Arizona v. California – Oral Argument – January 10, 1962 (Part 1)

Media for Arizona v. California

Audio Transcription for Oral Argument – January 09, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

It is my purpose to discuss and review the claims asserted on behalf of the United States for its federal establishments.

Arizona is naturally concerned both from the standpoint that such water is charged against the total entitlement or allotment that goes to the State of Arizona, also because substantial quantities of water are involved in an area which is in short supply of water.

The claims asserted by the United States in this litigation aggregated a total diversion of water both mainstream and tributary, of an excess of 1,360,000 acre-feet per annum which would roughly equal a consumptive use of an excess of some-700,000 acre-feet per year.

With respect to claims on tributary waters, the Master held that none of such claims presented a judicial — a justiciable controversy except with respect to the tributary of the Gila River.

The rights in that stream were adjudicated and the Master did submit a recommended disposal or disposition of the rights in those waters.

In addition, the Master upheld the claims asserted by the United States as to mainstream federal establishments.

The amount of water allowed or recommended for those mainstream federal establishments aggregate a total diversion per year of 818,801 acre-feet which roughly would amount to a consumptive use in the neighborhood of 420,000 acre-feet per year.

What was the first (Inaudible)

Chas. H. Reed:

The million odd figures, 1,360,000, I can give it to you precisely, 1,361,231, that is the amount of water that would required to be diverted if all the claims asserted by the United States were allowed.

William J. Brennan, Jr.:

I’m sorry.

I should have followed you when you opened.

Are you speaking now only of United States claims in the Lower Basin?

Chas. H. Reed:

No, in Arizona.

William J. Brennan, Jr.:

In Arizona?

Chas. H. Reed:

Yes.

William J. Brennan, Jr.:

I see.

Chas. H. Reed:

I’m confining myself to the claims made against waters in — within the State of Arizona.

William J. Brennan, Jr.:

And are you going to identify for us —

Chas. H. Reed:

Yes, in a moment —

William J. Brennan, Jr.:

The location?

Chas. H. Reed:

In a moment, I plan to do that.

Our concern is not lessened by the fact that, in this litigation, the United States for the first time, so far as I know, has broadened its claim of ownership of water to include navigable waters in the public land states.

Hereto fore, and I believe for about a half-a-century, the United States has urged upon this Court that it accept the principle that it owns all the unappropriated, non-navigable water within the public land states.

So far as I know, this is the first time that that claim has been extended to include the navigable waters within the public land states as well.

Felix Frankfurter:

To include what?

Chas. H. Reed:

To include navigable waters.

In other words, the assertion of ownership in a proprietary sense by the United States is now made against not only the non-navigable waters within the public land states, but the navigable waters as well.

Felix Frankfurter:

By private rights, does it mean titled ordinary —

Chas. H. Reed:

Yes, I assume just —

Felix Frankfurter:

Ordinary property title?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

Just as they own the public lands, as I understand their position.

In no sense, a sovereign capacity except the Government’s ownership of property of course, is not the same as an individual’s.

Felix Frankfurter:

Do you think a title or conventional common law title interest is essential to — maintenance of such a claim is essential to their claim?

Chas. H. Reed:

The Government so considers it and, in fact, so says in its answering brief that, without the ownership of those waters, the government would have been powerless to reserve or set aside these waters.

To give the Court an idea and quickly of what this means so far as Arizona and other public land states are concerned, I’ll first take up the situation that exists in Arizona.

I’m not going to bore you with figures.

Our figure is the only way — figures are the only way in which I know to make this clear.

Within Arizona, the total land area is 72,688,000 acres.

Of that 72 million plus acres within the state, 54,066,080 belong to the United States or 74-3/10% of all the lands within the State of Arizona.

Some-9,000 acres are owned by the State of Arizona.

Likewise, some-9,000 plus are in private ownership, the lands in private ownership in the states being only approximately 13% of the total area.

Now, the total lands owned by the United States within Arizona, they have been withdrawn or reserved so that they no longer occupy the status of public lands, that this lands which maybe disposed of and private interests required.

Those public lands constitute only roughly 24% of the government’s total holdings in the state.

In other words, there has already been withdrawn and reserved and placed in a withdrawn category a little more than 75% of the lands which the government owns in the state.

Potter Stewart:

I’m sorry.

I didn’t mean — I just didn’t follow that.

Withdrawn in what sense?

Chas. H. Reed:

Under the power to remove them from the category of public lands which are open to acquisition of title and rights by private individuals.

The distinction has long been recognized.

It’s referred to in the Pelton Dam case.

It forms one of the distinctions and basis for the holding in that case by this Court.

Potter Stewart:

So, what you’re saying is that of the lands owned by the government in Arizona, 75% have been withdrawn —

Chas. H. Reed:

That’s right.

Potter Stewart:

From any possibility of private acquisition?

Chas. H. Reed:

Unless those withdrawals are in some fashion cancelled and the land restored to —

Potter Stewart:

Dedicated again.

Chas. H. Reed:

The category of public lands.

William J. Brennan, Jr.:

How you’ve withdrawn for special uses of parts?

Chas. H. Reed:

Yes, in each instance.

I have the figures.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

I hesitate the use the time to —

William J. Brennan, Jr.:

Well, don’t.

Chas. H. Reed:

Relate them.

Roughly, the amount withdrawn for any of the reservations is, in excess, 21 million acres.

The next largest category is forest services plans, the national forest, some-11,381,000 acres.

William O. Douglas:

That — does that include Taylor Grazing Act, may I ask?

Chas. H. Reed:

I have no category in that capacity.

Felix Frankfurter:

Any mining law?

Chas. H. Reed:

No, Your Honor.

I’ll roughly give you the category so you know what we’re talking about.

The Bureau of Land Management is the agency now in charge of the public lands, lands that are still available for acquisition of private rights.

That was, as I said, some-13 million.

Permanent Service is 1,000,481 plus — 481,000 plus acres.

You’re — the reclamation land is 1,000,350 plus, Fish and Wildlife Service 1,526,000 plus, Bureau of Indian Affairs, this is not Indian Reservations but land held in connection with the office — Indian Office in the administration of its duties.

Others 1 acre, I don’t know what that is.

Forest Service 11,381,000 acres, Soil Conservation Service 20, others 25 acres.

Now, the Department of Defense, as for the Air Force 2,601,844 acres, the Army 971,000 acres, the Navy, what the Navy is doing in Arizona, I don’t know, 968.

Felix Frankfurter:

Naval reserve, that might be my question.

Naval withdraw for use of material —

Chas. H. Reed:

That was a small attempt on my part to be humorous, Your Honor.

Potter Stewart:

The Navy is going to need at least that much water.

Chas. H. Reed:

Corps of Engineers 19,000, Indian Reservations, as I mentioned a moment ago, 21,000.

So that the total lands held by the Federal Government in Arizona, which themselves are — aggregate 74% of all lands in Arizona but, of those federal lands, over 75% have been withdrawn to not occupy the state as public lands and are not, at this moment at least, subject to the acquisition of private or individual rights therein.

William O. Douglas:

You don’t want us to do something about that, too, do you?

Chas. H. Reed:

Well, I’ll explain to Your Honor why I’m mentioning these figures in a moment.

I don’t suppose there’s anything this Court couldn’t do for that matter.

The impact of the claim of the United States owns all waters, both navigable and non-navigable, in the public land states.

On those public land states, I think I can briefly indicate, by these statistics —

Potter Stewart:

Before you do that, I — enlighten my ignorance.

By “a public land state,” you mean a state where there are any public lands at all?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

No, it means the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Washington, Wyoming, and Utah.

Potter Stewart:

And why are they public land states?

Chas. H. Reed:

Because the government, when it acquired those lands from the preceding sovereignty, became the owner of all the lands within those states.

Potter Stewart:

Before they were a state?

Chas. H. Reed:

That’s right, and held them during territorial status.

Upon that fact is predicated the claim which the United States asserts as to ownership of water, the fact that it owned the land, but I had planned to come to that in a moment.

Potter Stewart:

I don’t understand your term of reference.

Chas. H. Reed:

Have I made myself clear?

Potter Stewart:

I think so.

Chas. H. Reed:

Now, the total acreage in those public land states that I have just enumerated is in excess of 418 million acres.

Of that amount, there has been withdrawn, so there’s now — does not occupy the status of public lands by the Federal Government, 240 million-plus acres.

In addition, there are, in the category of public lands within the public lands states, some-177 million acres.

Now, so much for the statistics, if we can turn now to the drawing at my back, perhaps I can make clear what particular federal establishments we are dealing with and which — for which the Master recognized he’s right.

And if you will start with the Colorado River Indian Restoration, to point out the location, the area — total area of that reservation is some-260,000 acres.

Potter Stewart:

Do we have such a map in our —

Chas. H. Reed:

Yes, that is an enlargement of the Government’s exhibit.

The Government, itself, plan to use this in its oral argument and very kindly offered us the use of it.

Potter Stewart:

Not in any — attached in any of the brief.

