Opposition Brief — City of Pocatello, Idaho v. Idaho (No. 08-135)

VP ~ FILED

YD NOV 3~ 2008

No. 08-135 | OFFICE OF THE CLERK |

Sn the Supreme Court of the Gnited States

CITY OF POCATELLO, IDAHO, PETITIONER

v.

STATE OF IDAHO, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE SUPREME COURT OF IDAHO

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE

Solicitor General

Counsel of Record

RONALD J. TENPAS

Assistant Attorney General

WILLIAM B. LAZARUS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether Section 10 of the Pocatello Townsite Act,

Act of Sept. 1, 1888, ch. 936, 25 Stat. 455, grants peti-

tioner an express federal right to waters on the Fort

Hall Indian Reservation, rather than a right of access

thereto and an opportunity to establish a water right un-

der Idaho law through the beneficial use of water.

(1)

TABLE OF CONTENTS

Page

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EERE eRe oe on ee a Re pais pet see 1

a i Se a eae aan 2

PE cob ceecevesetacscarcercccvevsvercvecseeeses 10

SN ea a ae le ae ena ag lg 16

TABLE OF AUTHORITIES

Cases:

Byers v. Wa-wa-ne, 169 P. 121 (Or. 1917) .............. 16

Caldwell v. United States, 250 U.S. 14 (1919) ........ 8,12

California v. United States:

ee ced eeebenaes x

ES a 12

Cherokee Nation or Tribe of Indians v. Oklahoma,

402 F.2d 739 (10th Cir. 1968), rev’d sub nom.

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ... 13

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ...... 13

Hagen v. Utah, 510 U.S. 399 (1994) ..........-....006- 14

Howell v. Mississippi, 543 U.S. 440 (2005) ............ 14

Minnesota v. Mille Lacs Band of Chippewa Indians,

ase eh ees eae see 6w ee 6-0 9,14

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) ..... 14

Snake River Basin Water Sys., In re, 764 P.2d 78

(Idaho 1988), cert. denied, 490 U.S. 1005 (1989) ..... 5, 6

United States v. Idaho, 508 U.S. 1 (1993) ............. 5, 6

Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463 (1979) ........ 15

(IIT)

IV

Cases—Continued: Page

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658

PME tee gee bebe ed baal coabide buh oeess 15, 16

Winters v. United States, 207 U.S. 564 (1908) ........ 9,12

Constitution, treaty, statutes and rule:

U.S. Const.:

Art. IV, $3, Cl. 2 (Property Clause) ..............02- 7

Art. V, Cl. 2 (Supremacy Clause) ............... 14,15

Treaty with the Shoshonee (Eastern Band) and

Bannack Tribes of Indians, July 3, 1868, 15 Stat.

POSES SE a ee a ere 2

ce bees eenebeeeewn 2

Act of July 3, 1882, ch. 268, 22 Stat. 148 ................ 2

Act of Sept. 1, 1888, ch. 9386, 25 Stat. 452 ............... 4

en ns wing ob 50d be been 6k ouueee 11

it bis be kaw ees-civectcueee bee passim

es ha oe NG ened de oe 066.6 4 7, 11, 18, 16

Act of Mar. 3, 1891, ch. 548, 26 Stat. 1011 ............... 5

McCarran Amendment, 43 U.S.C. 666 ................. 6

Idaho Code (2003):

ieee be ens etn ene es shinee OEE 6

ee ees do Se deg theese cake eeen learn 6

aS EE er re Perera ee rn 7

Miscellaneous:

1 Charles J. Kappler, /udian Affairs: Laws and

IE 6b 6 ke Sade Chaviees bas seakevassuedenn 2

Hn the Supreme Court of the Gnited States

No. 08-135

CITY OF POCATELLO, IDAHO, PETITIONER

Vv.

STATE OF IDAHO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF IDAHO

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Supreme Court of Idaho (Pet.

App. la-30a) is reported at 180 P.3d 1048. The memo-

randum decision and order of the district court (Pet.

App. 3la-92a) and the relevant order of the Special Mas-

ter (Pet. App. 101a-135a) are unreported.

