cumstances. The Court specifically did not decide whether

dismissal would be warranted if more extensive proceedings

had occurred in the district court prior to dismissal, if the

involvement of state water rights were less extensive or if

the state proceeding were in some respect inadequate to

resolve the federal claims. 424 U.S. at 820, 96 S.Ct. at 1248.

The Court also specifically left open the question of the

application of the “wise judicial administration” doctrine to

a water rights suit brought by a private party such as an

Indian tribe rather than the United States. 424 U.S. at 801

n.26, 96 S.Ct. at 1248.

Our holding on the disclaimer issue makes it unnecessary

for us to decide at this time whether dismissal under the

doctrine of “wise judicial administration” would have been

proper if Arizona had not disclaimed jurisdiction over the

Indians. We note that the district judge did not make find-

ings on this issue and the record indicates significant

differences between these cases and the Akin case.

A-1l

V. Other Issues

The Tribes raise several other issues, including the adju-

dication of ground-water claims, service of process, damage

action, and the sovereign immunity of the United States in

the Navajo Nation case. Due to our holding on the dis-

claimer issue we find it unnecessary to reach any other is-

sues.

VI. Conclusion

We find the district court’s conclusion that the disclaim-

er provisions in the Arizona Enabling Act and constitution

do not preclude state jurisdiction over the Indians to be

incorrect. On remand the district court must determine if

Arizona has properly asserted jurisdiction pursuant to Pub-

lic Law 280.

REVERSED and REMANDED.

MERRILL, Circuit Judge, dissenting:

For the reasons set forth in my dissent in Northern

Cheyenne Tribe v. Adsit, F.2d ___, I dissent from the

Court’s holding that the disclaimer clauses in the Arizona

Statehood Act and the State Constitution deprive the state

courts of jurisdiction to establish and adjudicate the re-

served water rights of the United States held by it in trust

for the Indian tribes.

Further I dissent from the Court’s holding that wise judi-

cial administration, as that term is used in Akin, does not

call for dismissal of the federal suits. Here no suit seeks

general adjudication of a stream system. In the suits

brought by San Carlos Apache Tribe, Payson Community

of Yavapai-Apache Indians and Fort McDowell Mohave-

Apache Indian Community, the prayers are for adjudication

only of the reserved rights of the plaintiff Tribes. The Salt

River Pima-Maricopa Indian Community suit prays only to

enjoin state court action and seeks no adjudication at all.

A-12

Thus, at best, the suits constitute piecemeal adjudication of

the streams. While the rights held for Indians would be es-

tablished, the rights of the other water users on the streams

would not.

In these circumstances, principles of wise judicial admin-

istration clearly counsel against federal adjudication of the

Tribes’ claims. The Akin Court regarded the McCarran

Amendment itself as the most important factor favoring

state proceedings over federal. It stated:

The clear federal policy evinced by that legislation is

the avoidance of piecemeal adjudication of water rights

in a river system....[T]he concern... with avoiding

the generation of additional litigation through permit-

ting inconsistent dispositions of property... is

heightened with respect to water rights, the relation-

ships among which are highly interdependent. Indeed,

we have recognized that actions seeking the allocation

of water essentially involve the disposition of property

and are best conducted in unified proceedings. . . . The

consent to jurisdiction given by the McCarran Amend-

ment bespeaks a policy that recognizes the availability

of comprehensive state systems for adjudication of

water rights as the means for achieving these goals.

424 U.S. at 819, 96 S.Ct. at 1247. The Court also quoted

from the legislative history of the McCarran Amendment to

this effect:

In the administration of and the adjudication of water

rights under State laws the State courts are vested

with the jurisdiction necessary for the proper and effi-

cient disposition thereof, and by reason of the

interlocking of adjudicated rights on any stream sys-

tem, any order or action affecting one right affects all

such rights. Accordingly all water users on a stream, in

practically every case, are interested and necessary

parties to any court proceedings. It is apparent that if

any water user claiming to hold such right by reason of

the ownership thereof by the United States or any of

its departments is permitted to claim immunity from

suit in, or orders of, a State court, such claims could

A-13

materially interfere with the lawful and equitable use

of water for beneficial use by the other water users

who are amenable to and bound by the decrees and

orders of the State courts.

Id. at 810, 96 S.Ct. at 1242, quoting S.Rep.No. 755, 82d

Cong., Ist Sess., 4-5 (1951).

In fact, however, the suits now before us would not even

constitute piecemeal adjudication; rather, they would result

in no effective adjudication at all. Since the suits do not

seek general adjudication of the stream systems involved,

the McCarran Amendment does not provide the consent of

the United States to be sued. Dugan v. Rank, 372 U.S. 609,

617-19, 83 S.Ct. 999, 1004-05, 10 L.Ed.2d 15 (1963). Yet, on

every stream system involved in these suits, the United

States claims reserved rights. Similarly, on some of the

stream systems, the rights of other Indian tribes are in-

volved. They too are immune from suit. California v.

Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir.

1979). As a result, an adjudication of the rights of the plain-

tiff Tribes would accomplish nothing since it could have no

binding effect on the absent claimants.

In my judgment wise judicial administration would not

tolerate the confusion which these suits would create and

the havoc they can be expected to play with the state’s sta-

tutory efforts to deal with its problems of water

scarcity—problems faced not just by Indians, but by every

resident of the state; problems of such awesome dimensions

that the state’s efforts to solve them should have federal

respect and encouragement.

For these reasons I would hold that wise judicial admin-

istration as a matter of law demands the dismissal of these

suits and would affirm the district court.

B-1

APPENDIX B

Filed-FEB. 24, 1982

Navaso Nation, aka The Navajo Tribe of Indians,

Plaintiff-Appellant,

Vv.

Unrrep States of America, State of Arizona,

Defendants-Appellees.

Nos. 80-5471, 80-5837.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1981.

Decided Feb. 24, 1982.

Reversed and remanded.

Merrill, Circuit Judge, filed dissenting opinion.

Appeal from the United States District Court for the

District of Arizona.

Before MERRILL, Cuoy and FercGuson, Circuit Judges.

Cuoy, Circuit Judge:

Appellant Navajo Nation appeals the district court’s or-

der staying its federal action. We reverse.’

1. Facts

The Navajo Nation brought this action under 28 U.S.C.

§ 1362 seeking a declaration of the tribe’s rights to the Lit-

tle Colorado River under its treaties with the United States

and various federal statutes and orders.

The State of Arizona moved to dismiss the complaint for

a lack of federal jurisdiction, arguing that the Navajo’s

claims should be decided as part of the state proceeding

concerning the Little Colorado pursuant to the Supreme

Court’s decision in Colorado River Water Conservation

District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47

' This case was argued together with the cases decided in the consol-

idated opinion in San Carlos Apache Tribe v. Arizona, No. 80-5137, Slip.

op. p. ’ F.2d (9th Cir. 1982).

B-2

L.Ed.2d 483 (1976) (Akin).’

The district court (Cordova, J.) denied Arizona’s motion

to dismiss, thereby recognizing that it had jurisdiction over

the claim and that the amended complaint stated a good

cause of action. At the same time, however, the district

court, sua sponte, entered an order staying the federal ac-

tion pending the trial and determination by the State Court

of Arizona of the rights of claimants.

Appellant filed a notice of appeal on June 12, 1980, more

than 30 days after entry of the stay. Appellant later asked

the district court to certify the stay order for immediate

appeal pursuant to 28 U.S.C. 4 1292(b). On October 30, this

court issued an order permitting appellant’s 1292(b) appeal

and consolidating it with the § 1291 appeal and authorized

the panel to reconsider appellees’ motion to dismiss the pe-

tition and the appeal.

Il. Issues

1. Is this appeal properly before this court?

2. Did the district court err in staying the action?

Ill. Analysis

A. Appealability of District Court Stay

Arizona contends that this appeal is not properly before

this court, arguing that the appeal was not timely filed and

in addition that a stay is not an appealable order. The Na-

vajo’s § 1291 direct appeal was filed beyond the usual 30-

day period but within the 60-day period for cases where the

United States is a party. Arizona argues that the United

States was never served with process and therefore the 60-

day appeal period is inapplicable. Appellant disputes this

and offers to provide proof of service. However, this issue is

largely unimportant because on August 19, 1980, the dis-

* For a detailed discussion of the Akin decision and Indian water

rights in general, see the companion cases of San Carlos Apache Tribe v.

Arizona, No. 80-5137, Slip op. p. : F.2d (9th Cir.

1982), and Northern Cheyenne Tribe v. Adsit, No. 79-3887, Slip op. p.

, F.2d (9th Cir. 1982).

B-3

trict court (Hardy, J.) certified the stay order for

immediate appeal under 28 U.S.C. 4 1292(b) on the ground

that the stay order “involves a controlling question of law

as to which there is substantial ground for difference of

opinion and ... an immediate appeal ... may materially

advance the ultimate termination of the litigation.”