Chas. H. Reed:

I believe not —

Potter Stewart:

In here?

Chas. H. Reed:

I believe not.

Potter Stewart:

I’m not certain where the Government number appears on it.

Chas. H. Reed:

You ask exhibit 100?

Potter Stewart:

Well, actually (Inaudible)

Chas. H. Reed:

Now, that reservation was established by Act of Congress in setting aside 75,000 acres.

William J. Brennan, Jr.:

Which one was that down there?

Chas. H. Reed:

Colorado River.

That’s the largest reservation and the largest use —

William J. Brennan, Jr.:

Yes.

Chas. H. Reed:

Involved and I st — for that reason, I start with it.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

It was subsequently expanding by Executive Orders to reach its present total of some-260,000 acres.

The total tribal population of the Colorado River Tribes, that is, that means all there are on the roads, regardless of where they live, on the reservation or off the reservation, even out of Arizona or even abroad.

That total tribal population is 1,300.

I might explain to Your Honors that there was no Tribe of Indians known as the Colorado River Tribe.

That name comes from the fact that that reservation was created and some of the Indians have settled to form the tribal organization on that reservation and are now known by that name.

William J. Brennan, Jr.:

That reservation entered the state route?

Chas. H. Reed:

Oh yes, 1865, it was created, the original 75,000 acres.

All of the Executive Orders antedate statehood.

In fact, there’s only one reservation, Indian Reservation known to the mainstream that does not and that is the Cocopah Reservation, which we’ll come to in a moment.

Felix Frankfurter:

Can I ask you, just out of curiosity, do I understand you to say that the government cannot be (Inaudible)

Chas. H. Reed:

I will give —

Felix Frankfurter:

Is that what you’re saying?

Chas. H. Reed:

In order to give the correct answer, perhaps I should detail a little bit what the situation was.

The Indian Agent by the name of Poston, who later was elected to Congress for the territory, met with the Indians of five tribes, either in 1963 of 1964 — 1863 or 1864, I forgot which.

Now, those tribes were the Yumas, the Mohaves, the Yavapais, the Hualapais and the Chemehuevis.

It was estimated, and only an estimate of the total population of those five tribes, some-10,000 Indians.

Subsequent events have shown that estimate to be somewhat excessive, quite a bit excessive.

Poston, through the Interior Department, recommended that those five tribes which, for the most part, had traditionally lived somewhere in that area along the river be given a reservation so that they could call that their home and that they take up agricultural pursuits and farm such of the reservation land as was needed to establish an agricultural economy.

The success of that effort I had planned or plan, I should say, I had expected to discuss later.

That is the background of it.

I might say briefly that only one branch of the Mohaves and some Chemehuevis, for the main part, had taken advantage of that offer.

And, in fact, for each of those, as well as the other Indian tribes in Arizona and California, there has been another separate and distinct reservation created which is the home or abode of the various tribes.

Felix Frankfurter:

But there is a tribe (Inaudible)

Chas. H. Reed:

That’s right.

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

That’s right, Your Honor.

Now, of the total tribal population of some-1,300, the evidence did not permit — of a finding as to the exact number which actually resides and live on the reservation and make their home there.

The Master estimated it was in the neighborhood of 1,100-1,200 but that is merely an estimate.

Unfortunately, the evidence was not presented in this case with respect to any — well, I’ll modify that, with respect to any of the mainstream reservations as to the number of Indians actually living on the reservation, so that the figures I give you here include those who may be falling away to economy or some other occupation elsewhere.

Felix Frankfurter:

Reach the position of what you’re now addressing yourself, who is going to be making (Inaudible)

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

Yes, I think it would.

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

Yes, they wouldn’t be meaningful and I wouldn’t be taking —

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

— the Court’s time with them.

Felix Frankfurter:

The relation of these mean the (Inaudible)

Chas. H. Reed:

That’s right, in ascertaining what is a just and proper amount of water for those Indians and for those reservations.

Now, the number of Indians actually —

Felix Frankfurter:

It couldn’t be allowed in the question of (Inaudible)

Chas. H. Reed:

Not at all, as I — so far as I can see, not all.

I’m quite sure but — the number of Indians actually farming the Colorado Reservation lands in 1951 were 276.

By the year 1957, which is the last year of record, that had dwindled to 148 Indians who were actually farming the Colorado River Indian Reservation lands.

Felix Frankfurter:

The population (Inaudible)

Chas. H. Reed:

That is a matter that’s in dispute, Your Honor.

I think a fair answer is that it is increasing somewhat slightly.

And the Government will not agree with that and thinks it’s rapidly, and it’s part of the population explosion, as it’s called in Arizona.

We don’t view it that way.

As I say, unfortunately, the evidence was never made available throughout the course of the trial so that you could really get your teeth in the subject.

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

No.

No Your Honor.

Felix Frankfurter:

The issue whether this is a matter of (Inaudible)

Chas. H. Reed:

Only in this fashion, Your Honor, and the Government did introduce, or I’m not sure whether this particular exhibit was — it might have been introduced by California with mark at least for identification by the Government, had figures as to the total tribal population of the Colorado River Indian Reservation.

I forget the number of the exhibit.

I’ll supply it in a moment.

Going back to the preceding section, quite obviously, those figures are not meaningful because they will show, for instance, a neighborhood of 10,000 in one year and the next year drop down to 700 with nothing to account for it.

It’s just different criterion, different methods obviously were used.

That may not be true as to the later years but, so far as I know, there’s no truly reliable evidence upon which the Court could predicate any specific finding either as to the rate of growth, the trend of living on or living off of the reservation, certainly nothing with respect to the amount of water used by Indians or their needs for individual or for family, none of that was going on into that was presented.

Felix Frankfurter:

This is a matter merely of what’s the total million (Inaudible)

Chas. H. Reed:

This is Colorado?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

I’ll have to get that cleared, Your Honor.

Now, on the Colorado Indian Reservation, as a result largely of the construction of Headgate Rock Diversion Dam, authorized by an Act of Congress in 1935, there had been, at one time or another but never at any one time, subjugated and irrigated on that reservation approximately 40,000 acres, not all by Indians but some portion of it being by White lessees or non-Indian lessees.

The total amount farmed on that reservation, total acreage in 1953, was 29,534.

Of that total acreage, some-18,719 in that year was farmed by the Indians themselves and 10,000 plus the balance by non-Indian lessees.

In 1954, practically the same amount of acreage was cultivated, a little larger, 29,957 but the Indians that year only farmed 15,153 and the non-Indian lessees framed over 14,000 or 14,804 acres.

In 1955, which is the last year of record, of the 29,271 acres farmed on the Colorado River Indian Reservation, only 14,512 were farmed by Indians and by non-Indian lessees 14,759 or more than being farmed by the Indians themselves.

One other fact I think is pertinent with respect to that reservation, and that is that the constructed works built there by the government are capable of serving some-60,000 acres with the addition only of laterals and subjugation of the land.

It would require no extension of the main canal.

The diverting structure itself has a carrying capacity sufficient for the irrigation of 105,000 acres.

Now, for that reservation, the recommended decree presented to this Court finds in Arizona 99,375 acres of irrigable lands, in California some-800 — 8,213 acres or a total of 107,000 plus acres of irrigable lands.

The Master recommended that those lands have a diversion right from the mainstream, that is the Arizona portion, of 662,402 acre-feet per year or roughly a consumptive use, although it was not couched in that language, of some-330,000 acre-feet per year for the Ind — for the Arizona portion of the Colorado River Indian Reservation.

On the California side, he recommended a diversion right of 54,000-plus acre-feet per year which would equal a or result in the consumptive use of some-27,000.

So, the total consumptive use of that reservation per year would be 358,589 or at least it would be — the water would be available for consumptive use if the land was ever used to that extent.

The diversion requirement would be some-770,000 acre-feet per year.

I’m going to pass on quickly to the other reservation, the Fort Mohave Indian Reservation, that includes an area of roughly some-31,000 acre-feet — 1,000 acres.

That was just originally set aside as the military reserve for military purposes in 1870.

It was transferred to the Department of Interior on September 18,, 1890 for the purpose of an industrial training school for Indian Youth.

Subsequent the Executive Orders, it expanded the area to include additional lands.

The total of lands ever irrigated on that reservation, the largest amount was 23 acres in the vicinity of the Indian school.

The evidence shows that, although they are on the tribal roads, some-450 Mohave Indians, actually only one family lives on the Nevada portion of the reservation, none on the Arizona or California portion.

Potter Stewart:

Is it still a school?

Chas. H. Reed:

No, the school had been abandoned quite some time ago.

The 23 acres are no longer being irrigated.

There’s no irrigation.

There are no irrigation facilities.

I will go into that more, later.

William J. Brennan, Jr.:

Only that one must have given with ignorance, at least in Nevada, than you have in the west.

Well, I don’t quite understand it.

I think you showed us that, on the Colorado Indian’s Reservation, an actual diversion of 770,000 —

Chas. H. Reed:

770 —

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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William J. Brennan, Jr.:

Acre-feet is necessary to realize half that — amount of —

Chas. H. Reed:

Yes.