JURISDICTION

The judgment of the Supreme Court of Idaho was

entered on February 19, 2008. A petition for rehearing

was denied on April 3, 2008 (Pet. App. 136a-137a). On

June 13, 2008, Justice Kennedy extended the time within

which to file a petition for a writ of certiorari to and in-

cluding August 1, 2008, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1257.

(1)

7

2

STATEMENT

This case involves petitioner’s claim that it enjoys a

right under federal law to divert and use a substantial

quantity of water from the Snake River system. Peti-

tioner filed its federal-law claim as part of the basin-

wide Snake River Basin Adjudication, a consolidated

water-rights proceeding conducted by an Idaho state

district court. The state district court rejected peti-

tioner’s federal claim and certified its order for appeal.

The Supreme Court of Idaho affirmed. Pet. App. la-30a.

1. Petitioner occupies territory that was formerly

part of the Fort Hall Indian Reservation, on which

Bands of the Shoshone and Bannock Tribes (Tribes)

reside. The Reservation was created by Executive Or-

der of President Andrew Johnson in 1867. Pet. App. 2a;

see 1 Charles J. Kappler, /ndian Affairs: Laws and

Treaties 836-837 (1904). The Tribes and the United

States subsequently signed the Second Treaty of Fort

Bridger, which confirmed the creation of the Reserva-

tion and provided for federal services to its residents.

Treaty with the Shoshonee (Eastern Band) and Bannack

Tribes of Indians, July 3, 1868, 15 Stat. 673. The treaty

also provided that any cession of reservation land would

require the consent of “at least a majority of all the

adult male Indians occupying or interested in the same.”

Id. Art. XI, 15 Stat. 676.

In 1878, the Utah Northern Railway Company built

a north-south railroad line across the Reservation with-

out obtaining permission from the Tribes or from the

United States. Pet. App. 2a. In 1881, the railroad nego-

tiated with the Tribes for an east-west right-of-way,

which Congress approved. Act of July 3, 1882, ch. 268,

22 Stat. 148. The two railroad lines intersected at a site

3

called Pocatello Junction, petitioner’s present-day loca-

tion. Pet. App. 2a.

Non-Indians established a settlement at the site,

trespassing on reservation lands. Despite efforts by

federal officials to have the trespassers removed, the

settlement remained. In 1887, federal officials negoti-

ated a Cession Agreement with the Tribes whereby the.

United States would convey the Pocatello Townsite to

the residents of the town and a right-of-way to the rail-

road for its existing tracks. Neither the negotiations

that led to the Cession Agreement nor the Agreement ©

itself discussed water or a right of access across the

Reservation for water. Pet. App. 2a-3a.

When the time came to submit legislation to Con-

gress to ratify the Cession Agreement, however, some

discussion arose concerning the town’s access to water.

Pet. App. 3a-4a. The Commissioner of Indian Affairs

accordingly proposed adding to the implementing legis-

lation a water-related provision, Section 10, which he

explained as follows:

Inasmuch as conflicting opinions seem to prevail

as to the source or sources from which the town will

derive its supply of water, I have deemed it advis-

able, as a matter of precaution, to insert in the bill a

clause providing for the use by the citizens of the

town, in common with the Indians, of the water of

any river, creek, stream or spring flowing though the

reservations lands in the vicinity of the town, with

the right of access at all times thereto, and the right

to construct, operate, and maintain all such ditches,

canals, works or other aqueducts, drain and sewer-

age pipes, and other appliances on the reservation, as

4

may be necessary to provide with proper water and

sewerage facilities.

Id. at 4a-5a. When the Secretary of the Interior submit-

ted the draft legislation to the President, he summarized

Section 10 as “provid[{ing] for access to and use by the

citizens of the town in common with the Indians of the

water from any river, creek, stream, or spring flowing

though the reservation lands in the vicinity of the town-

site.” /d. at 41a.

Congress ratified the Cession Agreement by enact-

ing the legislation known as the Pocatello Townsite Act.

Act of Sept. 1, 1888, ch. 936, 25 Stat. 452 (Townsite Act).

