Brief for the United States — Arizona v. San Carlos Apache Tribe of Ariz.

Nos. 81-2147 and 81-2188

In the Supreme Court of the Mite

OCTOBER TERM, 1982

STATE OF ARIZONA, ET AL., PETITIONERS

v.

San CARLOS APACHE TRIBE OF ARIZONA, ET AL.

STATE OF MONTANA, ET AL., PETITIONERS

v.

NORTHERN CHEYENNE TRIBE OF THE

NORTHERN CHEYENNE INDIAN RESERVATION, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

Rex E. Lee

Solicitor General

CaRoL E. DINKINS

Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

EpwIn S. KNEEDLER

Assistant to the Solicitor General

Dirk D. SNEL

Tuomas H. PACHECO

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the disclaimers of State jurisdiction over

Indian lands contained in the Enabling Acts for Arizona

and Montana and in their Constitutions disable the courts

of those States from adjudicating Indian reserved water

rights.

2. Whether, assuming both the State and federal courts

enjoy concurrent jurisdiction in the premises, a federal

court whose jurisdiction is timely invoked by the United

States or the affected Tribe for the sole purpose of quan-

tifying Indian Reservation water rights should dismiss

such an action in order to permit the State court to de-

termine those rights in a general stream adjudication.

(1)

TABLE OF CONTENTS

Page

rr = 1

r ˙ eee e ee eee eNO 2

Statutes and state constitutional provisions involved 2

r are 2

r . - 3

1. San Carlos Apache Tribe v. Arizona ........... 3

2. Navajo Nation v. United States - q

TT 5

Discussion r 7

A. The Diselaimer Ia jꝶů h 9

B. Considerations of Wise Judicial Administra-

. AAA A eee eee ne oa 16

ccc 25

TABLE OF AUTHORITIES

Cases:

Arizona v. California, 373 U.S. 54e 18

Bryan v. Itasca County, 426 U.S. 3738383 19, 20

Colorado River Water Conservation District v.

United States, 424 U.S. 0ͥ% „„ passim

Donnelly v. United States, 228 U.S. 243 10, 14

Draper v. United States, 164 U.S. 2410 10

Dugan v. Rank, 372 U.S. 600õõ00 6

Fisher v. District Court, 424 U.S. 3822 10, 21

Heckman v. United States, 224 U.S. 41 21

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

1116, cert. denied, 444 U.S. 99 7,9

Kake Village v. Egan, 369 U.S. 0 10, 12

Kansas Indians, The, 72 U.S. (5 Wall.) 7377 14, 19

Kennerly v. District Court of Montana, 400 U.S.

Mescalero Apache Tribe v. Jones, 411 US. 145 3 10

(m1)

IV

Cases—Continued Page

McClanahan v. Arizona State Tax Commission,

r q 10, 11, 19, 21

Minnesota v. United States, 305 U.S. 32 11,21

Moe v. Salish & Kootenai Tribes, 425 U.S. 463........ 21. 22

Morton v. Mancari, 417 U.S. 53333 11

Oneida Indian Nation v. County of Oneida, 414

CCC 20

Ramah Navajo School Board v. Bureau of Reve-

nue, No. 80-2162 (July 2, 1982) 19, 20

Rice v. Olson, 324 U.S. 786 .......................... 3 19

United States v. Chavez, 290 U.S. 3877 10

United States v. Clarke, 445 U.S. 258 21

United States v. District Court for Eagle County,

rc 15

United States v. Forty-Three Gallons of Whiskey,

4 BS) SE 14

United States v. Kagama, 118 U.S. 375 14, 19

United States v. McBratney, 104 U.S. 621 .............. 14

United States v. Rickert, 188 U.S. 43232 21

United States v. Sandoval, 231 U.S. .................... 10

United States v. Sutton, 215 U.S. 211 10

Warren Trading Post v. Arizona State Tax Com-

RG 10

Washington v. Yakima Indian Nation, 439 US.

6) taille inertia tienana te ianemtiain etna 10, 11

Williams v. Lee, 358 U.S. 21711 19, 21

Williams v. United States, 327 U.S. 711 10

Wilson v. Omaha Indian Tribe, 442 U.S. 668 20

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 ............ 19

Constitution, treaties, statutes and regulations:

Arizona Con t., Art. XA, 10d 2,3

I GS 12

Montana Const. of 1889, Ordinance No.! 2

Montana Const. of 1972, Art. I 2

Wyoming Const., art. 21, 2e 12

Treaty with the Apaches of July 1, 1852, Art. 1,

r AE LAT See Ie EER TE NA 20

Treaty with the Cheyenne and Arapahoe of Oct.

28, 1867, Art. VI, 15 Stat. 599398939888 . 20

Vv

Constitution, treaties, statutes and

regulations—Continued Page

Treaty with the Navajos of Sept. 9, 1849, Art. I,

9 Stat. 974 .. 19

Treaiy with the Northern Cheyenne and Northern

Arapahoe of May 10, 1868, Art. III, 15 Stat.

.. ˙¹bꝛͤ UGéñʃ—.—l . ee 20

Treaty with the Shawnees of 1831, 7 Stat. 357 13

Act of July 10, 1952 (McCarran Amendment), ch.

651, 66 Stat. 560, 43 U.S.C. 666........ 2, 6, 7, 8, 11, 12, 15,

16, 17, 22

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 ef seq.

F xx... 8, 12, 14, 15

Section 6, 67 Stat. 5 ͥ s 11

Enabling Act of Feb. 22, 1889, ch. 180, 25 Stat.

11. ͤ—— a aerereeee 2,7, 12

Enabling Act of July 3, 1890, ch. 656, 26 Stat.

1 —˙1A 12

Enabling Act of July 10, 1890, ch. 664, 26 Stat.

7 ˙—— eee eee eee 12

Enabling Act of July 16, 1894, ch. 138, 28 Stat.

1 ̃ — ͤ K ˙ -V 12

Enabling Act of July 26, 1906. ch. 3335, 34 Stat.

1 ⁵ — taaetieen aati 12

Enabling Act of June 20, 1910, ch. 310, 36 Stat.

557 et seg. :

36 Stat. 5577 — n 3,9

eS! | ꝗ ,t aad 9

36 Stat. 569-570 ........... — deat aac iiatia 9

Enabling Act of July 7, 1958, Pub. L. No. 85-508,

72 Stat. 339, as amended by Pub. L. No. 86-70,

. 12

Indian Reorganization Act, 25 U.S.C. 461 et seq..... 21

Indian Self-Determination Act of 1975, 25 U.S.C.

r 20

Nonintercourse Act of 1790, ch. 33, 1 Stat. 137... 20

eee 21

25 U.S.C. 1822(b) ................. — 8, 12, 20

TLL ne 8, 11

28 U.S.C. (Supp. IV) 131: 11

28 U.S.C. 1345 11

vi

Constitution, treaties, statutes and

regulations—Continued Page

, . 8, 12, 20

, S =e K 21. 23

. 13

D , 13

—— — — 13

1 18

Ariz. Rev. Stat. Ann.

