Amicus Curiae Brief — California v. United States

Susiente Court, Wh

KiLED

i AUG 12. 1888

uf F, SPANIOL, JR,

NO. 87-1165

IN THE SUPREME COURT OF TH

UNITED STATES

October Term, 1987

STATE OF CALIFORNIA, et al.,

Petitioners,

Vv.

UNITED STATES, et al.,

Respondents.

On Writ of Certiorari

To The United States

Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE KLAMATH TRIBE; THE NEZ PERCE “~

TRIBE; THE SWINOMISH TRIBAL

COMMUNITY; ET AL. (additional

amici listed on inside cover)

IN SUPPORT OF RESPONDENTS

Richard Dauphinais

Counsel of Record

Melody L. McCoy

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for Amici Curiae

August, 1988

Jicarilla Apache Tribe;

Pueblo of Laguna;

Pueblo of Santa Ana;

Pyramid Lake Paiute Tribe Of Indians;

Rosebud Sioux Tribe;

Sac & Fox Tribe of Indians of Oklahoma;

and

Southern Ute Indian Tribe

TABLE OF CONTENTS

TABLE OF AUTHORITIES..... 2. eeeeeeecces iii

INTEREST OF THE AMICI CURIAE............. 1

SUMMARY OF ARGUMENT....... 22 ee eeeeeccves 3

ARGUMENT......... Terrrerrrrrr ere ee eee ee 4

I. THE QUIET TITLE ACT PROHIBITS

THIRD PARTY SUITS WHICH SEEK TO

DIVEST THE UNITED STATES OF

TITLE TO INDIAN LANDS..........-.24-. 4

A. The Indian Lands Exception

DUPER ae ebGeCeCe Cee e eC CoCo CEC. 4

B. A “Substantial Possibility”

Test Is Not Required............ 8

II. ASSUMING ARGUENDO THE QUIET

TITLE ACT DOES NOT BAR THIS

ACTION, BROAD JUDICIAL REVIEW

OF THIRD PARTY SUITS WOULD

VIOLATE THE HISTORICAL FEDERAL

OBLIGATION TO PROTECT INDIAN

LANDS... cccccccccces Serer eee ee ee ee 12

III. WHEN THE UNITED STATES WAIVES ITS

SOVEREIGN IMMUNITY TO ASSERT A

CLAIM FOR INDIAN WATER RIGHTS,

THE WAIVER DOES NOT EXTEND TO

“ANCILLARY PROCEEDINGS"”............ 21

A. The Court of Appeals

Correctly Held That Any

Waiver of Immunity By The

United States In Arizona v.

California Does Not Extend

To This Separate Action........ 21

TABLE OF CONTENTS (Cont.)

Page

B. The McCarran Amendment

Does Not Waive Immunity

Em VES BOSSGE. cc evcececceesese 26

Cs 6 6660085 60060004666860600648688 29

oie

TABLE OF AUTHORITIES

Cases Page(s)

Arizona v. California,

fe ee 6B) TTT Teer T re Passim

Arizona v. San Carlos Apache

co, = Ue Fe A lULE Sl errerrrr TTT Te 28

Block v. North Dakota,

& a. > = ae Te: eo ee

Cady v. Morton, 527 F.2d

Fae Gee Gs See be bee ees e de eivcestees ll

Colorado River Water Conservation

Dist. v. United States,

> ee ee Mf) rrr TTTT TTT TTT rT.

County of Oneida v. Oneida

Indian Nation, 470 U.S.

Ee re a +P

Dugan v. Rank, 372 U.S.

a PPP rTrTT Terre Tre LTrrrere

Fadem v. United States,

van Bom: Been Cee Gabe BOGS ccccecseues

Felix v. Patrick, 36 F. 457

(C.C. Neb. 1888), aff'd,

ee PTT TT TTT TET eT eT

Fellows v. Blacksmith,

68 OU.8. CAS Baw.) BEG CASS) cccccceseces

Heckman v. United States,

Bae Gees Gee. Ck a 6 466 045006664 0:066 8%

In Re General Adjudication

of All Rights To Use Water

In The Big Horn River System,

FOO PeOe GES GO. Beep ce ccccccccesecece

-iii-

TABLE OF AUTHORITIES (Cont. )

Cases Page(s)

Johnson v. McIntosh, 21 U.S.

