Arizona v. San Carlos Apache Tribe of Arizona

PETITIONER:Arizona
RESPONDENT:San Carlos Apache Tribe of Arizona
LOCATION:Dr. Simopoulos’ Clinic

DOCKET NO.: 81-2147
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 463 US 545 (1983)
ARGUED: Mar 23, 1983
DECIDED: Jul 01, 1983

ADVOCATES:
Jon L. Kyl – on behalf of the Petitioners in No. 81-2147
Louis F. Claiborne – on behalf of Respondent United States
Michael T. Greely – on behalf of the Petitioners in No. 81-2188
Robert S. Pelcyger – on behalf of the Respondent Montana Indian Tribes
Simon H. Rifkind – for respondent Arizona Indian Tribes
Simon K. Rifkind – on behalf of Respondent Arizona Indian Tribes

Facts of the case

Question

Audio Transcription for Oral Argument – March 23, 1983 in Arizona v. San Carlos Apache Tribe of Arizona

Warren E. Burger:

We will hear arguments next in Arizona against the San Carlos Apache Tribe of Arizona, and Montana against Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation.

Mr. Kyl, you may proceed whenever you are ready.

Jon L. Kyl:

Thank you, Mr. Chief Justice, and may it please the Court, during the floor debate on the McCarren Amendment, Senator McCarren stated to Senator Ernest McFarland,

“Let me say to the Senator from Arizona that there is no state in the Union more interested in this bill than is the State of Arizona. “

“In fact, all of the western arid and semi-arid states are interested in this bill. “

Of course, the reason Senator McCarren believed that the State of Arizona was interested in his bill is because as its sponsor he understood that the State of Arizona could utilize his bill for the adjudication of water rights, and yet we are before this Court 30 years later arguing about whether the McCarren Amendment applies to the courts of Arizona as well as the other western states.

These consolidated cases come to this Court on writs of certiorari to the Ninth Circuit, five cases from Arizona and seven cases from Montana.

In Arizona, state general water adjudications had been filed on the five major river systems in the state.

Within a month after service of process on some 12,000 defendants on the Salt River adjudication, five Arizona tribes filed separate actions for removal petitions in federal court, all on the same day, to enjoin any determination of their rights.

These were not suits to adjudicate water rights, but rather suits to prevent any adjudication of their rights.

Six weeks later, two other tribes and one in the first group filed separate federal suits to determine their rights only.

None of the federal tribal actions in Arizona have sought a general adjudication of water rights.

William H. Rehnquist:

Could one seek that in a federal court in Arizona?

Jon L. Kyl:

One could seek that in a federal court in any state, Mr. Justice Rehnquist.

None of the tribes, and the United States has not, none of the tribes have sought such an adjudication in the federal courts in the State of Arizona, and no party disputes that.

William H. Rehnquist:

Well, what would be the basis of federal jurisdiction?

Jon L. Kyl:

This Court held in the Colorado River case that either under Section 1345 or… well, Section 1345 in that case, that a suit could be filed in the federal court for adjudication of water rights.

William H. Rehnquist:

For a statewide or streamwide adjudication?

Jon L. Kyl:

For a streamwide adjudication, yes.

And of course the Court in Colorado River held that the considerations of wise judicial administration that would be applied by the Court would determine whether the adjudication could go forward in the federal court or in the state court if there were concurrent proceedings and concurrent jurisdiction.

The key difference between that case and this case is that there there were general adjudications filed in federal court.

Here, there are none.

In the state adjudication proceedings that were in the meantime proceeding in Arizona on just the river systems which are before this Court, over 100,000 potential defendants were identified.

Over 70,000 have been personally served.

Claims have been filed, almost 7,000 separate claims, approximately one-third of them by the United States itself, and over $2 million has been appropriated to the Department of Water Resources to assist the courts in Arizona to determine these claims.

Warren E. Burger:

Do you suggest… How does that affect which court will decide the cases?

Jon L. Kyl:

Mr. Chief Justice, those are among the factors, the considerations–

Warren E. Burger:

The numbers I am speaking of.

The numbers.

Purely numbers.

Jon L. Kyl:

–Simply to illustrate, Mr. Chief Justice, the significant progress and involvement in the Arizona state court proceedings.

If there were federal court general adjudications pending, the Court would under the Colorado River balancing determine which court to send the adjudication to.

Here there are no federal court adjudications, but I mention it to illustrate the fact that the Arizona proceedings are viable and are proceeding and involve a tremendous number of claims by people on five different water systems.

The tribal actions were appealed to the Ninth Circuit Court of Appeals and were argued in conjunction with the seven cases from Montana.

My co-counsel, General Greely, will discuss the procedural history of the Montana cases.