Section 1292(b) provides in relevant part:

(b) When a district judge, in making in a civil action

an order not otherwise appealable under this section,

sha!l be of the opinion that such order involves a con-

trolling question of law as to which there is substantial

ground for difference of opinion and that an immedi-

ate appeal from the order may materially advance the

ultimate termination of the litigation, he shall so state

in writing in such order. The Court of Appeals may

thereupon, in its discretion, permit an appeal to be

taken from such order, if application is made to it

within ten days after the entry of the order.

On October 30, 1980, the Ninth Circuit granted the peti-

tion for permission to appeal under 4 1292(b).

This court also ordered appellee’s motion to dismiss the

appeal as untimely denied without prejudice to appellee’s

raising, under 28 U.S.C. § 1291, the underlying jurisdic-

tional issue before this panel. This court ordered the } 1291

appeal consolidated with the 4 1292(b) appeal.

The issue of whether the appeal under § 1291 is proper

is largely irrelevant at this time as the district court order is

properly before the court as a § 1292(b) appeal.

B. State Court Jurisdiction

The district court stayed the federal action “pending the

trial and determination by the State Court of Arizona of

the rights of claimants, over which it has jurisdiction, to the

water of the Little (. 'orado Watershed.” The district court

did not state its reasons for staying the federal action nor

cite any authority for its action.

B-4

Our holding in San Carlos Apache Tribe v. Arizona, No.

80-5137, Slip op. p. : F.2d __ (9th Cir. filed

February 23, 1982), that Arizona has disclaimed jurisdic-

tion over the Indians’ water rights compels us to reverse the

district court’s holding that the state court has jurisdiction

over the Indian claims.

C. Other Issues

Because of our holding on the disclaimer issue we find it

unnecessary to reach any of the other issues raised by the

parties.

IV. Conclusion

This appeal is properly before this court pursuant to 28

U.S.C. § 1292(b). The order of the district court is RE-

VERSED.

REVERSED and REMANDED.

MERRILL, Circuit Judge, dissenting:

I dissent for the reasons set forth in my dissents in

Northern Cheyenne Tribe v. Adsit and San Carlos Apache

Tribe v. Arizona, filed this day. In this case Navajo Nation

does not seek a general stream adjudication. For the rea-

sons set forth in my dissent in San Carlos Apache Tribe I

would remand with instructions that the suit be dismissed.

C-1

APPENDIX C

Filed—FEB. 22, 1982

The NoRTHERN CHEYENNE TRIBE OF the NORTHERN

CHEYENNE INDIAN RESERVATION, et al.,

Plaintiffs-Appellants,

Thomas Ralph Apsit, et al.,

Defendants-Appellees.

Nos. 79-4887, 80-3028, 80-3032,

80-3038, 80-3040 to 80-3042, 80-3044, 80-3045

and 80-3061 to 80-3063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1981.

Decided Feb. 22, 1982.

Appeal from the United States District Court for the

District of Montana.

Before MERRILL, CHoy and FerGuson, Circuit Judges.

Fercuson, Circuit Judge:

The United States government and various Montana In-

dian tribes appeal the dismissal of consolidated actions

brought to adjudicate federal and Indian water rights in

Montana. The federal court actions were dismissed in favor

of state court proceedings. Dismissal was predicated on the

Supreme Court’s decision in Colorado River Conservation

District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47

L.Ed.2d 483 (1976) (hereinafter “Akin”). Because Akin was

erroneously applied to the facts of the Montana litigation,

we reverse.

I. PROCEDURAL HISTORY.

In January, 1975, the Northern Cheyenne Tribe brought

suit in United States District Court for the District of Mon-

tana to adjudicate water rights in the Tongue River and

Rosebud Creek in Montana. Jurisdiction was alleged under

C-2

28 U.S.C. § 1362.' In March, 1975, the United States

brought suit pursuant to 28 U.S.C. § 1345’ for the same

purpose, in its own right and as fiduciary on behalf of the

Northern Cheyenne and other reservation tribes. In July,

1975, the Montana Department of Natural Resources and

Conservation (“DNR”) filed petitions in state court for a

determination of all existing rights to those waters in ac-

cordance with existing state law.

In August, 1975, the United States brought suit in the

district court on behalf of the Crow Tribe. Judge Battin

consolidated the cases and stayed proceedings in February,

1976, pending the Supreme Court’s decision in Akin. The

State of Montana, a defendant in those cases, moved to

dismiss as a result of that decision. At the same time, the

Crow Tribe moved to intervene. Both motions were argued

in the summer of 1976.

In February, 1979, the federal government and the tribes

moved for expedited consideration. In April, 1979, the

United States filed more actions in the district court seek-

ing a declaration of water rights on behalf of the United

States and four additional tribes.

On May 11, 1979, an amended state water consolidation

plan, Montana Senate Bill 76, took effect. The Montana

Supreme Court ordered implementation and authorized the

DNR to notify relevant parties in June, 1979.

' 28 U.S.C. § 1362 provides:

The district courts shall have original jurisdiction of all civil ac-

tions brought by any Indian tribe ... wherein the matter in

controversy arises under the Constitution, laws, or treaties of the

United States.

* 28 U.S.C. § 1345 provides:

{T}he district courts shall have original jurisdiction of all civil ac-

CS of Ce CNS SY Ce Wee Se, © ay

agency or officer thereof . .

C-3

In July, 1979, Judge Hatfield stayed the federal actions

initiated in 1979. In November of that year, Judges Battin

and Hatfield issued a joint opinion dismissing all federal

actions as an exercise of “wise judicial administration” as

outlined in Akin. Northern Cheyenne Tribe v. Tongue

River Water Users, 484 F.Supp. 31 (D.C.Mont. 1979).

The United States and the Indian tribes appeal that

dismissal, arguing that it is predicated on an erroneous ap-

plication of Akin. They maintain that because the Montana

constitution and enabling act contain disclaimers of juris-

diction over Indian tribes, the litigation in that state differs

from the Colorado litigation which was the subject of Akin.

Further, they argue that the specific factors underlying the

Akin decision are not present in the Montana litigation and

that the contrast requires retention of federal jurisdiction.

Il. THE DISCLAIMER ISSUE.

A. Jurisdiction over Indian Water Rights.

Traditionally, Indian water rights have been reserved in

trust to the federal government. Winters v. United States,

207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); Arizona v.

California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542

(1963), overruled on other grounds, 438 U.S. 645, 98 S.Ci.

2985, 57 L.Ed.2d 1018 (1977). Federal courts have consis-

tently exercised jurisdiction over Indians on reservations,

Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83

L.Ed. 235 (1939), unless jurisdiction is explicitly granted to

the states by congressional statute. Fisher v. District Court

of Montana, 424 U.S. 382, 388, 96 S.Ct. 943, 947, 47

L.Ed.2d 106 (1976). Congress has granted state courts juris-

diction over Indian rights with respect to various criminal

and civil matters, but in each grant, jurisdiction over Indian

water rights has been specifically excluded. 28 U.S.C.

C-4

§ 1360(b); 18 U.S.C. § 1162(b); 25 U.S.C. § 1322.”

In 1952, Congress passed the McCarran Amendment, 43

U.S.C. § 666, granting state courts jurisdiction over the

United States when litigation involves comprehensive adju-

dication of water rights and the United States is a

necessary party.

Consent is given to join the United States as a defen-

dant in any suit (1) for the adjudication of rights to the

use of water of a river system or other source, or (2) for

the administration of such rights, where it appears that

the United States is the owner of or is in the process of

acquiring water rights by appropriation under State law,

by purchase, by exchange, or otherwise, and the United

States is a necessary party to such suit ....

43 U.S.C. § 666(a). The Amendment does not mention Indi-

ans or reservations. It is limited to waiving the sovereign

immunity of the federal government with respect to water

rights acquired “by ... appropriation ... or otherwise.” In

no way does the McCarran Amendment repeal any of the

jurisdiction of the federal courts. The Amendment merely

extends the United States’ consent to suit in certain cases.

In 1976, the Supreme Court interpreted the McCarran

Amendment as a grant of jurisdiction over water rights of

Indian tribes when the right is asserted by the federal gov-

ernment as fiduciary. Colorado River Conservation District

v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d

* Each statutory section states:

Nothing in this section shall authorize the alienation, encumbrance, or

taxation of any real or personal property, including water rights, belong-

ing to any Indian or any Indian tribe, band, or community that is held in

trust by the United States... .

(emphasis supplied).

Sections 25 U.S.C. 1322(b) (alienation, encumbrance, taxation, use, and

probate of property) and § 1360(b) (state civil jurisdiction in actions to

which Indians are parties) further provide that nothing in these sections

shall confer jurisdiction upon the State to adjudicate, in probate pro-

ceedings or otherwise, the ownership or right to possession of such

property or any interest therein.