(8 Wheat.) 543 (1823). ccccccccccces 13, 17

Jones v. United States,

1965 F.26 FEF CHER SAE. AEB) cccccccececs ll

Marsh v. Brooks, 49 U.S.

(8 How.) 223 (1850), rev'd

SS 0.8. (16 Bow.) SAD CASSBZ).cccccccecces 17

Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (19B2Z)..cccccscccees 20

Minnesota v. United States,

BOS B.B. BES CAPSS P cececsescceveseececsens 6

Montana v. Blackfeet Tribe of

Tetians. 474 G.B. FOS CASES cccccesesecses 4

Narrangansett Tribe v. Southern

R.I. Land Dev. Corp.,

418 F.Supp. 798 (D. R.T. 1976). ccccccves 20

Nevada v. United States,

> a Meo! Re ) Pe eee ee ee 26

Oneida Indian Nation v. County

of Oneida, 414 U.S. 661 (1974)...... 17, 20

Schaghticoke Tribe v.

Kent School Corp., 423

F.Supp. 760 (D.COMM. 1976) .ccccccccccces 20

Spaeth v. United States

Secretary of the Interior,

757 F.28 937 COCR Cis. WSS) ccccccecvevcs 10

Spalding v. Chandler,

BGO BiB BOO CHOP eve coveccecesesecvcess 16

-iye

TABLE OF AUTHORITIES (Cont. )

Cases Page(s)

State of Florida, Dept.

of Business Regulation v.

United States Dept. of the

Interior, 768 F.2d 1248

(llth Cir. 1985), cert.

Gapsae, 675 U.8. IGS (1986). cccccecssses 7

Turtle Mountain Band of

Chippewa Indians v.

United States, 490 F.2d

ee rs Pec ceed 60 e000 8 4860 86% 16

United States ex. rel.

Hualapi Indians v. Santa

Fe Pac. R.R., 314 U.S. 339 (1941)....... 16

United States v. District

Court for Eagle County,

Ce en Se STE h Ss cK R6 Odeo Ose ese se ceee 27

United States v. Minnesota,

See Wee ee Ca 666006 60 cueeeseteus 16

United States v. Mottaz,

oe” Se OO ee ee Passim

United States v. Sands,

76 Foam Bee CSOER CES. APTB). ccccccccece 19

United States v. Sherwood,

ae Se) re Ps sos eeneceeeoeeeessane 22

United States v. Sioux

Nation of Indians,

NOR I ee 16

Williams v. Lee,

Pee Us BOS COPE 60660 66a see eeeeseeoees 20

-V-

TABLE OF AUTHORITIES (Cont. )

Cases Page(s)

Wilson v. Omaha Indian Tribe,

CES Gee GES CERF P a ccc cccccessosecoe 10, 19

Statutes

| PPT TTT TE TET IT CTT TT ere 5

ep Wetae * Rs baboon e500 68665 neseeseens 18

BO DpcGle Bees cbevcvccccesesceceecadwe 18

ee ek ee | Pe errr TTT TTT eT Ter Tere 13, 14

BS U.BcG. BS POP ack coccccesss oceevcees 18

BD DicSn Bees cacccesveccesscvesees 10, 19

Ee SEUTTTTTT TTT TTT Tete 14

em ee errr TT TTT TTT Tee ll

ee Ds ee sh 5000060006 0e6o00 bx Passim

SD DubsSs BOSS OS) «v.00 6 0hbevevensececcbs 4

iis ica 06 ken eneesneceeneeseus 26

B Beets Bele Bebb ce ese cesessceancesseses 18

Bes Bn ce 66 o seb nso 0060000006846608% 18

BS Bes Gig SPPk oe ee bed ecenseséconseoes 18

SEs GS) 006.060 665006060046 008006068% 14

Oe Dees Bee SOS csi vcecssébvteccevecece 15

me tees Ghee GE eck ce ececsecececcesveeese 15

oe ees: Cres Ori 66 460 0.66nbeebeseceeces 15

Statutes Page(s)

26 Stat. 663, 664... cece ceccecvesvecees 15

28 Stat. LOT... ccc cccecvceveesevecvecens 15

34 Stat. 1229... cc cree reve cvvseeseesecs 15

34 Stat. 267-268... ccc cc ccevcccecscveces 15

36 Stat. 557, 558-559, 569... eee eeeees 15

43 Stat. 636... cc cece evevvveevvecees 12, 14

ot} Aut} iti

C : 1 Material

House Rep. No. 92-1559,

reprinted in 1972 U.S.