A divided three-judge Ninth Circuit Court reversed the Montana and Arizona cases, holding that the enabling Act and constitutional disclaimers of Arizona and Montana constituted a bar from those states adjudicating water rights held in trust for the tribes by the United States unless the states had accepted Public Law 280 jurisdiction.

Most, if not all, of the parties here agree that Public Law 280 jurisdiction is irrelevant to these cases.

The Ninth Circuit also reversed the Montana case on the ground that the district judges there had improperly considered or applied the considerations of wise judicial administration.

There was no such finding in the Arizona cases because of the disposition on the disclaimer issue.

The United States agrees that the application of the McCarren Amendment is not barred by the disclaimers of Arizona, Montana, and the other western states.

The respondent tribes, however, continued to read the disclaimers as a bar.

I will address that issue first for both Montana and Arizona.

The second and, we believe, primary issue in this case is whether considerations of wise judicial administration counsel deference to the state court proceedings in Arizona and Montana.

I will discuss the application of those considerations in the Arizona litigation, which we submit presents a much stronger case for state court adjudication than did the facts of Colorado River.

My co-counsel, General Greely, will address those considerations as to the Montana litigation.

The disclaimer provisions do not create different law for those eleven states admitted after 1889 than for the states admitted before then.

Rather, the disclaimers were a response to U.S. versus McBratney, merely intended to confirm the plenary power of the United States government as to Indian tribes.

There was not in 1889 and there is not today any reason to differentiate between the states.

Any such distinction would be purely artificial.

Congress has made no such distinction in passing laws applicable to all of the states, nor has this Court in interpreting the applicability of laws to… state laws to Indian reservations, and creation of such a distinction today would not only put into question those Acts of Congress, but also the decisions of this Court.

As the United States acknowledges, it is too late in 1983 to create a distinction where none has existed before.

This Court has… That this Court has not read the disclaimer as a bar is illustrated by your decision in Organized Village of Kake versus Egan.

There, Mr. Justice Frankfurter, for a unanimous court, stated that even though Indian lands in Arizona remained under the absolute jurisdiction and control of the United States, in other words, subject to the disclaimer, the Court had declared in the Arizona case of Williams versus Lee that the test whether a state law could be applied on an Indian reservation was whether absent governing Acts of Congress, the application of that law would interfere with reservation self-government.

Congress has exercised its absolute jurisdiction and control recognized by the disclaimers by enacting the McCarren Amendment.

That is the governing Act of Congress here.

It prevents all water rights, including those held by the United States in trust for the tribes, to be determined in comprehensive state court general adjudications.

In other words, the disclaimer merely acknowledges the right of the United States to pass a law like the McCarren Amendment.

Nor does it require, as the tribes argue, that the states somehow have to repeal the disclaimer, because, as this Court held in Kake, the disclaimer is not inconsistent.

The right, or the disclaimer, rather, of all right and title was merely a disclaimer of proprietary interest, not governmental interest, and the acknowledgement in the disclaimers of absolute federal jurisdiction and control remains undiminished, not exclusive federal jurisdiction.

This Court’s clear and meaningful decision in Colorado River would be trivialized if the Court were now to limit the application of the McCarren Amendment to only four western states.

Jon L. Kyl:

The real question in this case, we submit, is the application of the consideration of wise judicial administration to these cases.

In Colorado River you deferred to the state court proceedings after considering those factors.

A fortiori, you should do so here.

In Colorado River, the most important factor you found was the McCarren Amendment itself, and you held that the McCarren Amendment evinced two clear federal policies; Number One, the avoidance of piecemeal adjudication of water rights, and Number Two, the recognition of the availability of, and later in the Moses Cohn case you said the peculiar appropriateness, of comprehensive state systems for adjudication of water rights.

You discussed those two first, the avoidance of piecemeal adjudication is a critical factor here.

Unlike the facts of the Colorado River case, there are no general adjudications pending in the Arizona federal district court.

The Ninth Circuit judge who dissented, Judge Merrill, pointed out that in these cases there would not only be no piecemeal adjudication, there would be no adjudication of water rights at all in the federal district courts.

The only adjudication of water rights that can occur in Arizona, the only comprehensive adjudication, is in the state comprehensive adjudication process.

The second of those two clear federal policies was the recognition of the availability of state courts, comprehensive state proceedings, and the significant administrative assistance given to the state courts through those comprehensive state statutes.

Just one month ago today, in the Moses H. Cohn case, Mr. Justice Brennan for the Court said,

“There is an affirmative policy in federal law expressly approving litigation of federal water rights in the state court, the McCarren Amendment. “

and of course that is precisely what the Colorado River case–

Byron R. White:

Mr. Kyl, I take it that the Ninth Circuit didn’t reach this question with respect to Arizona as to whether wise judicial administration would suggest that the federal court go on or abstain, did it?

