Petition for Writ of Certiorari — Wyoming v. United States

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IN THE

Supreme Court of the Wuite?

OCTOBER TERM, 1988

STATE OF WYOMING,

. Petitioner,

UNITED STATES OF AMERICA, SHOSHONE TRIBE AND

NORTHERN ARAPAHO TRIBE OF THE WIND RIVER

INDIAN RESERVATION, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WYOMING

JOSEPH B. MEYER

Attorney General

S. JANE CATON

Assistant Attorney General

State of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

MICHAEL DOUGLAS WHITE *

DAVID F. JANKOWSKI

Special Assistants

Attorney General

State of Wyoming

WHITE & JANKOWSKI

511 16th Street,Suite 500

Denver, Colorado 80202

(303) 595-9441

Counsel for Petitioner

August 19, 1988 * Counsel of Record

A a ES SS

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Under the implied-reservation-of-water doctrine, a Fed-

eral reserved water right was awarded by the Wyoming

state courts for all practicably irrigable land within the

present boundaries of the Wind River Indian Reserva-

tion. The Federal reserved water right was quantified

in the approximate amount of 500,000 acre-feet per an-

num, for the irrigation of some 100,000 acres, and was

awarded a priority as of 1868, the date of the treaty

establishing the Reservation. Pursuant to congressional

directive in 1905, however, water rights for the irriga-

tion of 145,000 acres of Indian lands had been obtained

_ under state law, overlapping more than 70% of the lands

for which the Federal right was subsequently adjudicated.

The questions presented are:

1. Can a Federal reserved water right impliedly ex-

ist for the Reservation despite an express Con-

gressional requirement that the Reservation’s water

rights be obtained under state law?

If so,

2. In the absence of any demonstrated necessity for

additional water to fulfill reservation purposes and

in the presence of substantial state water rights

long in use on the Reservation, may a reserved

water right be implied for all practicably irrigable

lands within a Reservation set aside for a specific

tribe?

3. What priority date should be accorded a reserved

water right, if any, for practicably irrigable lands

which were ceded by the Reservation’s Tribes, if

those lands later were restored to and made a part

of the reservation by the United States or were re-

acquired by Indians from non-Indians?

(i)

LIST OF PARTIES

The parties to the proceedings below were the peti-

tioner, State of Wyoming, and the respondents, United

States of America, Shoshone Tribe of the Wind River

Indian Reservation, Northern Arapaho Tribe of the Wind

River Indian Reservation, Mary O. Ahlborn, Eva M.

Barnett, Owen Barnett, Bradford-Bath, Donald Bath,

Black Butte Livestock Company, Campbells, Inc., City

of Riverton, Wyoming, Kenneth Ward Crandall, Phyllis

L. Crandall, DHB & Co., Barbara J. Daniels, Billie M.

Daniels, Deaver Irrigation District, Carl Dockery, Carol

Dockery, Clyde R. Fisher, Gloria A. Fisher, Charles

Goldben, Grace Graboski, Griffin Brothers, Incorporated,

Olga J. Harvey, Robert W. Harvey, Albert Hornecker,

Hornecker Livestock Co., Inc., Bertha Jones, Brenda

Joyce Kellogg, Gary V. Kellogg, Irene M. Long, Russell

E. Long, Elsie Martin, Richard Martin, William A.

Matthews, Arthur D. McCumber, Marvin W. Meyer,

Ernestine S. Meyer, Midvale Irrigation District, Caro-

lyn R. Nelson, Vern Nelson, Norwest Bank of Omaha,

N.A., Norris Edwin Odee, F. Louise Odee, William

Okie, Kenneth Outland, Iona Outland, Owl—Creek Ir-

rigation District members, PLB & Co., Sylvia Paulsen,

Red Creek Cattle Company, Red Lane Watershed Im-

provement District, Jerry D. Redding, Sheila C. Redding,

Charles Richardson, Riverton Valley Irrigation District,

C. Duane Rush, Kathryn C. Rush, Brian F. Sanford,

Kathleen Sanford, Norman L. Sanford, Daisy E. Sessions,

Newell S. Sessions, Barbara Smith, Robert Stewart,

Town of East _Thermopolis, Wyoming, Ralph Floyd

Urbigkit. V E Bar Livestock Company, Barbara Webber,

Landis Webber, Delores J. Weese, Raymond C. Weese,

Willwood Irrigation District, Ruth Clare Yonkee.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................---.0022200..0---.---- :

ac ntetereetcnnateccedeemennsuecenatcosnccesees mae

a aniteicetnceicteneteseneoccenenceccusnveeenstess

TREATY, STATUTES AND ORDERS INVOLVED.

STATEMENT OF THE CASE .......W022220000000002.2eeeee

REASONS FOR GRANTING THE WRIT ......0...

II.

EXISTENCE OF A RESERVED WATER

RIGHT—When Congress expressly requires the

acquisition of a reservation’s water rights under

state law, the judicial creation of an implied

Federal reserved water right for the reservation

is contrary to the intent of Congress and is in

conflict with the principles announced by this

EN .

QUANTIFICATION OF THE RESERVED

WATER RIGHT—The Wyoming Supreme

Court’s quantification of a Federal reserved wa-

ter right, in the absence of any demonstrated

necessity for the water, is in conflict with the

principles announced by this Court and the de-

cisions of the Ninth Circuit -.......00000000000... ‘

A. The appropriate standard of quantification

for the reserved water rights of agricul-

tural Indian reservations is an important

question of federal law which has not been,

but should be, settled by this Court ...............

(iii)

Page

TABLE OF CONTENTS—Continued

B. The Wyoming Supreme Court’s award of a

reserved water right in an amount far in

excess of that historically used after full

irrigation development is in conflict with de-

cisions of the Ninth Circuit federal court

Oe I ceteeietnctictsontateienlandncenanin

II]. PRIORITY DATE OF THE RESERVED WA-

TER RIGHT—The Wyoming Supreme Court’s

award of an original priority date, for land

ceded from the reservation and later restored

or reacquired, is in conflict with the decisions

of this Court and those of the Ninth Circuit....

A. The grant of an original priority date for

public lands which were later restored to the

reservation is in conflict with the principles

announced by and the decisions of this Court

in Rosebud, Klamath and Arizona II

B. The grant of an original priority date for

public lands which had been conveyed to non-

Indians, then later reacquired by the Indians

is in conflict with the decision of the Ninth

CUpCmES Gee ARO GIID cctcccterrtentnseneseensnnen

C. The grant of an original priority date for

lands which were allotted to individual In-

dians, conveyed to non-Indian grantees, and

reacquired by or on behalf of the Indians,

is in conflict with the decisions of the Ninth

Circuit in Anderson and Walton II

CONCLUSION

ee ee ee eee

APPENDIX

Pursuant to Rule 21.1(k), the material required by

Rule 21.1(f), (h), and (k), being too voluminous

to be conveniently included in or with the peti-

tion, is presented in separately bound Volumes

I and II.

Page

TABLE OF AUTHORITIES

Cases: 7 Page

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

Arizona v. California, 460 U.S. 605 (1983) ............... passim

Ash Sheep Co. v. United States, 252 U.S. 159

SII = ssdaticiesiddelineicessh cinasniabaamamenddiindiiiininaiissieedataiabideasunes 27

Califarnia v. United States, 438 U.S. 645 (1978).... 15, 21

Cappaert v. United Siates, 426 U.S. 128 (1976) 19, 20, 21

Colville Confederated Tribes v. Walton, 647 F.2d

42 (9th Cir.), cert. denied, 454 U.S. 1092 (1981),

cert. denied, 475 U.S. 1010 (1986) 00000... 16, 27, 29

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

IIIT cssshiennetisenbiadpiiadeticsansidimenibiaareindltbiaestidiaiienisleadiies 10

Little Light v. Crist, 649 F.2d 682 (9th Cir. 1981)... 28

McKinney v. Big Horn Basin Development Co., 167

a. ee dititciimicichisthiensneressouesesiiaestiinds 4

Merrill v. Bishop, 287 P.2d 620 (Wyo. 1955) ........... 4

North Dakota State Board of Pharmacy v. Snyder’s

Drug Stores, Inc., 414 U.S. 156 (1973) 00. 10

Oregon v. Klamath, 473 U.S. 753 (1985) .........-......- 27, 28

Oregon v. United States, 467 U.S. 1252 (1984) _...... 16

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

tae sacnadsdhadh daceittatibiadidissedaeuiukestitealiaiiimmmtaemenatad 17, 27, 28

Shoshone Tribe v. United States, 299 U.S. 476

EERE a RRC eae ee CE NN He lN eee 4

United States v. Adair, 723 F.2d 1394 (9th Cir.

1981), cert. denied, Oregon v. United States, 467

ieee 16

United States v. Ahtanum Irrigation Dist., 236

F.2d 321 (9th Cir. 1956), cert. denied, Ahtanum

Irrigation Dist. v. United States, 352 U.S. 988

i a .. 28, 25

United States v. Anderson, 736 F.2d 1358 (9th Cir.