Code Cong. & Admin. News 3,

92d Cong. 2d Sess. at 4547,

LS ) rrr re eee Tee Te 7

Admini iy

Bureau of Indian Affairs, U.S. Dept.

of the Interior, Annual Report on

Bee Oe Be CEO cc seceecacceecsecececes 13

Bureau of Indian Affairs, U.S. Dept.

of the Interior, Budget

Justifications F.Y. 1989 (1988)...... 22-24

Treatises

F. Cohen, Handbook of Federal

SO BO CE Gods sc ccecerocscces 16, is

-vii-

NO. 87-1165

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1987

STATE OF CALIFORNIA, et al.,

Petitioners,

Vv.

UNITED STATES, et al.,

Respondents.

On Writ of Certiorari

To The United States

Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE KLAMATH TRIBE;

THE NEZ PERCE TRIBE;

SWINOMISH TRIBAL COMMUNITY; ET AL.

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici curiae are ten (10) federally

l/

recognized Indian tribes. Amici have

1/counsel for petitioners and

counsel for respondents have consented to

the filing of the brief of amici in

Support of respondents. The consents are

submitted herewith.

a substantial interest in the issues

raised in this case. The issues involve

the scope of the Indian lands exception

to the Quiet Title Act, 28 U.S.C. §2409a,

and the extent of a waiver of federal

sovereign immunity when the United States

asserts water rights claims on behalf of

Indian tribes. One amici tribe is

involved in a dispute over title to its

lands. O*her amici tribes anticipate

quantification of their water rights in

proceedings in which the United States is

involved. All amici are concerned that,

because of the extensive federal control

over Indian lands and resources, limited

relief in federal courts against the

United States must be preserved. Amici

are convinced that the United States’

ability to protect Indian property from

interference by third parties will be

severely undérmined by the availability

of judicial relief.

SUMMARY OF ARGUMENT

The Indian lands exception to the

Quiet Title Act (QTA) retains immunity in

suits seeking to divest the United States

of title to Indian trust lands. The

Court of Appeals' construction of the QTA

should be affirmed because it is

consistent with established congressional

policy and decisions of this Court

protecting tribal land holdings.

Interference by third parties has been

particularly disfavored by Congress and

the Court.

The decision below is also consistent

with the basic policy behind sovereign

immunity: that governments should not be

in court unless and until their

legislative branches consent to suit.

Moreover, a broad interpretation of

waivers of federal sovereign immunity

would essentially discourage performance

by the federal trustee of its duty to

oe

represent Indian tribes in critical water

richts matters. Finally, judicial review

in separate actions of issues raised in

water rights adjudications would lead to

uncertainty and delay in the

quantification of important treaty water

rights. This would adversely affect

judicial resources as well as the natural

and financial resources of all parties.

Congress and this Court have repeatedly

disapproved of piecemeal adjudication of

water rights.

ARGUMENT

Ze THE QUIET TITLE ACT PROHIBITS THIRD

PARTY SUITS WHICH SEEK TO DIVEST THE

UNITED STATES OF TITLE TO INDIAN

LANDS.

A. The Indian Lands Exception

Applies.

The Quiet Title Act, 28 U.S.C. §2409a

(QTA), generally waives the United

States' sovereign immunity in actions

involving the United States' title to

real property. 28 U.S.C. §2409a(a).

adie

However, the QTA expressly excepts

actions seeking to divest the United

States of title to Indian lands. Id.