58 45-231 et seg. (198))) 3

88 45-251 et seg. (Cum. Supp. 19817) 3

1979 Mont. Laws ch. 697, § 1-339 6

Miscellaneous:

Finel Report of the National Water Commission

. . leech aiaaeaeataiatin 22

Goldberg, Public Law 280: The Limits of State

Jurisdiction over Reservation Indians, 22

U.C.L.A. L. Rev. 535 (1975) ..................... — 14

H.R. Rep. No. 2040, 89th Cong., 2d Sess. (1966) 22

S. Rep. No. 1507, 89th Cong., 2d Sess. 1966) 22

U.S. Dep't of Commerce, Federal and State Indian

r .. . 18

U.S. Dep’t of Commerce, Statistical Abstract of the

United States 1981 (102 ed. 198277 12, 13

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 81-2147

STATE OF ARIZONA, ET AL., PETITIONERS

U.

SAN CARLOS APACHE TRIBE OF ARIZONA, ET AL.

No. 81-2188

STATE OF MONTANA, ET AL., PETITIONERS

*.

NORTHERN CHEYENNE TRIBE OF THE

NORTHERN CHEYENNE INDIAN RESERVATION, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals in San Carlos

Apache Tribe v. Arizona (81-2147 Pet. App. A) is re-

ported at 668 F.2d 1093; that court’s opinion in Navajo

Nation v. United States (81-2147 Pet. App. B) is re-

ported at 668 F.2d 1100; and the opinion of the same

court in Northern Cheyenne Tribe v. Adsit (81-2188 Pet.

App. 26-52) is reported at 668 F.2d 1080. The opinion of

the district court in San Carlos Apache Tribe v. Arizona

(81-2147 Pet. App. E) is reported at 484 F. Supp. 778

(D. Ariz. 1980). The opinion of the district court in

(1)

2

Navajo Nation v. United States (81-2147 Pet. App. D)

is unreported. The opinion of the district court in

Northern Cheyenne Tribe v. Adsit (81-2188 Pet. App. 53-

61) is reported at 484 F. Supp. 31 (D. Mont. 1979).

JURISDICTION

The judgment of the court of appeals in San Carlos

Apache Tribe v. Arizona, was entered on February 23,

1982, and was entered in Navajo Nation v. United States

on February 24, 1982. The petition for a writ of cer-

tiorari in No. 81-2147, covering both cases, was filed on

May 12, 1982. The judgment of the court of appeals in

Northern Cheyenne Tribe v. Adsit was entered on Feb-

ruary 22, 1982. The petition for a writ of certiorari in

No. 81-2188 was filed on May 21, 1982. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATUTES AND STATE CONSTITUTIONAL

PROVISIONS INVOLVED

Section 20 of the Enabling Act for Arizona and New

Mexico of June 20, 1910, ch. 310, 36 Stat. 569, and

Article XX, Section 4, of the Arizona Constitt on are

reproduced in relevant part at 81-2147 Pet. 2-3. Section

4 of the Enabling Act for Montana (and other States)

of Feb. 22, 1889, ch. 180, 25 Stat. 676-677, and Ordinance

No. I of the Montana Constitution of 1889 and Article I

of the Montana Constitution of 1972 are reproduced in

relevant part at 81-2188 Pet. 3-4. The McCarran

Amendment, Act of July 10, 1952, ch. 651, 66 Stat 560,

43 U.S.C. 666, is reproduced at 81-2147 Pet. 3-4 and 81-

2188 Pet. 4-5.

STATEMENT

This memorandum addresses two petitions for certi-

orari: No. 81-2147, in which review is sought of two

judgments of the court of appeals covering a number

of Arizona cases; and No. 81-2188, seeking review of the

single judgment of the same court disposing of several

Montana cases.

A. The Arizona Cases

1. San Carlos Apache Tribe v. Arizona

On March 7, 1979, six Indian Tribes filed suit in the

United States District Court for the District of Arizona

seeking to prevent the adjudication of their rights to the

water of the Salt, Verde and Gila River systems in State

proceedings. Some of the actions sought removal to the

district eourt. The other suits prayed for (1) a declara-

tory judgment that Arizona State courts lack jurisdiction

to determine Indian water rights because of disclaimers of

State jurisdiction over Indian lands contained in the En-

abling Act of June 20, 1910, ch. 310, 36 Stat. 557, 569,

and the State Constitution, Ariz. Const. Art. XX, § 4, and

(2) an injunction against further State court proceed-

ings.“ A month later, the Fort McDowell Mohave-Apache

Indian Community and the San Carlos Apache Tribe filed

actions asking the federal court to determine their rights

in the Verde and Salt Rivers, respectively.“

The district court remanded the removed actions to

State court and dismissed the other suits, holding,

inter alia, that the disclaimer provisions did not preclude

State court jurisdiction over Indian water rights. The

The State proceedings were initiated pursuant to Arizona’s water

rights determination procedure. See Ariz. Rev. Stat. Ann. 88 45-231

et seq. (1956), Ariz. Rev. Stat. Ann. §§ 45-251 et seg. (Cum. Supp.

1981).

2 White Mountain Apache Tribe Petition for Removal, No. CIV 79-

182 PHX VAC; Gila River Indian Community Petition for Removal,

No. CIV 79-183 PHX VAC; Salt River Pima-Maricopa Indian Com-

munity Petition for Removal, No. CIV 79-184 PHX VAC.

3 Salt River Pima-Maricopa Indian Community v. Arizona, No.

CIV 79-185 PHX VAC; San Carlos Apache Tribe v. Arizona, No.

CIV 79-186 PHX VAC (removal sought in the alternative); Payson

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

PCT VAC (removal sought in the alternative).

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

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

plaint filed Apr. 13, 1979) ; San Carlos Apache Tribe v. Arizona, No.

CIV 79-269 PHX CAM (complaint filed Apr. 16, 1979).

1

Tribes appealed from this deeision, except for the re-

mand of the removed actions. The appeals were consoli-

dated in the court of appeals and were argued on July

15, 1981.

The same panel of judges which heard argument in the

Arizona appeals (both San Carlos Apache Tribe v. Ari-

zona and Navajo Nation v. United States) also heard

argument on the same day in consolidated appeals from

Montana, Northern Cheyenne Tribe v. Adsit, involving

similar issues and now the subject of the petition for a

writ of certiorari in Montana v. Northern Cheyenne

Tribe, No. 81-2188.

On February 23, 1982, the court of appeals rendered

its decision in San Carlos Apache Tribe v. Arizona, re-

versing and remanding the decision of the district court.