Section 10 of the Townsite Act provides:

That the citizens of [Pocatello] shall have the free

and undisturbed use in common with the [Shoshone

and Bannock] Indians of the waters of any river,

creek, stream, or spring flowing through the Fort

Hall Reservation in the vicinity of said town, with

right of access at all times thereto, and the right to

construct, operate, and maintain all such ditches,

canals, works, or other aqueducts, drain, and sewer-

age pipes, and other appliances on the reservation, as

may be necessary to provide said town with proper

water and sewerage facilities.

25 Stat. 455.

Soon after the Townsite Act’s enactment, a company

building a canal to Pocatello asked the Commissioner of

Indian Affairs whether Section 10 would give the com-

pany the right to go on the Reservation to construct the

canal. The Department of Justice opined that Section 10

conferred no such right, because Section 10 “is in dero-

gation of the rights of the Indians as secured by treaty”

and therefore “should be strictly construed.” Pet. App.

5

20a. In the Department’s opinion, properly construed,

“the statute authorizes those, at the time citizens of said

town, to go upon the lands of the Indian for the purpose

of bringing water to the town, and for that purpose to

construct, operate, and maintain a canal. This right is in

the nature of a mere license—authority to do an act,

which without such authority would be illegal.” Jd. at

20a-21a (emphasis added).

Congress responded by enacting an appropriations

rider authorizing the Secretary of the Interior “to grant

rights of way into and across the Fort Hall Reservation

in Idaho to canal, ditch, or reservoir companies for the

purpose of enabling the citizens of Pocatello to thereby

receive the water supply, contemplated by [Section 10].”

Act of Mar. 3, 1891, ch. 543, 26 Stat. 1011. The rider also

allowed the Secretary to “attach conditions as to the

supply of surplus water to Indians on said Fort Hall

Reservation.” /bid.

Since that time, petitioner has used waters diverted

primarily from two local streams. Pet. 5. For more than

a century, petitioner pursued its rights to that water

exclusively under state law. Pet. App. 22a; see also 7d.

at 44a-45a (following the enactment of the 1891 rider,

members of the Pocatello Water Company began stak-

ing claims to water from nearby creeks in accordance

with state water law).

2. In 1985, the Idaho Legislature enacted legisla-

tion to begin the Snake River Basin Adjudication

(SRBA), a comprehensive proceeding to determine the

rights to surface and groundwater in the Snake River

Basin, which encompasses most of the State. See Uni-

ted States v. Idaho, 508 U.S. 1, 3-4 (1993); /n re Snake

River Basin Water Sys., 764 P.2d 78, 81 (Idaho 1988),

cert. denied, 490 U.S. 1005 (1989). Shortly thereafter,

6

the State commenced the SRBA in state district court.

Ibid. Pursuant to the McCarran Amendment, 43 U.S.C.

666, which waives federal sovereign immunity and allows

a State to join the United States as a defendant in a suit

for the adjudication of rights to the use of water of a

river system or other source, the State joined the United

States as a defendant in the SRBA. See United States

v. Idaho, 508 U.S. at 4. Under Idaho law, the United

States was thereby obligated, like other water users, to

assert any water-right claims to which it believed it was

entitled, and could file objections to water-right claims

of others with which it disagreed. See Idaho Code §$§ 42-

1420, 42-1424 (2003).

3. In 1990, petitioner filed the claim at issue here as

part of the SRBA. Pet. App. 6a. Petitioner had already

filed 38 other claims based on state law and including

the same water rights. /d. at 32a, 46a, 10la. The 1990

claim asserted, as an alternative legal theory to those

state-law claims, that Section 10 gave petitioner a fed-

eral right to water from the Fort Hall Reservation, in

the quantity “determined by the court to be reasonably

necessary to meet the future municipal/irrigation needs

of the city.” /d. at 33a; see id. at 6a, 46a. The United

States, the State of Idaho, and the Tribes filed objec-

tions to petitioner’s claim, taking the position that the

Townsite Act did not create a federal water right. See

id. at 102a, 114a.'