William J. Brennan, Jr.:

— irrigation?

Chas. H. Reed:

Yes, Your Honor.

That’s due to the fact that it’s — of course a budding initiation to their river in there would be a large return flow.

William J. Brennan, Jr.:

Oh, I see.

I see —

Chas. H. Reed:

The diversion was computed —

William J. Brennan, Jr.:

Oh.

Chas. H. Reed:

In this way, an amount sufficient to meet what the master concluded was the consumptive use requirement.

William J. Brennan, Jr.:

Yes.

Chas. H. Reed:

The first had consumptive use in his draft — figures in his draft report.

I’m certainly arose as to whether those figures were in terms of diversion less return, as had been adopted throughout the balance of the report and that, for that reason, he abandoned that approach and put it in terms of diversion right plus the right for whatever quantity of water was needed for the proper irrigation of the number of acres he specified, or whichever was the lesser —

William J. Brennan, Jr.:

What will the —

Chas. H. Reed:

— of the two.

William J. Brennan, Jr.:

What was the — was what you just said mean that the actual demand on the river comes down to 330,000 because whether it diverts 770 —

Chas. H. Reed:

That’s right.

William J. Brennan, Jr.:

There is a return which gives you a net of 330, isn’t it?

Chas. H. Reed:

Yes.

William J. Brennan, Jr.:

I see.

Chas. H. Reed:

I don’t want to mislead Your Honor.

331,000 acre figure is a calculated figure which is based in this way.

There was evidence introduced by California as to consumptive use on that reservation in terms of diversion less return.

As I recall, it was 3.58 acre-feet per acre.

We simply multiplied that times the number of irrigable acres, and not irrigable acres, and got that amount.

The Master made no finding with respect to that.

As I say, the question arose as to the reliability of the figures or not reliability but where they actually were in terms of diversion less return.

Felix Frankfurter:

These — these figures or all these reservations of rights on certain people who’s come in are not protected.

They’re not (Inaudible) from the quantity of the reservations, is that right?

Chas. H. Reed:

Oh, yes.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

For instance, the Fort Mohave isn’t the outstanding example of that.

They are — the diversion requirement for that reservation, as set by the Master, would be 122,648 acre-feet.

No Indians, except the one family and I’m not sure of that family but —

William J. Brennan, Jr.:

So that means that’s only a potential for that family —

Chas. H. Reed:

That’s right.

William J. Brennan, Jr.:

Do you mean that’s actually being —

Chas. H. Reed:

Yes.

William J. Brennan, Jr.:

— being withdrawn from the river.

Chas. H. Reed:

And with the right to consumptively use or which diversion would result in a consumptive use of an excess of 60,000 acre-feet a year.

Felix Frankfurter:

Comfortably, potential frequent use (Inaudible) what is available for Arizona to use.

Chas. H. Reed:

That is the result, whether ever used or not.

Hugo L. Black:

What if that should change and Arizona got (Inaudible) Indians that needed it.

What would be the situation?

Chas. H. Reed:

Well I — it’s difficult for me to see how that situation could ever develop because you can’t finance the —

Hugo L. Black:

What if you could?

Chas. H. Reed:

Project.

Hugo L. Black:

As I understand it, that’s the part of the term that’s been used in the decision.

Chas. H. Reed:

I didn’t so understand that decision.

Hugo L. Black:

But why — why do you think it did reserve such a fixed amount and make the finding of that broad of a certain fixed amount that he used on that reservation?

Chas. H. Reed:

Well, all we could go by is the Master’s — what he says in his report.

The basis of his recommendation is this, that when these reservations were created, the United States intend for the Indians to live on them and to follow a farming way of life.

He also said that it’s not to be expected that those Indians would remain static or die up.

In a natural course of events, the population should increase.

Someday in the unforeseeable future, they may reach the number where they will require all the irrigable acres on that reservation.

Hugo L. Black:

What I’m trying to find out today is this.

If your counter to the action of the Mohave in that regard, based on the argument that he had no right, no power, should not have seek an amount which must be held there for the Indians so that it wouldn’t be taken away and diverted for other purpose?

Chas. H. Reed:

No, Your Honor.

I think we would have to concede that during territorial status, when the United Stated was the local or municipal sovereign as well as the national sovereign, that it had the power or disposal of those waters.

I think the cases which I had planned to come to after a while show that that — there is a presumption against that disposal.

Also, that — with respect to that property which the government holds in a trust capacity for the future states, there is a presumption against the invasion of that trust, if I can express it in that language, s — and that there must be a clear intent on the part of Congress to make any disposal of naval water for the reason.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

One, that it holds it in trust for the beneficiary state and the trustee is not supposed to use trust property for his own ends to accomplish his own ends and equally important, and maybe more important, is that to the extent that those waters are disposed of, the full sovereignty of the future state is contracted and diminished so that it cannot become a member of the union on an equal footing with the older states.

Those principles of law, I think, are quite important in arriving at what was the congressional intent.

Hugo L. Black:

Well, is that the challenge on which — what I’m trying to get — you’ve been arguing seemingly, at one leg, that maybe they’re — in a way the reservation has been abandoned and then you said something about potential and they couldn’t use it now.

Chas. H. Reed:

Well, I haven’t really meant to argue it at all.

Hugo L. Black:

You had not?

Chas. H. Reed:

Yes, Your Honor.

I was trying to get the actual —

Hugo L. Black:

That was what I was trying to find out.

Chas. H. Reed:

Is that your —

Hugo L. Black:

You’re basing it on the ground that he has misconstrued what Congress has done in connection with the reservation, is that it?

Chas. H. Reed:

I can give Your Honor that argument now.

I would prefer to —

Hugo L. Black:

No, it’s alright.

Chas. H. Reed:

To give the —

Hugo L. Black:

It’s alright now.

I was just a little — I didn’t quite understand just which point you relied on.

Felix Frankfurter:

This is a pictorial tour you’re making.

Chas. H. Reed:

Yes.

Felix Frankfurter:

Is that it?

Chas. H. Reed:

A guide.

William J. Brennan, Jr.:

Well, I’m probably responsible for some of this, Mr. Reed, but I am confused.

Chas. H. Reed:

Well, I would like the Court to understand —

William J. Brennan, Jr.:

For example, on this Mohave — is that the one you were talking about, the one where there’s nothing used now?

Now that water comes past, obviously, doesn’t it, because it’s not being used, is that true?

It goes —

Chas. H. Reed:

That’s right.

William J. Brennan, Jr.:

— right past the reservation.

Chas. H. Reed:

Through it.

William J. Brennan, Jr.:

Right through it?

Chas. H. Reed:

Yes.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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William J. Brennan, Jr.:

And none of it is being used or diverted?

Chas. H. Reed:

None at all.

William J. Brennan, Jr.:

So, I gather, until it’s actually used or diverted, in connection with rights which the Master’s found the Indians there have, it then becomes available for apportionment below, doesn’t it, to Arizona or California and anyone else, doesn’t it?

Chas. H. Reed:

That’s right.

I would like to point this out.

But, in order to accomplish irrigation in that area, it requires huge investment and projects.

William J. Brennan, Jr.:

But — but my point is that, at the moment at least, Arizona is losing nothing in the way of actual water by reason what the Master has found to be the condition as regards to that reservation.

Chas. H. Reed:

That’s correct, Your Honor.

William J. Brennan, Jr.:

Except what you were about to say that you have to be able to count on it because it involves a capital expenditures of some —

Chas. H. Reed:

Well, the bank won’t loan —

William J. Brennan, Jr.:

Substantial dimensions.

Chas. H. Reed:

The bank won’t loan you money, but when you’re entitled —

William J. Brennan, Jr.:

Yes.

Chas. H. Reed:

It’s all good.

If someone else owns it, that —

Hugo L. Black:

You’d have a cloud on your title, as, I gather, what you’re arguing, was the basis of what the —

Chas. H. Reed:

I don’t think a cloud —

Hugo L. Black:

— the Master was saying.

Chas. H. Reed:

— would be an absolute title vested elsewhere.

Hugo L. Black:

But that you could use temporarily wouldn’t help you, I gather, you’re saying.

Chas. H. Reed:

Well, of course you can always use water in the area there is and when you get to go whenever you can.

That’s just the way we have to operate out there, but —

Potter Stewart:

But it does require quite a good deal of capital expenditure to irrigate efficiently.

Chas. H. Reed:

Yes and, for instance, what — really what this brought this lawsuit and what caused this lawsuit was the desire of Arizona to build the central Arizona Project in the central part of the state which is a water starved area suffered — suffering such critical shortages as to actually force large acreage out of cultivation.

That, coupled with the increasing demands of a growing population and increased and expanding industrial and commercial uses, has produced a very acute situation.

To the extent that this Court commits the water elsewhere, we can’t go before Congress or anywhere else and say “here is the extent of our water rights.

We can use this number of acre-feet and that would justify or make economically feasible and desirable funds for the rebuilding of the project to such-and-such a size.