Jon L. Kyl:

–That is correct, Mr. Justice White.

Byron R. White:

And isn’t that… isn’t that sort of a… well, isn’t that a question of state law?

Jon L. Kyl:

Mr. Justice White–

Byron R. White:

As to whether it is really comprehensive or whether it isn’t?

Jon L. Kyl:

–No, Mr. Justice White.

This Court in the Colorado–

Byron R. White:

It does go to interpreting state law.

Jon L. Kyl:

–Yes, it does, but there has been, I believe, in this case no question about the comprehensiveness of the Arizona state proceedings, the ability of those statutes to comprehensively and properly–

Byron R. White:

Well, but suppose we agree with you on the enabling Act and on the Constitution.

Suppose we agreed with you that the Court of Appeals was quite wrong in disposing of the case on that ground, the Arizona case.

Shouldn’t we then remand to… have them consider whether the Colorado River factors point one way or another?

Jon L. Kyl:

–Mr. Justice White, the Arizona federal district judge, Judge Cordoga, did precisely that.

Byron R. White:

Well, I know, but the Court of Appeals didn’t reach it.

Jon L. Kyl:

Well, that’s correct, and we would certainly submit that the judge in the very best position to weigh these factors would be the federal district judge who is on the spot, who made the decision.

Byron R. White:

Well, I know, but you wouldn’t suggest that we would reverse the Court of Appeals necessarily if the Court of Appeals overturned the district judge on what may be very much a question of state law.

Jon L. Kyl:

Well, Mr. Justice White, let me answer that question two ways.

First of all, let me reiterate, I do not believe that there is a serious contention in this case–

Byron R. White:

All right.

Jon L. Kyl:

–that the state law is deficient in any respect.

Byron R. White:

I will ask the question of some other source.

Jon L. Kyl:

Secondly, we believe that this case is before the Court.

All of the factors that need to be weighed are before the Court.

The factors go really more to policy considerations in many respects than they do testimonial facts, and this Court clearly can weigh the same kind of factors that it did in the Colorado River decision here, based upon the record before the Court.

The Arizona proceedings, as I said, are comprehensive, they are modern, fair, and efficient, and as I indicated, there is nothing comparable for the federal courts in Arizona.

Another important factor in Colorado River was how much progress had occurred.

There was some discussion of the race to the courthouse.

Of course, the Arizona actions were filed first.

But that is not the important thing.

What progress had occurred?

In the federal courts, no progress had occurred, because before any answers were filed, the district judge either dismissed or stayed or remanded all of the tribal actions, so nothing had occurred.

In the state court proceedings, by contrast, as I indicated in the beginning, there have been significant proceedings, and a great deal of progress toward the adjudication of water rights.

John Paul Stevens:

In that great deal of progress, how much of that related to the Indians’ claims in the state proceeding?

Jon L. Kyl:

Mr. Justice Stevens, the Indians, or the United States on behalf of the Indians, have repeatedly sought extensions of time for the filing of their claims in these proceedings.

John Paul Stevens:

Well, they want to proceed in the federal court.

Jon L. Kyl:

Yes.

John Paul Stevens:

But to what extent have their rights so far been adjudicated at all in the state proceedings?

Jon L. Kyl:

No Indian rights have been adjudicated in the state court proceedings.

John Paul Stevens:

And they rely on an entirely different legal theory, as I understand it, than the one normally applied in state proceedings.

Jon L. Kyl:

The Indians rely upon the reserved right doctrine, and that doctrine is a doctrine of federal law applicable in the state courts as well as the federal courts.

John Paul Stevens:

So aren’t both sets of cases right at the starting point insofar as the Indian cases are concerned, Indian claims are concerned?

Jon L. Kyl:

Mr. Justice Stevens, we would suggest not.

The determination that takes place in the state court is a complex determination.

It starts with the investigation of the river system itself by the Department of Water Resources, the physical on-site investigation, to determine how much water is available.

It is important to recognize that in the suggestion of the United States, for example, there is the idea that somehow this is a very simple proposition with respect to Indian reserved rights.

It is not a simple proposition at all, if done correctly, because the reserved right doctrine depends upon the availability of water.

The reserved rights are not implied to exist if they conflict with prior appropriated rights or naturally if there is not enough water available.

So the first thing that occurs in the state proceedings is an investigation of the state court, or, excuse me, the state river system.

Jon L. Kyl:

That has been going forward.

The filing of claims is the next point.

The United States has filed 2,315 claims in the cases before the Court.

There is another case not before the Court in which one of the Indian tribes and the United States have filed their claims.

William J. Brennan, Jr.:

Mr. Kyl, I think you said earlier there had been 100,000 parties to this state proceeding?

Jon L. Kyl:

No.