The SRBA Special Master granted summary judg-

ment for the United States, Idaho, and the Tribes, deny-

ing petitioner’s claim to a federal water right. Pet. App.

' Petitioner's notice of claim had asserted a federal reserved water

right, see Pet. App. 33a, but petitioner subsequently abandoned that

theory and asserted that the Townsite Act had given it an express fed-

eral water right. /d. at 8a, 46a.

7

10la-135a. The Special Master concluded that the

Townsite Act did not grant petitioner a federal water

right.

4. The state district court affirmed the Special Mas-

ter. Pet. App. 3la-92a. The court agreed that the Town-

site Act established a right of access for appropriating

water, not a water right. The district court accordingly

disallowed the federal-law basis for petitioner’s water-

right claims. Jd. at 91a. The court certified its order as

final and appealable on that federal-law issue, pursuant

to Idaho Rule of Civil Procedure 54(b). /d. at 92a.

5. The Supreme Court of Idaho unanimously af-

firmed. Pet. App. la-30a.

The court acknowledged as a threshold matter that

“(n]o one disputes Congress’ power to make a grant of

water rights,” pursuant to the Property Clause, U.S.

Const. Art. TV, § 3, Cl. 2. Pet. App. 10a. But, the court

noted, “|mjerely because Congress could have granted

[petitioner] a federal water right does not mean it did so

in this case.” /bid.; see id. at 29a.

The court concluded that the statutory text showed

that Congress did not grant petitioner such a right. Sec-

tion 10 “does not purport to grant a property interest,”

does not “make reference to a ‘water right,’” and does

not “contain|| [any] language defining the nature and

scope of any water right supposedly granted.” Pet. App.

lla. By contrast, in the very next section of the Town-

site Act, Congress used unambiguous words of convey-

ance in specifying that it “hereby granted * * * aright

of way” to the railroad. /did. (quoting Townsite Act,

§ 11, 25 Stat. 455). “Congress could easily have used

{such language] in Section 10 but did not.” /d. at 12a.

Thus, the court stated, “[a] plain reading of the statu-

8

tory language shows that [petitioner] was not granted a

federal water right.” Jd. at 13a.

Next, the court bolstered its conclusion by noting

“the rule of strict construction that federal courts apply

to statutes in which the government grants privileges or

relinquishes rights.” Pet. App. lla. Under that clear-

statement rule, such federal grant statutes are read to

transfer no more than “what is conveyed in clear and

explicit language.” Jbid. (quoting Caldwell v. United

States, 250 U.S. 14, 20 (1919)); see id. at 7a-8a.

The court also confirmed that “[e]ven if the language

were determined to be ambiguous, [petitioner’s] claim

would fail.” Pet. App. 13a. Petitioner’s interpretation of

the Townsite Act, the court observed, would run con-

trary to the history of federal policy in dealing with wa-

ter in the West, “through [which] runs the consistent

thread of purposeful and continued deference to state

water law by Congress.” /d. at 16a (quoting California

v. United States, 488 U.S. 645, 653 (1978)). The court

concluded that because Congress has incorporated that

policy of deference into “a century’s-worth” of federal

statutes both before and after the Townsite Act, id. at

15a-17a, it would have used “explicit language” if it had

intended Section 10 to be interpreted as a grant of fed-

eral water rights to petitioner’s non-Indian citizens, id.

at 17a.

Furthermore, the court determined that petitioner’s

claim conflicted with “the background for inclusion of

Section 10 in the 1888 [Townsite] Act.” Pet. App. 17a-

22a. The discussions over the Cession Agreement “did

not relate to water rights and who should have them but,

rather, water sources and how to ensure that the City

had access to them” without unlawfully trespassing on

Indian land. /d. at 19a. And the Justice Department

9

opinion and subsequent appropriations rider, see pp. 4-5,

supra, similarly involved access to water supplies, not

water rights. Pet. App. 22a. “Thus,” the court con-

cluded, “neither the history or purpose of the [Townsite]

Act supports [petitioner’s] claim to a federal water

right.” /bid. The court similarly found no subsequent

history to support petitioner’s claim of a federal water

right as opposed to an opportunity to acquire water

rights under Idaho state law. /d. at 20a-22a.