RE lila cciteiacisdaiei dank tales claceiiea sitesi canciid beat od dineningtianas 27, 29

United States v. Dion, 476 U.S. 734 (1986) ies Eee 17

United States v. Mille Tac Band of Chippewa Indi-

Te es I ED winciinhntttetianiicttinnsingictenineenncens 18

United States v. New Mevico, 438 U.S. 696 (1978). passim

United States v. Shoshone, 304 U.S. 111 (1938)... 7

TABLE OF AUTHORITIES—Continued

Page

United States v Walker River Irrigation Dist., 104

-, |) 8 Ss. ae 16, 23, 24, 25

Ward v. Race Horse, 163 U.S. 504 (1896) ................. 15

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Association, 443 U.S. 658

I icicle cele neailacines eeaiiasbentinmans 19, 20, 21

White Mountain Apache Tribe of Arizona v. United

et ee ef) | 20, 21

Winters v. United States, 207 U.S. 564 (1908) ...6, 13, 15,

Masters’ Reports

Arizona v. California, Master’s Report, December

i TI cccninsnsicnensiccenssussenubesebiiesiensinennsstnisitistithaenencnetsnnnitennias 19, 23

State Constitutions

Wyoming Constitution, Article VIII, §§1, 3

PRINT occa. sii lucsiseacimanaaseritee<emataseddedanidnindesnaieetinbiinigiiiten 2,15

State Statutes

Wyoming Statutes Section 1-37-106 (1977) ............. 3

United States Statutes

Treaty with the Eastern Band Shoshone and Ban-

nock, 1868, 15 Stat. 673 (1868), a/k/a Second

Treaty of Fort Bridger ... oNnee TE

Act of July 10, 1890, 26 Stat. 222 (1890) .. pibaidenialastianetene 2,15

Act of 1891, 26 Stat. 712 (1891) ...........2..-eeeeeeeeeeee- 14

Act of June 6, 1900, 31 Stat. 672 (1900) —........000...... 14

Act of April 27, 1904, 33 Stat. 352 (1904) ................ 14

Act of March 3, 1905, 33 Stat. 1016 (1905), a/k/a

The Second McLaughlin Agreement ..................... passim

Act of March 6, 1906, 34 Stat. 53 (1906) —...0...... 14

Act of June 21, 1906, 34 Stat. 325 (1906) 0.0000... 12

Act of January 17, 1907, Ch. 151, 34 Stat. 849

a ceinapenieanneeb auerenante’ aoa 4

Act of March 1, 1907, 34 Stat. 1035 (1907)... 12

Act of May 30, 1908, 34 Stat. 558 (1908) .................. 12

vii

TABLE OF AUTHORITIES—Continued

Page

Act of March 3, 1909, 35 Stat. 812 (1909) 12

Act of August 1, 1914, 38 Stat>582 (1914) 13

Act of March 4, 1921, Ch. 161, 41 Stat. 1367

RGSS are RI See CSS Uy a or 5

Act of June 18, 1934, Ch. 576, 48 Stat. 984 (1934). 2,6

Act of July 27, 1939, 53 Stat. 1128 EE . 267

Act of August 15, 1953, Pub. L. No. 284, 67 Stat.

I as Es he 3,7

aT Ae a 2

43 U.S.C. 666, the McCarran Amendment... _____ 3

Administrative Orders

i I I I cco ceencecesecenvoseccsucusonce . ey

Oy es Pe I ies nce ceccsccecnsactveeeescsecrecsesvevnces 2,7

8 2

i | Sanaa aera ~

I I a cenansensensanssenossuvcbecsecmons 2,7

9 Fed. Reg. 9749 (1944) 000. SMe Sa Be 2,7

BD ms Bets Te 0 OU onan snccccccccceccccccccncccensceses 3,7

en 2

10 Fed. Reg. 7542 (1945)... . ey

13 Fed. Reg. 8818 (1948) 00... iaieesitees bps abcess 3,7

39 Fed. Reg. 27561 (1974)... ee 3,7

Administrative and Legislative Materials

United States House of Representatives, Report of

the Committee on Indian Affairs, 58th Cone., 3rd

Sess., January 19, 1905 13

United States Senate, Report of the Committee « on

Indian Affairs, 58th Cong., 3rd Sess., February

21, 1905 _..._.. OSs EE 13

Presidential Proclamation, June 2, 1906, 24 Stat.

i) 4

United States House of Representatives, Hearings

before a Subcommittee of the Committee on In-

dian Affairs, December 19, 1913... i 14

United States Senate, Hearings before the Com-

mittee on Indian Affairs, March 12, 1914 ........ 13,14

viii pa

TABLE OF AUTHORITIES—Continued

Comments and Articles

Comment, Application of the Winters Doctrine:

Quantification of the Madison Formation, 218.D.

i: ne 7 I i seeneemammeeenntesobvnene

Brookshire, et al., Economics and the Determina-

tion of Indian Reserved Water Rights, 23 Nat.

Fe ee I cteskictticccnieciscineenineiatanimmiteticnmne

Comment, Federal Reserved Rights in Water: The

Problem of Quantification, 9 Texas Tech. L. Rev.

BD CITY ccs sisichiviccansrsicinnsiiortunnteninadaneinaiphidacissmeineteibiasnotes

Collins, The Future Course of the Winters Doc-

trine, 56 Colo. L. Rev. 481 (1985) .........................

Collins, ‘ndian Allotment Water Rights, 20 Land

and Water Law Review 421 (1985) -.....................

Comment, Indian Reserved Water Rights: The

Winters of Our Discontent, 88 Yale L. J. 1689

CET ccckctticisieecsipimnaispenanssamseeitennetitasadaasataietticnaiiedmenoeiese

Note, The Irrigable Acres Doctrine, 15 Nat. Res.

J. 375 (1975) .. al

Note, A Proposal fer ‘the ‘Quantification of Re-

served Indian Waters Rights, 74 Columbia L.

I a elelsinsuaiin

Florio, Water Rights: Enforcing the Federal In

dian Trust After Nevada v. United States, 13

Am. Indian L. Rev. 79 (1985) .............................

Page

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WYOMING

The Petitioner, State of Wyoming, respectfully requests

that a writ of certiorari issue to review the judgment of

the Wyoming Supreme Court entered on February 24,

1988.

OPINIONS BELOW

The February 24, 1988, opinion of the Wyoming “Su-

preme Court, 753 P.2d 76 (Wyo. 1988), is reprinted in

the separately bound Appendix A hereto, at p. la. That

court’s order denying petitions for rehearing is reprinted

in Appendix B, p. 120a. The amended judgment and

decree of the state district court, May 24, 1985, is re

printed in Appendix D, at p. 168a; as are the district

court’s Order of May 24, 1985, ruling on its master’s

supplemental and final report, Appendix C, at p. 12l1a,

the district court’s judgment of May 10, 1983, ruling on

its master’s initial report, Appendix F, at p. 202a, and

the district court’s order of June 8, 1984, ruling on vari-

ous post-judgment motions, Appendix E, at p. 185a. The

supplemental and final report of the district court’s mas-

ter, dated June 1, 1984, is reprinted in the Appendix

hereto, Appendix G, at p. 280a, as is the master’s initial

report of December 15, 1982, Appendix H, at p. 367a.

The Federal district court’s order, remanding the matter

back to state court and its findings of fact and conclu-

sions of law therein, dated May 31, 1977, have not been

reported and are reprinted in Appendix I hereto, at p.

718a.

JURISDICTION

The decision of the Wyoming Supreme Court was ren-

dered on February 24, 1988, affirming in part and re-

versing in part the amended judgment and decree of the

state district court, and remanding the matter for fur-

ther proceedings consistent with the opinion. The Wyo-

ming Supreme Court denied timely petitions for rehear-

ing on April 22, 1988. This Court’s Order Extending

Time to File Petition for Writ of Certiorari to August

20, 1988, was entered in A-14 on July 7, 1988. The juris-

diction of this Court to review the judgment of the Wyo-

ming Supreme Court is invoked under 28 U.S.C.

§ 1257(3). The finality of the Wyoming Supreme Court’s

judgment is described in the Statement of the Case, at

note 7, infra, and the accompanying text.

TREATY, STATUTES AND ORDERS INVOLVED

The provisions of the treaty, statutes and regulations

which this case involves are set forth in the separately

presented Appendix, at the page indicated following the

citations below:

Second Treaty of Fort Bridger, 15 Stat. 673 (1868),

Appendix AA, p. 793a.

Wyoming Constitution, Article VIII, §1, 3 (1890),

Appendix Z, p. 792a.

Wyoming Admission Act, 26 Stat. 222 (1890), Ap-

pendix Y, p. 782a.

The Act of March 3, 1905, 33 Stat. 1016 (1905),

Appendix X, p. 769a.

Act of June 18, 1934, Ch. 576, 48 Stat. 984 (1934),

Appendix W, p. 753a.

Act of July 27, 1939, 53 Stat. 1128 (1939), Ap-

pendix BB, p. 804a.

First permanent restoration order, 5 Fed. Reg. 1805

(1940) Appendix V, p. 75la.

Second permanent restoration order, 7 Fed. Reg.

7458 (1942); Correction to Regulation, 7 Fed.

Reg. 9439 (1942), Appendix U, p. 748a.

Third permanent restoration order, 7 Fed. Reg.

11100 (1942) Appendix T, p. 746a.

Fourth permanent restoration order, 8 Fed. Reg.

6857 (1943) Appendix §, p. 744a.