Mr. Justice Brennan, in the consolidated cases and the Little Colorado proceeding that are before this Court… there are some other cases that are pending, but not before the Court.

William J. Brennan, Jr.:

Well, I was thinking of the state… of the pending state proceedings?

Jon L. Kyl:

Yes, there are–

William J. Brennan, Jr.:

How many parties are there?

Jon L. Kyl:

–There have been over 70,000 defendants personally served.

William J. Brennan, Jr.:

Now, I gather the issues involved in those cases are quite different than in the Indian cases.

Jon L. Kyl:

Mr. Justice Brennan, no, there is only one issue in any of these cases, and that is the inter sese determination of rights: Who has how much water right at what point in time, and how does it relate to all of the other holders of water rights?

And that issue is best determined, as this Court held in Colorado, in a unitary proceeding in which all of the parties are before the Court, can present any testimony and evidence that is required in order to fit it all together, and then a final binding decree is issued which is–

John Paul Stevens:

But it isn’t correct, is it, that you don’t start from scratch with every new proceeding?

Haven’t there been prior proceedings in which some things have already been decided?

Aren’t some rights already fixed?

Jon L. Kyl:

–Mr. Justice Stevens, there are some decrees existing in the State of Arizona, but one of the key reasons for the implementation of the Arizona statutory procedure in the 1970’s was a recognition of the fact that those decrees were simply insufficient.

They related primarily to parts of the–

John Paul Stevens:

Maybe they are insufficient, but they are not nullities.

Jon L. Kyl:

–No, they are certainly not nullities, but they only went–

John Paul Stevens:

So you have some background that you are building on.

Jon L. Kyl:

–Yes, that is correct.

That is correct.

It simply would be incorrect for me to suggest that since 1900 there has been an ongoing procedure.

John Paul Stevens:

No, but if there had been, say, a federal adjudication, which I understand there hasn’t, which determines some bundle of rights, that would be part of the background–

Jon L. Kyl:

Yes.

John Paul Stevens:

–that you would work with in your proceeding.

Jon L. Kyl:

Certainly so.

William J. Brennan, Jr.:

Well, Mr. Kyl, if the Indians prevailed and they were to go into federal court, would they have to duplicate what is going on in the state courts?

Jon L. Kyl:

Absolutely, Mr. Justice Brennan.

William J. Brennan, Jr.:

Completely so?

Jon L. Kyl:

Yes, almost completely so.

The reason I say almost is that we don’t have just one federal court action here.

Each of the tribes have proposed that they file their own individual suit, so all of the defendants that are in the state court proceedings that are in that particular river system would have to be made a party, so it is almost a complete duplication.

One other consideration that this Court noted in the Moses Cohn case that was not specifically addressed in Colorado River was the justification for filing of duplicate suits, and I did want to make the point that the filing of the federal actions in Arizona was reactive and vexatious.

It was reactive to the service of process of the state adjudications.

We submit that that is not a valid reason to prefer the federal court over the state courts.

And may it please the Court, let me simply conclude with a brief point about the proposal of the government and the tribes.

The only justification that has been presented for this new proposal surfacing at this stage is the notion that the tribes need the protection of the federal court.

That question was argued to this Court in Colorado River.

It was decided by this Court in Colorado River, where you specifically held that Indian rights could be subjected to state court determination, and that doing so would not imperil those rights.

Far from creating more certainty, the government’s proposal would raise questions which we believe would plague this Court for years.

It is legally flawed.

It is piecemeal.

It is duplicative, wasteful, all of these things we have discussed in our brief in some detail, and this is also true with respect to the tribes’ proposals for class action lawsuits, which are an even more piecemeal way of approaching the problem than the proposal of the United States.

This Court, we believe, is faced with a choice, application of its clear and workable holding in the Colorado River decision in forcing the Congressional policy enunciated in the McCarren Amendment, or attempting to fashion a new rule contrary to prior decisions and contrary to the legislative intent of McCarren.

We urge the Court to reinstate the ruling of the district judge.

Mr. Chief Justice, I would like to reserve the remainder of my time.

Warren E. Burger:

Very well.

Mr. Attorney General.

Michael T. Greely:

Mr. Chief Justice, and may it please the Court, I think it would be helpful if I briefly describe the procedural postures of these cases in the State of Montana, first in the federal court and then the state situation.

There were seven cases filed in Federal District Court, six by the United States and one by the Northern Cheyenne Tribe.

In January, ’75, the Northern Cheyenne named 21 defendants and 100 John Does in their action.

The six United States suits were filed at the request of the tribes, including the Northern Cheyenne Tribe.

In March of ’75, the United States, at the request of the Northern Cheyenne Tribe, named 24 defendants and asked for adjudication of all federal and Indian reserve water rights on the Tongue River.