Finally, the court rejected petitioner’s contention

that the phrase “in common with” in Section 10 has an

established interpretation that confers water rights, not

just access rights. The cases to which petitioner pointed

as announcing that interpretation, the court noted, all

construed the phrase in /ndian treaties and for the ben-

efit of Indian Tribes, consistent with the canon of con-

struction that ambiguities in Indian treaties are resolved

in the Indians’ favor. Petitioner, by contrast, seeks to

interpret a federal statute for its own benefit, not the

Tribes’. See Pet. App. 22a-25a. “Thus,” the court held,

“if Section 10 was ambiguous, [the] Court would con-

strue it in favor of the Tribes, not [petitioner].” Jd. at

26a.

As “[ajn additional consideration” on this point, Pet.

App. 26a, the court noted two reasons not to adopt peti-

tioner’s reading, which would give petitioner a portion of

the water right impliedly reserved to the Tribes by the

Second Treaty of Fort Bridger, id. at 27a. See Winters

v. United States, 207 U.S. 564 (1908). First, the abroga-

tion of Indian treaty rights by statute generally requires

a clear statement. Pet. App. 27a (citing Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999)). Congress did not expressly abrogate the Tribes’

treaty rights, whereas it did so in another, near-contem-

10

poraneous townsite act adopted in 1885 and involving

land in Pendleton, Oregon. See id. at 28a-29a; see also

id. at 1la-12a. Second, the Tribes were never asked to

give their consent to cede their water rights to peti-

tioner, as the Second Treaty of Fort Bridger would seem

to require and as was apparently done before the adop-

tion of the 1885 Pendleton townsite act. See id. at 28a-

29a. The absence of any “[s]Jerious discussions between

the federal officials and the Indians” on the subject indi-

cated to the court that Section 10 was not the sort of

cession that would trigger the approval requirement.

Id. at 28a.

ARGUMENT

The Supreme Court of Idaho correctly concluded

that Section 10 is best understood to grant petitioner an

opportunity to appropriate water under Idaho state law.

That straightforward interpretation of a site-specific

federal statute does not conflict with any decision of this

Court or another appellate court, and it has no applica-

tion elsewhere. Indeed, Section 10 appears never to

have been construed in any previous reported case.

Furthermore, although petitioner raises various

challenges to subsidiary aspects of the state supreme

court’s reasoning, it does not grapple with the court’s

central point: that “[{a} plain reading of the statutory

language shows that [petitioner] was not granted a fed-

eral water right,” Pet. App. 13a. Rather, petitioner’s

contentions all pertain only to the court’s alternative

holding that petitioner would still lose “[e]ven if the lan-

guage were determined to be ambiguous,” ibid. The

questions presented accordingly do not affect the out-

come of this case, which is alone a sufficient reason not

11

to grant further review. In any event, petitioner’s con-

tentions lack merit.

1. Petitioner contends (Pet. 20-24) that the court

below wrongly “reli{ed] on the absence of tribal consent”

to cede any of the Tribe’s reserved water rights to peti-

tioner, and petitioner suggests that the court’s reason-

ing broadly questions Congress’s “constitutional power”

to abrogate Indian treaty rights without obtaining the

tribe’s consent. Pet. 20. Petitioner misreads the court’s

opinion.

First, the court repeatedly made clear that it was not

questioning Congress’s power to legislate, despite peti-

tioner’s contentions to the contrary. Pet. App. 10a, 27a,

29a. Indeed, the court expressly stated that “Congress

certainly has the power to abrogate Indian treaty

rights.” Jd. at 27a. The court simply concluded that

Congress did not choose to exercise that power in Sec-

tion 10. Jd. at 10a, 27a, 29a. Accordingly, petitioner’s

suggestion (Pet. 22-24) of a conflict with cases upholding

the federal government’s “plenary power over Indian

affairs” is without merit.

Second, the court was considering the consent provi-

sion of the Second Treaty of Fort Bridger specifically.

Petitioner’s suggestion that the court announced a rule

applicable to Indian law generally (Pet. 22, 25) is incor-

rect.