The Ninth Cirevit held (81-2147 Pet. App. A-8 to A-9,

A-11) that the disclaimer provisions in Arizona’s En-

abling Act and Constitution barred the State from assert-

ing jurisdiction over Indian water rights. In reaching

this result, the court adopted in full the reasoning on

this point of its decision the day before in Northern

Cheyenne Tribe v. Adsit (id. at C-3 to C-11). The court

stated (id. at A-9) that, [als in the Northern Cheyenne

case, we find it necessary to remand for a determination

of whether Arizona has obtained jurisdiction over the

Indians pursuant to Public Law 280.” The court noted

(id. at A-10) that its holding on the disclaimer issue

made it unnecessary for the court to decide whether dis-

missal under the doctrine of “wise judicial administra-

tion” would have been proper if Arizona had not dis-

claimed jurisdiction over Indian lands.

2. Navajo Nation v. United States

On April 17, 1979, the Navajo Tribe filed a complaint

in the United States District Court for the District of

Arizona, which as subsequently amended, requested a

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

424 U.S. 800, 817-820 (1976) (“Akin”).

determination of the Navajo’s rights in the Little Colo-

rado River.“ The district court stayed all proceedings in

this action pending a State court general stream adjudica-

tion for the Little Colorado (81-2147 Pet. App. D-1). The

Navajo Nation appealed. The Ninth Circuit reversed

and remanded by decision of February 24, 1982 (id. at

B-1), stating (id. at B-4) that its holding in San Carlos

Apache Tribe v. Arizona that Arizona has disclaimed ju-

risdiction over Indian water rights compelled reversal of

the district court’s order. Because of this ruling on the

disclaimer question, the court did not find it necessary to

address other issues, including the United States’ claim

that sovereign immunity barred the Navajos from suing

the United States in this action (81-2147 Pet. App. B-4).’

The United States was not a party to the San Carlos

Apache Tribe group of cases, although it participated

in the district court proceedings as amicus curiae in

support of the Tribes. The United States did not ap-

pear in the court of appeals proceedings concerning that

group of cases. The United States was named as a de-

fendant in the Navajo Nation case and participated in

the court of appeals as appellee in that case.

B. The Montana Cases

On January 30, 1975, the Northern Cheyenne Tribe

brought an action“ in the United States District Court

for the District of Montana seeking an adjudication of

its rights in certain streams in that State. Shortly

thereafter, in the same year, the United States filed two

* Navajo Nation v. United States, No. 79-276 PCT VAC (com-

plaint filed Apr. 17, 1979).

Judge Merrill dissented in the San Carlos Apache Tribe and

Navajo Nation decisions (81-2147 Pet. App. A-11, B4), as he did

in Northern Cheyenne Tribe (id. at C-18).

8 Northern Cheyenne Tribe v. Tongue River Water Users Assn.,

et al., No. CIV-75-6-BLG.

suits“ in the same district court seeking a determina-

tion of water rights on behalf of several Indian Tribes

and on its own behalf. In 1979, the United States filed

four other actions in the same court also seeking a de-

termination of Indian and non-Indian federally-owned

rights in other Montana streams. All six of the actions

filed by the United States requested a determination of

the rights of all claimants on the named streams.“

Almost five years after the filing of the Northern

Cheyenne Tribe’s suit, the district court dismissed all of

the actions in favor of State adjudicatory proceedings,“

relying on the “wise judicial administration” doctrine

set out in Akin (see 81-2188 Pet. App. 60).

The United States and various Tribes appealed. As

we have noted, the same panel of the court of appeals

which heard argument on July 15, 1981, in the consoli-

dated Montana appeals also heard argument on the same

o United States v. Tongue River Water Users Assn., et al., No.

CV-75-20-BLG (filed Mar. 7, 1975) ; United States v. Big Horn Low

Line Canal, et al., No. CV-75-34-BLG (filed Apr. 17, 1975).

1% United States v. Aasheim, et al., No. CV-79-40-BLG; United

States v. Aageson, et al., No. CV-79-21-GF; United States v. AMS

Ranch, Inc., et al., No. CV-79-22-GF ; United States v. Abell, et al.,

No. CV-79-33-M (all filed on Apr. 5, 1979).

11 The action brought by the Northern Cheyenne Tribe was con-

solidated with United States v. Tongue River Water Users Assn.,

et al., supra.

12 See 1979 Mont. Laws ch. 697, $§ 1-38 (“Senate Bill 76“) (81-

2188 Pet. App. 102). Montana joined the United States as a de-

fendant in its water rights proceedings under the purported author-

ity of the McCarran Amendment, 43 U.S.C. 666, which provides thet

the United States may be sued in any general water rights adjudica-

tion, in federal or State court, where it is a necessary party. See

Dugan v. Rank, 372 U.S. 609, 618 (1963).

13 Besides the Northern Cheyenne Tribe, other Tribes participated

in the district court proceedings; these Tribes intervened as plain-

tiffs in the district court, or as appellants in the court of appeals,

or sought permission to so intervene.

7

day in San Carlos Apache Tribe v. Arizona and Navajo

Nation v. United States, supra.

On February 22, 1982, the court of appeals issued its

decision (81-2188 Pet. App. 26). The court determined

(id. at 31) that the McCarran Amendment, 43 U.S.C.

666, had not repealed the disclaimer of State jurisdiction

over Indian lands contained in Montana’s Enabling Act

and Constitution. Without finally deciding the point, the

court found no indication that Montana had otherwise

validly repealed the disclaimer (81-2188 Pet. App. 31-28).

The court ultimately held (id. at 38-39) that even if it

were determined that Montana had effectively assumed

concurrent jurisdiction, the district court’s ruling must

be vacated because the doctrine of “wise judicial adminis-

tration” relied on in Akin did not support dismissal.

Accordingly, the court of appeals reversed, concluding

that the governing factors “favor retention of federal ju-

risdiction” (id. at 45).

DISCUSSION

In our view, petitioners have made a strong showing

that the disclaimer issue decided by the court below merits

review here. The ruling is in direct conflict with the

holding of the Tenth Circuit in Jicarilla Apache Tribe v.

United States, 601 F.2d 1116, cert. denied, 444 USS.

995 (1979), and is arguably inconsistent with this

Court’s decision in Colorado River Water Conservation

District v. United States (“Akin”), 424 U.S. 800 (1976).

Since there are at least eleven States with similar dis-

claimers of jurisdiction over Indian property rights and

they embrace the bulk of Indian Reservation acreage (see

pages 12-13, infra), the question is plainly one of recur-

ring importance that ought to be resolved by this Court.

Accordingly, we urge the granting of the petition for

certiorari in No. 81-2147 so far as it challenges the two

14 Judge Merrill dissented (81-2188 Pet. App. 46, 48) on both the

disclaimer and “wise judicial administration” issues.

judgments of the court of appeals which explicitly rest

solely on a determination of that issue. See 81-2147 Pet.

App. A-10, B-4."