Potter Stewart:

This Congress could — by legislation could recommit anything that this Court had found here.

Chas. H. Reed:

Yes, I — it would of course be forced with — the federal government would be forced with lawsuits in the Indian court of claims.

Potter Stewart:

While we are at a little bit off field here, could you answer this question?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Potter Stewart:

As I understand it, under the Master’s report, the various federal reservations or photos are taken away from the state appropriations or photos.

Now, Arizona no longer has any quarrel with that basic system, does it?

Chas. H. Reed:

No, Your Honor.

He — the entitlements for the government are charged against the —

Potter Stewart:

State.

Chas. H. Reed:

— (Voice Overlap) — each state where the use takes place.

Potter Stewart:

That’s right.

Chas. H. Reed:

None of the parties has, except —

Potter Stewart:

There was originally some difference of opinion about that.

Chas. H. Reed:

Well, I think, originally, the United States argued for and still thinks it should have, I believe, a separate allocation —

Potter Stewart:

Yes.

Chas. H. Reed:

— to it, quite apart from the allocation to the states.

Potter Stewart:

But now it comes out of the state’s allocation, —

Chas. H. Reed:

That’s right.

Potter Stewart:

Appropriation, or entitlement.

Chas. H. Reed:

Yes, and every acre-foot of water that’s reserved for an Indian Reservation which they surely won’t use for a long time, and maybe never, it’s just that it’s an acre-foot less for the center of Arizona Project or —

Potter Stewart:

For the rest of Arizona.

Chas. H. Reed:

That’s right.

Hugo L. Black:

But you (Inaudible)

Chas. H. Reed:

And other federal statutes, surely, and we have no quarrel with that.

Felix Frankfurter:

And that — that problem arises.

Chas. H. Reed:

That’s correct.

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

That’s quite right.

He had planned to do without the —

Felix Frankfurter:

(Inaudible)

Chas. H. Reed:

That’s what I expect to argue when we get to it.

Now, the — one other Indian Reservation within Arizona is the Cocopah.

That is a small reservation of some-500 acres.

The population in the tribal roads is only 90.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

The number of Indians living on that reservation was not established.

The Master made no finding.

William O. Douglas:

Were these park reservations all established in the last century?

Chas. H. Reed:

I beg your pardon?

William O. Douglas:

Before 1900?

Were they all established before 1900?

Chas. H. Reed:

No, this reservation was established September 27, 1917 and after statehood.

The two I have just mentioned were both established and enlarged before statehood.

To make the picture complete, there is the Chemehuevi Indian Reservation located entirely within California, but the population shown on the tribal roads of 300 and with no Indians residing on the reservation.

And, the remaining Indian Reservation mainstream is the Yuma Reservation likewise located entirely within California, surf through the facilities of the All-American Canal.

The tribal population or population on the tribal roads is some-1,200 Indians with approximately 900 residing on that reservation.

In addition to the Indian Reservations, there is the Lake Mead Recreational Area.

Will you outline generally the area there?

As you can see, that’s an area surrounding Lake Mead and, in that vicinity, I’m going beyond that.

There are some-1,899,000 acres-plus in that reservation, of which 1,209,000 are in Arizona, the balance being in Nevada.

That was established by Executive Order May 3, 1929, enlarged by Executive Order April 25, 1930.

The Master, with respect to that reservation, concluded that the evidence was not sufficient on which to base a finding as to the ultimate needs but held — found they had the right to use mainstream water in quantities reasonably necessary to fulfill the purposes of the area.

And there is Havasu Lake National Wildlife Refuge, being approximately some-40,000 acres in Arizona and California.

No breakdown was made with respect to how much was within each state.

That was established January 22, 1941 by Executive Order and enlarged by Executive Order in 1949.

The Master recommended a diversion right of 41,839 acre-feet per year and, here, he used the consumptive use because the evidence permitted it or a consumptive use of 37,339 acre-feet per anum, whichever is less.

That, likewise, was not segregated as to what state that should be charged against.

That poses a small problem.

In addition, there’s the Imperial National Wildlife Refuge.

That was established by Executive Order February 14, 1941.

The total area located in Arizona and California is 50 — some-51,000 acres.

The Master recommended an annual diversion right of 28,000 acre-feet per year or a consumptive use of 23,000 acre-feet per year, or whichever is less, and that was not segregated or divided up as between states or as to which state would — the allotment would be subtracted on amount.

Now, roughly, that covers the background as to the federal establishment on the mainstream.

With respect to the tributary claims, the Master, as I indicated, refused to make an adjudication with respect to any claims of the government or any other parties on any of the tributaries except the Gila River.

I will discuss the tributary water aspect to the government’s claims later.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

Now, one thing I think I should make quite clear before I proceed further is that Arizona’s quarrel with the — these findings and these conclusions of law of the Master do not amount, as the Government assumes in its brief, to a contest, on the one hand, between the Indians in Arizona and, on the other hand, the non-Indians in Arizona.

To make that quite clear, all I mean to do is to point out to Your Honors that, as we mentioned a moment ago, the central Arizona Project is the motivating cause of this litigation.

Now, within that project, there are more Indians than the total number involved on these mainstream reservations, Indians who are in desperate need of water, as is much of the balance of that area.

On the Gila River Indian Reservation, which is for the Pima-Maricopa Tribes, the Master found that there resides on the reservation 5,700 Indians.

That reservation is a part of what is known as the San Carlos Federal Irrigation Project.

It — within that project, there are 50,000 acres of Indian-owned lands and 50,000 acres of non-India-owned lands.

It’s a sort of a partnership.

It was built as a result of the Act passed in 1924 by Congress providing for the construction of Coolie’s Dam.

The government fixed its estimate of the needs of the Indians when it found that that needs could be served by subjugating and irrigating some-50,000 acres of land.

It, likewise, was discovered that it was not economically feasible to build that inexpensive project for only 50,000 acres.

So, an additional 50,000 acres of White-owned lands were included and it formed sort of a — it is sort of a partnership between the Indians and non-Indians and, to my way of thinking, represents one of the best examples of how the Indians can join in the way of life of the non-Indians and improve their life.

However, at the moment, their lot is, I must confess, is fairly pitiful.

That area is almost invariably pointed to as the horrible example of what happens when you build a project and establish an economy, depend it on water from it, and the water either doesn’t materialize or, for some reason or another, is substantially decreased.

The facts are that, of that 50,000 acres on the Indian Reservation, on the average for the years 1939 through 1955, the last year of record, the Indians were able to farm only half of it, less than half, 24,584 due entirely to water shortage.

William J. Brennan, Jr.:

That’s on the Gila River?

Chas. H. Reed:

Yes.

William J. Brennan, Jr.:

Well, now, would that benefit from the Central Arizona Water Project?

Chas. H. Reed:

Yes, that is a portion of the Central Arizona Plan, that area.

And on — it — I would say, in my way of thinking, I might be a little prejudice with respect to that area since that’s where I live but it’s conceded that the need for water there is more acute than any other area in central Arizona, perhaps with the exception of one other area.

There is sort of a contest dividing as to who is in the worst shape.

William J. Brennan, Jr.:

How much of the non-Indian is 50,000 acres?

Chas. H. Reed:

I beg your pardon?

William J. Brennan, Jr.:

How much of the non-Indian is 50,000 acres are being upon?

You said only half or less than half of the Indian is 50,000 acres.

Chas. H. Reed:

Yes, it’s a comparable figure.

I didn’t bring those since we were dealing only with — I use this only to point out that for every acre-foot that’s reserved and set aside for the mainstream Indian Reservations, just by that much is the chance of the Indians, as well as the non-Indians, in central Arizona to meet their need.

The situation is this.

We know very well that the amount of water that’s available or will be available certainly won’t be added, but to rescue all the areas in Arizona that need supplemental water supply is going to be a process of choosing and selecting.

It has to be that.

You have the situation where the amount of acreage which has the need for water is larger than the water supply can be in any event.

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Chas. H. Reed:

So, no one can say at this time precisely who’s going to get water.

I suspect there’ll be trouble about that later on but, certainly, those Indians in that reservation is within the Central Arizona Project plan.

As I say, it’s used as — the Indians and their non-Indian partners are used as the horrible example of the effects of an insufficient water supply.

In addition, there is the Salt River Indian Reservation, which is 10 miles east of Phoenix, having a total area of only 47,000 acres, presently irrigated on that area some-12,000 acres, and there reside on that reservation members of the Pima-Maricopa Tribe aggregating approximately 1,500 Indians.

Then, again, there is the Fort McDowell Indian Reservation which abuts on the northeast corner of the Salt River Indian Reservation.

That’s inhabited by 300 members of the Fort McDowell Mohave-Apache Tribe.

The irrigable lake which is of that reservation is some-1,300 acres.

Its total area is 25,000.

In addition, there are other reservations in Arizona.

The one I particularly call to mind is the Fort Apache Indian Reservation, while not within the Central Arizona Project area, the plan is at least are that by process of exchange of water, you see, they occupy the area in the White Mountains where they use water from White River which is — in turn goes — it flows into the Salt which in turn is the water supply for the area around Phoenix.