Fifth permanent restoration order, 9 Fed. Reg. 9749

(1944); Order Amending Order of Restoration,

10 Fed. Reg. 2812 (1945), Appendix R, p. 74la.

Sixth permanent restoration order, 10 Fed. Reg. 2254

(1945), Appendix Q, p. 739a.

Seventh permanent restoration order, 10 Fed. Reg.

7542 (1945), Appendix P, p. 737a.

Eighth permanent restoration order, 13 Fed. Reg.

8818 (1948), Appendix O, p. 735a.

Act of August 15, 1953, Pub. L. No. 284, 67 Stat.

592, Appendix N, p. 731a.

Tenth permanent restoration order, 39 Fed. Reg.

27561 (1974), Appendix L, p. 729a.

STATEMENT OF THE CASE

This general adjudication of all water rights in Wyo

ming’s Big Horn River basin, comprising over thirteen

million acres (twenty-one thousand square miles), began

in January, 1977, with the filing of the petitioner’s com-

plaint and service of process on over twenty thousand

water users, pursuant to Wyo. Stat. § 1-1054.1 (1957)

(now Wyo. Stat. § 1-37-106 (1977)), Appendix K, p.

726a., and the McCarran Amendment, 43 U.S.C. 666.

The United States, claiming water rights in both its

proprietary capacity and as trustee for the Shoshone and

Arapaho Tribes of the Wind River Indian Reservation,

removed the adjudication to the United States District

Court which remanded the adjudication to state court.

Appendix I, p. 718a. The state district court denied mo-

tions to dismiss by the Tribes and the United States,

allowed the Tribes to intervene, and appointed a special

master. The master divided the adjudication into three

phases: (1) federal water right claims by and on behalf

of the Indian Tribes, which are now before this Court,

(2) federal water right claims of the United States in

its proprietary capacity (e.g., Yellowstone National Park

and two national forests) which were resolved by negotia-

tion and were the subject of final judgment from which

no appellate review was sought, and (3) approximately

27,000 claims by all parties based solely on state law,

which are still before the state district court’s master.

Appendix D, p. 168a.

The Wind River Indian Reservation

Originally part of the public domain created by the

Louisiana Purchase, the Wind River Indian Reservation

was selected by the Shoshone pursuant to what is known

as the Second Treaty of Fort Bridger of 1868, 15 Stat.

673. Appendix AA, p. 793a. Subsequently, the Arapaho

were settled on the Reservation. See Shoshone Tribe v.

United States, 299 U.S. 476 (1937). Through a period

ending in 1905, the Reservation was three times reduced

in size by agreement with the Tribes. The last and most

substantial reduction (1,480,000 acres) was effected by

the Second McLaughlin Agreement of 1904, ratified by

the Act of March 3, 1905, 33 Stat. 1016, hereinafter

“1905 Act.” Appendix X, at 776a, et seg. Under an ac-

tive allotment program, some 2,500 allotments, compris-

ing over 240,000 acres, passed into individual Indian

ownership. Wyo. Ex. WRIR PW-2, p. 260.

The 1904 Agreement ceded to the United States all

lands north of the Big Wind and east of the Popo Agie

and the Little Wind. For roughly 35 years the remain-

ing or “diminished” Reservation’s exterior boundaries

remained stable. Outside of those boundaries, however,

the ceded lands were returned to public domain status,’

88,000 acres were entered and settled by non-Indians by

1918, and 336,000 acres were withdrawn for a major

reclamation project, to be disposed of by homestead entry,

1 The Reservation’s Indians agreed to “cede, grant and relin-

quish” the lands to the United States. Act of March 3, 1905, 33

Stat. 1016, Appendix D, p. 769a. Following approval of the cession,

on June 2, 1906, President Roosevelt proclaimed the ceded lands

opened to public entry under the “homestead, townsite, coal and

mineral land laws.” Wyo. Ex. WR-33.3D. 34 Stat. 3208 (1906).

Congress thereafter referred to the ceded lands as “lands formerly

embraced” by the Reservation, Ch. 151, 34 Stat. 849 (January 7,

1907). Simultaneously, the ceded lands were uniformly excluded

from the Reservation as it was portrayed on maps prepared by

the United States Department of Interior in 1907, 1912 and 1923,

State’s Ex. 32-10, 12 and 15. C.f. Merrill v. Bishop, 287 P.2d 620,

625 (Wyo. 1955); McKinney v. Big Horn Basin Development Co.,

167 F. 770, 775 (D. Wyo. 1909).

Act of March 4, 1921, Ch. 161, 41 Stat. 1367, at 1404.

The Reservation’s diminished and ceded portions, as well

as the reclamation withdrawal, are shown on the map

attached hereto as Exhibit A.

Reservation Water Development Pursuant to State Law

Under what was known as the “Water Proviso” of

the 1905 Act’s Article III, Appendix X, at pp. 778-79a,

a part of the proceeds from the sale of ceded lands were

designated to obtain water rights for the Indians under

Wyoming law. See note 12, infra. This amount, together

with supplemental federal appropriations of $2,264,100,

was used to fund the acquisition of water permits and

the development of canals, reservoirs and cultivated lands

to perfect the permitted rights. Wyo. Ex. WRIR I&P

Ex. 225, 234, 235, 14 and Ex. PW-2. By 1915, state

water rights had been acquired on behalf of the Indians

for the irrigation of approximately 145,000 acres of Res-

ervatiun lands, including over 70% of the lands for which

Federal reserved water rights were eventually awarded,

see note 4, infra, and major federal irrigation projects

had been constructed for the benefit of Indian lands.

During the same period, 3,500-4,000 non-Indians entered

the lands ceded by the 1904 agreement and applied for

state permits to irrigate approximately 400,000 acres.

Wyo. Exs. PW-2, at p. 234, SR-5. Development of In-

dian irrigation projects on the Reservation was charac-

terized by extensive cooperation between the Indian Serv-

ice and the Wyoming State Engineer. From 1905 to

1963, as delays in completing project construction on

portions of the diminished Reservation p-evented timely

application of water to beneficial use upon many Indian

tracts, extensions were routinely granted by the State

Engineer. Furthermore, during this period, water was

applied to beneficial use on many Indian tracts (both fee

allotted and trust lands) and certificates of appropria-

tion were issued by the State Board of Control confirming

water rights, generally with a 1905 priority date. Wyo.

Ex. SR-8.

As would be expected, however, announcement of

Winters v. United States, 207 U.S. 564 (1908), and the

opinions which it affirmed, caused some Indian ad-

vocates to seek application of the Winters’ implied-

reservation-of-water doctrine to the Wind River Indian

Reservation. Consistent with its 1905 decision to require

the Tribes to define and perfect their water rights under

the doctrine of prior appropriation, pursuant to Wyo-

ming law, Congress rebuffed several attempts to change

the law, including attempts to create an express reserved

water right for the Reservation. See note 11, infra. The

steady progress of the Indian Service in its work to build

irrigation systems within the Reservation doubtless lent

support to arguments of Congressmen that the system

put in place by the 1905 Act was working satisfactorily.

In 1963. however, following announcement of Arizona v.

California, 373 U.S. 546 (1963), the Indian Service (now

the BIA) no longer requested extension of deadlines by

the State Engineer. Consequently, unperfected state-

awarded water right permits expired for 58,000 acres,

leaving perfected state-awarded water rights in place

for 87,000 acres. Wyo. Ex. WRIR, SR-8. Although no

extensions for Indian project permits have been requested

or granted since 1963, those permits may be reinstated

upon application to the Wyoming State Engineer.

Restoration and Reacquisition of Ceded Lands

Following cession in 1905, several hundred thousand

acres of ceded land were acquired by non-Indians. Wyo.

Ex. PW-2, p. 246. In 1934, however, Congress authorized

the “restoration to tribal ownership” of Reservation lands

such as those ceded in 1905. Act of June 18, 1934, Ch.

576, Sec. 3, 48 Stat. 984 (1934), Appendix W, p. 753a.

Shortly thereafter, the unclaimed public lands within

the area ceded by the 1904 agreement which had not

yet passed into private ownership were temporarily

withdrawn from further entry. U.S. Exh. WR-20. The

Act of July 27, 1939, Ch. 386, 53 Stat. 1128 (1939),

authorized the Secretary of Interior to acquire ceded

lands in non-Indian ownership and to restore undisposed

of ceded lands. Appendix BB, p. 804a. From time to

time thereafter, beginning in 1940 and ending in 1974,

large tracts of vacant ceded lands, needed by the Tribes

for grazing purposes, were permanently “restored to”

and “made a part of” the Reservation by the United

States.2 During roughly the same period, numerous non-

Indian in-holdings within the ceded area were purchased

or “reacquired” by or for the Tribes.* Nevertheless, at

present approximately 42,000 acres of lands originally

allotted to individual Indians have been conveyed to non-

Indian grantees within the Reservation. Wyo. Ex. PW-2.

In addition, several thousand other non-Indians live

either on ceded lands patented under the public land

laws after 1905 or on lands in the large Riverton Rec-

lamation Withdrawal located on ceded lands, within the

current boundaries of the Reservation.