Because Petitioners’ suit seeks to divest

the United States of title to Indian

lands, the QTA's Indian lands exception

applies and sovereign immunity bars the

suit .2/

The Court of Appeals correctly found

that Congress intended to insulate Indian

lands from challenges such as that posed

by Petitioners’ suit. The fact that

Petitioners neither claim an interest in

the land, nor seek to recover title in

their own names is irrelevant. Pet. Br.

2/This Court has twice held that

the QTA is the exclusive means by which

the United States’ title to real property

can be challenged. United States v.

Mottaz, 476 U.S. 834 (1986); Block v.

North Dakota, 461 U.S. 273 (1983). And,

Since the QTA forbids the suit, the APA,

by its own terms, does as well. 5 U.S.C.

§702; see Block v. North Dakota, 461 U.S.

at 286 n.22. Therefore, Petitioners’

action, brought under the APA, cannot lie.

ofe

at 25-36. The relief Petitioners seek (a

judicial declaration that the lands are

no longer held in trust for the Tribes)

would in fact divest the United States of

title to Indian lands. That is the test

for whether the Indian lands exception

applies; not whether the challenger would

in fact obtain the land. Nothing in the

QTA or legislative history indicates

otherwise. See United States v. Mottaz,

476 U.S. at 842 (description of claim and

relief sought bring suit within the scope

of the QTA).

Moreover, before the QTA, sovereign

immunity barred all suits challenging

federal land holdings. Minnesota v.

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

QTA generally waived immunity in land

title dispute suits, but expressly

retained it where title to Indian lands

is involveda.2/ Since the Indian lands

exception prohibits direct challenges by

third parties claiming an interest in the

land, a fortiori it prohibits challenges

by those with any interest less than the

land itself, i.e., Petitioner

Metropolitan Water District's contract

rights, or potentially affected water

users. See State of Florida, Dept. of

Busi 5 lati v. United Stat

Dept. of the Interior, 768 F.2d 1248,

1254-55 (llth Cir. 1985), cert. denied,

475 U.S. 1011 (1986).

3/This Court has noted that the

Indian lands exception is “necessary to

prevent abridgment of ‘solemn

obligations’ and ‘specific commitments’

that the Federal Government had made to

the Indians regarding Indian lands.”

United States v. Mottaz, 476 U.S. at 843

n.6, quoting letter from Solicitor of the

Department of the Interior to Chairman,

Committee on Interior and Insular

Affairs, appended to House Rep. No.

92-1559, reprinted in 1972 U.S. Code

Cong. & Admin. News 3, 92d Cong. 2d Sess.

at 4547, 4556-57.

In addition, as in this case, tribal

lands often border on other federal

lands. Given the amount of land held in

trust for tribes, and the number of water

users affected by tribal water rights

(see infra Parts II and III of this

. Brief), if this suit is permitted, third

parties could devastate Indian land

holdings. Therefore, this Court should

affirm the decision below that

Petitioners’ action is within the meaning

of suits prohibited by the Indian lands

exception to the QTA.

B. A “Substantial Possibility” Test

Is Not Required.

Petitioners argue that if the QTA

applies, the United States should be

required to prove that there is at least

a “substantial possibility” that the

disputed lands are trust or restricted

Indian lands. Pet. Br. at 36-43.

However, nothing in the QTA or its

legislative history supports that

notion. This Court has held that “when

the United States claims an interest in

real property based on that property's

status as trust or restricted Indian

lands, the Quiet Title Act does not waive

the Government's immunity.” United

States v. Mottaz, 476 U.S. at 843

(footnote omitted; emphasis added) . 47

In addition, the respondent Tribes

have aptly pointed out the fallacy in

Petitioners’ argument. Tr. Opp. Br. at

16-17. The substantial possibility test

would permit a court to exercise

jurisdiction over the merits of the

United States' claim; thereby rendering

4/amici maintain that the QTA is

unambiguous, and that it should be

accorded its plain meaning. However, if

there is any doubt about the meaning of

the statute, it should be “construed

liberally in favor of the Indians, with

ambiguous provisions interpreted to their

benefit.” Montana v. Blackfeet Tribe of

Indians, 471 U.S. 759, 766 (1985).

athe

the Indian lands exception

meaningless.’ See F. Cohen, Handbook

of Federal Indian Law 322 n.335 (1982

ed.), and Wilson v. Omaha Indian Tribe,

442 U.S. 653, 668-669 (1979) (rejecting

argument that proof of prior possession

or Indian title is a precondition to

application of the burden of proof

statute, 25 U.S.C. §194, and holding that

where a tribe makes out a prima facie

case of prior possession or title to a

disputed area, §194 is triggered. )2”

Finally, Petitioners’ argument as to

the “mischief” that will result in the

absence of a substantial possibility test

2/For these reasons, as the Tribes

and United States point out, Spaeth v.