Third, the court concluded that the treaty’s consent

provision was relevant because if the Townsite Act had

been intended to be read as petitioner wishes, there

most likely would have been some attempt to use the

treaty procedure to obtain the Indians’ consent—as the

government did with respect to other aspects of the

Townsite Act, such as the cession of a right-of-way to

the railroad. Townsite Act, §§ 1, 11, 25 Stat. 452, 455.

12

The absence of indication that the government made any

such effort simply gave additional support to the view

that Section 10 did not make the kind of cession that

would require consent. Pet. App. 28a-29a. That discus-

sion did not adopt the sort of sweeping “new rule” that

petitioner suggests (Pet. 25). And it certainly does not

create a conflict with cases permitting Congress to abro-

gate Indian treaty rights, because the court concluded

that Congress intended no such abrogation here. The

Second Treaty of Fort Bridger was merely an “addi-

tional consideration,” Pet. App. 26a, in support of an

alternative construction of an unambiguous statute.

2. Petitioner also contends (Pet. 26-31) that the

court below erred in citing Caldwell v. United States,

250 U.S. 14, 20 (1919), for the proposition that federal

grants of property interests are “construed favorably to

the government” and pass only “‘what is conveyed in

clear and explicit language.’” Pet. App. 7a-8a (quoting

250 U.S. at 20); see id. at 1la (similar). The two brief

references to Caldwell were not a significant part of the

court’s analysis; they served only to confirm that,

“{e]ven if the language [of Section 10] were determined

to be ambiguous,” petitioner could not prevail. /d. at

13a. To the extent the court below relied on Caldwell, it

did not err.

The rule stated by Caldwell is well established. Ac-

cord, e.g., California v. United States, 457 U.S. 273, 287

(1982) (noting “the principle that federal grants are to

be construed strictly in favor of the United States”).

And that rule properly applies where, as here, the con-

tention is that the United States has made an affirma-

tive grant of property rights—in this instance, water

rights previously reserved by the federal government

for the Indians’ use. See Winters v. United States, 207

13

U.S. 564, 577 (1908); Pet. App. 27a. The court below

therefore properly examined Section 10 for the clear

statement required to find such a federal grant of a

property interest. Petitioner derides the state supreme

court’s reasoning as creating a “‘magic words’ test.”

Pet. 27. But the court did not hold that any particular

words were required; it merely reasoned that, “espe-

cially” in light of the principle stated in Caldwell, “Con-

gress would have used more exacting language” in Sec-

tion 10—such as the language it used in Section 11—“if

it had intended to grant a water right to the City.” Pet.

App. lla.

Petitioner also suggests (Pet. 26-31) that applying

the Caldwell rule in the context of Indian treaty rights

conflicts with decisions of this Court. Petitioner princi-

pally relies on Choctaw Nation v. Oklahoma, 397 U.S.

620 (1970), but that case is inapposite. The question in

Choctaw Nation was whether the United States’ treaties

with the Cherokee, Choctaw, and Chickasaw Nations

had conveyed to those Indian Tribes not just surface

lands, but also the bed of the Arkansas River. /d. at

627-628. The Tenth Circuit relied on the Caldwell rule

to resolve the ambiguity in the Indian treaties, and it

accordingly held that title to the riverbed had remained

with the United States (and subsequently passed to

Oklahoma on its admission to the Union). See Cherokee

Nation or Tribe of Indians v. Oklahoma, 402 F.2d 739,

747 & n.38 (1968). This Court reversed, holding that the

ambiguity, like other ambiguities in an Indian treaty,

should be resolved in the Indians’ favor. See Choctaw

Nation, 397 U.S. at 630-631, 634. Thus, to the extent

that Choctaw Nation discusses the Caldwell rule, it sim-

ply holds that under the “exceptional circumstances”

surrounding the Indian treaties at issue, id. at 639

14

(Douglas, J., concurring), the governing rule was the one

construing ambiguities in the Indians’ favor. /d. at 634

(opinion of the Court). That holding is of no benefit to

petitioner, which is arguing for a broad interpretation of

a grant that would take rights away from the Tribes.