Adjudication of the Reservation’s Reserved Water Right

The United States claimed federal water rights on

behalf of the Reservation’s Tribes under the implied-

reservation-of-water doctrine. The Tribes subsequently

2 These restoration orders by the Secretary of the Interior gen-

erally recited that the ceded land was “urgently required as graz-

ing land for the use of the Shoshone-Arapaho Tribes of Indians

in order to properly support and develop their rapidly expanding

cattle industry” and directed that the “undisposed-of” ceded lands

be “restored to tribal ownership for the use and benefit of the

Shoshone-Arapaho Tribes of Indians of the Wind River Reserva-

tion, Wyoming, and are added to and made a part of the existing

Wind River Reservation.” (emphasis added) See 5 Fed. Reg. 1805

(1940), Appendix V, p. 75la; 7 Fed. Reg. 7458 (1942), Appendix

U, p. 748a; 7 Fed. Reg. 11100 (1942), Apnendix T, p. 746a; & Fed.

Reg. 6857 (1943), Appendix S, p. 7i4a; 9 Fed. Reg. 9749 (1944),

Appendix R, p. 74la; 10 Fed. Reg. 2254 (1945), Appendix Q,

p. 739; 10 Fed. Reg. 7542 (1945), Appendix P, p. 737a; 13 Fed.

Reg. 8818 (1948), Appendix O, p. 735a; 39 Fed. Reg. 27561 (1974),

Appendix L, p. 729a, c.f. Act of Aug. 15, 1953, Pub. L. No. 284,

67 Stat. 592, Appendix N, p. 731a.

8 These reacquisitions were made by the United States with the

proceeds of the Shoshone Judgment Fund, see Ch. 387, 53 Stat.

1128, July 27, 1939, Appendix BB, p. 804a, and U.S. v. Shoshone,

304 U.S. 111 (1938) and by individual Indian families.

concluded that the United States’ reserved water right

claims were inadequate and filed their own supplemental

claims both before and during trial. In addition, non-

Indian grantees who held 'ands originally allotted to in-

dividual Indians subsequently claimed reserved water

rights.

Claims By and on Behalf of the Tribes

After trial, the master recommended a decree granting

an 1868 reserved water right in the amount of 477,300

acre-feet per annum, quantified based on practicably ir-

rigable lands within both the diminished and ceded por-

tions of the Reservation.‘ In addition, the master rec-

ommended the award of a reserved water right for a

variety of non-agricultural purposes. Appendix H, at

p. 696a, et seg. The district court rejected the master’s

recommendations for non-agricultural reserved rights but

awarded (1) an 1868 reserved water right of 350,000

acre-feet for 37,300 acres of historically irrigated lands,

Appendix D, at pp. 169-72a, paragraph 1, and 48,100

acres identified for inclusion in future projects, id., at

p. 172a, paragraph 2, and (2) a reserved water right of

84,800 acre-feet with varying priority dates, based on

practicably irrigable reacquired lands, of which 16,900

had been historically irrigated and 400 were to be in-

cluded in future projects. 7d., at p. 168a, paragraph 3,

and p. 182a. The district court concluded thet the pri-

ority date for the reserved water right for reacquired

lands would be the earlier of: (1) the date on which the

land was first sold to a non-Indian, (2) the date on

which water was first put to beneficial use (without re-

gard to quantity of acres irrigated), or (3) the date of

any applicable state permit. Jd., at p. 173a.

*Including 54,200 acres of historically irrigated lands, also

covered by state water rights, and 48,520 acres which had never

been irrigated but which were included within future Indian irriga-

tion projects. Appendix H, pp. 671-72a, findings of fact 95 and 96,

pp. 681-82a, finding of fact 60. Over 20,000 acres of lands within

the future projects were the subject of state water right permits.

Wyo. Ex. WRIR SR-3 (Rev.).

Claims by Allottees’ Grantees

A number of non-Indians claimed that they succeeded

to an 1868 Indian reserved water right when they or

their predecessors acquired allotments of land originally

granted to individual Indians. These claims by allottees’

grantees were opposed by the State, the United States,

and the Tribes. The Master recommended that the claims

be denied, Appendices H, at p. 640a, paragraph 16, and

G, at p. 326a, paragraph 3, and the district court ac-

cepted and incorporated that recommendation in its final

judgment. Appendices F, at pp. 224-25a, C, at p. 129a,

paragraph A.

Action by the Wyoming Supreme Court

A closely divided Wyoming Supreme Court (3-2) af-

firmed the judgment of the district court, except for (1)

an increase of 21,000 acre-feet in the amount of the

1868 reserved water right based on the future projects,

reversing a 10% reduction recommended by the Master

and adopted by the district court and increasing the total

award to 500,420 acre feet, (2) the reversal of the lesser

priority dates for the reserved water rights quantified for

reacquired lands, and (3) the reversal and remand for

further hearing of the district court’s denial of reserved

rights claimed by allottees’ grantees who were not In-

dians. Appendix A, at pp. 56-58a, 75a, and 72-75a, re-

spectively. The judgment of the Wyoming Supreme Court

awarded an 1868 Indian reserved water right based on

40,300 practicably irrigable acres of unsold ceded lands

which had been restored and added to the Reservation

during the period of 1940-1974* and based on 19,500

acres of practicably irrigable lands which had been re-

acquired from non-Indian ownership during approxi-

mately the same period.* The judgment of the Wyoming

538,000 acres in future projects and 2,300 acres of historically

irrigated lands.

*12,400 acres of trust lands historically irrigated, 2,600 acres

of trust lands designated for future projects, and 4,500 acres of

historically irrigated Indian fee lands.

Supreme Court is final on its face, except for the re-

mand to the district court with instructions to award an

1868 reserved water right to the allottees’ grantees for

practicably irrigable land which “. . . they can show

were irrigated by their Indian predecessors or put under

irrigation within a reasonable time thereafter.” Appen-

dix A, at p. 75a. Under this Court’s decisions, this re-

mand for such a factual determination does not deprive

the decision below of finality.’

Positions of the Parties Below

In general, the United States and Tribes asserted an

1868 priority for a reserved water right based on the

amount of water needed to irrigate all practicably irri-

gable acreage within the Reservation and for other

broadly defined purposes. The State and most other

* Under this Court’s holding in Cor Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975), such a remand does not disturb the finality

of the Wyoming Supreme Court’s judgment. The question which

the Wyoming Supreme Court remanded, the amount of land now

owned by non-Indians which was originally irrigated by Indians

or by non-Indians within a reasonable time after their acquisition,

is a question of fact. Therefore, this matter falls within the excep-

tions outlined in Cox, supra, 420 U.S. at 480, 482-88, which justify

this Court’s taking jurisdiction before absolute finality below. The

Wyoming Supreme Court’s decision on the Federal issue is conclu-

sive and “will survive and require decision regardless of the out-

come of future state-court proceedings,” and since reversal by this

Court on Question 1, herein, would preclude further litigation on

the remanded issue. Acceptance of jurisdiction of this case in its

present posture would be entirely consistent with the avoidance of

piecemeal review, the avoidance of advisory opinions, and minimiza-

tion of federal intrusion into state affairs. North Dakota State

Board of Pharmacy v. Snyders Drug Stores, Inc., 414 U.S. 156,

159 (1973).

* Initially, however, the United States claimed a more recent

priority date for a reserved water right quantified to serve prac-

ticably irrigable acreage located on reacquired lands. Reply of the

United States to Wyoming’s Response to the Claims for Water

Rights of the United States, September 4, 1980, p. 15: “All of the

reserved water rights for the Wind River Indian Reservation have

a priority date of 1868 except for those which are for use of lands

parties opposed all aspects of the reserved water right

claims. The United States, the Tribes, the State and

most private parties opposed the claims of the remaining

private parties that, as successors to Indian land owners,

they also succeeded to a reserved water right. Appendices

H, at p. 406a ({] 12), G, at p. 283a.

REASONS FOR GRANTING THE WRIT

The Wyoming Supreme Court’s judgment below de-

cided several important federal questions in a way which

conflicts with two decisions of this Court, with the

principles announced in eight decisions of this Court,

and with five decisions of the federal appeals courts. In

addition, the Wyoming Supreme Court has decided im-

portant questions of federal law which have not been,

but should be, settled by this Court. Those federal ques-

tions are important to the determination of water rights

for forty-seven Indian reservations now being under-

taken in nine western states, in which thirty-two general

adjudications are now underway, involving a total of

sold to non-Indians and later repurchased.” (Emphasis added)

Appendix F, at p. 224a.

* As recognized in the master’s report, Appendix H, following

the filing of claims by the United States and Tribes, the State and

private parties asserted: (1) that no reserved water rights existed

for this particular reservation, based on Congressional intent to

obtain the Reservation’s water rights under state law rather than

by reservation (Question 1, herein), Appendix H, at pp. 404a, { 2,

405a, 71, 43la, et seq., see also State of Wyoming’s Response to

United States’ and Tribes’ Statements of Claim, July 16, 1980,

p. 10, "7 5-6, hereinafter “State’s Response;” (2) that any reserved

water should be quantified based on the amount of water which

was necessary to ensure that the Reservation’s primary agricultural

purpose was not entirely defeated in order to meet the Reserva-

tion’s minimum needs and to provide a moderate standard of liv-

ing for the Indians (Question 2, herein), Appendix H, at pp. 406a,

"79-11, p. 41la, et seq.; see also State’s Response, p. 11, © 11, pp.