There is litigation pending at present between the Salt River Valley Water Use Association and the tribe or its representatives over activities of the tribe in building dams for small lakes for recreational purposes.

It would certainly ease that situation.

However, I make no representation as to —

Hugo L. Black:

Mr. Reed, I don’t want to interrupt you in the middle of your argument.

You’ve used — your time is almost half over.

You’ve been describing the — a little more, you’ve been describing these reservations.

It would certainly help me, I don’t know about the others, if you would tell me who you think should choose and select what water goes to the Indians and what are your arguments as to the rules that — of law that are to govern it.

Chas. H. Reed:

I’m coming to that.

Hugo L. Black:

If you would come to that point as soon as you can, I would much — I could much better understand the statistics and picture you’ve been giving.

Chas. H. Reed:

Your Honor it’s quite right and I regret the use of time.

I have —

Hugo L. Black:

Well, no.

I’m not —

Chas. H. Reed:

— questions of the Court to —

Hugo L. Black:

— complaining about it.

But I just have not been able to understand it as well as I would.

If I could know from you what you say the Master has done is wrong, who does have the power to choose what a matter in the water in the reservations have?

Has that choice been made?

If it’s been made, it’s been wrongfully made and, if so, why?

Chas. H. Reed:

I’ll proceed to that immediately.

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Chas. H. Reed:

I thought, however, Mr. Justice Black, that I —

Hugo L. Black:

It’s been very, very helpful.

I’m not —

Chas. H. Reed:

I thought I did indicate or state precisely the amounts which the Master had set aside.

Hugo L. Black:

I understand — I know about the amount, but why is it wrong?

What are the standards that should control, that he has failed to observe?

What are the standards that should be observed and what should we do with reference to it?

Chas. H. Reed:

I’ll be happy to enumerate what we think are vital factors which were not even considered or taken then to account in arriving at the recommended allocation.

For instance, regarded as not significant, it’s playing no part on the resolution of this issue was a fact of whether the waters were navigable or non-navigable, whether the reservations were created before or after statehood, whether they were treated — created by a treaty, a statute, or executive orders.

It didn’t make any difference.

Neither was there, as a basis or taken into account, the number of Indians living on the reservation or the trends of Indians as to either living or not living or moving away from the reservations.

No consideration was given to water uses by the Indians, either past or present, as forming any basis for the conclusion reached in the recommended decree, nor as to the trend of the Indians as being farmers or following that occupation.

Hugo L. Black:

Well, did — did the Master not say — am I wrong in thinking that he said what was so materialist of whether they were using it personally?

It was the amount of water that was due to go to that reservation and do you challenge that?

Chas. H. Reed:

Yes, and maybe I can make it clear if I explain exactly what the Master did and his reasoning for doing so.

Although I thought I did explain that, maybe I didn’t make myself sufficiently clear.

The Master approached the problem this way, that those reservations were set aside by the government in the performance of the duty it owed to its Indian Lords and with the intent and expectation that they would farm those lands and establish a farming economy on them.

The criteria which —

Hugo L. Black:

Well —

Chas. H. Reed:

— he used —

Hugo L. Black:

— suppose this farming economy is used there but not used by Indians.

What is your position with reference to that?

Chas. H. Reed:

Well, the Master’s position, if the Court please, I might explain that, is that it makes no difference, that forever that right is attached to those lands and, even if disposed of to non-Indians, it will still carry with it the right.

It’s a right in perpetuity whether ever used or not and regards as to the amount of use.

He classifies it, those — as to — with respect to those reservations that were withdrawn prior to the effective date of the Project Act in 1929, as being a special category of present perfected rights, as his report clearly states.

William O. Douglas:

He takes — his standard is the amount of acres within the — that each —

Chas. H. Reed:

Irrigable —

William O. Douglas:

— reservation there could be irrigated.

Chas. H. Reed:

That’s right, the sole test —

William O. Douglas:

Whether or not it is irrigated, has been irrigated, or may foreseeably be irrigated.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

That’s right.

I plan to go into all of this if I have enough time.

Felix Frankfurter:

And that’s because, in setting aside those lands as reservations, executive officials, the Executive Department of the Government is carrying out a policy to authorize explicitly or implicitly by Act of Congress.

Is that right?

Chas. H. Reed:

Well, I don’t know that the authorization by Congress was even considered.

Felix Frankfurter:

I mean, you could — the Secretary of the Interior can’t, out of his own free will, determine what shall be Indian Reservation, except —

Chas. H. Reed:

We certainly —

Felix Frankfurter:

Insofar as —

Chas. H. Reed:

— contend so.

Felix Frankfurter:

— fund it.

Chas. H. Reed:

We certainly contend so.

I don’t believe the Government agrees with that.

Felix Frankfurter:

Well, except insofar as his authority is implied from general legislation regarding the duties of the government.

Chas. H. Reed:

Well —

Felix Frankfurter:

I don’t want to get on that.

He can’t — he isn’t — he isn’t (Inaudible)

The authority of the Secretary of the Interior doesn’t flow from his own will, does it?

Chas. H. Reed:

No, if the Court — if Your Honor please, our position is this.

That the executive, in the absence of enabling legislation by Congress and that the — from which that power must come under the Property Clause of the Constitution.

Only if that enabling legislation is enacted in the Executive Department Act, now, it may be, as was held in the midland or Midwest Oil land case, that certain acquiescence on the part of Congress may be inferred from the peculiar circumstances or that —

Felix Frankfurter:

What I meant by —

Chas. H. Reed:

Right.

Felix Frankfurter:

— especially implied —

Chas. H. Reed:

Yes.

Felix Frankfurter:

Well, he doesn’t — again, he doesn’t operate by virtue of his own will.

He has delegated authority.

The delegation that’s made may be found either by explicit name provisions or from other authorizing authority.

Chas. H. Reed:

I thoroughly agree and I think it has particular application to navigable waters which are held in trust by the national government.

Felix Frankfurter:

What about the reservation, the establishment of reservation?

Chas. H. Reed:

The lands that’s —

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
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Felix Frankfurter:

The land itself is derived from some granted authority to him.

Chas. H. Reed:

Yes.

Felix Frankfurter:

How so ever the grant is established.

Chas. H. Reed:

Yes, either directly or by implication, that’s correct.

Now, we regard all of those matters, as well as the further matter that no — the Master felt that the — he need not examine into the source of the authority of the United States to reserve water.

He considered that matter established by the Winters case and his report so states explicitly that we need not — he need not, at least, and did not, I presume, inquire with respect to the source of that authority.

Now, we regard all of these matters as of vital importance and I’m going to have to just hit the high places I can see with respect to our contention.

In the first place, the water involved on the mainstream is navigable water.

Now, soon after the formation of this nation, this Court adjudicated with respect to the rights, on the one hand, of the national government and, on the other hand, the states regarding navigable water.

Imported, as a part of the common law from England, was the concept that navigable waters are public waters, that they affect and concern the people as a whole in such vital respects as to demand or require that they’d be classified as public water, held, if held at all, by the sovereign and by the king in trust for the — for the people.

On the other hand, non-navigable waters in England were regarded as not being public waters and not being of that significance to the people at large or as a whole, and they’re classified as private water in which private rights might be obtained.

That distinction has been carried forward to this day.

I think we should keep in mind always that the basic classification is public water and private water, not navigable and non-navigable.

It so happens that, in England, navigable waters fell under the category or classification of public water and non-navigable under the classification of private waters, but the basic fundamental distinction is whether or not the water is of such importance to the people as a whole as to justify its classification as public water.

Now, it was early recognized that while — during territorial status, while the United States held those lands as local, as well as national sovereign, that it held only in trust for the benefit of the future states and the people of that state.

That, upon the admission to statehood or the creation of a state, automatically, that trust property went to the state and the state obtained full sovereignty and control over.

The theory, of course, being that, under our peculiar form of government, actually the people are sovereign and, except as they have delegated sovereign attributes to the national government, they remain in the people or the states for them.

And, the courts held that this was one respect in which sovereignty or sovereign prerogatives were not vested by the Constitution and the national government, so they remain and reposed in the states.

Now, that rule has been followed without exception by this Court.

It’s the law today just as it was then.

It’s predicated in part on the requirement of a quality between states that the new states be permitted the same sovereign prerogative as ours in control as the older states.

Obviously, a disposing of the navigable waters within a state prior to statehood means a contraction or lessening of the sovereignty of the state with respect to those waters.Now, that has an important bearing, as we see it, upon this case.

In the first place, as to the federal establishments created after statehood, the national government simply have no power, and had no ownership, no authority, or no sovereignty by which it could dispose of those navigable waters for the benefit of its own establishments.

That power had ceased and it held it only as local sovereign while the territorial status remained.

But, upon the attainment of statehood, the only prerogative that the national government retained in navigable waters is under the Commerce Clause.