In April of ’75, the United States, at the request of the Crow Tribe, named several hundred defendants on the Big Horn River.

The four remaining suits were all filed in 1979, and they involved the Flathead River and the northern tributaries to the Missouri River but not the Missouri River itself, and these suits were also filed at the behest of the tribes.

There has been virtually no progress in any of these federal cases, and all seven of these cases were dismissed by the Federal District Court in Montana in 1979 based on the Akin factors.

Now, this is in sharp contrast to the situation in Montana’s state courts.

Michael T. Greely:

Montana’s state adjudication has been moving very rapidly.

In 1979, pursuant to state law, a statewide adjudication began with regard to all water rights in the State of Montana.

Special water courts were established and funded by the Montana legislature–

Byron R. White:

With separate judges in different areas, I take it.

Michael T. Greely:

–Well, it is considered to be one court.

There are four divisions.

Byron R. White:

I know, but there are separate judges doing different rivers.

Michael T. Greely:

That is correct.

The United States was served as trustee in the state proceeding as… on its… for… on behalf of the Indian water rights in its own capacity.

By April 30th of 1982, over 200,000 claims to water rights in the states had been filed in the state courts, and anyone who had not filed by that date in the State of Montana are presumed to have abandoned their claims.

Thirty-five thousand of those claims, of the 200,000, were filed by the United States on their own behalf and on behalf of the various tribes, including the tribes involved in this case.

The water courts are–

Byron R. White:

Claiming the very… claiming the very water that they are suing for here?

Michael T. Greely:

–Yes, they duplicate the suits that are involved in this case in the federal courts.

Obviously, the state proceeding is comprehensive statewide; the federal cases involve certain river drainages.

The water courts are in the process right now of gathering evidence, and preliminary decrees in those cases will be issued as soon as possible.

Now, unlike the situation in Arizona–

William H. Rehnquist:

General Greely, is Montana drained entirely into the Mississippi by the Missouri River, or does anything go over to the Pacific?

Michael T. Greely:

–There’s a few… we have the Continental Divide that goes through the state, so some of that is drained into the Columbia River system.

William H. Rehnquist:

Goes into Columbia.

Michael T. Greely:

Unlike Montana, the state adjudication has not been stayed pending this… pending this proceeding, and the Montana water courts of course have relied on the McCarren Amendment and the Colorado River decision to proceed with their adjudication.

William J. Brennan, Jr.:

Was there any effort made, Mr. Attorney General, to have state proceedings stayed?

Michael T. Greely:

There was an effort, I believe, on behalf of one of the tribes to stay the proceedings.

That motion was… I believe it was in federal court in Missoula, and I think it was agreed that the federal district judge would not stay… try to stay the state proceedings pending the decision of this case.

Now, in preparation for my oral argument today, I decided to listen to the tape of the oral argument in the Colorado River decision, and I found it to be quite interesting, because I had kind of thought that there wasn’t that much discussion of Indian rights.

I thought the discussion in that case before the Court in oral argument concentrated on keeping the federal reserved rights in federal court.

But much to my surprise, over 50 percent of the argument that was presented by the Solicitor’s Office, Mr. Shapiro, involved Indian water rights, and many of the questions that this Court raised involved Indian rights.

The question that appeared in oral argument was whether Indian rights, reserved water rights should be adjudicated in state court.

And the arguments in that case echo very much the briefs of the Indian tribes and the United States in this case.

It is interesting, and I have the brief here from the Colorado River case, and obviously I am not going to read it to you or read great detail from it, but it is… just to give you an idea, with the indulgence, let me just read a couple of the headings here.

Michael T. Greely:

“Determination of Indian and federal water claims in federal court will not interfere with state proceedings. “

“Important practical benefits result from water rights suits by the United States in federal courts. “

“Federal decrees can easily be integrated into Colorado’s general adjudication. “

“Federal courts alone have jurisdiction over claims for determination of Indian water rights. “

Now, the only reason… the only difference I see between that language and the language in the Solicitor’s brief today is that they used the term “integrated” in that brief, that the rights would be integrated in the state proceedings, and the terminology that has been used here is “plugging in”.

Now, this Court rejected all those arguments in the Colorado River decision, and we are dealing with the same statute, the McCarren Amendment, and this Court has interpreted that in Colorado River, and seven years after the decision in 1976 in Colorado River, Congress has not seen fit to amend that provision.

I think it might also be important, if I may, to examine the proposal of the Solicitor in this case, the proposal that the Indian rights somehow can be adjudicated separately in a federal court proceeding while all the other rights are adjudicated in a state court proceeding.

This, of course, was the same argument that was made in Colorado River, and this Court has held, as Mr. Kyl referred to in the Cohn case, that clear federal policy of avoiding piecemeal adjudications of water rights in the river system are concerned, and there is a preference for a unitary and comprehensive proceeding in the state court.