12-13, p. 23, 910; and (3) that any reserved right quantified

based on practicably irrigable acres located on restored or re-

acquired lands should bear a priority as of the respective dates of

restoration or reacquisition (Question 3, herein), Appendix H, at

pp. 403-06a, 1 7, see also State’s Response, p. 7, 17, pp. 20-22.

650,000 water right claims by 265,600 parties. Although

only four adjudications of Indian reserved water rights

have been resolved by negotiation and are awaiting Con-

gressional ratification, the parties in other ongoing ad-

judications are actively attempting to compromise their

differences. Guidance from this Court with respect to

the important federal questions presented here will pro-

vide far greater certainty with respect to the 1eserved

water right for Indian reservations and enhance judicial

economy by expediting litigation and by facilitating suc-

cessful negotiation.

I. EXISTENCE OF A RESERVED WATER RIGHT—

When Congress expressly requires the acquisition of a

reservation’s water rights under state law, the judicial

creation of an implied Federal reserved water right for

the reservation is contrary to the intent of Congress

and is in conflict with the principles announced by this

Court.

In the water proviso of the 1905 Act, Congress ex-

pressly required that water rights for the Wind River

Indian Reservation be obtained “as required by the

statutes of the State of Wyoming in securing water

rights from said state.” '' Two unsuccessful attempts

10 A similar approach was taken for three other Indian reserva-

tions in the western United States. Congress has provided that

water rights on the following Indian reservations, in addition to

the Wind River Reservation, be obtained under applicable state

law: Uintah, Uncompaghre and White River Ute, Utah, Act of

June 21, 1906, 34 Stat. 325, 375, see also Act of March 3, 1909,

35 Stat. 812; Blackfeet, Montana; Act of March 1, 1907, 34 Stat.

1035; Fort Peck, Montana, Act of May 30, 1908, 35 Stat. 558, 560.

11The minutes of the negotiations leading to the 1904 Agree-

ment, ratified by the 1905 Act, indicate that the Indians’ spokes-

men were concerned that as much money as possible from the

proceeds of the cession be taken to “secure our water rights and

make them good to us.” Minutes of Council, Shoshone Agency,

Wyoming, April 19, 1904, at 19, Wyo. Exh. WRIR I&P 8. In re-

sponse, the United States’ negotiator stated to the Indians that

the water rights proviso and the money for funding the acquisition

of water rights was to “secure the Indians’ water rights so that

were made expressly to create Federal reserved water

rights for the Reservation, one as part of the 1905 Act

and one in 1914 since, according to the Commissioner of

Indian Affairs, the water proviso had “practically nulli-

fied” Federal reserved water rights under Winters,

supra.” The water proviso is fully consistent with other

the white man cannot deprive you of water with which to irrigate

your lands.” Consequently, in the Water Proviso of the 1905 Act’s

Article III, Appendix X, at pp. 778-79a, Congress determined:

[These funds] shall be devoted to surveying, platting,

making of maps, payment of the fees, and the perform-

ance of such acts as are required by the statutes of the

State of Wyoming in securing water rights from said

State for the irrigation of such lands as shall remain the

property of said Indians, whether located within the ter-

ritory intended to be ceded by this agreement or within

the diminished reserve. (emphasis supplied)

12 Congress ratified the 1904 Agreement with the water proviso

as described in note 11, above, in spite of the fact that the Indian

Rights Association lobbied for the creation of an express limited

reserved right. Wyo. Exh. WRIR I&P 6. To assure that water

would be available to the Shoshone and Arapahoe allottees as

against settlers coming to the opened lands, the Association,

through the Secretary of the Interior, proposed a revised Article

III to the 1904 Agreement which would have reserved waters on

the Reservation from appropriation under Wyoming law until

allotments were made on the diminished reservation. See United

States House of Representatives, Report of the Committee on Indian

Affairs, 58th Cong., 3rd Sess., January 19, 1905 at 7-9. The lobby-

ing attempt failed due to the Senate Committee on Indian Affairs’

concern that the proposed amendment would slow development of

the ceded lands. United States Senate, Report of the Committee on

Indian Affairs, 58th Cong., 3rd Sess., February 21, 1905, at 2;

Wyo. Exh. WRIR I&P 7.

Later, in 1914, Congress passed an Indian Appropriation Act

which provided, inter alia, for the appropriation of $25,000 to

maintain, operate and complete canals within the Wind River In-

dian Reservation. 38 Stat. 582, 608, at sec. 24, Wyo. Exh. WRIR

I&P 14. As the Act passed through Congress, however, there was

an unsuccessful attempt to create an express reserved water right

on behalf of the Wind River Reservation, and certain others. See

United States Senate, Hearings before the Committee on Indian

Affairs, March 12, 1914, at 279, Wyo. Exh. WRIR I&P 16. The

reserved right proposed encompassed “the use of so much water as

pertinent federal legislation** and with Wyoming’s ad-

mission to the Union.’* Contrary to principles announced

may be necessary to supply for domestic, stockwatering and irriga-

tion purposes, land allotted or to be allotted to Indians on the Wind

River Reservation or set aside for administrative purposes within

said reservation.” (emphasis added) /d.

The Office of Indian Affairs argued to Congress that, without

the express reservation, Congress’ appropriations would be put at

substantial risk, for water rights on the reservations concerned,

including Wind River, would be unprotected. United States House

of Representatives, Hearings before a Subcommittee of the Com-

mittee on Indian Affairs, December 10, 1913, at 377-378, 707, Wyo.

Exh. WRIR I&P 15; United States Senate, Hearings before Com-

mittee on Indian Affairs, March 12, 1914, at 280-281, Wyo. Exh.

WRIR I&P 16. Commissioner Merritt reported to Congress that

“the very favorable decision of the Supreme Court in the Winters

case regarding the water rights of Indians has been practically

nullified by various acts of Congress, and as a result of such legis-

lation, the water rights of Indians are now dependent on beneficial

use in a number of reservations where the Government has been,

and is now, spending large amounts of reimburseable funds, and

by acts of Congress these water rights are subject to the laws of

the several States wherein these irrigation projects are located.”

(emphasis added) United States House of Representatives, Hear-

ings before a Subcommittee of the Committee on Indian Affairs,

December 10, 1913, at 378, Wyo. Exh. WRIR I&P 15; United States

Senate, Jd. In spite of Commissioner Merritts’ vigorous advocacy,

the proposal to create an express reserved right failed.

13 The water proviso of the 1905 Act is only one of many Con-

gressional enactments relating to securing water rights for Indian

reservations. As demonstrated by the water proviso and the legis-

lation cited at note 10, above, Congress often elected to rely upon

state law. See also note 12, above. Congress was not unaware,

however, of its ability to reserve water expressly for reservation

use, as other contemporaneous legislation reveals. See Act of

March 6, 1906, 34 Stat. 53 (Yakima Reservation, Washington) ;

Act of April 27, 1904, 33 Stat. 352 (Crow Reservation, Montana) ;

Act of June 6, 1900, 31 Stat. 672 (Fort Hall Reservation, Idaho) ;

Mission Indian Relief Act of 1891, 26 Stat. 712 (Mission Indians,

California). Congress’ election to provide for the acquisition of

water rights on the Wind River Reservation under Wyoming law

was part of a conscious pattern of Congressional action.

4 This Court has ruled that Wyoming’s admission to the Union

impliedly terminated off-reservation hunting rights of the Wind

a te tee i es ee

by this Court, the Wyoming Supreme Court has elected

(1) to reject this express congressional requirement,

(2) to hold that a reserved water right exists, by im-

plication, for the Wind River Indian Reservation, and

(3) to cancel, as contrary to that implied right, all

existing State of Wyoming water right permits for the

Reservation obtained under the direction of the water

proviso. Appendix A, at pp. 25a-3la, 75a.

The decision of the Wyoming Supreme Court is in

direct conflict with the principles announced in con-

trolling decisions of this Court. When it expressly ad-

dresses the question of whether federal entities must

abide by state water law, Congress almost invariably

defers to state law. United States v. New Mevico, 438

U.S. 696, 701-702 (1978); California v. United States,

438 U.S. 645 (1978). A reviewing court may conclude

that Congress intended to reserve water by implication

only if “the purposes of the reservation would be entirely

defeated” without the implication. United States v. New

Mexico, 438 U.S. at 700. See Arizona v. California, 373

U.S. 546 (1963); Winters v. United States, 207 U.S. 564

(1908). Nevertheless, the Wyoming Supreme Court

failed to honor this Court’s explicit delineation of those

circumstances giving rise to an implied reserved water

right." There was no effort below to determine whether,

River Tribes expressly created by the 1868 Fort Bridger Treaty.

Ward v. Race Horse, 163 U.S. 504 (1896). Congress’ admission of

Wyoming to the Union, somewhat uniquely, approved the Wyoming

Constitution which declared state ownership of all waters within

Wyoming and exclusively applied the appropriation doctrine in the

state. Act of July 10, 1890, 26 Stat. 222. Wyo. Const. Art. VIII

§§ 1 and 3, Appendix Z, p. 792a. While Wyoming’s admission, of

itself, may be insufficient to demonstrate the absence of an implied

reserved water right for the Reservation, it is entirely consistent

with Congress’ enactment of the water proviso.