C-5

483 (1976) (Akin). When the United States is a party to a

proceeding involving these rights, the Court held that the

ability of the state to assert jurisdiction over the federal

government implicitly allows jurisdiction over the rights of

tribes that, without the McCarran Amendment, would have

been immunized by federal statutes against suits in state

court.

In a crucial footnote, the Court noted the restrictions on

jurisdiction over Indian water rights provided in 25 U.S.C. 4

1322(b) and 28 U.S.C. § 1360(b).° Jd. at 812, n.20, 96 S.Ct.

at 1244, n.20. The Court, however, held that limiting lan-

guage in those sections only qualifies the import of the

general consent to state jurisdiction given by those sections;

the language does not purport to limit the special consent

to jurisdiction given by the McCarran Amendment. /d.

Accordingly, the Court dismissed the federal proceeding in

favor of the comprehensive ongoing state proceeding.

B. Montana’s Disclaimers and Public Law 83-280.

The Montana litigation raises a question not at issue in

Akin. In a state which, unlike Colorado, expressly disclaims

jurisdiction over Indian lands within its constitution and

enabling act, does the McCarran Amendment grant juris-

diction and thereby repeal the state disclaimers? We hold

that it does not.

Montana was admitted to statehood in 1889 on condition

that it disclaim right and title to jurisdiction over Indian

lands. Montana’s enabling act provides that the state

“disclaim([s] all right and title to the unappropriated public

lands ... owned or held by any Indian or Indian tribes . . .”

25 Stat. 676 (1889). The disclaimer of title in the enabling

act is reinforced by the disclaimer of jurisdiction in the

* See footnote 3, supra.

C-6

Montana Constitution that specifically provides, “all lands

owned or held by any Indian or Indian tribes shall remain

under the absolute jurisdiction and control of the United

States ....” Art. I, Mont.Const. 1972.

Only a year after the passage of the McCarran Amend-

ment, Congress passed Public Law 83-280 establishing a

procedure whereby states could repeal disclaimers in their

constitutions and enabling acts. Public Law 280, “the first

jurisdictional statute of general applicability to Indian re-

servation lands,” Washington v. Yakima Indian Nation,

439 U.S. 463, 471, 99 S.Ct. 740, 746, 58 L.Ed.2d 740 (1979),

dealt with “the problem of lawlessness on certain Indian

reservations, and the absence of adequate tribal institutions

for law enforcement.” Bryan v. Itasca County, 426 U.S.

373, 379, 96 S.Ct. 2102, 2106, 48 L.Ed.2d 710 (1953). Sec-

tion 7 of that Act provides for automatic transfer of

jurisdiction to the states by legislation. Section 6 deals with

states which disclaim jurisdiction over Indians.

Notwithstanding the provisions of any enabling Act for

the admission of a State, the consent of the United

States is hereby given to the people of any State to

amend, where necessary, their State constitution or exist-

ing statutes, as the case may be, to remove any legal

impediment to the assumption of civil or criminal juris-

diction in accordance with the provisions of this

subchapter. The provisions of this subchapter shall not

become effective with respect to such assumption of ju-

risdiction by any such State until the people thereof have

appropriately amended their State constitution or stat-

utes, as the case may be.

25 U.S.C. § 1324.

The Supreme Court held that the 1953 legislation allows

assumption of jurisdiction in disclaimer states by legislative

action. Yakima, supra, 439 U.S. at 484, 99 S.Ct. at 753.

Federal law does not proscribe “the manner in which the

States are to modify their organic legislation.” Jd. Accord-

ingly, in those states which so provide, legislative action

C-7

alone suffices to repeal the constitutional disclaimer of ju-

risdiction over Indians. Jd. Furthermore, in enacting 4§ 6,

Congress meant to remove any federal impediments to state

jurisdiction that may have been created by an enabling act.

Id. at 488, 99 S.Ct. at 755. Hence, the determination of

whether legislative action is sufficient to repeal a disclaimer

depends on whether such action is sufficient under the law

of the acting state to amend its constitution. /d. at 493, 99

S.Ct. at 757.

Public Law 280 was amended in 1968 to provide “that

States that have not extended criminal or civil jurisdiction

to Indian country can make future extensions only with the

consent of the tribes affected.” 25 U.S.C. §§ 1321(a),

1322(a). See Yakima, supra, at 494, n.40, 99 S.Ct. at 758,

n.40. Hence, after 1968, a state may repeal a disclaimer of

jurisdiction over reservation Indians only with the consent

of the affected tribes. In addition, the scope of consent is

limited to the same jurisdiction provided automatic transfer

states, i.e., | 7 states. 25 U.S.C. § 1322.

C. Analytic Framework.

The McCarran Amendment overrides sovereign immun-

ity of the United States in comprehensive water rights

adjudications and the immunity of an Indian tribe repre-

sented by the government in such a proceeding. It cannot

be read to amend a state constitution disclaiming subject

matter jurisdiction over such matters.

A valid exercise of state jurisdiction requires that the

state have both personal and subject matter jurisdiction.

Via the McCarran Amendment, the United States has

waived sovereign immunity from suit in certain cases in-

volving water rights. In Akin, this waiver of sovereign

immunity operated to give Colorado personal jurisdiction

over the United States and implicitly allowed jurisdiction

over the rights of otherwise immune Indian tribes in cir-

cumstances where the state had subject matter jurisdiction.

However, when a state has chosen to disclaim subject mat-

ter jurisdiction over Indian water rights, the combination of

C-8

jurisdictional prerequisites necessary for a state court to

hear a challenge to Indian water rights would appear to be

lacking.

The appearance that subject matter jurisdiction is lack-

ing in a state court in a disclaimer state would only be

defeated by a finding that the disclaimer had been validly

repealed. In order to make such a finding, a court must first

determine whether the Montana water consolidation plan

acts as a legislative repeal of the constitutional disclaimer

of jurisdiction. Washington v. Yakima, supra. Second, it

must determine whether such repeal required tribal consent

as provided in the 1968 amendment to Public Law 280.

Only if the Montana water legislation is determined to con-

stitute a legislative repeal within the requirements of the

federal law will the McCarran Amendment’s grant of per-

sonal jurisdiction over the United States, acting as trustee

for Indian water rights, furnish the state court with the

requisite personal and subject matter jurisdiction. Only if a

legislative repeal is found and the state has subject matter

jurisdiction need one consult the waiver of immunity provi-

sions of the McCarran Amendment and consequently the

terms of Akin.

The district court made no such analysis. Instead, it de-

termined that the disclaimer/non-disclaimer distinction was

inconsequential to Congress in passing the McCarran

Amendment. This conclusion cannot be accepted when

viewed in light of the specific attention paid to the

disclaimer/non-disclaimer distinction in P.L. 280 by Con-

gress only a year after it passed the McCarran Amendment.

The district court’s decision would rob the dis-

claimer/non-disclaimer distinction made by Congress of all

significance and meaning, and would deprive the 1968

Amendment to P.L. 280, which requires tribal consent to a

repeal of the disclaimer, of any effect. Accordingly, the dis-

trict court’s basis for decision was erroneous.

C-9

In so holding, we decline to follow the Tenth Circuit's

decision in Jicarilla Apache Tribe v. United States 601

F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S.Ct.

530, 62 L.Ed.2d 426 (1979). Jicarilla, in considering the

precise issue raised here, refused to recognize the distinc-

tion between states with constitutional disclaimers and

those without. For the reasons noted above, we believe that

recognition of this distinction is crucial in deciding the ju-

risdiction issue.

Except for Jicarilla, with which we expressly disagree, no

case brought to our attention permits a disclaimer state to

adjudicate a challenge directed against Indian water rights.

Construing the Montana enabling act, Draper v. United

States, 164 U.S. 240, 247, 17 S.Ct. 107, 109, 41 L.Ed. 419

(1896), merely held that the disclaimer in Montana’s ena-

bling act did not deprive that state of power to punish for

crimes committed on a reservation or Indian lands by non-

Indians.

Williams v. Lee, 358 U.S. 217, 218, 223, 79 S.Ct. 269, 269,

273, 3 L.Ed.2d 251 (1958), held that the State of Arizona,

which expressly disclaimed jurisdiction over Indian lands,

did not have jurisdiction over an action brought by a non-

Indian in state court to collect a debt against an Indian and

his wife. At issue in Williams was whether the case should

be heard in tribal or state court. In holding that the case

must be heard in tribal court, Williams explained that state

jurisdiction would interfere with essential tribal relations.