And there is good reason, and let me suggest the nightmare that may occur in Montana should we have any kind of a concurrent proceeding in that state ongoing in the same river drainages as the comprehensive proceeding for state water rights.

And the government says in its brief that the… the government says in its brief that it, if course, if this Court would hold that Indian rights could be done in federal court, it will go back and amend its complaint, and of course it would have to amend its complaint to put that plug-in plan into effect.

Under the federal rules, of course, they would have to file a motion to amend, and in the federal cases there are approximately 9,000 defendants, and they would have to be served, and some of those defendants may oppose the motion, some of them may consent to it, and some of them might not even respond, and then there would be hearings on those motions, and if the motion were granted, then the new complaints would have to be filed, and those would have to be served, and really the question is, who would be the defendants in those federal case proceedings when they are supposedly just adjudicating Indian rights?

Well, the answer is, in a comprehensive water adjudication everybody would have to be a defendant, whether they had a state right, a federal right, a federal reserved right, or an Indian water right, if… that is, if that decree were to be binding on all the parties.

And the purpose for all of this, the government suggests, is that the federal courts are the judicial forum or the preferred forum for determining Indian water rights, and Colorado River clearly answered this argument by saying that the Indian rights can be adjudicated in state court just as easily and maybe more easily than in federal court.

Now, there is one other issue that may possibly trouble the Court, and this issue I don’t believe was discussed or brought up in the Colorado River decision, and this is the issue that apparently gave some trouble to the Ninth Circuit, and that was the issue of whether or not there was a conflict of interest between the tribes and the United States which apparently occurred for the first time at the Ninth Circuit level.

I don’t know that the issue was addressed.

It wasn’t addressed by the federal district judges of Montana when they dismissed in favor of the state proceedings on the grounds of Colorado River and McCarren.

And of course as I understand, the government’s position is that they don’t recognize any conflict of interest in this case or in any of these cases, to my knowledge, that are consolidated here on appeal.

Apparently, the argument, and this is the argument that is made by the tribes, is that the U.S. should not be representing the tribes with regard to their reserved Indian water rights because the U.S. may have some federal reserve water rights that may be in conflict with the tribes’ rights if they occur in the same adjudication process.

Of course, that was the exact situation that existed in the Colorado case.

The United States in that case was suing on its own behalf for water rights.

I forget the name of the forest on the San Juan River.

And the Indian tribes were also involved.

Their water rights were also involved in that case.

The United States, while not recognizing any conflict of interest, say that of course they are the trustee for the tribe, and as trustee they have a special obligation to protect those rights.

In fact, in the cases in Montana, the tribal rights come first in the order of complaint.

It doesn’t appear that there is any problem with that in the state of Montana, but–

Byron R. White:

In the state adjudications, have the tribes appeared independently?

Michael T. Greely:

–There have… I think there’s one or two tribes, Your Honor, that have filed claims on their own behalf as tribes.

Byron R. White:

Are they permitted to file on their own behalf?

Michael T. Greely:

Yes, they are.

Michael T. Greely:

Encouraged to.

Byron R. White:

Whether or not the United States files for them?

Michael T. Greely:

That’s correct.

Are the Blackfeet Indian tribes in the state proceeding?

Michael T. Greely:

They are… they are a part of one of the… one of the 1979 suits filed by the United States on their behalf, but they are not a part of the state proceedings, other than… other than the rights that they have under the United States trusteeship.

Byron R. White:

General, let me go back just… I meant to ask you, the Ninth Circuit did reach the judicial administration issue in the Montana case?

Michael T. Greely:

Of the Akin factors.

Byron R. White:

Yes.

And it seemed to me that they zeroed in on the lack of comprehensiveness under Montana law, and isn’t that… isn’t that a… do you disagree with them in that respect?

Michael T. Greely:

Yes, I do, Your Honor.

Byron R. White:

Well, isn’t that a matter of state law?

Michael T. Greely:

Whether or not the proceeding is comprehensive?

Byron R. White:

Let’s assume they were right that it wasn’t, and that factor ought to weigh heavily in favor of the federal proceeding.

Do the other factors outweigh it, or what?

Michael T. Greely:

I would think so.

There are the factors that I have even suggested on argument, the fact that if you have concurrent lawsuits, concurrent suits, one in the federal court, one in the state court, all the defendants in both suits will have to participate in both of those suits.

So there will be a piecemeal adjudication.

You will have everybody in the federal court doing one thing in adjudicating the Indian rights, and then in the state court you will have them adjudicating everything except Indian rights.

Byron R. White:

Well, were they right in what they said about the comprehensiveness of the state proceeding or not?

Michael T. Greely:

No, because the state proceeding is much… much more comprehensive.