The Master, whose decision on this point was accepted by the

District Court, went so far as to hold that the “Winters decision

rendered [the 1905 Act's water proviso] of no legal force or affect

[sic] regarding securing state water rights.” Appendix H, p. 638a,

{ 8.

by the water proviso and the resultant acquisition of

state water rights, Congress had intended to fulfill—and

had succeeded in fulfilling—the agricultural purpose of

the Wind River Indian Reservation. As is apparent from

the decision of the Wyoming Supreme Court, Appendix

A, pp. 25a-3la, and from the Report of the Master, Ap-

pendix H, at p. 642a, paragraph 19, Wyoming was as-

signed the burden of proving that a reserved water right

for the Reservation did not exist. No evidence was pre-

sented by the United States or the Shoshone and Arapaho

Tribes that, absent the implication of the vast reserved

water right decreed below, reliance upon the Reserva-

tion’s substantial state water rights alone would pre

vent its agricultural purpose from being “entirely de-

feated.” * Indeed, after eighty years of full agricultural

development, the water requirements of the Reservation

were only slightly more than one-half of the reserved

water right awarded below.

The decision of the Wyoming Supreme Court is also

in conflict with this Court’s decisions regarding the ter-

mination of Indian treaty rights. If the United States

impliedly intended to create a reserved water right on

behalf of the Wind River Indian Reservation in 1868, it

1 The decision of the Wyoming Supreme Court is also inconsist-

ent with the decisions of the Ninth Circuit Court of Appeals which,

most recently relying upon this Court’s decision in New Mezico,

have consistently called for a determination that water is neces-

sary to fulfill the essential purposes of a reservation before imply-

ing the existence of a reserved water right. Colville Confederated

Tribes v. Walton, 647 F.2d 42, 46-47 (9th Cir. 1981), cert. denied,

454 U.S. 1092 (1981); United States v. Adair, 723 F.2d 1394,

1408 (9th Cir. 1983), cert. denied, Oregon v. United States, 467

U.S. 1252 (1984); United States v. Walker River Irrigation Dis-

trict, 104 F.2d 334, 336-340 (9th Cir. 1939). While these decisions

have declared the existence of an implied reserved water right,

none of the Courts was faced with a Congressional enactment ap-

plying state law on the reservation at issue. The Wyoming Su-

preme Court’s decision differs from these, however, by the absence

of a careful examination of the necessity of the implied right to

prevent reservation purposes from being entirely defeated, as

demanded by New Merico.

——_- Ee

was terminated by the express language of the water pro-

viso in 1905. The Wyoming Supreme Court’s discussion

of this issue is so sparce as to make it impossible to de-

termine the standards which that court may have applied.

Those standards were elaborated by this Court in Rose-

bud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) (“‘Rose-

bud”) which indicates that termination of Indian treaty

rights by subsequent legislation may be found on the

face of the legislation, in its legislative history, or in

the circumstances surrounding its enactment. Most re-

cently, in United States v. Dion, 476 U.S. 734 (1986),

this Court stated that the legislative history of congres-

sional action will be most persuasive if the intent to

terminate Indian rights can clearly and reliably be found

in the legislative history of a statute. In its holding on

the termination issue, Appendix A, at pp. 3la-32a, the

Wyoming Supreme Court failed even to address the fact

that Congress carefully considered and refused to enact

a limited reserved water right for the Wind River Indian

Reservation." See note 12, supra.

The lower court simply failed to assign any meaning

or purpose to the water proviso or to the thorough and

successful state water right acquisition program con-

ducted under it. The Wyoming Supreme Court held that

the water proviso and its legislative history were “no

indication” of Congress’ intent with respect to the exist-

ence of reserved water rights on the Reservation, with-

out so much as alluding to what conceivable contrary

The Wyoming Supreme Court made no analysis of the con-

tinued necessity of the implied reserved water right in the face

of the express 1905 legislation providing for the acquisition of

Wyoming water rights for the Reservation. This Court’s decisions,

making it clear that need is the fulerum upon which the implica-

tion of a reserved water right is balanced, lead to the conclusion

that when the needs of a reservation are met by express federal

reliance upon state law, deference to state law should supersede

the continued existence of any previously created implied reserved

water right. United States v. New Mexico, supra, at 701-702.

purpose Congress might have had. Appendix A, p. 29a.

This Court has instructed, in construing an Indian ter-

mination act, that a, federal statutory proviso should

not be interpreted to give it a meaning that will amount

to its rejection. United States v. Mille Lac Band of Chip-

pewa Indians, 229 U.S. 498, 508 (1913).

This Court should accept certiorari to correct the

lower court’s failure to adhere to this Court’s decisions,

to resolve this significant question of first impression

affecting the Wind River and three other reservations,

and to assign a meaning and purpose to a federal statute

which the Wyoming courts have elected to write into

oblivion.

II. QUANTIFICATION OF THE RESERVED WATER

RIGHT—The Wyoming Supreme Court’s quantification

of a Federal reserved water right, in the absence of any

demonstrated necessity for the water, is in conflict with

the principles announced by this Court and the deci-

sions of the Ninth Circuit.

The appropriate quantification standard for reserved

water rights of an agricultural Indian reservation is an

important question of federal law which has not been,

but should be, settled by this Court. The Wyoming

court’s award of a reserved water right is based solely on

an amount of-practicably irrigable acreage which is far

in excess of the Wind River Reservation’s abundant his-

torically irrigated acreage. In addition, the award was

made without evidence that additional water was neces-

sary to prevent the defeat of the Reservation’s agricul-

tural purpose. In these two respects, the Wyoming Su-

preme Court’s decision is in conflict with the principles

announced by this Court and in conflict with the deci-

sions of the Ninth Circuit federal court of appeals.

A. The appropriate standard of quantification for the

reserved water rights of agricultural Indian reser-

vations is an important question of federal law

which has not been, but should be, settled by this

Court.

When it first addressed this question, this Court con-

cluded that the reserved water right for certain agricul-

tural Indian reservations included “enough water .. .

to irrigate all the practicably irrigable acreage” on the

reservation. Arizona v. California, 373 U.S. 546, 600-

601 (1963), hereinafter Arizona J. Those reservations,

however, had been set aside for the future requirements of

unknown tribes. Report, Simon H. Rifkind, Special Mas-

ter, December 5, 1960, pp. 262-63. The Court rejected

Arizona’s contention that the amount of the reserved

water right should be measured by the Indians’ “rea-

sonably foreseeable needs.” During the next fifteen years,

however, the Court began to view quantification quite

differently. By 1978, the Court concluded that the re-

served right included only enough water to ensure that

the primary purpose of the reservation was not “en-

tirely defeated.” United States v. New Mexico, 438 U.S.

696, 700 (1978), hereinafter New Mevwico, c.f. Cappaert

v. United States, 426 U.S. 128, 141 (1976), hereinafter

Cappaert, (approving only an amount necessary for the

reservation’s “minimal need”). Those subsequent cases,

to be sure, dealt with reservations other than Indian res-

ervations. Nevertheless, in Washington v. Washington

State Commercial Passenger Fishing Vessel Association,

443 U.S. 658 (1979), hereinafter Fishing Vessel, the

Court firmly stated that the principle in quantifying In-

dian rights to natural resources is to provide the Indians

with a moderate standard of living.'"* Finally, the Ari-

18“As in Arizona v. California and its predecessor cases, the

central principle here must be that Indian treaty rights to a natural

resource that once was thoroughly and exclusively exploited by the

Indians secures so much as, but no more than, is necessary to pro-

vide the Indians with a livelihood—that is to say, a moderate liv-

ing.” Fishing Vessel, supra, 443 U.S. at 686.

zona I dispute was again addressed by this Court in

Arizona v. California, 460 U.S. 605 (1983), hereinafter

Arizona II, in which the United States and Tribes sought

an increase in their reserved water right. The States,

on the other hand, suggested that the Court should re-

consider the “practicably irrigable acreage” standard.

To preserve the certainty of its previous decree in that

case, this Court refused to reopen the quantification is-

sue.'’

The inevitable resulting question left for the lower

courts, of course, is whether “practicably irrigable acre-

age” is simply res judicata as to the reservations in

Arizona I and II or whether it is the sole quantification

standard for all agricultural Indian reservations, includ-

ing those which were set aside for a specific tribe. For

example, at the urging of the United States, the Claims

Court recently hedged its bets in concluding that “prac-

ticably irrigable acreage” is the standard, but that the

standard is now subject to a “restrictive interpretation”

based on concepts of necessity. White Mountain Apache

Tribe of Arizona v. United States, 11 Cl. Ct. 614, 626

(1987). The Wyoming Supreme Court, on the other

“We also fear that the urge to relitigate, once loosed, will not

be easily cabined. The States have already indicated, if the issue

were reopened, that the irrigable-acreage standard itself should be

reconsidered in light of our decisions in [New Mezico, supra, Fish-

ing Vessel, supra), and we are not persuaded that a defensible

line can be drawn between the reasons for reopening this litiga-

tion advanced by the Tribes and the United States on the one hand

and the States on the other. It would be counter to the interests

of all parties to this case to open what may become a Pandora's

Box, upsetting the certainty of all aspects of the decree. These

considerations, combined with the practice in our original cases

and the strong res judicata interests involved, lead us to conclude

that the irrigable-acreage question should not be relitigated.”