In the present case, the choice is between federal court and

state court, not between state and tribal court; although

essential tribal relations may not be involved, essential In-

dian rights to water, basic to the survival of tribes, are

certainly at stake. An observation in Williams is relevant to

this case. “Through conquest and treaties [Indian tribes]

were induced to give up complete independence and the

right to go to war in exchange for federal protection, aid,

and grants of land.” Jd. at 218, 79 S.Ct. at 269. Were the

State to expressly disclaim jurisdiction and the federal

C-10

courts to give up their protective jurisdiction over Indian

lands, incluaing water rights, the Indians would seem de-

prived of the benefit of the original bargain that they were

driven to make. Of course, by general statute, Congress

later expressed its willingness to have any state assume ju-

risdiction over reservation Indians if the state legislature or

the people voted affirmatively to accept such responsibility.

Id. at 222, 79 S.Ct. at 271. To date, Montana does not ap-

pear to have accepted such responsibility.

In passing, we note that McClanahan v. Arizona State

Tax Comm’n., 411 U.S. 164, 179, 180, 93 S.Ct. 1257, 1266,

36 L.Ed.2d 129 (1972) (holding that Arizona could not im-

pose an income tax on reservation Indians), has expressly

limited the application of the Williams tribal self-

government test to certain circumstances:

It must be remembered that cases applying the Wil-

liams test have dealt principally with situations

involving non-Indians. [citations omitted]. In these

situations, both the tribe and the state could fairly

claim an interest in asserting their respective jurisdic-

tions. The Williams test was designed to resolve this

conflict by providing that the State could protect its

interest up to the point where tribal self-government

would be affected.

The problem posed by this case is compeletly differ-

ent. Since appellant is an Indian and since her income

is derived wholly from reservation sources, her activity

is totally within the sphere which the relevant treaty

and statutues leave for the Federal Government and

for the Indians themselves. Appellee cites us to no

cases holding that this legislation may be ignored sim-

ply because tribal self-government has not been

infringed.

Similarly, in the present case, we do not believe that the

enabling act, the Montana constitution, P.L. 280, and its

1968 amendment can be overlooked simply because tribal

self-government has not been infringed. Unlike Williams,

but like McClanahan, the present case is not one that pre-

C-11

sents as a central issue, a choice between tribal and state

jurisdiction; therefore, the Williams test has no application

whatsoever to the present situation.

Kake Village v. Egan, 369 U.S. 60, 75, 82 S.Ct. 562, 570,

7 L.Ed.2d 573 (1962), held that a disclaimer state could

regulate the fishing of off-reservation Indians by enforcing

against non-reservation Indians a state statute forbidding

the use of salmon traps. Referring to Kake, White Moun-

tain Apache Tribe v. Arizona, 649 F.2d 1274, 1280 (9th Cir.

1981), which held that a disclaimer state is not precluded

from imposing fishing and hunting license fees on non-

Indians on a reservation, noted that the enabling acts do

not force states to disclaim governmental or regulatory au-

thority over Indian lands. We believe that Jicarilla, supra,

went too far by relying on the distinction between proprie-

tary and governmental functions drawn in Kake and White

Mountain Apache Tribe. All that the latter two cases rec-

ognize is that a state may have a strong governmental

interest that empowers it to regulate certain limited con-

duct concerning non-reservation Indians or non-Indians on

reservations. Neither Kake nor White Mountain Apache

Tribe permits a state court to decide how much water reser-

vation Indians may take for use on their reservations.

The present case is not about fishing traps or licenses.

More is at stake here than the mere power of a state legisla-

ture to regulate the use of fishing traps, where the power to

regulate may have a secondary effect on Indian fishing

rights; instead, the right of Indians to the water itself is at

issue. The power of a court in a disclaimer state to enforce

a regulatory statute that may adversely affect Indians falls

far short of the power to adjudicate a direct challenge to

Indian water rights in and to the waters of streams. A dis-

claimer state cannot assert jurisdiction over such matters

until Indian sovereign immunity has been waived and the

state has repealed its disclaimer. Unless the state effec-

tively repeals its disclaimer, it cannot hear this matter.

C-12

Ill. THE AKIN FACTORS.

Even if we were to find that Montana had validly re-

pealed the disclaimer language in its constitution, we would

nonetheless be compelled to reverse the decision below. The

limited factual circumstances of Akin prevent its applica-

tion to the Montana litigation. Noting the virtually

unflagging obligation of the federal courts to retain jurisdic-

tion, the Akin Court held that principles of “wise judicial

administration,” Akin, supra, at 817, 96 S.Ct. at 1246, re-

quired dismissal given the “exceptional circumstances” of

that case. Jd. at 818, 96 S.Ct. at 1246. In the instant case,

no exceptional circumstances mandate dismissal in the ex-

ercise of wise judicial adminsitration.

The “exceptional circumstances” requiring dismissal in

Akin included the following: Colorado had an extensive

ongoing water plan in which the United States had partici-

pated. Colorado is not a disclaimer state. The federal

government sued in federal court on behalf of several In-

dian tribes under 28 U.S.C. § 1345. During the pleading

stage the federal court dismissed in favor of the ongoing

state proceedings. The suit by the United States in federal

court involved one small division of the state plan while the

state proceeding was comprehensive. The Indians involved

did not receive water rights by treaty. Nor did the Court

find that the United States faced a conflict of interest in

representing its various interests.

The Court noted in its decision (a) the apparent absence

of any proceedings in the district court other than the filing

of the complaint, (b) the extensive involvement of the state

and state water rights, (c) the inconvenience of the federal

forum’s 300-mile distance from the location of the dispute

and (d) the existing participation by the Government in the

state proceeding. Jd. at 820, 96 S.Ct. at 1247. Further, it

noted that the federal forum must defer to the state where

both have concurrent jurisdiction and the state action pre-

ceded the federal.

C-13

In limiting its holding, the Court stated: “[W]e do not

overlook the heavy obligation to exercise jurisdiction. We

need not decide ... whether, despite the McCarran Amend-

ment, dismissal would be warranted if more extensive

proceedings had occurred, ... if the involvement of state

water rights were less extensive .. ., or if the state proceed-

ings were in some respect inadequate to resolve the federal

claims. ...,” id. at 820, 96 S.Ct. at 1247, or if the suit were

“brought by a private party,” id. at n.26. The Montana liti-

gation is sufficiently different from that in Akin to require

the district court to accept its “virtually unflagging obliga-

tion” to entertain jurisdiction.

Before considering the factors discussed in Akin, we note

that under the heading “wise judicial administration,” the

district court included limited federal resources as a reason

for leaving adjudication to the state courts. Northern Chey-

enne Tribe, supra, at 36. It is a well established point,

however, that conservation of federal judicial resources is

not a proper reason for dismissing a case from the federal

courts. An action properly filed in district court is not to be

dismissed or referred to state court simply because the dis-

trict court considers itself too busy to try the action.

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,

344, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1975). Shortages of

judicial manpower are indeed unfortunate where they oc-

cur; however, it is not wise judicial administration for a

federal court to shirk its responsibility to hear federal ques-

tions just because the court may net be able to dispatch the

case as quickly as it may want to.

A. Stage of the Proceedings.

Akin involved a completed proceeding which had been in

the adjudication process for years. Furthermore, the federal

action in Akin involved only one section of the state; the

United States was already a party in state proceedings in

C-14

other water divisions. Finally, Akin did not involve allega-

tions that the United States would be subject to conflicts of

interests in representing its varied interests along with

tribal interests.

In contrast, the Montana state court litigation has not

passed the notice stage. The comprehensive plan envisioned

by Montana was not enacted until four years after the first

federal suit was filed. Claims to all water rights under the

plan will not be complete until 1982. In addition, though

the federal litigation is no further along than the state liti-

gation, the district courts stayed proceedings, apparently

awaiting the state legislation.

B. Comprehensiveness.

Akin involved a truly comprehensive proceeding in state

court with a concurrent piecemeal proceeding in federal

court. Montana claims that a federal proceeding in the

Montana case will be piecemeal because the federal courts

have been unable to obtain jurisdiction over all defendants

due to the in personam nature of the case. Further, Mon-

tana points out that the federal proceeding excludes the

Missouri River and other important water bodies within the

state. The federal action is limited to claims in which the

United States owns a reserved water right. As to the actions

that took place, the state claims that federal notice to af-

fected parties was inadequate.

The Tribes counter that the state proceeding will be

piecemeal because Indian allottees may not be joined. They

also claim that the state proceeding is inadequate as it ad-

judicates only claims accruing after 1973 and excludes

claims for livestock purposes. The state asserts that the

exempted water rights involve a minimal amount of water.

The district court does not explain the basis for its conclu-

sion on the issue of comprehensiveness; nor did it make

findings regarding the Tribes’ claims.

C-15

The Tribes argue that even if all parties could be joined

in the state proceeding, the federal court could adopt state

joinder procedures and appoint special masters ‘o imple-

ment the federal proceeding. They correctly stress that

Akin only required dismissal here the federal proceeding

would be piecemeal and the state proceeding is comprehen-

sive. Where that is not the case and jurisdiction is

concurrent, the federal court may not abdicate its judicial

obligations.

