# Amicus Curiae Brief — California v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 920

## Text

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.

~22-

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.

-~28-

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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

-~29-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0632%3A09. Public record. Not legal advice.