Arizona II, supra, 460 U.S. at 625-626.

* “The term ‘practicably irrigable acreage’ is now recognized as

the quantification of a tribe’s Winters Doctrine rights. However,

more recent Supreme Cou* ecisions manifest a restrictive inter-

pretation of that measure. [Cappaert, supra), stated that Winters

had held that a reservation of water rights sufficient to accomplish

hand, analyzed this Court’s decisions, failed to find any

such “restrictive interpretations,” and concluded that

Arizona Il conclusively reaffirmed the original “prac-

ticably irrigable acreage” standard announced in Ari-

zona I, without regard to any concepts of necessity.”

the purpose of the reservation is made when the Government

reserves land for a reservation or other federal enclave. Cappaert

went on to state boldly: ‘The implied-reservation-of-water rights

doctrine, . . . reserves only that amount of water necessary to

fulfill the purpose of the reservation, no more.’ 426 U.S. at 141,

96 S.Ct. at 2070 (citing [Arizona I, supra)). The law is now settled

that “Congress reserved ‘only that amount of water necessary to

fulfill the purpose of the reservation, no more.’” [New Mezico,

supra, 438 U.S. 696, 700) (quoting Cappaert and Arizona v. Cali-

fornia). The Supreme Court in [New Mezico, supra] ventured

a step further:

Each time this court has applied the “implied-reservation-of-

water doctrine,” it has carefully examined both the asserted

water right and the specific purposes for which the land was

reserved, and concluded that without the water the purpose

of the reservation would be entirely defeated.

“438 U.S. at 700, 98 S.Ct. at 3014 (emphasis added).

“In the later case of [Arizona I], supra), the extent of the res-

ervation of water rights was described as ‘an allotment of water

necessary to’ make the reservation liveable.” 460 U.S. at 616.

103 S.Ct. at 1389 [quoting Arizona I, supra, 373 U.S. at 599-600).”

White Mountain, supra, 11 Cl. Ct. 626.

*! Appendix A, at 47a: “The measure of the Tribes’ reserved

water right is the water necessary to irrigate the practicably ir-

rigable acreage on the reservation. In [Arizona I], a needs test

was rejected as too uncertain, the Court opting instead for prac-

ticably irrigable acreage as the measure of a tribal agricultural

reserved water right. Two subsequent non-Indian reserved water

right cases [Cappaert, New Merico) indicate that necessity is the

measure of a reserved water right. And in [Fishing Vessel], the

Court recognized the propriety of reducing the Indians’ propor-

tion of the fish harvest as their needs diminished. Nonetheless,

the Court declined the invitation to re-examine the PIA standard

in [Arizona II) and reaffirmed the value of the certainty inherent

in the practicably irrigable acreage standard. The district court

was correct in quantifying the Tribes’ reserved water right by the

amount of water necessary to irrigate all of the reservation’s

practicably irrigable acreage.”

There can be no doubt that the general quantification

standard is uncertain in the minds of the lower courts.

ard of quantification for Indian reserved water rights

has already caused much confusion and much

clarification among the commentators. Some

strongly support the general application of

standard. Still others have blamed the lack

tification of many tribal water rights upon the

state of the law by which quantification will be gov-

erned.” Regardless of the assistance the commentators

may attempt to provide on the issue, probably the most

apparent result of their many inquiries is to document

the confusion regarding what standard governs the quan-

tification of tribal reserved water rights.™

The quantification standard for this important fed-

eral water right should be clear and uniform throughout

the western states. This Court should either affirm the

practicably irrigable acreage standard or clarify appli-

= Collins, Indian Allotment Water Rights, 20 Land and Water

Law Review 421, 427-428 (1985). Others have criticized PIA and

called for reliance upon other standards. Note, A Proposal for the

Quantification of Reserved Indian Water Rights, 74 Columbia

L. Rev. 1299, 1311-1314 (1974).

* Florio, Water Rights: Enforcing the Federal Indian Trust

After Nevada v. United States, 13 Am. Indian L. Rev. 79, 20

(1985).

** See, for example, Collins, The Future Course of the Winters

Doctrine, 56 Colo. L. Rev. 481, 484 (1985); Brookshire. et al.,

Economica and the Determination of Indian Reserved Water

Rights, 23 Nat. Res. J. 749, 763-764 (1983): Comment, Indian

Reserved Water Rights: The Winters of Our Discontent, 88 Yale

L. J. 1689, 1694-1699 (1979); Comment, Federal Reserved Rights

in Water: The Problem of Quantification, 9 Texas Tech. L. Rev. 89,

99-101 (1977); Comment, Application of the Winters Doctrine:

Quantification of the Madison Formation, 21 S.D. L. Rev. 144,

150-155 (1976); Note, The Irrigable Acres Doctrine, 15 Nat. Res.

J. 375, 379-384 (1975).

cation of the rapidly evolving necessity standard for use

in quantifying the reserved water right of agricultural

Indian reservations.

B. The Wyoming Supreme Court’s award of a reserved

water right in an amount far in excess of that his-

torically used after full irrigation development is

in conflict with decisions of the Ninth Circuit fed-

eral court of appeals.

The reserved water right awarded by the Wyoming

Supreme Court was quantified for practicably irrigable

acreage far in excess of the land historically irrigated

on the Reservation after over eighty years of intensive

water development. As a result, the decision of the

Wyoming Supreme Court is in conflict with the decisions

of the Ninth Circuit federal court of appeals in United

States v. Walker River Irrigation District, 104 F.2d

334 (9th Cir. 1939), hereinafter Walker River, and

United States v. Ahtanum Irrigation District, 236 F.2d

321 (9th Cir. 1956), cert. denied, Ahtanum Irrigation

District v. United States, 352 U.S. 988 (1957), herein-

after, Ahtanum.

The Wind River Reservation in Wyoming enjoys a his-

tory of extensive irrigation development pursuant to

state awarded water rights, unlike the reservations in

Arizona I, supra.” Between 1905 and 1915 some 145,000

acres of land of the Wind River Reservation were

awarded state water rights for the benefit of the Indians.

This amount of irrigated land soon proved to be far

more than was needed. By 1963, state water rights for

40% of that land had been voluntarily cancelled, leaving

87,000 acres under state water rights. Based on the

practicably irrigable acreage standard, however, the Res-

25 Master’s Report, Arizona v. California, December 5, 1960,

p. 256. In contrast to the Wind River Reservation, the five reserva-

tions in Arizona I were not set aside and developed for a particular

tribe but, instead. were established for the future use of unknown

tribes. /Jd., p. 262. In fact, irrigation was “not practiced” on the

Chemehuevi Reservation, id., p. 86, and was “negligible” on the

Fort Mohave Reservation. /d., p. 85.

ervation’s reserved water rights were quantified based

on 103,000 acres of irrigable acreage,-of which only

54,200 acres had been historically irrigated. In other

words, after the infusion of massive amounts of con-

gressionally mandated expenditures for the construction

of irrigation projects under Wyoming law, the historic

practicably irrigable land base of the reservation was

54,200 acres, requiring some 290,500 acre feet of water

annually.” Nevertheless, under the Wyoming Supreme

Court’s decision below, the reserved water right awarded

was 500,400 acre feet” or 72% greater than historical

needs. This windfall was awarded in the absence of any

evidence showing that the additional water was essen-

tial to meet the minimum needs of the Reservation or to

accomplish its agricultural purpose. -

The Ninth Circuit has twice addressed the quantifica-

tion standard for the reserved water right for an agri-

cultural Indian reservation on which there has been a

history of irrigation development. On the Walker River

Indian Reservation in Nevada, there had been no show-

ing of “the necessity or demand for the cultivation of a

larger area than 2,100 acres,” for which 26.25 second

feet of water was found to be sufficient. Walker River

26 Historic practicably irrigable acres and the reserved water

right based thereon were: 37,284 acres and 16,932 acres for which

207,641 acre feet and 82,849 acre feet were awarded, Appendix D,

at pp. 172a, 182a, for a total of 54,221 acres of historic land for

which 290,490 acre feet were awarded a Federal reserved water

right.

27 Future practicably irrigable acreage and the reserved water

right based thereon awarded by the district court were: 48,097

acres and 423 acres for which 186,990 acre feet and 1,947 acre feet

were awarded, Appendix D, at pp. 172a, 182a, for a total of 48,520

acres of future land for which 188,937 acre feet were awarded as

a reserved water right by the district court. The Wyoming Su-

preme Court reversed a 10% reduction of the future award by the

district court. Appendix A, at pp. 56-58, thereby increasing the dis-

trict court’s award by 20,993 to 209,930 acre feet. The total award

by the Wyoming Supreme Court, for both historic and future acre-

age, was 500,420 a.f.

supra, 104 F.2d at 340. The Ninth Circuit consequently

limited the reserved water right to that precise amount

“as a fair measure of the needs of the government as

demonstrated by seventy years’ experience.” /d., at pp.

339-40.** On the Yakima Indian Reservation in the State

of Washington, the United States entered into an agree-

ment with neighboring non-Indian irrigators in 1908

which limited the Indians’ use of water from Ahtanum

Creek. The Ninth Circuit in Ahtanum, supra, 236 F. 2d

at 337, felt constrained to uphold the validity of the

agreement but, nevertheless, described the Indians re-

served water right as being in that amount required to

provide for the Indian’s reasonable needs, as measured

upon the completion of the Reservation’s water project.”