C. The Race to the Court.

In Akin, state proceedings were ongoing when the federal

action was filed. In Montana, the federal proceeding was

the predecessor. This factor is not determinative, however,

as both proceedings are in their infancy.

D. Forum Non Conveniens.

Akin relied on factors suggestive of a forum non conven-

iens analysis. Distance was a major consideration as the

federal proceeding was 300 miles from the water district in

question. The court relied on difficulty to the parties in

travelling to the location. That factor is not present in this

case to encourage dismissal.

E. Conflicts of Interest.

In any state litigation, the United States must represent

the water rights of all tribes as well as those of the Bureau

of Land Management, the U. S. Forest Service, and other

federal entities. The United States and the Tribes argue

that conflicts among these interests would prevent the

United States from representing them adequately. When

the United States is faced with such a conflict, its represen-

tation of Indians is inadequate. Manygoats v. Kleppe, 558

F.2d 556, 558 (9th Cir. 1972). Hence, the United States and

the Tribes claim the Indians would be necessary parties

over whom the state court has no jurisdiction.

C-16

The Tribes further argue that the result in Akin was lim-

ited to a situation in which the United States could

effectively represent all of its diverse rights because of the

limited scope of the proceeding. In contrast, the Montana

litigation involves all water rights in the state. The Mc-

Carran Amendment is complied with only when the

inclusion of the United States as a necessary party will pro-

vide complete adjudication of all issues. Akin, supra, at

819, 96 S.Ct. at 1247.

The state, relying on Jicarilla, argues that the Indians’

right to intervene in court proceedings sufficiently protects

their interests. However, we are reluctant to follow Jicarilla

on this point for two reasons. First, it is unclear that the

tribes have a right to intervene; if the state has disclaimed

personal jurisdiction over the Indians, then they may not

have that right. Whether the state disclaimer provisions

reach so far is a question of state law that we need not and

jo not reach. Second, apart from any possible state dis-

claimer of personal jurisdiction, Indian tribes have long

been recognized as possessing the :ommon law immunity

from suit traditionally enjoyed by sovereign powers, with-

out express waiver of sovereign immunity, an Indian tribe

cannot be sued. Santa Clara Pueblo v. Martinez, 436 U.S.

49, 58-59, 98 S.Ct. 1670, 1676-1677, 56 L.Ed.2d 106 (1979).

In the present case, the Indian tribe appears to be a neces-

sary party to the state court proceeding, yet neither

Congress nor the Tribe has consented to such a suit in state

court. Under these circumstances, where the sovereign

immunity of the Tribe has not been waived, and there is a

conflict of interest between the Tribe and the United

States, the Tribe could only protect its rights by interven-

ing, at the expense of its basic right to sovereign immunity.

We will not put the Tribe to this Hobson’s choice.

Thus, the instant case is unlike the Akin case, in which

the Tribe was not a necessary party and the United States,

as trustee to the Indians’ water rights, could apparently act

as trustee without conflict of interest. Our examination of

C-17

this conflicts factor leads us to conclude that it would not

be wise or appropriate for the federal court to give up its

traditional jurisdiction and defer to the state court in this

case.

F. Jurisdiction under 28 U.S.C. § 1362.

The Montana litigation involves petitions by Indian

tribes pursuant to 28 U.S.C. § 1362. That section, enacted

in 1966, authorizes suits by tribes in federal courts without

the $10,000 amount in controversy requirement.

In Akin, the Supreme Court dismissed a suit brought by

the f-deral government pursuant to 28 U.S.C. § 1345, au-

thorizing the United States to sue in federal court. The

Court declined to decide whether dismissal would have

been appropriate had suit been brought by a private party.

424 U.S. at 820, n.26, 96 S.Ct. at 1247, n.26.

If this court were to further extend Akin in the Montana

case to a suit brought by an Indian tribe, the result cculd

prevent Indians from fully litigating their rights to water in

federal court. Each time a tribe sued in federal court, the

state need only join the United States as a party to obtain

dismissal of the federal action. It is contrary to all reason to

permit the states to frustrate federal jurisdiction merely by

joining the United States as a party.

IV. CONCLUSION.

The Supreme Court has expressly and repeatedly noted

the obligation of federal courts to retain jurisdiction in all

but the most exceptional of circumstances.

The circumstances of the Montana litigation are suffi-

ciently distinct from the factors warranting exceptional

treatment in Akin. The conflicts of interest present, the

embryonic stage of state and federal proceedings, and the

procedural status of the Montana case favor retention of

federal jurisdiction. Accordingly, we reverse.

C-18

V. THE CROW TRIBE APPEAL.

The Crow Tribe moved to intervene in the district court.

The district court refused to rule on the motion, instead

dismissing the action with the rest. To the extent that the

court’s action was a de facto denial of the motion, the tribe

should be permitted to intervene in the interest of avoiding

piecemeal litigation.

The judgment of the district court is REVERSED.

MERRILL, Circuit Judge, dissenting:

I dissent from the Court’s holding that the disclaimer

clauses in the Montana Statehood Act and in the State

Constitution deprive the state courts of jurisdiction to es-

tablish and adjudicate reserved water rights of the United

States held by it in trust for the Indians. On this issue I

agree with Jicarilla Apache Tribe v. United States, 601

F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S.Ct.

530, 62 L.Ed.2d 426 (1979).

The disclaimer clauses disclaim all right and title to In-

dian lands. But no one here lays any claim to Indian lands

or water rights. The Statehood Act disclaimer provides that

Indian lands “shall be and remain subject to the disposition

of the United States, and * * * shall remain under the ab-

solute jurisdiction and control of the Congress of the

United States.” 25 Stat. 676 (1889). But no one here dis-

putes that Congress has always had jurisdiction and control

over land owned by the United States and held by it in

trust for Indians and that such lands always remained sub-

ject to disposition by Congress. Indeed, in enacting the

McCarran Amendment, 43 U.S.C. § 666, Congress Exercised

its plenary control over {ndian lands to authorize the states

to adjudicate, as part of general stream adjudications, the

federal reserved water rights of Indians. See Colorado River

Water Conservation District v. United States, 424 US.

800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (“Akin”). The

sole question then, as I see it, is whether the language “ab-

solute jurisdiction and control of the Congress” is to ve

construed to mean exclusive jurisdiction of the federal

C-19

courts in all suits involving Indian lands or property rights.

In holding that that is not the meaning to be attributed to

the language, Jicarilla followed Organized Village of Kake

v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962),

where the Supreme Court held to that effect.

In that case, under the Alaska Statehood Act, the United

States retained “absolute jurisdiction and control” over

Indian property. The property in question was Indian fish-

ing rights and the issue was the right of Alaska to regulate

the Indian use of salmon traps. Speaking for the Court,

Justice Frankfurter concluded from the Court’s decisions in

Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3

L.Ed.2d 251 (1946), and Draper v. United States, 164 U.S.

240, 17 S.Ct. 107, 41 L.Ed. 419 (1896), that “ ‘absolute’ fed-

eral jurisdiction is not invariably exclusive jurisdiction.”

369 U.S. at 68, 82 S.Ct. at 567. “[A]n examination of past

... decisions makes clear,” he wrote, “that the words ‘abso-

lute jurisdiction and control’ are not intended to oust the

State completely from regulation of Indian ‘property

(including fishing rights).’” Jd. at 71, 82 S.Ct. at 568. He

concluded, “These decisions indicate that even on reserva-

tions state laws may be applied to Indians unless such

application would interfere with reservation self-

government or impair a right granted or reserved by federal

law.” Id. at 75, 82 S.Ct. at 570.

To the same effect is this Court’s recent decision in

White Mountain Apache Tribe v. Arizona, 649 F.2d 1274

(9th Cir. 1981). We there cited the Organized Village of

Kake and Jicarilla decisions for the proposition that the

“Enabling Acts themselves forced states to disclaim only

their proprietary interest in Indian land, not the states’

governmental or regulatory authority over that land.” 649

F.2d at 1280.

C-20

If the disclaimers are no bar to state regulation of Indian

property rights where those rights confront legitimate state

interests, the McCarran Amendment, as discussed in Akin,

makes it clear that state courts are vested with jurisdiction

in the adjudication of Indian water rights.

McClanahan v. Arizona State Tax Commission, 411 U.S.

164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), is not to the con-

trary. There, in holding that Arizona was without

jurisdiction to impose on reservation Indians a tax on in-

come derived from reservation sources, the Supreme Court

described the tribal interest at issue as “totally within the

sphere which the relevant treaty and statute leave for the

Federal Government and for the Indians themselves.” /d. at

179-180, 93 S.Ct. at 1266. Here, in stark contrast, the Mc-

Carran Amendment actually authorizes the states to

adjudicate as part of comprehensive stream adjudications

the federal reserved water rights of Indians. “The consent

to jurisdiction given by the McCarran Amendment be-

speaks a policy that recognizes the availability of compre-

hensive state systems for adjudication of water rights... .”