Byron R. White:

Well, it may… let’s just talk about one river system.

Just assume that there was only involved here one river system in the federal case, although certainly the state proceedings cover the whole state.

For the particular river system, is the state proceeding comprehensive?

Michael T. Greely:

The state proceeding is comprehensive because it joins everybody on that stream, all the rights on that stream.

Byron R. White:

I thought they said that the state adjudication excluded some kind of water claims.

Michael T. Greely:

Well, they were suggesting that Indian Lotie claims would be excluded, but–

Byron R. White:

What else?

Michael T. Greely:

–the United States would represent those.

Byron R. White:

What else?

Anything else?

Michael T. Greely:

Well, they mentioned that our state law talks about stock water, which we consider to be a de minimis right.

I mean, stock water, if a person is living on a stream and his stock drinks out of that stream, he doesn’t have… he is not required… he may file voluntarily.

Byron R. White:

Don’t have a water right.

He is not… that is just a riparian right.

Michael T. Greely:

Well, no, it is not riparian, Your Honor, because in Montana he has the process of adjudication.

Byron R. White:

Well, I know, but you don’t have to have it adjudicated–

Michael T. Greely:

Well, it is similar to a riparian right.

Byron R. White:

–But you don’t have to have… you don’t have to have an adjudication to let your cattle drink out of the stream.

Michael T. Greely:

No.

No, but if you were to… if you were to divert water for the purpose, or impound water for stock purposes, then you would have to.

Byron R. White:

But you don’t if you just… if you are a riparian owner who has cattle–

Michael T. Greely:

That’s correct.

Byron R. White:

–they can drink out of the stream.

Michael T. Greely:

That’s right.

And domestic uses, Your Honor, also are excluded.

Byron R. White:

But those are the only things excluded in the state?

Michael T. Greely:

That’s correct.

I will just finish up on the point I was making on the conflicts.

The United States represents the Indian tribes as trustee for the water rights, and the Indians are… the Indian tribes–

William H. Rehnquist:

General Greely?

Michael T. Greely:

–Yes.

William H. Rehnquist:

Let me go back just a moment to the Ninth Circuit’s discussion of comprehensiveness.

I was just reading over those two paragraphs in their opinion, and as I read the… it doesn’t really decide the question of comprehensiveness.

Or am I wrong?

It specifies the factors, states the arguments of Montana, states the arguments of the tribes, and then say,

“The tribes correctly stress that Akin only required dismissal where the federal proceeding would be piecemeal and the state proceeding is comprehensive. “

“Where that is not the case and jurisdictions concur, the federal court may not abdicate its judicial obligations. “

which is simply a statement of the rule in Akin.

Then they go on to talk about the race to the court, forum non conveniens.

Do you think they decided comprehensiveness as a separate inquiry?

Michael T. Greely:

Well, I think they have considered… see, the federal court in Montana said one of the main reasons for dismissing in deference to state court was that our… the federal district court found that our state proceedings were comprehensive.

In fact, they even cite in their opinion bits of our water law and how our process takes place.

I believe that the… First of all, I believe the Ninth Circuit was wrong in this discussion of comprehensiveness, but it is only one of the many factors that would occur in the Colorado River.

William H. Rehnquist:

Where do you think the Ninth Circuit in those two paragraphs said that the Montana proceeding was not comprehensive?

Michael T. Greely:

Where do I see that it says it was not comprehensive?

William H. Rehnquist:

Yes.

0….

Well, I don’t mean to hold you up.

Michael T. Greely:

Well, I’m sorry.

I recall reading that paragraph where the Ninth Circuit discussed the comprehensiveness of the federal proceeding and the state proceeding.

I frankly disagreed with some of the statements.

I think if you look at our brief, and I am not sure if I have the page number… I don’t believe I can cite you the page number of our brief, but it does discuss some of the errors of the Ninth Circuit Court of opinion… the Ninth Circuit opinion, as to what the status of those proceedings were.

Thank you.

Warren E. Burger:

Mr. Pelcyger.

Robert S. Pelcyger:

Mr. Chief Justice, and may it please the Court, may I start out by correcting a misstatement of General Greely’s?

None of the tribes, Justice White, have participated in the state court proceedings on their own in Montana.

Byron R. White:

What do you mean, on their own?

Robert S. Pelcyger:

They have not entered an appearance on their own.

Their sole participation is vicarious through the United States.

Byron R. White:

So that any claims, water claims that have been filed in those proceedings have been filed on their behalf by the United States?

Robert S. Pelcyger:

Correct.

Yes.

Now, in this case there are–

Byron R. White:

Did anybody ever serve them as adverse parties in the state proceedings?

Robert S. Pelcyger:

–No, sir.

William J. Brennan, Jr.:

What about the Blackfeet?