At the same time, we suggest the Court should clarify

its ruling in Akin that considerations of “wise judicial

administration” sometimes counsel a federal court to dis-

miss the action before it in favor of a general stream

adjudication pending in the State courts. See 424 U.S.

at 817-821. Experience has shown that the Court’s teach-

ing on this score has not been fully understood in all

quarters and that further guidance is appropriate. Al-

though the court below did not rest its decision in the

Arizona cases on that ground (81-2147 Pet. App. A-10),

the issue urgently calls for clarification and we submit

the Court properly may take the opportunity to establish

the guiding standard. Moreover, our submission on

this point would supply an alternative basis for affirm-

ance. We therefore join petitioners in No. 81-2147

in urging that the writ be granted as to both questions

presented.

We likewise urge the grant of certiorari in No. 81-

2188, the petition challenging the judgment of the same

ie We share petitioners’ view (81-2147 Pet. 11, 19, 20 and n.22)

that the court of appeals inappropriately remanded the cases

“for a determination of whether Arizona has obtained jurisdiction

over the Indians pursuant to Public Law 280.“ Id. at A-9. See, also,

id. at A-11, B-4. Like all other parties, we read Public Law 280

(Act. of Aug. 15, 1958, ch. 505, 67 Stat. 588 ef seg.) as ex-

pressly exempting Indian water rights from the optional assump-

tion of jurisdiction pursuant to that statute. 25 U.S.C. 1322(b);

28 U.S.C. 1360(b). See Akin, supra, 424 U.S. at 812-813 n.20. If

the Indian disclaimer provision of the Arizona Enabling Act is a

bar to the adjudication of water rights by the State courts and the

McCarran Amendment did not remove it, we do not appreciate how

Arizona legislation alone could override that federal law impedi-

rent. On the other hand, if the Enabling Act disclaimer is inap-

Able or was set aside by the Amendment, there is no basis for

requiring Arizona to enact special legislation to overcome the State

constitutional disclaimer. That condition, we believe, applies only to

State assumption of jurisdiction under Public Law 280, which is

not invoked here. See 25 U.S.C. 1324.

court in the Montana cases. Although this is not the ul-

timate basis for disposition, the opinion fully addresses

the “disclaimer” issue (81-2188 Pet. App. 28-38). At

all events, the outright reversal of the judgment of dis-

missal (id. at 45, 46) rests squarely on a holding that

considerations of “wise judicial administration” did not

justify dismissal of the federal actions (id. at 38-45) and

the decision accordingly presents a clear occasion for this

Court to determine whether the so-called “Akin factors”

were correctly applied and to clarify the governing

standard.

A. The Disclaimer Issue

1. Starting with the holding of Akin that the McCar-

ran Amendment generally grants State courts concurrent

jurisdiction to adjudicate Indian reserved water rights,

the question remains whether Akin should be extended

even to States which expressly disclaimed jurisdiction over

Indian property rights, including Arizona and Montana.

That was the issue resolved affirmatively by the Tenth

Circuit in Jicarilla Apache Tribe, supra, and in the nega-

tive by the Ninth Circuit in the decisions now pending be-

fore this Court.“

a. The court below was persuaded that unrepealed .

express disclaimers of jurisdiction over Indian property

in the Enabling Acts for the admission of Arizona and

Montana and in the Constitutions of these States critic-

ally distinguished the present cases from Akin, involving

Colorado where there is no comparable impediment. On

its face, the proposition is not without force.

Indeed, it has been the general understanding, shared

by this Court and the Congress, that the familiar dis-

claimer clauses of Enabling Acts generally insulate

1% To be sure, the Tenth Circuit was considering the issue in the

context of New Mexico, rather than Arizona and Montana. But, as

all parties recognize, the Enabling Act disclaimer clauses are in

all relevant respects identical. Indeed, Arizona and New Mexico

were admitted to the Union pursuant to the same Enabling Act. Sce

36 Stat. 557, 558-559, 569-570.

10

Indian Reservation affairs from the jurisdiction of State

authorities. See, e.g., United States v. Sutton, 215 U.S.

291, 295-296 (1909) (Washington); United States v.

Sandoval, 231 U.S. 28, 36-38, 40 (1913) (New Mexico) ;

United States v. Chavez, 290 U.S. 357, 360, 365 (1933)

(New Mexico) ; Williams v. United States, 327 U.S. 711,

714-715 n.10 (1946) (Arizona); Williams v. Lee, 358

U.S. 217, 222-223 & n.10 (1959) (Arizona); Warren

Trading Post v. Arizona State Tax Commission, 380 U.S.

685, 687 n.3 (1965) (Arizona); Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 149 (1973) (New Mexico); Me-

Clanahan v. Arizona State Tax Commission, 411 U.S. 164,

175, 178 (1973) (Arizona); Fisher v. District Court, 424

U.S. 382, 386 and n.8 (1976) (Montana Plainly, that

was the congressional view when enacting Public Law 280

in 1953, it being thought necessary to remove these En-

abling Act “impediments” before the courts of the so-

called “disclaimer States” could assume criminal or civil

jurisdiction within “Indian country.” See Washington v.

eel

* Draper v. United States, 164 U.S. 240 (1896), is not to the con-

trary. That decision merely recognizes that a disclaimer does not

wholly disable the State from asserting jurisdiction over non-/ndian

activity within a Reservation, such as the murder of one non-Indian

by another. See Donnelly v. United States, 228 U.S. 243, 271-272

(1913), and Williams v. United States, 327 U.S. 711, 714 (1946),

explaining the limited holding of Draper. Nor are these cases ruled

by the dictum of Kake Village v. Egan, 369 U.S. 60, 68 (1962), that

“ ‘absolute’ federal jurisdiction is not invariably exclusive jurisdic-

tion.” That was said in the context of State regulation of off-

Reservation Indian aboriginal fishing rights. See McClanahan v.

Arizona State Tax Commission, 411 U.S. 164, 171-172, 176 n.15

(1973). What is more, the special legislative history of the Alaska

Statehood Act (see Kake Village v. Egan, supra, 369 U.S. at 69-71)

is inapplicable to the disclaimer clauses written at the turn of the

century which intended that Indian Reservation property rights

“remain within the exclusive control and jurisdiction of the United

States.” See Washington v. Yakima Indian Nation, 439 U.S. 463,

488 n.31 (1979), quoting a House Report on the Enabling Act for

the admission of Washington, North Dakota, South Dakota and

Montana (emphasis added) .

