# Petition — Arizona v. San Carlos Apache Tribe of Ariz. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0043%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 463 U.S. 545 ## Text 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. I. 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. ii 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. 12 12 12 14 19 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 iv 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 Vv 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 vi 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. 2 668 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 wi 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- £ FH 3. Fs 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 4 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. (c) Nothing in this section shall be construed as 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. 5 (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 6 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). 7 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. 8 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. 9 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. 10 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 11 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 12 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 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 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). 13 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 14 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. 15 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). 16 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). 17 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: 18 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 19 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- 20 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. 21 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). 22 II 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- 23 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). 24 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. 25 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. 27 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 en 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, v. 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, v. 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, Vv 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 a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0043%3A01. Public record. Not legal advice.