That power of course is in terms, as this Court has said, is in terms of power and not of property and the limitations on that power, although the power is quite broad and extensive and much has been done by the national government pursuant to that power, obviously, there is a real distinction between the authority under the Commerce Clause with respect to navigable waters and, on the other hand, an ownership or complete sovereignty over those waters in the states.

The fact that the waters are navigable also have, we think, this very vital bearing on the case and that is with respect to the manifestation of an intent due to — let me explain that.

Due to the trust character in which these navigable waters are held by the national government and due to the fact that their disposal means a denial to some extent of sovereignty to the later state, the cases recognized that there is a presumption against disposal during territorial days by the federal government.

That to overcome that presumption, they — there must be either an expressed statement of intent to do so or that intent must be made very clear from the evidence.

It need not be stated in so many words but there must be no doubt of what the government intended to dispose of that navigable water during the territorial days.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

Now, the Master, in disposing of this phase of the case, and let me say now that I — what I have been saying is not in criticism of the Master.

Actually, we didn’t give him much help, none of us did, on this.

I — as he charitably remarked in the report, the attention and energies of the parties were devoted to other aspects of this case, and I plead guilty for Arizona in that respect.

I think it’s true of all the parties.

We simply were occupied with other matters and we did not make the presentation that we should’ve made with respect to these serious and intricate legal questions.

Now, the Master found that all that was necessary was an implied intent and he relied upon circumstances as supplying that implied intent.

William O. Douglas:

That’s what the court did in the Winters case.

Chas. H. Reed:

Yes, but that was non-navigable waters, Your Honor.

Now, I make this distinction and the cases recognize it.

As to non-navigable waters, there’s no presumption against disposal.

It’s not held in trust, nor does it impair the sovereignty of the states that disposed of it.

Felix Frankfurter:

You and the Master do not disagree on the applicable legal principles and the issue between you gets down to whether or not the circumstances on which the Master drew allowing him — allowed him to refer to the use or incur the intent which the legal principle which you invoke requires, isn’t that right?

Chas. H. Reed:

Yes, I think we have this difference.

We — we can’t —

Felix Frankfurter:

There’s difference in application but would there be difference beyond that?

Chas. H. Reed:

No.

Both agree there must be intent.

We deny that can exist by implication.

We — it is our position that —

Felix Frankfurter:

You don’t deny that it can be found through implications.

Chas. H. Reed:

Circumstances may be such as to make —

Felix Frankfurter:

That —

Chas. H. Reed:

A clear manifestation —

Felix Frankfurter:

Therefore —

Chas. H. Reed:

— which is —

Felix Frankfurter:

— the whole —

Chas. H. Reed:

That’s right.

Felix Frankfurter:

Therefore, the issue is as to what the circumstances, summarized by the Master, allow inference from, is that right?

Chas. H. Reed:

That’s correct, Your Honor, and —

William O. Douglas:

But it is difficult, isn’t it, to imagine a buyable reservation in a desert — semi-desert country without any water?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

I’m not sure I follow, Your Honor.

William O. Douglas:

Well, I —

Chas. H. Reed:

You mean the very circumstances — the fact that it was expected the Indians would live there and they have to have water to exist.

William O. Douglas:

In a dried semi-desert area.

Chas. H. Reed:

Yes — yes, and I think that was the basis of the Master’s holding.

In that respect, I think the Master felt that the only way that the purpose of the government, which admittedly was that the Indians would use water, could be accomplished was by reserving the water.

Now, that’s where we differ with the Master, and I want to briefly refer to the circumstances which we think establish beyond all question that Congress itself did not intend to reserve the water.

In the first place, this is back in 1865 when there was an abundance of water.

Literally, millions of acre-feet per year flowed by that reservation unused and wasted into the gulf.

The water was there for the taking.

All you had to do was dig a ditch, get some other diversion structure, and put it to the land.

Now, under the Arizona Law that existed at that time, that’s likewise all you had to do to get an appropriative right.

You only had to use it.

You didn’t even have to post a notice.

The statute respecting notice that was not passed by the Arizona territorial legislature until 1893 and the court held that, even then, its only application was with relation to the doctrine of relation back.

If you didn’t file a notice, you could not as you could previously relate here right back to the time when you first formed the intent and start to work to perfect the appropriation.

So, to say that the government thought that the Indians — “intend the Indians should use this water, therefore, it thought it must reserve them” does not follow because the mere use of it, which the government intended, would establish an appropriative right so that it was not at all necessary or essential to accomplish the end that Congress had in mind that it reserve, set aside, place in a safety deposit box, or some other fashion earmark a given quantity of water to make sure that the Indians got it.

There was no competition over water rights in those days —

Felix Frankfurter:

You and — but you and the Master move in a different circle.

Your circle is that there was enough water at that time.

Ergo, no reservation of additional water is desired.

The Master said what was reserved at that time is their right to be an agricultural community and whatever is involved in being such a community.

And, therefore, when the water was no longer in abundance, what was necessarily implied was that they should have some other water that’s stackable.

Chas. H. Reed:

For the future, Your Honor means.

Felix Frankfurter:

No, not for the future.

With reference to waters that function to the land there and what the Master is saying that you have to have water and, therefore, there’s the reservation or whatever potential needs of getting that water was available to them.

Chas. H. Reed:

Yes, Your Honor, but by the mere use it, they acquired a vested valid right prior to any subsequent uses.

So, you had the same protection.

Felix Frankfurter:

But you’re saying, now, there isn’t that abundance of water.

It doesn’t come to them that way, does it?

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

Well, that’s true, but that’s — our hindsight of course is much better than the foresight of —

Felix Frankfurter:

But the —

Chas. H. Reed:

— those —

Felix Frankfurter:

— foresight was that they should be a — what is said just a minute ago, called a viable agricultural community.

Chas. H. Reed:

Yes, I think, undoubtedly, it was the intent of Congress.

But, I wouldn’t like to really examine this question now.

It’s assumed that it was the obligation and duty of the government to set aside an amount of water that would meet the ultimate needs of those Indians in the indefinite future.

Now, I question that and I seriously question it.

I don’t believe that it was the thinking at that time or that is the thinking now that we’ll take Indians and set them aside on a reservation that they’ll stay there for the rest of their lives, farm little Indian ghettos, if you please, that they will not join the non-Indians in their way of life for — at anytime forever.

I think and I have viewed the intention of the government in this way.

That was a first step to take care of an underprivileged, untrained, untutored group of human beings.

I don’t think it was regarded nor is it regarded by Congress now as the final step to help and to see to it that the Indians get the same privileges as the other members of the human race are entitled to.

Felix Frankfurter:

May I — may I suggest that you’re viewing some hindsight now?

Can it be that in — are you suggesting that, in the 60’s, the thought was that the Indians would be absorbed in the general mass of the population of this Country?

Chas. H. Reed:

I think if the Court would — Your Honor would read the report made by Mr. Poston when he recommended the establishment of this reservation, you’ll see he had a rather broad outlook on the proper way in which the Indian problem would be met with in the future.

It all depends —

Felix Frankfurter:

But it —

Chas. H. Reed:

It —

Felix Frankfurter:

But it wouldn’t allow today if this whole thought received currency among appropriate men, but that to me has answered the real solution or the real adequate source of the Indian if they should become merged within the mass of our population.

Am I wrong about that, Mr. Reed?

Chas. H. Reed:

Well, I don’t know what Your Honor means by current.

It’s so happens that —

Felix Frankfurter:

I mean the last — whatever is entered into what it is.

Even then, there was strong resistance with their own qualities.

Their own specialized life should not be diluted by being having them absorbed in the general life of the American community.

Chas. H. Reed:

Well I — I would say this, Your Honor.

That, 30 years ago, that’s my first combat with this problem.

There was a difference in the view point but, at that time, there was a large segment.

The people who concerned themselves with such things who felt very firmly that the worst thing you could do for the Indians was what we were doing, that you destroy their initiative, you prevent them from reaching a status of equality with the non-Indians by the very fact that you place them on a reservation, you exercise control over them as their guardian, they get dependent upon the efforts of the government and the funds supplied by the government.

And, as a consequence, they lose the incentive.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

I also have heard the argument on the other side, which I will not repeat unless Your Honor would like to hear it.

But, I do think this, that the real answer to that is turn to the things that Congress did and then we will see its intent, and I want to stress that aspect of it.

The best evidence I know of what Congress intended is what Congress itself said and, of course, it is a rule that subsequent Acts and actions by Congress may be used to interpret and construe legislation passed by Congress.

Now, to go over this quickly, and I wonder if the Clerk can tell me how much time I have remaining, 17?

I want to direct Your Honor’s attention first to the Act of April 21, 1904 whereby the Secretary was expressly authorized to include the Colorado River Indian Reservation and the Yuma Indian Reservation in a reclamation project.

And, if that were done, the Secretary is hereby authorized to divert the waters of the Colorado River and to reclaim, utilize, and dispose of any lands in the said reservation.

It also goes ahead to provide there that there shall be reserved for and allotted to each of the Indians belonging on the said reservation 5 acres of irrigable lands.