11

Yakima Indian Nation, 439 U.S. 463, 470-474, 479-482,

490-493 (1979) ; Kennerly v. District Court of Montana,

400 U.S. 423, 427 (1971) ; McClanahan v. Arizona State

Tax Commission, supra, 411 U.S. at 177-178 & nn. 17

and 19, 180. Thus, it is a little late in the day to be sug-

gesting that both the Congress and this Court were mak-

ing much ado about nothing because the disclaimers were

not “jurisdictional.”

b. The question remains, however, whether the McCar-

ran Amendment repealed or waived the Enabling Act dis-

claimers. Applying the usual rules of construction, a

negative answer would seem indicated. In Akin itself,

the Court declined to find that the McCarran Amendment

had impliedly repealed Sections 1331 and 1345 of the

Judicial Code, 28 U.S.C. (& Supp. IV) 1331 and 1345,

so far as they conferred jurisdiction on the federal courts

in the premises. 424 U.S. at 807-809. The same reluc-

tance to assume repeal by implication argues for a like

result here. Especially so, one supposes, where vital

Indian rights are at stake. See Morton v. Mancari, 417

U.S. 535, 549-551 (1974). After all, on its face, the

McCarran Amendment is no more than a waiver of

sovereign immunity; it does not in terms confer any

new subject-matter jurisdiction upon State courts or re-

move any other impediment to the exercise of such juris-

diction over Indian property rights. Cf. Minnesota v.

United States, 305 U.S. 382 (1939).

What is more, it is difficult to reconcile an implied

necessary in Public Law 280 to enact a special provision

for “disclaimer” States, expressly waiving the federal

impediment and requiring the States to take positive steps

to remove State constitutional obstacles. Act of Aug. 15,

1953, ch. 505, Section 6, 67 Stat. 590; 25 U.S.C. 1324. Is it

not easy to explain the explicit reservation of federal ju-

risdiction over Indian water rights in Public Law 280

if that jurisdiction had already been ceded in large meas-

ure a year earlier. See 25 U.S.C. 1322(b); 28 U.S.C.

1360 (b). Had everyone in 1953 so soon forgotten that

the water had already gone over the dam? At least where

there were express disclaimers, that would seem to be

reading too much into the McCarran Amendment.

2. Thus, if we pursue the matter no further, the ruling

below would seem to be correct. But, at the end of the

day, there is intolerable tension between the rule of Akin

for non-disclaimer States and the present decision an-

nouncing a different rule for disclaimer States.

a. The fact is that, in the West, where most Indians

live and water is scarce, disclaimer provisions are the

norm, not the exception. Of the twelve States west of the

100th Meridian (including Alaska but not Hawaii), all

but four—California, Oregon, Nevada and Colorado—

are disclaimer States. So are three other States with

substantial Indian populations: North Dakota, South Da-

kota and Oklahoma.“ Almost half the Indians live in

disclaimer States. See U.S. Dep’t of Commerce, Statisti-

cal Abstract of the United States 1981, Table 36, at 32

(102 ed. 1982). And, perhaps most significant because

18In the order of their admission to the Union, the eleven dis-

claimer States are: North Dakota, South Dakota, Montana and

Washington (all covered by the Enabling Act of Feb. 22, 1889, ch.

180, 25 Stat. 677), Idaho (Enabling Act of July 3, 1890, ch. 656, 26

Stat. 215), Wyoming (Enabling Act of July 10, 1890, ch. 664, 26

Stat. 222), Utah (Enabling Act of July 16, 1894, ch. 138, 28 Stat.

108), Oklahoma (Enabling Act of June 26, 1906, ch. 3335, 34 Stat.

270), New Mexico (Enabling Act of June 20, 1910, ch. 310, 36 Stat.

558-559), Arizona (Enabling Act of June 20, 1910, ch. 310, 36 Stat.

569-570), and Alaska (Enabling Act of July 7, 1958, Pub. L. No.

85-508, 72 Stat. 339, as amended by Pub. L. No. 86-70, 73 Stat.

141). In the case of Idaho and Wyoming, the Indian disclaimers

are to be found only in their respective Constitutions (Idaho Const.,

Art. 21, §19; Wyoming Const., Art. 21, § 26), but, presumably,

those provisions, submitted to Congress for approval before admis-

sion, were effectively required as a condition of statehood. See

Kake Village v. Egan, supra, 369 U.S. at 68. For the special case

of Kansas, of little practical importance today, see note 19, infra.

13

Indian water rights are usually measured in accordance

with irrigable acreage rather than population, more than

nine-tenths of Indian land (excluding Alaska) —including

the 21 largest Indian Reservations—lie in disclaimer

States. See id., Table 389, at 228; U.S. Dep’t of Com-

merce, Federal and State Indian Reservations (1974).

The upshot is that confining the Akin ruling to the non-

disclaimer States is to relegate it to relative insignifi-

cance. To paraphrase the words of that decision (424

U.S. at 811), it is difficult to avoid the conclusion that

“a construction of the [unanimous Akin decision] ex-

cluding [Indian water rights in disclaimer States] from

its coverage would enervate the [decision’s] objective.”

b. There is, moreover, no apparent justification for

different treatment of disclaimer States and other States

with Indian Reservations. So far as we can discern, Con-

gress made no policy decision to retain exclusive federal ju-

risdiction of Indian property interests in some States, but

not in others. The historical fact is that, from 1889 on-

wards, every newly admitted State was required to dis-

claim jurisdiction over Indian Reservations.“ Apparently,

19 Although the first disclaimer clause in the familiar language

involved here is to be found in the 1889 Enabling Act for the ad-

mission of Washington, North Dakota, South Dakota and Montana,

there were precedents of some relevance. In several Acts of Con-

gress establishing territorial governments, Congress inserted a

proviso preserving “the rights of person or property now appertain-

ing to any Indians,” including treaty rights, and reserving “the

authority of the Government of the United States to make any

regulations respecting such Indians, their lands, property, or other

rights.” See 5 Stat. 11 (1836, Wisconsin Territory); 5 Stat. 235

(1838, Iowa Territory); 9 Stat. 323 (1848, Oregon Territory).

More significant, perhaps, is the Act of Admission for the State of

Kansas in 1861, which, in addition to preserving “the rights of

person or property now pertaining to the Indians,” wholly exempted

from State jurisdiction, as “no part of the State,” “any territory

which, by treaty with such Indian tribe, is not, without the consent

of said tribe, to be included within the territoria: limits or jurisdic-

tion of any State or Territory.” 12 Stat. 127. It is not clear,

however, whether the latter provision, referring to the Treaty with

the Shawnees of 1831 (7 Stat. 357), ever had any bite in light of

14

Congress was reacting to the then recent decision in United

States v. McBratney, 104 U.S. 621 (1882), wher the

Court, condoning the exercise of State authority within

an Indian Reservation, pointedly noted that jurisdiction

over Indian lands had not been excluded when the State

of Colorado was admitted and seemed to open the door

to general State jurisdiction. Id. at 623-624. See Gold-

berg, Public Law 280; The Limits of State Jurisdiction

over Reservation Indians, 22 U.C.L.A. L. Rev. 535, 570

(1975). In short, the disclaimer provisions appear to

be an express confirmation of the general rule, not the

fashioning of a new principle. And, indeed, the Court it-

self, both before and after the first disclaimer clauses

were written in 1889, made clear that absence of an ex-

press disclaimer did not oust federal jurisdiction or sub-

ject Indian land to State authority. See, e.g., United

States v. Forty-Three Gallons of Whiskey, 93 U.S. 188

(1876), 108 U.S. 491 (1883) (Minnesota) ; United States

v. LeBris, 121 U.S. 278 (1887) (Minnesota); United

States v. Kagama, 118 U.S. 375 (1886) (California) ;

Donnelly v. United States, 228 U.S. 243 (1913) (Cali-

fornia).

e. Accordingly, we believe it would be wrong to follow

a different procedural rule in the disclaimer States on

the ground that Congress meant to treat them with special

distrust in Indian matters. That would present at least

an arguable question under the Equal Footing Doctrine.”

a later treaty of 1854. When the Court came to decide the case of

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866), this disclaimer

was noted (id. at 739, 740-741), but the Court rested its result on

the more general recognition of Indian property in the Act of Ad-

mission and the protective jurisdiction of the United States. /d.

at 755-757.