Akin, supra, 424 U.S. at 819, 96 S.Ct. at 1247.

Further I dissent from the Court’s holding that wise judi-

cial administration, as that term is used in Akin, does not

call for dismissal of the federal suits. The district court

dealt at length with the special circumstances presented by

this case, taking note of Montana’s detailed water use legis-

lation. See 484 F.Supp. at 35—36. Pursuant to that

legislation, the Montana Supreme Court has filed an order

requiring all persons claiming a water right within the state

to file a statement of that claim with the State Department

of Natural Resources and Conservation. These claims will

be referred to water judges appointed in each of the state’s

four water divisions who shall enter a preliminary, and after

an opportunity for hearing, a final comprehensive water

decree.

C-21

The district court concluded:

It is clear that the adjudication contemplated by the

Bill is both comprehensive and efficient. As the gen-

eral adjudication has been initiated by recent order of

the Montana Supreme Court, it would seem that the

greater wisdom lies in following Colorado River, and,

on the basis of wise judicial administration, deferring

to the comprehensive state proceedings. The federal

proceedings are all in their infancy; service of process

has been but recently completed. The state adjudica-

tion is thorough, as opposed to the piecemeal

proceedings initiated by the Government. There is no

jurisdictional question preliminarily attending the

state adjudication; all such questions have been elimi-

nated by the McCarran Amendment. The state forum

will likely be more convenient, geographically, than the

federal forum. The amount of time contemplated for

completion of the state adjudication is significantly

less than would be necessary for federal adjudication,

insofar as the state has provided a special court system

solely devoted to water rights adjudication. The fed-

eral judicial resources in Montana are limited;

continued exercise of federal jurisdiction over the

pending adjudications would either exhaust or severely

deplete those resources for a substantial number of

years, just by virtue of the number of parties involved.

(In these cases, there are approximately 9,000 defen-

dants.) The possibility of conflicting adjudications by

the concurrent forums also looms large and could be

partially avoided only by staying the pending state

adjudication, an action Colorado River has intimated is

distinctly repugnant to a clear state policy and pur-

pose.

484 F.Supp. at 36. Accordingly, “on the basis of wise judi-

cial administration, giving regard to conservation of judicial

resources and comprehensive dispostition of litigation,” the

court ordered the cases dismissed. /d.

C-22

I agree with the district court. Water adjudication is es-

sentially a local concern, and in every western state water

scarcity poses a problem not just to Indians but to every-

one. In my view, it is highly important that each state be

accorded room for an effort to solve its water scarcity prob-

lem in the manner it regards as most appropriate. Here so

long as Montana gives recognition to Indian water rights

and their establishment pursuant to federal law, I see no

good reason why Indians should not be joined with all other

water users in the state in order to achieve a comprehensive

state adjudication.

I would affirm.

D-1

APPENDIX D

Filed APRIL 17, 1980

NAVAJO NATION, aka The Navajo

Tribe of Indians,

Plaintiff,

vs.

THE UNITED STATES OF AMERICA;

The State of Arizona, et al

Defendant.

}No. CIV 79-276

PCT. VAC

This matter having been under advisement, IT IS OR-

DERED denying defendant State of Arizona’s Motion to

Dismiss; and

IT IS FURTHER ORDERED staying these proceedings

pending the trial and determination by the State Court of

Arizona of the rights of claimants, over which it has juris-

diction, to the water of the Little Colorado Watershed.

/s/ Vavpemar A. Corpova

Unirep States District JUDGE

APPENDIX E

FILED

JAN. 18, 1980

W. J. FURSTENAU, CLERK

UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF

ARIZONA

DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN THE MATTER OF THE DETERMINA-

TION OF CONFLICTING RIGHTS TO THE |

USE OF WATER FROM THE SALT RIVER

ABOVE GRANITE REEF DAM AND ITS

TRIBUTARIES INCLUDING TONTO

CREEK, EXCLUDING THE VERDE RIVER | CIV 79-182

AND ITS TRIBUTARIES.

SALT RIVER VALLEY WATER USERS’

ASSOCIATION, PETITIONER.

IN THE MATTER OF THE DETERMINA-

TION OF CONFLICTING RIGHTS TO THE |

USE OF WATER FROM THE SALT RIVER

ABOVE GRANITE REEF DAM AND ITS

TRIBUTARIES INCLUDING TONTO

CREEK, EXCLUDING THE VERDE RIVER

AND ITS TRIBUTARIES.

SALT RIVER VALLEY WATER USERS’

ASSOCIATION, PETITIONER.

PHX VAC

CIV 79-183

'PHX VAC

E-2

IN THE MATTER OF THE DETER-

MINATION OF CONFLICTING

RIGHTS TO THE USE OF WATER

FROM THE SALT RIVER ABOVE

GRANITE REEF DAM AND ITS

TRIBUTARIES INCLUDING TONTO

CREEK, EXCLUDING THE VERDE

RIVER AND ITS TRIBUTARIES.

SALT RIVER VALLEY WATER

USERS’ ASSOCIATION, PETI-

TIONER.

SALT RIVER PIMA-MARICOPA INDIAN

COMMUNITY,

Plaintiff,

THE STATE OF ARIZONA and JOHN M.

LITTLE, Acting Commissioner of the Arizona

State Land Department,

Defendants.

CIV 79-184

| PHX VAC

|CIV 79-185

PHX VAC

E-3

SAN CARLOS APACHE TRIBE OF ARIZO-

NA,

Plaintiff,

THE STATE OF ARIZONA, a body politic;

and

THE STATE LAND DEPARTMENT OF

THE STATE OF ARIZONA;

and

JOHN M. LITTLE, individually and as Act-

ing Commissioner of the State Land

Department of the State of Arizona;

and

SALT RIVER VALLEY WATER USERS’

ASSOCIATION, an Arizona corporation,

Defendants.

CIV 79-186

PHX VAC

E-4

PAYSON COMMUNITY OF

YAVAPAI-APACHE INDIANS,

Plaintiff,

THE STATE OF ARIZONA, a body politic;

and

THE STATE LAND DEPARTMENT OF

THE STATE OF ARIZONA;

and

JOHN M. LITTLE, individually and as Act-

ing Commissioner of the State Land

Department of the State of Arizona;

and

SALT RIVER VALLEY WATER USERS’

ASSOCIATION, an Arizona corporation,

Defendants.

CIV 79-187

PHX VAC

E-5

FORT McDOWELL MOHAVE-APACHE

INDIAN COMMUNITY, for and on behalf of

itself and its members,

Plaintiff,

SALT RIVER VALLEY WATER USERS’

ASSOCIATION; SALT RIVER PROJECT

AGRICULTURAL IMPROVEMENT AND

POWER DISTRICT; CITY OF PHOENIX;

CITY OF PRESCOTT; CITY OF JEROME;

PHELPS DODGE CORPORATION;

PHELPS DODGE INDUSTRIES, INC.; ARI-

ZONA WATER COMPANY; MILLER

BROTHERS FARMS, INC.; CAMP VERDE

WATER SYSTEMS; COTTONWOOD

WATER WORKS, INC.; COPPER BASIN

WATER CO.; V BAR V CATTLE CO., INC.;

HAROLD W. BULLARD; and THE STATE

OF ARIZONA, individually and as representa-

tive of a class composed of all others similarly

situated,

Defendants.

CIV 79-267

‘-PHX VAC

OPINION AND ORDER

The matters now before this Court are the defendants’

motions to dismiss (nos. CIV 79-185, 79-189, 79-187 and 79-

267) and the defendants’ motions to remand (nos. CIV 79-

182, 79-183 and 79-184). These actions, generally, request a

deciaration of rights to the water of several water systems

in the State of Arizona.

The central question presented by these cases is whether

this Court should remand these cases to the State court in

light of the McCarran Amendment, 66 Stat. 560, 43 U.S.C.

§ 666 and the decision of the Supreme Court in Colorado

E-6

River Water Conservation District v. United States, 424

U.S. 880 (1976) (hereinafter referred to as “Akin”). Also,

whether dismissal is warranted, where proper, in light of

considerations of “wise judicial administration, giving re-

gard to conservation of judicial resources and compre-

hensive disposition of litigation”. Kerotest Mfg. Co. v. C-O-

Two Five Equipment Co., 342 U.S. 180, 183 (1952) as

quoted by the Court in Akin, supra.

The McCarran Amendment, 66 Stat. 560, 43 U.S.C.

§ 666' provides that “consent is hereby given to join the

United States as a defendant in any suit (1) for the adjudi-

cation of water rights to the use of water of a river system

or other source, or (2) for the administration of such rights

where it appears that the United States is the owner of or is

' 43 U.S.C. Sec. 666 reads as follows:

“§ 666. SUITS FOR ADJUDICATION OF WATER RIGHTS —

JOINDER OF UNITED STATES AS DEFENDANT; COSTS.