The remainder of the irrigable lands, the lands irrigable in the said reservation, shall be disposed of to settlers on the provisions of the Reclamation Act.

Now, that is followed by a long series of Acts, which I want to briefly discuss, but the notion that these lands should be included and authority given to include them within a reclamation project which, by its terms, provides that state law shall govern, that beneficial use shall be the basis, the extent, and the measure of the right to use water is wholly inconsistent with any thought that there had been reserved water for those reservation lands.

Hugo L. Black:

I didn’t understand what you were reading from there.

Chas. H. Reed:

I was reading from the Act of April 21, 1904, 33, Step 224.

Hugo L. Black:

Which reservation?

Chas. H. Reed:

Colorado.

Also, in 1911, that Act was amended to increase the allotment from 5 acres to 10 acres per Indian.

The same provision was retained and it was — retained the provision that the entire cost of the irrigation of lotted lands shall be reimbursed to the United States from any fund received from the sale of surplus lands of the reservation or from other funds that may become available.

Now, this Court construed that Act in United States versus Arizona at 295 US 174, it’s cited in our brief.

Speaking of that Act, the Court said it was merely to empower the Secretary if the circumstances stated, that is inclusion of the reservation within the reclamation project, if the circumstances stated should arrive to reclaim lands in these reservations by use of water to be taken from that river, the authority granted was no more than permission to appropriate them, that is the water, for the purpose specified.

Now, you certainly didn’t need any consent to divert water or to appropriate water if the government had already, back in 1865, reserved that water in perpetuity for those Indians.

But, more significant is later legislation of Congress.

By the Act of April 4, 1910, Congress appropriated $50,000 for the use on the Colorado Reservation to build canals and laterals and a pumping plant and, mind you this and I want to emphasize this, for the purpose of securing and appropriation of water for the irrigation of approximately 150,000 acres to be reimbursed in the sale of surplus lands.

Now, there simply could — you can’t reconcile these two things, one, that Congress had intended to and had, either directly or by authority conferred on the executive, set aside all the water that would ever needed by it — be needed by those Indians for all the time to come with the notion, on the other hand, that they needed to acquire rights for that reservation by appropriation, yet —

Hugo L. Black:

I don’t quite follow you, why this would be ir — why couldn’t reconcile those two.

Chas. H. Reed:

Well, the reserved right, as it has been determined here, is whatever amount of water the Indians may need.

Hugo L. Black:

But —

Chas. H. Reed:

What occasion is there for additional water?

Hugo L. Black:

The evidence that we’re not getting it in here was a provision made by Congress to see that they did get water in a way which should be available to them.

I don’t see why that would —

Chas. H. Reed:

Well, if the Court please —

Hugo L. Black:

Would negate the original purpose to supply them —

Chas. H. Reed:

Well, I —

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Hugo L. Black:

With water to run the reservation.

Chas. H. Reed:

I would like (Voice Overlap) to examine that closely because I think it’s very vital to our position here.

The fact they weren’t getting the water wasn’t due to any shortcoming in the reservation of water concept.

It was due to the difficulties of building canals.

Hugo L. Black:

At that time?

Chas. H. Reed:

Yes.

Now, all Congress need to have done was appropriate $50,000 to use the water it had reserved, if it had reserved it.

Hugo L. Black:

Both —

Chas. H. Reed:

It certainly did not need to go ahead and say “for the purpose of acquiring rights under the appropriation doctrine.”

Hugo L. Black:

Why would it not have been perfectly consistent that they had agreed to let them have the reservation where they could have water and decide to give it to them in the most convenient and least expensive way at that time?

Chas. H. Reed:

Well, I —

Hugo L. Black:

Why would that have —

Chas. H. Reed:

If I may say so, I think Your Honor is confusing the efforts in the furnishing of bonds with the point that a Water Act, if already existing, sufficient to supply their ultimate needs would make feudal and needless the appropriation of any water.

Hugo L. Black:

What if they were getting the water at that time?

Chas. H. Reed:

It makes no difference, Your Honor.

Hugo L. Black:

They could get it at this time.

Chas. H. Reed:

Under the reservation concept, they have the right if they never used the water.

It’s always there.

So, you don’t need to appropriate it to get it.

Your right is established by the very reservation itself.

Hugo L. Black:

Your right is there theoretically until you can get the water.

Chas. H. Reed:

Well I’m — I’m sorry.

I can’t —

Hugo L. Black:

I don’t just quite see why these two are irreconcilable?

Chas. H. Reed:

I beg your pardon?

Hugo L. Black:

You may be right, but I just didn’t see why the two are irreconcilable.

Chas. H. Reed:

I’m sorry I can’t make that clear to Your Honor.

I feel very strongly that the two are completely incompatible, that they’re mutually incom — that you cannot reconcile the two approaches.

Now, as bearing on the — that legislation, the Secretary of the Interior wrote a letter recommending the enactment of that legislation to the Chairman of the Indian Affairs.

In that letter, he makes the significant statement that, “findings are being made by citizens and corporations upon the water to this river and, if rights are to be initiated,” rights are to be initiated, in other words, you don’t have any.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
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Chas. H. Reed:

“for these Indian lands, the work should be started at an early date with a view to making a proper appropriation.”

And he goes and have to add, “in this manner, a just claim upon sufficient water to irrigate 150,000 acres on the Indian Reservation can be established.”

Now, if they already have a reserved right to whatever amount they need, there’s no occasion to initiate rights, there’s no occasion to establish rights.

They have the best water right to — in the whole country.

You can’t, to my way of thinking, reconcile those two things.

That initial Act of April 4, 1910 was followed by identical Acts for the next nine years with the exact language for the purpose of securing appropriation for water.

So, for 10 successive years, Congress appropriated funds to enable the Indians in the Colorado River Reservation to secure a right in water by appropriation or pursuant to the appropriations doctrine.

As we view it, that was another action that indicated that Congress thought, particularly since it was navigable water, that the local laws and custom should be controlling and governing with respect to the acquisition of that right and that, also, it did not intend to impair the sovereignty of the future state by reserving or disposing of that navigable water in a special fashion or a special or a preferred use.

It’s completely consistent with the many factors explained by the fact that the United States holds navigable water in trust for the benefit of the future states, but that isn’t all with respect to the Acts of Congress.

Congress went on, following the Act of 1919, and continued to appropriate water — money in connection with the building of irrigation facilities and referred back to the original Act of 1910 for the purpose of that Act.

That continued, as I recall, up to the year 1935 or 1936.

Following that, there was a series of legislation on the part of Congress appropriating funds for the purchase of water rights and to ensure or protect against loss of water rights.

Now, neither of those concepts can be reconciled with the reservation period.

You don’t buy water rights if you already have a reserved right and you can’t lose your water rights if you have a reserved right.

It’s there for all time to come regardless of the extent of the use.

Now, I see that my time is rapidly being exhausted.

I haven’t, by any means, covered all the things that I intended to cover.

I’m going to briefly proceed, in a hit in cover and — or to hit-and-run fashion, some of the more significant points that, unfortunately, I won’t be able to elaborate on.

We take a special exception to the irrigable acreage test as the criteria or the measurement of the Indian life.

I think in order to get in proper perspective to examine that criteria, one has to appreciate the peculiar characteristics of water.

Unlike most things, if you don’t use it, it’s gone forever.

It flows on by and the use of it is forever gone.

In the arid West, conditions simply demand that there’d be a maximum utilization of that water supply because it forms the ceiling of growth and development.

So that any approach to water which would result in a carving out, earmarking, or setting aside of a segment of the total supply which may not ever be used and certainly will not presently and for sometime to come be used is just simply an improvident way to deal with a product or a commodity or a substance to attend short supply.

The whole effort in the arid area is to arrive at some sort of system or solution which will permit the broadest and widest utilization of that scarce resource rather than creating special rights and prerogatives in it which will not be used.

You just — we just don’t do that with regard to water where it’s so terribly valuable in such short supply.

Now, there’s one other thing that I think I should bring out to this Court here, a number that I would like to but I think I should clarify the position which we take in our brief with respect to the doctrine of equitable apportionment.

I don’t believe that we clearly stated the limiting factors or the limited circumstances under which that doctrine may apply.

Certainly, if this Court follows the reservation concept, if it likewise follows the recommendation of the Master with regard to present perfected rights, construes Section 6 of the Project Act as he’s construed it, then the Project Act, in effect, has made an allocation to the Indians in that way.

It recog — it’s not the source of the right anymore than it would be the source of other present perfected rights, but it recognizes and preserves them and, to that extent, makes a disposition of water.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Chas. H. Reed:

Now, if that’s done and if the Court considers that to be the law, one, that the reservation concept is correct, second, that it’s a present perfected right and that present perfected rights are preserved.

And, of course, there’s no room for the application of the doctrine of equitable apportionment even with respect to Indian uses on the mainstream versus uses elsewhere in Arizona because the Project Act, having dealt with that matter, Congress having spoken, having made that distribution, there simply does not exist any situation in which the doctrine of equitable apportionment should apply.