20 The problem would be substantially alleviated if, as the court

below apparently believed, Public Law 280 authorized the disclaimer

States (at least from 1953 until tribal consent was required in

1968) to place themselves on an “equal footing” by removing the

disclaimer impediment. But, as we have noted (see note 15, supra),

all parties agree that Public Law 280 offers no such option with

respect to Indian water rights. On the other hand, it may not be

15

We are therefore confronted with two alternatives: (1)

to read the Enabling Act disclaimers as reflecting a gen-

eral Congressional policy to oust State jurisdiction over

Indian Reservation property interests, incluaing water

rights, and to conclude that this rule, as applicable to

Reservation water, was not effectively revoked by the Mc-

Carran Amendment or by Public Law 280; or (2) to

construe the McCarran Amendment as conferring on

State courts competence to adjudicate Indian water

rights in all States, and, to that extent, impliedly re-

moving the Enabling Act impediments.

It is too late in the day to suggest the first course.

Notwithstanding the obstacles just outlined, the most

obvious solution to our dilemma is to extend the rule of

Akin to disclaimer States.

Indeed, once it was determined that the McCarran

Amendment reached not only water rights acquired by

the United States under State law, but also “reserved”

feleral water rights (United States v. District Court

for Eagle County, 401 U.S. 520 (1971)), “the logie of

those cases” extends to reserved water rights held by the

United States on behalf of Indian Reservations wherever

located. See Akin, supra, 424 U.S. at 810. Assuming an

underlying policy of the McCarran Amendment to avoid

“piecemeal adjudication of water rights in a river sys-

tem,” especially in light of the “highly interdependent”

character of competing claims to the water of a single

stream system (id. at 819), it makes little practical sense

to exempt Indian water rights in disclaimer States,

where, as it happens, most such rights arise. At least

when the jurisdiction of a federal court is not contempo-

raneously invoked to quantify Indian Reservation rights,

the objective of the McCarran Amendment, as declared

by this Court, would be defeated if State courts were

powerless to perform the task. Thus, the momentum of

wrong to read Public Law 280’s treatment of Enabling Act dis-

claimer clauses as an indication that Congress wished to end any

special disability attributable to those provisions.

16

the Court’s past decisions carries the day against the

disclaimer ruling below.

B. Considerations of Wise Judicial Administration

1. Conceding the concurrent jurisdiction of the State

courts in all States does not, however, resolve the ques-

tion whether a federal court, whose jurisdiction is timely

invoked, ought to refuse to proceed. In Akin, while

stressing “the virtually unflagging obligation of the fed-

eral courts to exercise the jurisdiction given them” and

cautioning that only “exceptional” circumstances and

“the clearest of justifications” will warrant dismissal of

the federal suit (424 U.S. at 817, 818, 819), the Court

articulated certain factors that will justify a federal

court in declining to entertain an action for the adjudica-

tion of Indian Reservation water rights. Id. at 818-820.

After some experience under this regime, we deem it

appropriate to ask the Court to clarify this aspect of

the Akin decision.

a. In practice, Akin has not fulfilled the hope that it

would eliminate duplicate litigation and provide a har-

monious accommodation of competing interests. On the

contrary, because of the supposed importance of the

forum in this context, the actual experience since Akin

has been characterized by an unseemly race to the court-

house, followed by often prolonged and intense jurisdic-

tional skirmishing, pursued both in State and federal

courts. As the present cases sufficiently illustrate, the

upshot of this procedural maneuvering has been to delay,

sometimes for years, the adjudication of competing water

claims. And, equally important, there continues to be a

substantial waste of judicial resources and an increased

tension between the parties and the two court systems.

This situation, we suggest, calls for clarification of the

Akin rule. On the one hand, in stating that the policy of

the McCarran Amendment itself is the most weighty

factor arguing for dismissal of a federal court suit in

favor of a general stream adjudication in the State

17

courts (424 U.S. at 819, 820), the decision can be read

as mandating dismissal in almost all cases where appro-

priate State proceedings are timely initiated. On the

other hand, some have understood the Court as indicating

a contrary presumption because the special circumstances

of the cases were noted as relevant factors and the oc-

casions justifying declination of federal jurisdiction were

characterized as “exceptional.” 424 U.S. at 818. Neither

view is foreclosed by the Court’s opinion in Akin and,

quite naturally, litigants and lower courts have disagreed

as to how to apply the teaching of the decision. The

present cases offer the Court an opportunity to settle the

debate.

b. We submit the rule everywhere should be that, re-

gardless whether the Tribe or the United States is the

moving party, a federal court whose jurisdiction is timely

invoked to determine the existence and extent of Indian

Reservation water rights should proceed to decide that

discrete federal question so long as this does not ma-

terially delay the adjudication of the overall contro-

versy. If there were no timely filing of a federal action

to determine Indian water rights, the State court would

be free to proceed to decision of this issue as part of the

total adjudication. One major objective of the McCarran

Amendment would therefore be satisfied; neither the

Tribe nor the United States—behind the cloak of sov-

ereign immunity—could prevent the judicial determina-

tion of all claims. It is, indeed, intolerable to permit un-

quantified Indian water rights indefinitely to cast a

shadow over competing diversion claims simply because

neither the United States nor the Tribe is ready or will-

ing to submit the matter to adjudication in any forum.

Accordingly, it seems right to say to the United States

and the Tribe: Either of you may obtain a determina-

tion of Reservation water rights in the federal forum,

but, if you do not act promptly, those rights must be

adjudicated in the State proceeding.

What is more, since the federal forum is uniquely ap-

propriate only for the adjudication of federal rights, the

18

district court should limit the proceedings before it to the

determination of Indian water rights, affording all com-

peting claimants full oportunity to contest the Indian

claim, but declining to adjudicate the rights of other

users. This would avoid duplication and lessen the bur-

den of the federal courts in dealing with matters properly

left to State tribunals. In sum, the judgment of the fed-

eral court would determine only the Indian right, and that

result would be “plugged in” to the comprehensive decree

ultimately rendered in the general State court stream

adjudication.