(a) Consent is given to join the United States as a defendant in any

suit (1) for the adjudication of rights to the use of water of a river system

or other source, or (2) for the administration of such rights, where it

appears that the United States is the owner of or is in the process of

acquiring water rights by appropriation under State law, by purchase, by

exchange, or otherwise, and the United States is a necessary party to

such suit. The United States, when a party to any such suit shall (1) be

deemed to have waived any right to plead that the State laws are inap-

plicable or that the United States is not amenable thereto by reason of

its sovereignty, and (2) shall be subject to the judgments, orders, and

decrees of the court having jurisdiction, and may obtain review thereof,

in the same manner and to the same extent 2a a private individual under

like circumstances; PROVIDED that no judgment for costs shall be en-

tered against the United States in any such suit.

SERVICE OF SUMMONS

(b) Summons or other process in any such suit shall be served upon

the Attorney General or his designated representative.

JOINDER IN SUITS INVOLVING USE OF INTERSTATE

STREAMS BY STATE

joinder of the United States in any suit or controversy in the Supreme

Court of the United States involving the right of States to the use of the

water of any interstate stream. July 10, 1952, c. 651, Title Il, § 208(a) -

(c), 66 Stat. 560.

E-7

in the process of acquiring water rights by appropriation

under state law by purchase, by exchange, or otherwise, and

the United States is a necessary party to such suit.”

First, the Court notes that the McCarran Amendment in

no way diminishes federal district court jurisdiction under

Title 28, United States Code Sections 1331 and 1362, but

rather that “(t]he immediate effect of the Amendment is to

give consent to jurisdiction in the State courts concurrent

with jurisdiction in the Federal courts over controversies

involving federal rights to the use of water.” Akin, 424 US.

at 809.

This Court agrees with Akin that the McCarran Amend-

ment is to be construed as reaching federal water rights on

behalf of Indians and that mere subjection of Indian rights

to legal challenge in State court would not imperil those

rights. Akin, 424 U.S. at 812.

The various Indian Tribes in this case contend that con-

siderations of wise judicial administration and the factors

enumerated in Akin do not dictate that the present cases

be adjudicated in the State courts.

The Court in Akin, in concluding that “considerations of

wise judicial administration” required that the action be

dismissed stated the following:

“Turning to the present case, a number of factors

clearly counsel against concurrent federal proceedings.

The most important of these is the McCarran Amend-

ment itself. The clear federal policy evinced by that

legislation is the avoidance of piecemeal adjudication

of water rights in a river system. This policy is akin to

that underlying the rule requiring that jurisdiction be

yielded to the court first acquiring control of property,

for the concern in such instances is with avoiding the

generation of additional litigation through permitting

inconsistent disposition of property. This concern is

heightened with respect to water rights, the relation-

ships among which are highly interdependent. Indeed,

we have recognized that actions seeking the allocation

of water essentially involve the disposition of property

and are best conducted in unified proceedings. See

Pacific Livestock Co. v. Oregon Water Bd. (241 US.

440} at 449. The consent to jurisdiction given by the

McCarran Amendment bespeaks a policy that recog-

nizes the availability of comprehensive state systems

for adjudication of water rights as the means for

achieving these goals.” Jd at 819.

A.R.S. § 45-231 et seg., under which the State actions

have been brought set forth a comprehensive scheme for

the determination of conflicting water rights leading to a

State court decree adjudicating the respective water rights.

These State proceedings, as the Colorado water rights pro-

ceedings, reach “all claims, perhaps month by month, but

inclusively in the totality”. United States v. District Court

In and For Water Div. No. 5., 401 U.S. 527, 529 (1971),

quoted by the Court in Akin, 424 U.S. at 820.

Beyond the Congressional policy expressed by the Mc-

Carran Amendment, the Court noted that the “apparent

absence of proceedings in the District Court other than fil-

ing of the complaint, prior to the motion to dismiss” and

“the extensive involvement of State water rights occasioned

by this suit naming 1000 defendants” were significant fac-

tors consistent with the policy underlying the enactment of

the McCarran Amendment. Both these factors are present

in the cases now before this Court.

The tribes contend that the following footnote in Akin

precludes dismissal or remand to the State courts of these

actions:

“Whether similar considerations would permit dis-

missal of a water suit brought by a private party in

— district court is a question we need not now

ecide.”

It is true that Akin is distinguishable from the present

cases in that there the United States had filed the action in

the Federal District Court. However, this Court is of the

opinion that in the present case there is no practical dis-

E-9

tinction between an action filed by the Government and

one filed by these tribes where these same parties’ rights

will be fully adjudicated in the McCarran Amendment pro-

ceedings in the State courts. To hold otherwise would be to

undermine the policy against piecemeal adjudication under-

lying the McCarran Amendment by finding that a mere

substitution of the name of one party for the other would

change the result.

The tribes contend that Akin is further distinguishable

for the reason that Akin arose out of Colorado, and Colo-

rado does not have a “disclaimer clause” in its enabling act

and its State Constitution. The Arizona Constitution, how-

ever, contains such a clause, (Ariz. Const., Art. 20, Par. 4,

A.R.S.)* and the disclaimer language of the Arizona Con-

stitution is substantially duplicative of that in the Arizona

Enabling Act (36 Stat. 369).’

* Arizona Constitution, Article 20, Paragraph 4 reads:

“Fourts. Pusiic Lanps; INDIAN Lawps.

Fourth. The people inhabiting this State do agree and declare that

they forever disclaim all right and title to the unappropriated and un-

jurisdiction and control of the Congress of the United States.

* The Arizona Enabling Act (36 Stat. 569) reads in part:

Second. That the people inhabiting said proposed State do agree and

that they forever disclaim all right and title to the unappro-

public lands lying within the boundaries thereof

E-10

The tribes maintain that the language of these disclaimer

provisions prohibit state jurisdiction. This Court rejects

this contention and cites Jicarilla Apache Tribe v. United

States, 601 F.2d 1116, (10th Cir.), cert. denied 48 USLW

3383(Dec. 11, 1979) with approval. In Jicarilla, the Court

held that the New Mexico disclaimer provision did not

serve as a bar to New Mexico’s adjudication of the federal

water rights in the Gila National Forest.

The New Mexico disclaimer provision, like the Arizona

disclaimer provisions, applies to Indian lands and the “un-

appropriated and ungranted public lands being within the

boundaries thereof.” This Court agrees with the statement

in Jicarilla that “in view of the McCarran Amendment and

the strong policy behind it outlined in the Colorado River

opinion of the Supreme Court we feel that subject matter

jurisdiction should be recognized as allowable in the State

courts of general water rights adjudication proceedings,

there being implicit modification of the Enabling Act to

that extent, as necessary.” (601 F.2d at 1131). Nine states,

the majority of which are Western states, have disclaimer

clauses. In the Senate hearings on the Amendment, partici-

pants for the Department of Justice and the Department of

the Interior made clear that the proposal would include

water rights reserved on behalf of Indians. Akin, supra, at

811-812. Furthermore, the McCarran Amendment appears

to have been intended to be utilized primarily in the West-

ern states. See S.B. 755, 82.d Cong., Ist Sess. (1951), and

Hearings on S.18 before the Subcommittee of the Senate

Committee on the Judiciary in the United States Senate,

82nd Cong., Ist Sess. p. 7 (1951). To hold now that the Ari-

zona disclaimer clauses and similar clauses contained in the

enabling acts of six other Western states bar general water

rights adjudications in the State court would defeat the

Amendment’s objective.

E-11

The tribes further contend that the State adjudication

proceeding is not a McCarran Amendment proceeding be-

cause the Arizona water rights determination law

deliberately excludes non-Indian users of percolating

groundwater.

Certain types of groundwater are subject to the doctrine

of prior appropriation in Arizona, and the Arizona statutory

adjudication scheme recognizes these appropriable rights.

First, Sec. 45-101(A) of the Arizona Revised Statutes de-

fines appropriable water as:

“The waters of all sources, flowing in streams, canyons,

ravines or other material channels, or in definite un-

derground channels, whether perennial or

intermittent, flood, waste or surplus water, and of

lakes, ponds and springs on the surface, belong to the

public and are subject to appropriation and beneficial

use as provided in this chapter.” (emphasis added)

In addition to this section, the Arizona { apreme Court

has held two classes of subterranean waters to be public

waters and, therefore, subject to the doctrine of prior ap-

propriation:

(1) the subflow of surface streams or rivers; and

(2) underground streams flowing in defined under-

ground channels with definite banks.

Maricopa County Municipal Water Conservation District

No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369

(1931).

The class of subterranean water commonly referred to as

“percolating groundwater” is not public water and is not

appropriable under Arizona state law. The Arizona Su-

preme Court has defined percolating groundwater as:

E-12

“[(Fliltrating or percolating water oozing through the

soil beneath the surface in undefined and unknown

channels, and therefore a component part of the earth,

having no characteristic of ownership distinct from the

land itself. Howard v. Perrin, 8 Ariz. 347, 353, 76 P.