One other matter has a bearing on that and that is that the Master construed the Arizona contract as authorizing the Secretary to contract with whom he pleased and for whatever amount he pleased in Arizona for the use of Lake Mead’s water.

We did not truly appreciate the significance of that ruling at the time as bearing on the equitable apportionment thing particularly and the rights of the Indians, but we have not accepted the Master’s construction of our contract.

We think it’s right.

Now, if that’s right, the Secretary is the one to contract with everyone in Arizona.

Indians and non-Indians, it doesn’t make any difference.

You can only get a right by contract.

We can’t buy the notion that he need not contract with himself, therefore, need not have any contract with the Indians.

As Your Honors know, quite often, there are so-called memoranda of understanding between departments or bureaus within the same department and certainly, for the sake of clarity and certainty, with respect to water commitments, a contract should be made with the Indians even though it’s called a memorandum of understanding so that we’ll all know exactly what the Secretary has done in that respect nor do we concede he has unlimited discretion.

I’m sorry, I see my time is up.However, we have briefed the points — most of the points that I had intend to cover very fully and I am content that our position be presented by our brief.

Thank you.

Burr Sutter:

Mr. Justice Black and may it please the Court.

The United States is a party to this litigation because it controls the waters impounded behind Hoover Dam and the associated works along the mainstream and, consequently, as Your Honors will recall, it was ruled in one of the earlier cases between Arizona and California that the United States was a necessary party to the adjudication of rights in the stream.

In addition, the Master has held, rightly we think, that the system for allocating or dividing, I use the word loosely, this water stems from a — partly from a federal statue and partly from its implementation by the Secretary of the Interior.

And, we are in the case for that reason, too, because we think it appropriate to express our view as to the Acts of Congress and to explen — explain and defend the contracts made by the Secretary of the Interior.

Being in the case for those reasons, it seemed appropriate to my predecessor, as well as to myself, that the United States should speak for what we conceive to be the general interest in the apportionment of this water, the national interest in the best development of the whole South West Region.

And, finally, we are here of course on behalf of the Indians to whom the United States has a duty as trustee and, to that aspect of the case, we make what perhaps might be called “proprietary claims” as distinguished from the general governmental position.

It’s helpful I think if I begin by trying to outline the main divisions of this case.

I find it convenient to think of it in three parts.

The first I would describe is the interstate controversy over the waters of the Colorado River, the mainstream and some associated waters, which just arises between California and the other Lower Basin States.

In the second division, I would put certain incidental questions which arise assuming if the Court accepts the main thesis of the Master’s report.

Without stopping now to state them in detail, one illustration is the question of whether the mainstream above Lake Mead should be treated as subject to the apportionment, whether the Secretary’s contracts are valid in that respect or not, and there’s certain other incidental questions of that kind.

Then, the third division is the one which has been discussed this morning by Mr. Reed to what the claims of the United States for water for the Indian Reservation.

I’ll discuss the three main divisions in the orders I’ve just states.

The first division then is the interstate controversy over the apportionment of the waters impounded by Hoover Dam and controlled by the federal works along the mainstream of the Colorado River.

Here, instead of listing the issues, I find it convenient myself, and perhaps the Court will, well, to think of this as a contest between two main conceptions of the way this water is to be divided.

One, I shall state it as that of the United States for it’s essentially the same as that of the Master and of Arizona and, on the other hand, California’s concern.

Our view takes it as a premise that the Colorado River Compact apportions seven-and-a half million acre-feet to the Upper Basin, subject to the obligation to deliver an average of seven-and-a half million acre-feet every 10 years, 75 million feet over a decade, at Lee Ferry.

So, that might, under certain circumstances in terms of supply, cut into the seven-and-a half million feet that the Upper Basin may have.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
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Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
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Burr Sutter:

What we’d — I want to make it plain that there is nothing that the Court should do here as a matter of law or should necessarily decide as a matter of implication that would constitute a precedent the future, cutting into the Upper Basin’s seven-and-a half million acre-feet subject to its Article III (d) obligation.

Now, whether the Upper Basin can ever use seven-and-a half million acre-feet is a question of fact which has been discussed on.

There are some people who think they’re inherent physical limitation.

I don’t urge them.

I’m simply stating the reason for the references to that.

We take it, that they’re to have their seven-and-a half million acre-feet subject to the obligation to send 75 million down every 10 years.

Within the Lower Basin, with decisive fact in our judgment, is that the United States built Hoover Dam and the incidental work, thereby, making the Colorado River manageable and greatly increasing the supplies of usable water.

Project Act, as we see it, is concerned with the disposition of those impounded waters, with the disposition of the waters of the mainstream flowing down from Lee Ferry and with the tributaries flowing into Lake Mead above Hoover Dam.

William O. Douglas:

On this part, you agree then with the position of Arizona as distinguished from the position of California?

Burr Sutter:

No, I think I would state it the other way around.

We think that the Master erred in invalidating the provisions of the Secretary’s contracts which say that, out of Arizona’s share of the water covered by the contract, 2.8 million acre-feet, there is to be deducted anything Arizona takes out above Lake Mead.

We think mainstream means mainstream all the way down the river and not — I’ll have the maps changed at lunch, and not depart that Mr. Ely said — quite properly said.

The Master had truncated above Lake Mead itself.

So, on that part, we disagree with the Master.

Arizona agrees with the Master and, I take it, that California thinks it was a silly division, although the conclusions it draws are somewhat different than ours.

Hugo L. Black:

Pardon me, Mr. Sutter, I don’t want to delay you but you made one suggestion there that Ariz — that the Upper Basin would not be disturbed so long as it sends down seven-and-a half million feet.

Does that mean that we have to decide here or that we could decide so it provide in the Upper Basin?

They’re required to send 7,500,000 feet, although they do not yet use that much in the Upper Basin.

Burr Sutter:

I don’t — I don’t think — I didn’t do anymore — mean to do anymore than state what I understood to be an accepted meaning of the Compact.

If there is any doubt about that, then I think it should not be adjudicated here and it could not be properly adjudicated here.

I didn’t want to simply say seven-and-a half million acre-feet because there is this Article III (d) obligation, whatever it may mean, but I don’t think its meaning has to be adjudicated or should be really it’s required and what’s really required to reason about it in this case.

Certainly, not reason about it in a sense of deciding.

One may wish, as Justice Frankfurter suggested, to consider the relationship.

He has to consider the relationship of the Compact with the statute, but I don’t think he has to reach any conclusion about the meaning of the Compact.

We also think, like the Master, that the Project Act supplies the guidelines for an apportionment of the waters impounded behind Boulder Dam and that it authorizes the Secretary of the Interior to implement that statutory plan.

It states, you’ll recall, that there should be no rights in any water impounded except by contract with the Secretary of the Interior.

It then states that present perfected rights are all to be protected and, in our view, this established cutoff point, to use Justice Black’s expression of a few days ago, at 1928 and said rights that were vested before 1928 are to be protected.

As to the rest, we’re going to have a new start in accordance with the scheme envisaged by this statute.

Section 4 in the California Limitation Act in effect, also they used the words “limit,” gave California 4.6 million acre — 4.4 million acre-feet out of the waters of the Colorado River, 4.6 out of the first 7.5 and then one-half of any waters in the Colorado River in addition to the 7.5.

Nature, itself, pretty well supplied the rest of the apportionment.

Audio Transcription for Oral Reargument – November 13, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 14, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 11, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 09, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 08, 1962 (Part 1) in Arizona v. California
Audio Transcription for Oral Reargument – November 13, 1962 (Part 2) in Arizona v. California
Audio Transcription for Oral Argument – January 10, 1962 (Part 2) in Arizona v. California

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Burr Sutter:

Everyone agreed, at that time, that Nevada needed only 300,000 acre-feet.

It could use only 300,000 acre-feet, and even Nevada’s higher estimate didn’t go much over 400,000 acre-feet at the trial.

The suggested Compact in the second paragraph of Section 4 (a), we think, gave further guidelines to the Secretary.

And then, rounding this out, in our view, the Secretary’s Comp — the Secretary’s contracts within the guidelines laid down by the statute did make a final interstate apportionment of seven-and-a half million acre-feet 4.4 to California, 300,000 to Nevada, and 2.8 to Arizona.

Could I ask you this question?

Does the United States agree with Arizona’s position that there was a statutory allocation by virtue of the Project Act?

Burr Sutter:

No, not quite.

I think the difference is this.

It seems to us that the Project Act left — gave the Secretary sufficient guidelines so that there were limitations of what he could do but it also was left to him to move around a bit within the guidelines and to fill in the structure and flush out the bond by his contract, which we think he did by the contracts in evidence that I’ll refer to later in detail.

He could go a little under or little above.

Burr Sutter:

He could go a little under or a little above —

Subject to the Calif —

Burr Sutter:

At least so far as Arizona and Nevada were concerned.

But he was bound by the California Limitation Act.

Burr Sutter:

I think he was bound — he’s clearly bound by the California Limitation Act, and I would emphasize that nature did a good deal of the rest of it for him.