Admittedly, when the United States or the affected

Tribe timely invokes federal jurisdiction, some “piece-

mealing” would result. But, it should be pointed out,

that is the usual practice even when the State courts per-

form the task of adjudicating Indian water rights. The

reason is simply that reserved Indian rights are of an

entirely different character than rights enjoyed by other

claimants under the law of first appropriation, the gov-

erning principle in the West. In the case of Indian

water rights, the relevant inquiry is not what quantity

of water was put to beneficial use on a given date.

Rather, diversion rights appurtenant to an Indian Reser-

vation are, by hypothesis, reserved as of the date the

Reservation was established, regardless whether the water

was then used, and quantification is premised on the

future needs of the Indians, usually measured in terms

of irrigable acreage. See Arizona v. California, 373 U.S.

546, 598-601 (1963). The fact is that the adjudication of

Indian water rights requires a separate proceeding, what-

ever court system undertakes the task, and the bifurcation

is not appreciably different if a federal court performs

that role.“ Thus, there is no reason to believe the de-

21 The point is illustrated by the procedure followed by the Water

Master appointed by the Fifth Judicial District Court of Wyoming

in In re: The General Adjudication of All Rights to Use Water in

the Big Horn River and All Other Sources, State of Wyoming,

Civil No. 4993. In that case, the Master severed for a separate trial,

prior to the general adjudication, the quantification of the rights

19

termination of Indian Reservation water rights by a fed-

eral court need delay or disrupt the general stream adju-

dication of all other claims in the State proceedings—

normally a much more protracted undertaking.”

2. Such a resolution of the jurisdictional question, it

seems to us, implements the long tradition of preferring

a federal court for the vindication of Indian rights

created or protected by federal law.

After all, it has been the rule for two centuries that

State authority presumptively does not embrace tribal

property or tribal affairs. The immunity of the Tribes

from State jurisdiction, insulated by their own residual

sovereignty and the protective umbrella of exclusive fed-

eral authority, has always been the starting premise. See,

e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561

(1832) ; The Kansas Indians, 72 U.S. (5 Wall.) 737, 755

(1866); United States v. Kagama, supra, 118 U.S. at

384; Rice v. Olson, 324 U.S. 786, 789 (1945); Williams

v. Lee, 385 U.S. 217, 219-220 (1959); McClanahan v.

Arizona State Tax Commission, supra, 411 U.S. at 174-

175; Bryan v. Itasca County, 426 U.S. 373, 381 (1976);

Ramah Navajo School Board v. Bureau of Revenue, No.

80-2162 (July 2, 1982), slip. op. 4-6. That principle is

reflected in a century of Indian treaties ** and a host of

reserved for the Wind River Indian Reservation. The decision of

that matter—not yet issued—will be “plugged in” when the compre-

hensive decree is ultimately entered. Obviously, that task could

have been performed, with no greater disruption, by a federal court

or a Master appointed by such a court (perhaps, even, the same

Water Master acting for the State court).

22 Indeed, that appears to be the view of the Montana Supreme

Court which, in denying our motion to delay the State adjudication,

observed that “[t]he pendency of federal litigation does not affect

the State of Montana in proceeding to adjudicate non-Indian claims.”

81-2188 Pet. App. 143-144.

23 Noticing only treaties affecting the Tribes now before the

Court, we find a provision expressly confirming “the exclusive juris-

diction” of the United States in the Treaty with the Navajos of

Sept. 9, 1849, Art. I, 9 Stat. 974, and a like stipulation acknowl-

edging that the Tribe is “exclusively under the laws, jurisdiction,

statutes, from the first Nointercourse Act of 1790, ch.

33, 1 Stat. 137 through the “disclaimer” provisions of

Enabling Acts from 1889 onwards, to the Indian Self-

Determination Act of 1975, 25 U.S.C. 450 et seg. One

would expect this immunity to encompass Reservation

water rights, the most vital property interest of the West-

ern Tribes.

To be sure, from time to time, in discrete contexts,

Congress has ceded its jurisdiction to the State. But,

in each instance, an explicit and unambiguous transfer

has been deemed necessary. See Williams v. Lee, supra,

358 U.S. at 220-221; McClanahan v. Arizona State Tax

Commission, supra, 411 U.S. at 175, 177; Bryan v.

Itasca County, supra, 426 U.S. at 381. Here, we cannot

ignore that only a year after enactment of the McCarran

Amendment, the Congress, in its most assimilative“

period, explicitly withheld jurisdiction over Indian water

rights when otherwise ceding authority to the States. 25

U.S.C. 1322 (b); 28 U.S.C. 1360 (b). If we are to recon-

cile this specific declaration of Congressional policy with

a holding that the McCarran Amendment granted con-

current jurisdiction to State courts to adjudicate Indian

Reservation water rights, it seems right to treat the fed-

eral court as remaining the preferred forum, when its

jurisdiction is timely invoked.

It is no disparagement of State courts to recognize

that they are less familiar with questions of federal

Indian law and therefore less equipped accurately to ap-

ply the very unique principles of this specialty. See

Oneida Indian Nation v. County of Oneida, 414 U.S.

661, 676, 678-682 (1974) ; Wilson v. Omaha Indian Tribe,

442 U.S. 653, 673-674 (1979). And see Ramah Navajo

School Board v. Bureau of Revenue, supra, slip op. 14.

At all events, the Court has repeatedly held that when the

State lacks authority over Indian affairs, its courts are

and government of the United States” in the Treaty with the Apaches

of July 1, 1852, Art. 1, 10 Stat. 979. See, also, Treaty with the

Cheyenne and Arapahoe of Oct. 28, 1867, Art. VI, 15 Stat. 593, 595;

Treaty with the Northern Cheyenne and Northern Arapahoe of

May 10, 1868, Art. III, 15 Stat. 655, 656.

21

likewise disabled. E. g., Williams v. Lee, supra; Kennerly

v. District Court of Montana, supra; Fisher v. District

Court, supra. See, also, McClanahan v. Arizona State Tax

Commission, supra, 411 U.S. at 178-179 & n.19. Cf.

Minnesota v. United States, supra.“ Even if there is no

such absolute obstacle here, it seems extreme to read the

McCarran Amendment as wholly reversing the strong

tradition in favor of federal jurisdiction to determine

Indian rights.

3. There is, moreover, a further problem, noted but

left unresolved in Akin. That is the circumstance that, in

several of the present cases, the Tribe—rather than the

United States—invoked the federal forum. See 424 U.S.

at 820 n.26; id. at 827 (Stevens, J., dissenting).

To be sure, it was once usual for Indian Tribes to be

viewed as incompetent “wards” of the National Govern-

ment, on whose behalf the United States appeared as

“guardian” to assert or defend tribal property rights in

its own name. See, e.g., United States v. Rickert, 188

U.S. 482 (1903); Heckman v. United States, 224 U.S.