United States Secretary of the Interior,

757 F.2d 937 (8th Cir. 1985), is either

incorrect or limited to its unique facts.

§/alternatively, should this Court

find that the substantial possibility

test does apply, that test has been met

in this case. U.S. Opp. Br. at 16.

aie

is superficial and misleading. Pet. Br.

at 41. The United States rarely simply

“redraws boundaries,” as Petitioners

suggest. Moreover, if an adverse

claimant is actually in possession of the

property, the United States would sue for

ejectment, thereby permitting third

parties a “day in court” on the merits of

their ownership claim. See, e.g., Jones

v. United States, 195 F.2d 707 (9th Cir.

1952). Adverse claimants may also be

protected by water rights adjudications

in which title issues may be litigated,

e.g., In Re General Adjudication of All

Ri W j iv

System, 750 P.2d 681 (Wyo. 1988), and

they may have remedies under the Tucker

Act, 28 U.S.C. §1346(a)(2). United

States v. Mottaz, 476 U.S. at 847; Fadem

v. United States, 791 F.2d 1381 (9th Cir.

1986). To the extent third parties have

environmental concerns, they may sue

=)

under environmental laws even if Indian

interests are involved. E.g., Cady v.

Morton, 527 F.2d 786 (9th Cir. 1975).

Finally, Congress may validate non-Indian

claims to tribal lands. E.g,, Pueblo

Lands Act of 1924, ch. 331, §4, 43 Stat.

636, 637.

This Court's reasoning in Mottaz that

the United States need only claim an

interest in the land for the Indian lands

exception to apply is fully applicable

here. Alternatively, the Court should

adopt the ruling of the Court of Appeals

that a “colorable claim” by the United

States is sufficient.

II. ASSUMING ARGUENDO THE QUIET TITLE

ACT DOES NOT BAR THIS ACTION, BROAD

* JUDICIAL REVIEW OF THIRD PARTY SUITS

WOULD VIOLATE THE HISTORICAL FEDERAL

OBLIGATION TO PROTECT INDIAN LANDS.

This Court has noted the necessity of

the Indian lands exception: to prevent

abridgment of “solemn obligations” and

“specific commitments” that the federal

-12-

government made to Indians regarding

their lands. United States v. Mottaz,

476 U.S. at 843 n.6. Indeed, the

protection of Indian land holdings is

central to the federal government's trust

obligation to Indians. Heckman v. United

States, 224 U.S. 413 (1912).2/

Examples of early attempts by this Court

and Congress to establish a foundation

for the recognition and protection of

Indian property interests are found in

Johnson v. McIntosh, 21 U.S. (8 Wheat.)

543 (1823), in which the Court held that

the United States has the exclusive right

to purchase or extinguish Indian title,

and the Non-Intercourse Act, 25 U.S.C.

§177, which prohibits Indian land

transactions except as authorized by

7/The United States holds about 44

million acres of land in trust for Indian

tribes. Bureau of Indian Affairs, U.S.

Dep't of the Interior, Annual Report on

Indian Lands (1985).

a29q

Congress. Two hundred years later, the

federal government still controls Indian

property, most notably by treaties in

which the United States contractually

undertook to protect lands in Indian

ownership.

Notwithstanding a period of harmful

and since repudiated policies (e.q.,

allotment, homesteading, and sale of

surplus lands without tribal consent),

Congress has repeatedly pledged to

protect Indian property. The

congressional policy has been manifested

in a number of ways. Most importantly,

there are general and specific statutory

restraints on alienation of and trespass

8/

on tribal lands. Congress has

consistently exempted tribal lands from

8/E.g., 25 U.S.C. §177; 25 U.S.C.