460, 462 (1904)., aff'd 200 U.S. 71 (1906).”

Percolating water under Arizona law is owned by the

owner of the land under which it lies. Bristor v. Cheatham,

75 Ariz. 227, 255 P.2d 173 (1953). Thus, there is no priority

date aspect to the right to the use of percolating groundwa-

ter. In short, percolating groundwater rights are not relative

rights; instead, each landowner is entitled to the reasonable

use of percolating groundwater underlying his land.

The federal water rights claimed by the tribes arose from

the judicial doctrine of federal reserved water rights first

enumerated in Winters v. United States, 207 U.S. 564, 28

S.Ct. 207 (1908). The essence of the federal reserved rights

doctrine, as the Supreme Court observed in Cappaert v.

United States, 426 U.S. 128, 96 S.Ct. 2062 (1976) is that:

“(W]hen the Federal Government withdraws its lands

from the public domain and reserves it for a federal

purpose, the Government, by implication, reserves

appurtenant water then unappropriated to the extent

needed to accomplish the purpose of the reservation.

In so doing the United States acquires a reserved right

in unappropriated water which vests on the date of the

reservation and is superior to the rights of future ap-

propriators.” Jd at 138, 96 S.Ct. at 2069.

The Supreme Court in Cappaert further stated that the

“United States can protect its water from subsequent diver-

sion, whether the diversion is of surface or groundwater”.

426 U.S. at 143, 96 S.Ct. at 2071.

E-13

Section 45-251(5), Arizona Revised Statutes, which effec-

tively sets forth the scope of the State proceedings, defines

the phrase “river system and source” as [A]ll water appro-

priable under [A.R.S.] Section 45-101 and all water subject

to claims based upon federal law.”

Thus, the State proceedings will determine federal re-

served water rights (including federal reserved rights to

percolating groundwater) and rights to water appropriable

under State law. The only water rights excluded from the

State proceeding are those rights to percolating groundwa-

ter arising solely under existing Arizona case law. (See

Bristor v. Cheatham, supra).

With the foregoing in mind, this Court now turns to the

issue of whether the State proceedings qualify as a Mc-

Carran Amendment proceeding.

The McCarran Amendment applies to the adjudication

and administration of “rights to the use of water of a river

system or other source”. The State proceedings encompass

all water appropriable under State and Federal Law.

Whether these causes remain in this Court for determina-

tion or are left for determination in the State courts, the

applicable law will be the same. Those rights which are

State created will be determined by State law and Federal

law will be applied to determine those rights which derive

from Federal law. It is difficult, therefore, to imagine how

the State proceedings could be considered as anything less

than a general adjudication of water rights.

We must keep in mind and this Court further notes that

water is a most valuabl. natural resource in the southwest-

ern part of the nation. The State and the people residing

within the State depend upon water for their very existence

and they have the most important interest in the determi-

nation of the State water rights. Congress in enacting the

McCarran Amendment appears to have recognized the in-

tense local concern in proceedings for the determination of

State water rights and acted in respect thereto by allowing

for a more effective and complete determination of water

E-14

rights in the State courts. This Court is compelled toward

the opinion that the intense local concern in actions of the

present type weigh heavily in favor of the exercise of fed-

eral judicial restraint and nonintervention.

In light of considerations of federal judicial restraint in

State matters and judicial administration, further giving

regard to the conservation of judicial resources and the

comprehensive disposition of litigation, this Court finds

that those actions originally brought in the State Land

Department of the State of Arizona and then removed to

this Court from the State courts be remanded to the State

courts for further proceedings. The Court further finds that

those actions originally filed in this Court requesting decla-

ratory and injunctive relief be dismissed without prejudice.

THEREFORE, IT IS ORDERED AS FOLLOWS:

Salt River Valley Water Users’ Association v. White

Mountain Apache Tribe (CIV 79-182); Salt River Valley

Water Users’ Association v. Gila River Indian Community

(CIV 79-183): Salt River Valley Water Users’ Association v.

Salt River Pima Maricopa Indian Community (CIV 79-184)

are hereby remanded to the State courts for all further pro-

ceedings.

Salt River Pima-Maricopa Indian Community v. The

State of Arizona (CIV 79-185); San Carlos Apache Tribe of

Indians v. State of Arizona (CIV 79-186); and Payson

Community of Yavapai-Apache Indians v. The State of Ari-

zona (CIV 79-187) are hereby dismissed without prejudice.

Fort McDowell Mohave-Apache Indian Community v.

Salt River Valley Water Users’ Association (CIV 79-267) is

hereby dismissed without prejudice. With regard to plain-

tiffs second cause of action, this Court is of the opinion

that no action for damages can be entertained until the

State has established the parties’ rights to the water of the

Verde River Watershed.

E-15

DONE IN OPEN COURT this 15th day of January,

1980.

/s/ Vatpemar A. Corpova

F-1

APPENDIX F

Calendar No. 711

82p CONGRESS SENATE REPORT

Ist Session No. 755

AUTHORIZING SUITS AGAINST

THE UNITED STATES TO

ADJUDICATE AND ADMINISTER WATER RIGHTS

SEPTEMBER 17 (legislative day, SEPTEMBER 13),

1951.— Ordered to be printed

Mr. McCarran, from the Committee on the Judiciary,

submitted the following

REPORT

[To accompany S. 18]

The Committee on the Judiciary, to which was referred

the bill (S. 18) to authorize suits against the United States

to adjudicate and administer water rights, having consid-

ered the same, reports favorably thereon, with amend-

ments, and recommends that the bill, as amended, do pass.

AMENDMENTS

1. On page 1, strike out all that follows the colon in line

10 down to and including line 1, on page 2, and insert in

lieu thereof the following:

F-2

risdiction, and may obtain review thereof, in the same

manner and to the same extent as a private individual

under like circumstances: Provided,

2. At the end of the bill add the following new section:

Sec. 2. The head of every department or agency of

the United States and of every corporation which is

PURPOSE

The purpose of the proposed legislation, as amended, is

to permit the joinder of the United States as a party defen-

dant in any suit for the adjudication of rights to the use of

water of a river system or other source or for the adminis-

tration of such rights where it appears that the United

States is the owner or is in the process of acquiring water

F-3

rights by appropriation under State !aw, by purchase, ex-

change, or otherwise and that the United States is a

necessary party to such suit.

STATEMENT

Hearings were held on S. 18, and the committee is of the

opinion that in order to understand the background of this

legislation a résumé of some of the history and decisions

relating to the law of water rights would be of help.

The committee has taken note of the reports of the De-

partment of Justice and the Department of the Interior

printed below which oppose the legislation, but has con-

cluded, after a consideration of all of the evidence available

to the committee, that the legis'ation is meritorious.

There are two established doctrines relating to the law of

water rights as it is applied in the United States today. The

first is the riparian doctrine, which was inherited from En-

gland, and the second is the prior appropriation doctrine,

which is founded in the customs and practices of the set-

tlers and is uniformly recognized in the law of most of the

western states.

The reason that there have been two doctrines lies in the

volume of water which is available to particular sections of

the country. The riparian doctrine generally has currency in

localities where water is plentiful, and the prior appropria-

tion doctrine is adhered to in those areas where water is at

a premium. Under the riparian doctrine, the owner of land

contiguous to a stream has certain rights in the flow of the

water by reason of his ownership of land. Under the doc-

trine of prior appropriation the first user of the water

acquires a priority right to continue the use, and the conti-

guity of land to the watercourse is not a factor. It can

readily be seen that the western states are the ones which

are susceptible to the doctrine of prior appropriation.

F-4

It will follow that the adjudication of water rights which

might involve the United States would in most instances be

confined to those states in which the doctrine of prior ap-

propriation is applicable.

The doctrine of prior appropriation had its inception in

the Western-States early in the settlement of the West,

being brought about by the arid and semi-arid character of

such States. The doctrine that “first in time is first in

right” to the beneficial use of the water in the streams of

such States first became the law of appropriation by custom

and was later sanctioned by constitutional and legislative

enactment in 11 of the Western States. Under the law sanc-

tioning the doctrine of “first in time is first in right,” vast

quantities of land in these States, beginning back in the

territorial days, was brought under cultivation through the

courage and hard work of those who homesteaded or other-

wise secured farm and ranch lands and made

appropriations of water with which to make such lands

productive. Litigation with respect to the water rights de-

veloped early in the history of the right to the use of water

by appropriation. Down through the years the courts of the

respective States marked out the pathway whereby order

was instituted in lieu of chaos. Rights were established, and

all of this at the expense, trial, and labor of the pioneers of

the West, without material aid from our United States

Government until a much later time when irrigation proj-

ects were initiated by Congress through the Department of

the Interior and later the Bureau of Recl

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