413 (1912). But, increasingly since the passage of the

Indian Reorganization Act in 1934, 25 U.S.C. 461 et seq.,

Tribes have become involved in administering their own

property and vindicating their rights through their own

attorneys. This trend was given important Congressional

endorsement in 1966 by the addition of Section 1362 to

the Judicial Code. As a result, Indian Tribes today are

fully authorized to prosecute their own claims judicially

and commonly do so, especially when the United States—

whether because embarrassed by conflicting interests or

for other reasons—declines to take the initiative. See

Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 472-475

(1976). What is more, the Congress of 1966 quite de-

liberately opened the federal courts to tribal claims be-

24 In the Minnesota case, the Court held that the tradition of ex-

clusive federal jurisdiction over Indian property barred a State court

from entertaining a condemnation action with respect to an Indian

allotment even though the relevant statute (25 U.S.C. 357) author-

ized condemnation “under the laws of the State.” See, also, United

States v. Clarke, 445 U.S. 253, 254 (1980).

cause “[t]he issues involved are Federal issues and the

tribes should not be required to conduct the litigation in

the State courts.” S. Rep. No. 1507, 89th Cong., 2d Sess.

3 (1966). See, also, H.R. Rep. No. 2040, 89th Cong., 2d

Sess. 3 (1966).

Unless it is unavoidable, these rights of self-representa-

tion and of unrestricted access to the federal courts, con-

firmed by Congress in 1966, ought not be vitiated by a

construction of the McCarran Amendment that requires

Indian water rights to be adjudicated in State courts as

against the United States as trustee. Cf. Moe v. Salish

& Kootenai Tribes, supra, 425 U.S. at 477-479. At least

where a Tribe has exercised its privilege of invoking

the jurisdiction of the federal court in its own name,

it seems contradictory to require dismissal of that suit

and to compel the Tribe to submit unwillingly to the

presentation of tribal claims by the United States in the

State forum. After all, the McCarran Amendment does

not waive the sovereign immunity of the Tribe, and—as-

suming it is free to do so—the Tribe ought not have to

sacrifice that defense in order to appear in a court that it

eschews. See Final Report of the National Water Com-

mission 478-479 (1973).

The solution, we submit, is not to make the result turn

upon whether the United States or the Tribe invokes

federal jurisdiction. In our view, Justice Stevens was

right in suggesting that this anomaly argues for a rule

that requires federal courts to adjudicate Indian Reserva-

tion water rights when their jurisdiction is timely in-

voked, whether by the Tribe or the United States. See

424 U.S. at 827. This is consistent with the majority

view in Akin that among “the opposing factors” to be

taken into account is the adequacy of a state versus fed-

eral forum “to resolve the federal claims.” Id. at 820.

Since under the rule we urge the only issue to be decided

by the federal court in these cases will be the tribal right,“

25In the Montana cases, this will require the United States to

amend its pleadings to eliminate all non-Indian claims from the fed-

eral court adjudication.

the appropriateness of the federal forum is readily

apparent.

4. Applying the principles just articulated to the

cases before the Court, the result is that the judgments

of the court of appeals should be affirmed, with some

modifications in two instances. In no case have State

proceedings reached a point where it would be wasteful or

disruptive to allow a federal court to quantify Indian

water rights. The only relevant inquiry, then, is whether

the jurisdiction of the federal court has been appropriately

and timely invoked.

a. In the Montana cases, the subject of the petition in

No. 81-2188, there can be little question on that score.

Three of the actions were initiated in federal court in

1975, four years before the comprehensive Montana

water plan was enacted, and, in the words of the court

of appeals (81-2188 Pet. App. 41), “the district courts

stayed proceedings, apparently awaiting the state legis-

lation.” Even the remaining actions were filed before

the new Montana statute took effect and were held in

abeyance for more than seven months (id. at 27-28).

Moreover, although we do not share the view that the

United States suffers any disabling “conflict of interest”

in representing the Tribal water claims (see id. at 43-

44, 52), it is relevant that the Indian Tribes are parties

(or seeking to intervene) in most of the cases, anxious

to assert their own claims through attorneys of their

choosing, and have invoked the federal court’s jurisdiction

under 28 U.S.C. 1362 to that end (id. at 44-45).

In these circumstances, we think it clear that the court

of appeals was right in holding that the federal court

should have retained jurisdiction. To be sure, in our

view, the district court ought confine itself to quantifying

the Indian water rights, without otherwise interfering

with the State stream adjudication proceedings. But we

do not read the judgment of the court of appeals as bar-

ring that accommodation. At all events, as has been

24

noted, we would undertake to amend our complaint

b. The Arizona cases involved in No. 81-2147 present

a somewhat more complex procedural history. Although

four separate proceedings before the State Land Depart-

ment to determine rights on the Salt, Verde, Gila and

Little Colorado Rivers were filed between 1974 and 1978,

no service of process was attempted in any of these cases

until early 1979, and service has not yet occurred in two

instances. Each of the six Indian Tribes involved in-

voked the jurisdiction of the federal court in the Spring

of 1979, seeking various relief. Only thereafter did Ari-

zona enact legislation to transfer the task of determin-

ing water rights from the Land Department to the State

courts, and not until late 1981 did the Arizona Supreme

Court consolidate the proceedings relating to the Gila

River and its major tributaries, the Salt and Verde

Rivers. See 81-2147 Pet. 7-8. To this date, no evidentiary

proceedings of any kind have occurred in the State courts,

and all further action has been suspended pending this

Court’s ruling. 81-2147 Pet. App. G-1, H-1.

In this posture of the cases, we believe the district

court should have assumed jurisdiction to quantify the

Indian Reservation water claims. In at least three in-

stances, the Tribe expressly sought such a limited adju-

dication by the federal court. In the remaining cases, it

appears that the Tribe was not asking for a quantification

of its rights and, in our view, such a prayer must be

made if adjudication by the State court is to be avoided.

But, in the present situation, that request would not be

untimely. Accordingly, we believe the judgments of

reversal in the Arizona cases should be affirmed, with a

modified direction on remand.”

26 See note 25, supra.

27 As we have indicated (see note 15, supra), we cannot endorse

the instruction to determine whether Arizona has effectively over-

riden the disclaimer impediment. But the district court should be

directed to surrender its jurisdiction as to any Indian Reservation

water rights which neither the Tribe nor the United States submits

to adjudication in that court within a reasonable time after this

Court announces its decision.

CONCLUSION

The petitions for writs of certiorari in both Nos. 81-

2147 and 81-2188 should be granted.

Respectfully submitted.

AuUGUST 1982

Rex E. LEE

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

EDbwIN S. KNEEDLER

Assistant to the Solicitor General

Dirk D. SNEL

THomaAs H. PACHECO

Attorneys

r ov. &. COvennmenT eee orice, 1902 365070 1073