§§476-477; Act of June 7, 1924, ch. 331,

§17, 43 Stat. 636, 641 (Pueblos); Act of

Feb. 28, 1809, ch. 23, 2 Stat. 527

(Alabamas and Wyandotts).

sttin

general legislation that opened the voublic

9/

domain to settlement, or that provided

1Q/

land grants to railroads. Congress

also affirmed the immunity of Indian: lands

from state taxation anc jurisdiction in the

enabling acts of many western states, ++

and has enacted protections against or

refused to consent to condemnation of

tribal lands by states .22/

9/E.g., Act of Mar. 2, 1907, ch.

2535, 34 Stat. 1229.

10/E.g., Act of Sept. 1, 1888, ch.

936, §15, 25 Stat. 452, 457 (Shoshones

and Bannocks); Act of Oct. 1, 1890, ch.

1277, §5, 26 Stat. 663, 664 (Siletz

Confederated Tribes); Act of Mar. 3,

1887, ch. 366, §5, 24 Stat. 545, 546

(Crows).

4l/act of June 20, 1910, ch. 310,

§§2, 20, 36 Stat. 557, 558-559, 569 (N.M.

and Ariz.); Act of June 16, 1906, ch.

3335, §1, 34 Stat. 267-268 (Okla.); Act

of July 16, 1894, ch. 138, §3, 28 Stat.

107 (Utah); Act of Feb. 22, 1889, ch.

180, §4, 25 Stat. 676, 677 (N.D., S.D.,

Mont., Wash.).

12/See F. Cohen, supra at 521 & 523

n.104-105.

wittie

The longstanding congressional policy

has been supplemented by judicial

protection. Thus, executive action

authorizing the alienation of tribal

lands is ineffective absent congressional

authorization. United States ex. rel,

Hualapi Indians v. Santa Fe Pac. R.R.,

314 U.S. 339, 347 (1941); Turtle Mountain

Band of Chippewa Indians v. United

States, 490 F.2d 935 (Ct.Cl. 1974).

Congressional authorization to alienate

Or interfere with Indian land must be

express, not implied. Santa Fe, 314 U.S.

at 353-354; United States v. Minnesota,

270 U.S. 181 (1926); Spalding v,

Chandler, 160 U.S. 394 (1896). Judicial

review of congressional action is

appropriate, and Congress must compensate

tribes for the abrogation of recognized

title. United States v. Sioux Nation of

Indians, 448 U.S. 371 (1980). The United

States and tribes may sue for ejectment,

wide

.

t

a

-

trespass, or possession where Indian

lands are involved. Oneida Indian Nation

v. County of Oneida, 414 U.S. 661 (1974)

(Oneida I); Johnson v. McIntosh, 21 U.S.

(8 Wheat.) 543 (1823); Marsh v. Brooks,

49 U.S. (8 How.) 223 (1850), rev'd 55

U.S. (14 How.) 513 (1852); see also

Fellows v. Blacksmith, 60 U.S. (19 How. )

366 (1856). Officer suits cannot be used

to circumvent the restrictions of the

QTA, in part because “the Indian lands

exception to the QTA would be rendered

augatory." Block v, North Dakota, 461

U.S. at 285. Most recently, this Court

found liability for wrongful possession

of Indian lands conveyed in 1795 wichout

federal consent. County of Oneida Vv.

Oneida Indian Nation, 470 U.S. 226 (1985)

(Oneida II). The cases well-illustrate

the sanctity of Indian lands that is

threatened by this action.

al@e

Federal law has particularly

protected tribal possessory rights

against interference by third parties.

The early Trade and Intercourse Acts

sought to restrain and punish various

types of trespass on Indian lands .22/

Current federal statutes provide criminal

penalties for unauthorized hunting,

trapping, or fishing on Indian land, and

provide a restitutionary remedy against

non-Indian trespassers who injure or

destroy property on Indian lands. 18

U.S.C. §1165, §1160. Federal statutes

also forbid the grazing of livestock on

Indian lands without tribal consent and

preclude unauthorized persons from

25 U.S.C.

settling on Indian lands.