These two Ninth Circuit opinions are in direct con-

flict with that of the Wyoming Supreme Court, below,

which granted a reserved water right 72% greater than

the water needed by the Tribes after eighty years of

% The Ninth Circuit stated: “We hold that there was an im-

plied reservation of water to the extent reasonably necessary to

supply the needs of the Indians. There remains for decision the

question as to the quantity to which the United State is entitled.

The problem is one of great practical importance, and a priori

theories ought not to stand in the way of a practical solution of it.

The area of irrigable land included in the reservation is not neces-

sarily the criterion for measuring the amount of water reserved,

whether the standard be applied as of 1859 or as of the present.

The extent to which the use of the stream might be necessary

could only be demonstrated by experience. ... We are con-

strained to accept this estimate [26.25 c.f.s.] as a fair measure of

the needs of the Government as demonstrated by seventy years’

experience. .. . So precious is every miner’s inch of water in

these parched regions that no arrangement should be countenanced

which would encourage waste or tend to induce it.” Walker River,

supra, 104 F.2d at 339-40.

2% The Ninth Circuit stated: “. .. the implied reservation of

the waters of this stream extended to so much thereof as was re-

quired to provide for the reasonable needs of the Indians, not

merely as those needs existed in 1908, but as they would be meas-

ured in 1915, when the Indian ditch system has been completed.”

(emphasis added) Ahtanum, supra, 236 F.2d at 337.

extensive irrigation development and the apparent con-

clusion of irrigation development. Creation of such an

excess simply means that reserved right water will be

placed to secondary uses, rather than the Reservation’s

primary purpose, in violation of the Court’s admoni-

tion in New Mexico, supra, 438 U.S. at 700.” Conse-

quently this Court should determine the question of

whether the reserved water right, for an agricultural

Indian reservation with a long-established history of

irrigation, may exceed the Reservation’s historical needs.

Ill. PRIORITY DATE OF THE RESERVED WATER

RIGHT—The Wyoming Supreme Court’s award of an

original priority date, for land ceded from the reserva-

tion and later restored or reacquired, is in conflict with

the decisions of this Court and those of the Ninth

Circuit.

The judgment of the Wyoming Supreme Court, below,

is in direct conflict with the recent decisions of this Court

establishing the ci:cumstances under which Indian reser-

vations are disestablished, the termination of Indian

rights in the ceded lands upon disestablishment, and

89 For example, as claimed, the reserved water right included

instream flows of up to 6,000 c.f.s. for fisheries, wildlife and

aesthetic purposes, an amount which would completely curtail all

upstream diversions. This claim was denied and the United States

and Tribes sought to amend the judgment in that regard. Although

the proposed amendment was rejected, the district court held that

once the reserved water right is quantified for irrigation, it argu-

ably may be used for virtually any purpose on the Reservation so

long as the consumptive use is not increased. Amended Judgment

and Decree, May 24, 1985, Appendix D, at p. 183a. See also Order

Ruling on Motions to Alter or Amend the Decision of May 10, 1983,

Appendix E, at p. 194a. While the prohibition on any increased

consumptive use may appear to be ample protection, it is important

to remember that new uses may be non-consumptive, yet quite in-

jurious to other users. For example, if the Tribes convert their

reserved water right into the very fisheries flows for which a

reserved water right was rejected, those fisheries flows would have

the effect of eliminating diversions by other water users above and

within the Reservation. Appendix F, at pp. 259-60a.

reserved water right priority dates for lands added to

a reservation. Rosebud, supra; Oregon v. Klamath, 473

U.S. 753 (1985), hereinafter Klamath, conflict in prin-

ciple only; and Arizona II, supra. In addition, the

Wyoming Supreme Court’s decision is in conflict with

the decisions of the Ninth Circuit court of appeals re-

garding the priority date of a reserved water right as-

sociated with former reservation lands which are re-

stored to the reservation, United States v. Anderson,

736 F.2d 1358 (9th Cir. 1984), hereinafter Anderson,

or which are reacquired by or on behalf of Indians. Col-

ville v. Walton, 647 F.2d 42 (9th Cir. 1981), cert. de-

nied, 454 U.S. 1092 (1981), hereinafter Walton II.

A. The grant of an original priority date for public

lands which were later restored to the reservation

is in conflict with the principles announced by and

the decisions of this Court in Rosebud, Klamath

and Arizona II.

The Wyoming Supreme Court affirmed an 1868 re-

served water right quantified for 40,300 practicably ir-

rigable acres which were ceded by the Wind River Res-

ervation Tribes in 1905 and restored (“added to and

made a part of” the Reservation) from 1940 to 1974

by the United States to satisfy the Tribes’ needs for

additional “grazing land.” See note 2, supra. The Wyo-

ming Supreme Court did not discuss the basis for its

decision and the district court simply concurred “with

the conclusion of the special master that this land was

held in trust for the Tribes by the United States and

never lost its Indian status.” Appendix F, p. 225a. The

master’s conclusion was based on Ash Sheep Co. v.

United States, 252 U.S. 159 (1920), hereinafter Ash

Sheep, involving the Crow Reservation in Montana, as

well as the Water Proviso in Article III and preservation

of other benefits in Article X of the 1905 Act. Ap-

pendix X, at pp. 778-79a, 774a. In brief, the master

concluded that the Indian’s retention of an interest in

the proceeds of the sale or the lease of ceded lands pre-

cluded a disestablishment of those lands under Ash Sheep

as did the omission of the word “convey” under Rose-

bud and the protection of all other rights under Article

X of the 1905 Act.

On all counts, the reasoning below was in conflict with

the principles announced by this and other courts. Re-

liance on Ash Sheep is misplaced in that the re.evant

portion of the Crow Reservation involved in that case

was later held to be disestablished in Little Light v.

Crist, 649 F.2d 682 (9th Cir. 1981). Reliance on the

omission of the word “convey” in the 1905 Act overlooks

the use of “conveyed” in Article II of the Act and vio-

lates the principles of Rosebud, supra, in which this

Court held that the Rosebud Sioux Reservation had been

partially disestablished under circumstances virtually

identical to those surrounding the Wind River Reserva-

tion in 1905. Reliance on the savings provision in Article

X of the 1905 Act is in direct conflict with the de

cision in Klamath, supra, in which an identical provision

was held to reserve no implied rights to the Tribes in

the ceded lands. Finally, the award of an original pri-

ority date based on land subsequently “added to” the

Reservation is in direct conflict with the holding in

Arizona II, supra, 460 U.S. at 641.

Acting in defiance of the principles and decisions an-

nounced by this Court, the Wyoming court found that the

reserved water right for the ceded lands survived their

cession in 1905 and were entitled to an original priority

date of 1868, rather than a priority as of the date those

lands were “added to and made a part of” the Reser-

vation.

B. The grant of an original priority date for public

lands which had been conveyed to non-Indians, then

later reacquired by the Indians is in conflict with

the decision of the Ninth Circuit in Anderson.

The Wyoming Supreme Court awarded an 1868 re-

served water right based or practicably irrigable lands

which had been ceded to the United States, conveyed

to non-Indians under the public land laws, and then

reacquired by or on behalf of Indians. Such an award

is in direct conflict with the Ninth Circuit’s decision in

Anderson, supra, 736 F.2d at 1361-62. In that case,

the Ninth Circuit held that water rights appurtenant to

reacquired homesteaded lands carry a priority deter-

mined by state law and that the reserved water right

for homesteaded lands without a perfected state water

right bear a priority as of the date of reacquisition.

C. The grant of an original priority date for lands

which were allotted to individual Indians, conveyed

to non-Indian grantees, and reacquired by or on be-

half of the Indians, is in conflict with the decisions

of the Ninth Circuit in Anderson and Walton II.

In Walton II, supra, 647 F.2d 42, at 51, the Ninth

Cireuit held that a non-Indian owner of an original In-

dian allotment does obtain a reserved water right, al-

though it may be lost by the non-Indian’s non-use. In

Anderson, supra, 736 F.2d at 1361-62, the Ninth Circuit

held that, upon reacquisition of the allotment, the Tribes

obtain a reserved right with an original priority date

oniy if the non-Indian grantor has not lost the right

through non-use. The Wyoming decision, below, how-

ever, granted an 1868 priority date and required no

showing that the reserved right continued to be used by

the intervening non-Indian owner(s). Appendix A, p.

72-75a.

CONCLUSION

For these various reasons, this petition for certiorari

should be granted.

Respectfully submitted,

JosePH B. MEYER

Attorney General

S. JANE CATON

Assistant Attorney General

State of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

MICHAEL DOUGLAS WHITE *

Davip F. JANKOWSKI

Special Assistants

Attorney General

State of Wyoming

White & JANKOWSKI

511 16th Street, Suite 500

Denver, Colorado 80202

(303) 595-9441

Counsel for Petitioner

August 19, 1988 * Counsel of Record

EXHIBIT A

A — RIVER INDIAN

RESERVATION, WYO.

BES GSOK

PRPS @.

BLK RRR KKK IS

RS .

KRK_KKKKKXE

WK KK

TORS

CBS

DIMINISHED LANDS

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