Finally, petitioner suggests that in other cases, this

Court has rejected the notion that a clear statement is

required to abrogate Indian treaty rights. That asser-

tion is incorrect. As this Court has recently explained,

in a decision that postdates all of petitioner’s authorities

(see Pet. 28-29), “Congress may abrogate Indian treaty

rights, but it must clearly express its intent to do so.”

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999) (emphasis added). The cases

petitioner cites merely stand for the proposition that the

clear statement need not use any particular form of

words and need not include a provision for definite pay-

ment of compensation to the Indians. Hagen v. Utah,

510 U.S. 399, 411-412 (1994); Rosebud Sioux Tribe v.

Kneip, 430 U.S. 584, 588 n.4 (1977). Thus, even if the

applicability of a clear-statement rule were dispositive

in this case, the court below did not contradict any pre-

cedent of this Court in applying the Caldwell rule in this

context.

3. Petitioner also claims (Pet. 31-36) that the courts

below violated the Supremacy Clause by holding that

Section 10 granted petitioner only a right of access to

the waters on the Reservation and an opportunity to

perfect claims to those waters under state law. The

state district court reached a similar conclusion, yet pe-

titioner never raised its Supremacy Clause argument in

the Supreme Court of Idaho. Accordingly, further re-

view of this question would be contrary to this Court’s

longstanding practice. E.g., Howell v. Mississippi, 543

15

U.S. 440, 443 (2005) (per curiam). In any event, peti-

tioner’s contention is incorrect.

The Supremacy Clause poses no bar to Congress’s

adopting state law as a rule of decision. Indeed, the Su-

premacy Clause does not independently restrain con-

gressional authority. Therefore, petitioner’s unsuppor-

ted contention that the Constitution requires Congress

to plainly manifest its intention to have state law, rather

than federal law, apply to non-Indians’ use of water re-

sources is without merit.”

To be sure, state regulation of /ndians on tribal land

is the exception rather than the rule. See, e.g., Wash-

ington v. Confederated Bands & Tribes of Yakima In-

dian Nation, 439 U.S. 463, 470-474, 501 (1979). But

state regulation of non-/ndians and their access to wa-

ter is perfectly consistent with federal policy. As the

state supreme court noted, Congress historically has

deferred to state law governing water use by non-Indi-

ans, rather than creating an independent system of fed-

eral water rights. Pet. App. 16a. And the state courts

correctly observed that petitioner’s reading of Section

10—which made no reference to a water right, the scope

and nature of such a right, or how such a right would be

administered—would be extremely atypical in light of

this consistent federal policy.

Petitioner similarly misreads (Pet. 35-36) this

Court’s decision in Washington v. Washington State

Commercial Passenger Fishing Vessel Ass'n, 443 U.S.

658 (1979), in which the phrase “in common with” was

® Petitioner suggests (Pet. 34 n.11) that resolution of this issue could

affect certain other century-old statutes granting access to reservation

lands, but offers no indication that any controversy (let alone an iden-

tical controversy) has ever arisen over the interpretation of those other

statutes.

16

construed as the right of non-Indians to share in the

quantity of a fishing resource. /d. at 674-678. There is

no tension between the provision in Section 10 for non-

Indians to “use” water “in common with” the Tribes and

to “access” the water in question and the conclusion that

claims of water rights acquired through such use are

subject to Idaho’s water laws. Section 10 refers to water

“use” and “access” for that “use,” which is consistent

with the requirements for development of state-law wa-

ter rights by actually applying the water to beneficial

“use,” not the conveyance of an express federal water

right without regard to actual beneficial water use. By

contrast, Section 11 of the Townsite Act expressly

“granted * * * aright of way,” showing that Congress

did expressly grant property rights in this statute when

that result was its intent. See also Byers v. Wa-wa-ne,

169 P. 121, 125 (Or. 1917) (discussing Congress’s express

“confirm[ation]” of a “water right” in the Pendleton

townsite act).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Solicitor General

RONALD J. TENPAS

Assistant Attorney General

WILLIAM B. LAZARUS

Attorney

NOVEMBER 2008