§§179-180.

13/E.g., Act of May 19, 1796, ch.

30, §4, 1 Stat. 469, 470; Act of Mar. l,

1793, ch. 19, §4, 1 Stat. 329; Act of

July 22, 1790, ch. 33, §5, 1 Stat. 137,

138.

@lBe i

Federal law also allocates the burden

of proof in certain land title disputes.

Under 25 U.S.C. §194, the ultimate burden

of persuasion in land claim cases

involving an Indian is allocated to the

non-Indian claimant onte the Indian has

shown previous possession or ownership.

This statute has been held applicable to

tribal land claims, to suits instituted

by the United States as trustee for

tribal lands, and to individual Indian

Wilson v,. Omaha Indian

Tribe, 442 U.S. 653 (1979); United States

v. Sands, 94 F.2d 156 (10th Cir. 1938);

land claims.

Felix v. Patrick, 36 F. 457 (C.C. Neb.

1888), af ‘d, 145 U.S. 317 (1892). State

law defenses of adverse possession,

Statutes of limitation, and abatement

generally are unavailable against Indians

in land claims litigation. Qneida II,

470 U.S. at 240-246. Nor can Indian

possessory rights generally be defeated

= =

by tribal inaction or by tribal efforts

to convey property interests in a manner

inconsistent with the federal laws

restraining alienation. Schaghticoke

Tribe v. Kent School Corp., Inc., 423

F.Supp. 780 (D.Conn. 1976); Narrangansett

Tribe v. Southern R.I. Land Dev. Corp.,

418 F.Supp. 798 (D. R.I. 1976); see also

Oneida I, 414 U.S. 661. Finally, the

federal government has long recognized

that Indian tribes have broad inherent

civil jurisdiction over their lands,

including authority to exclude

nonmembers. Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982); Williams v.

Lee, 358 U.S. 217 (1959).

Thus, protection of Indian lands,

especially against interference by third

parties, has been a cornerstone of

federal Indian policy. The goal has been

to insulate Indian lands from the full

impact of market forces, and to preserve

=2@<

a land and resource base for the

furtherance of Indian values. But

because of the extensive federal control

over Indian affairs, limited relief in

federal courts against the United States

where Indian lands are involved is

essential. If broad judicial relief is

permitted, third parties will eventually

erode Indian land ownership without

tribal consent, thereby interfering with

tribal culture, society, and

self-government.

III. WHEN THE UNITED STATES WAIVES ITS

SOVEREIGN IMMUNITY TO ASSERT A CLAIM

FOR INDIAN WATER RIGHTS, THE WAIVER

DOES NOT EXTEND TO “ANCILLARY

PROCEEDINGS.”

A. The Court of Appeals Correctly

Held That Any Waiver of

Immunity By The United States

In Arizona v. California Does

Not Extend To This Separate

Action.

Generally, a waiver of sovereign

immunity must be exress. Block v. North

Dakota, 461 U.S. at 280. Waivers are to

afiiie

be strictly construed. Id. at 287.

Waiver is premised upon congressional

consent, not judicial fiat or public

policy reasons. This Court has often

affirmed the basic policy behind

sovereign immunity: that governments

should not be in court unless and until

their legislative branches consent to

Suit. Block v, North Dakota; United

States v. Sherwood, 312 U.S. 584

(1941) .+47 As discussed above,

Congress has retained immunity in suits

seeking to divest the United States of

title to Indian lands. As Petitioners

admit, there is neither law nor evidence

14/For this reason, Petitioners’

arguments that this Court's statements in

Arizona v. California, 460 U.S. 605

(1983), “waived” the United States’

immunity in this action, and that “there

are no public policy reasons which

Support limiting the waiver to the

Original forum selected by the United

States,” are inapposite. Pet. Br. at 16

& 18-24.

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of congressional intent which would

subject the United States to suit in a

separate action merely by virtue of its

involvement in Arizona v. California.

Pet. Br. at 18-19. Therefore, the Court

of Appeals correctly recognized that the

United States is immune from Petitioners’

action unless and until Congress decides

to waive that immunity.

Even assuming arguendo that this

Court could waive immunity, it should

not. “Back-door” suits such as

Petitioners’ directly contradict settled

congressional and judicial policy to

insulate Indian property from such

Challenges. See supra Part II of this

Brief. Moreover, there are presently

over 60 pending water rights cases in

which Indian rights are being

adjudicated. Bureau of Indian Affairs,

U.S. Dep't of the Interior Budget

Justifications, F.Y. 1989, 165

o23<

(1988) .22/ Most of the adjudications

impact more than one tribe. The tribes

and the United States should not be

forced to defend in separate actions

perhaps a multitude of boundary and title

issues (or the general authority of the

United States over Indian affairs) merely

because they are seeking to have their

water rights adjudicated.

In addition, a rule that a waiver in

one action extends to others is

particularly harmful to tribes because it

amounts to a unilateral waiver by the

United States where the United States

claims water rights as trustee on behalf

of a tribe. Tribal land titles and

perhaps other issues would automatically;

15/In addition, the United States

may Claim water rights on behalf of other

federal interests, including the Fish and

Wildlife Service, the National Park

Service, the Bureau of Reclamation, the

Bureau of Land Manage.ent, and the Forest

Service.

afin

be subject to challenge without tribal

consent. Such a rule would essentially

discourage tribes from insisting that the

United States perform its duty to

represent them in the resolution of

Critical water rights issues. It would

also lead to the curious result that

tribes representing themselves would

enjoy immunity in separate actions but

tribes represented by the United States

would not. This would be particularly

awkward in cases where more than one

tribe is participating in the same

genera’ stream adjudication; one tribe

might have immunity from separate actions

and others would not.

Finally, permitting judicial review

in separate actions of issues raised in

water rights adjudications would result

in delay and uncertainty in the

quantification of important treaty water

rights--the very antithesis of this

aitin

Court’s reasoning in Nevada v. United

States, 463 U.S. 110 (1983) and Arizona

v. California, 460 U.S. 605 (1983). This

case is a prime example. The burden on

judicial resources as well as on limited

tribal and federal financial resources

would be intolerable.

B. The McCarran Amendment Does Not

Waive Immunity In This Action.

Petitioners argue that this action is

a “partial stream adjudication" and

therefore permitted under the McCarran

Amendment, 43 U.S.C. §666. Pet. Br. at

45. However, this action is a suit over

land title, not water rights. It is also

a challenge to the authority of the

Secretary of the Interior to correct

erroneous reservation boundaries. But

Petitioners do not and cannot seek to

have their water rights adjudicated in

this action, in part because it is not a

quantification proceeding, and it is not

= ‘es

a comprehensive proceeding in which all

the water users to the water source have

been joined. See Dugan v. Rank, 372 U.S.

609 (1963).

Moreover, although the issues to

which Petitioners seek resolution (the

location of the boundaries and the title

status of the lands) were raised in an

action that might be a general stream

adjudication, i.e., Arizona v.

California, their proposition that the

McCarran Amendment subjects the United

States to suit on these related issues in

a forum other than a court of competent

jurisdiction over the general stream

adjudication lacks authority and merit.

A McCarran Amendment waiver extends only

to general stream adjudications, not

actions by individual water users.

United § vy, District ¢ ”

County, 401 U.S. 520 (1971). Moreover,

= 2Pa

the McCarren Amendment was intended to

avoid the very piecemeal adjudiciation of

water rights issues that would result if

separate actions on various issues were

permitted. Arizona v. San Carlos Apache

Tribe, 463 U.S. 545 (1983); Colorado

States, 424 U.S. 800 (1976). This Court

has consistently honored the intent

behind the McCarren Amendment and should

do so in this case, especially where

Petitioners have a forum, Arizona v.

California, for resolution of the issues

involved. To craft a rule otherwise

would disrupt settled congressional

policy, overturn major decisions of this

Court, and potentially devastate tribal

land holdings.

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SS 2 cits 5d ORES SY en cd

i CON

CONCLUSION

For the reasons stated above, the

decision of the Court of Appeals should

be affirmed.

Respectfully submitted,

Richard Dauphinais

Counsel of Record

Melody L. McCoy

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for Amici Curiae

August, 1988

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