Are they represented in the state proceeding also by the United States?

Robert S. Pelcyger:

Yes, that is my understanding.

But the Blackfeet, unlike the other respondent Montana tribes in this case, are not parties to the federal court cases, so they are not here.

William J. Brennan, Jr.:

You are not representing the Blackfeet?

Robert S. Pelcyger:

That’s correct.

William J. Brennan, Jr.:

If they are represented today, they are represented by the United States?

Robert S. Pelcyger:

That’s correct.

Now, in this case, there are several statutory and policy reasons why federal courts must or in any event should retain jurisdiction to adjudicate the Indian water rights.

I want to discuss two of these important reasons.

The first is the Disclaimer Act bar, which is an absolute jurisdictional bar in our opinion, and the second is the conflict of interest point, which is certainly a significant factor and, we would claim, decisive factor in the circumstances of this case.

Before discussing the particulars of the disclaimer, however, I think it is important to keep the big picture in sharp focus.

This is a jurisdictional dispute that directly involves Indian tribes and their most important and precious property right.

At issue are the water rights of the biggest reservations and the largest Indian tribes in the country.

States are asserting jurisdiction and control over the tribes and their property, matters which are at the very core of the protective relationship between the United States and the Indian tribes, and from which the tribes and their elected officials historically have been excluded.

The states are claiming this power by virtue of a statute, the McCarren Amendment, that does no more on its face than simply waive the sovereign immunity of the United States in water adjudication suits.

It does not mention Indians, Indian tribes, Indian water rights, or Indian reservations, nor is there any evidence in the legislative history of this statute of Congressional concern about such critical matters as tribal sovereign immunity, the federal government’s conflict of interest, the state court’s traditional hostility to Indians, or the disclaimers of jurisdiction in the enabling Acts and constitutions of the eleven western states.

The petitioners, we submit, are asking this Court to do the work of the Congress by filling in all of these legislative gaps, but the McCarren Amendment is far too slim a reed to carry this immense weight.

It cannot sweep everything else aside, especially when effect can be given to its principal purpose as well as other relevant laws, treaties, and national policies, by limiting McCarren’s waiver of sovereign immunity to the federal courts in the disclaimer states.

This Court’s job is to reconcile and give effect to all of the relevant laws, not to pick one and allow it to ride roughshod over all of the others.

So, the states and the petitioners’ submission is fundamentally flawed, because the tribes’ position gives effect to the McCarren Amendment in the disclaimer states, and the McCarren Amendment does constitute a waiver of the sovereign immunity of the United States with respect to suits in federal court to adjudicate Indian water rights.

It would not eviscerate or eliminate the effect of the McCarren Amendment.

Now, the Colorado River case stretches the McCarren Amendment as far as it reasonably can be extended, but the Colorado River case expressly rejected the argument that the McCarren Amendment divests federal courts of their jurisdiction to adjudicate Indian water rights.

While the anti-piecemealing policy that the Court perceived in the McCarren Amendment was held sufficient to justify deference to an ongoing state adjudication in certain very specific and limited circumstances, we submit that much more than that is required to overcome the force of other equally valid federal laws, treaties, and policies that are involved in this case.

First, let me speak specifically about the disclaimers.

Under the Constitution, of course, Indian tribes and their property are subject to the exclusive jurisdiction of the United States.

This promise was repeated in numerous treaties between the United States and the tribes, including the Apache and Navajo treaties that are involved in this case.

And after this Court’s decision in 1882 in the McBratney case cast some doubt on that proposition, it was repeated in the disclaimer provisions in the 1889 Act admitting Montana and three other states.

It was repeated again in the 1910 Act admitting Arizona and New Mexico, and on six or seven other occasions, as recently as 1958.

The position of the tribes is that these enabling Acts have not been changed or repealed, that they remain in effect, and that they absolutely bar state court jurisdiction over Indian rights.

Now, there is little doubt about what the McCarren… about what the disclaimers mean, excuse me.

They mean what they say.

They say that Indian lands, not forest lands, not public domain, not military reservations, only Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States until the disclaimers are revoked with the consent of both the United States and the respective state.

At one point in this case there was a contention that the disclaimers were limited to proprietary matters.

As I understand the reply brief of the Arizona petitioners, that claim is no longer before the Court, and I won’t any longer go into the meaning of the disclaimers.

Robert S. Pelcyger:

The critical questions relate to the relationship between the disclaimers and the McCarren Amendment.

McCarren, as I said, is simply a waiver of the government’s immunity, no more, no less.

There is no indication anywhere on the face of the Act or in its history of any intent to repeal the disclaimers.

There is no mention of them.

There is not even a hint of them.

And no one in this case has even argued that the disclaimers and McCarren are in irreconcilable conflict, the test for an implied repeal.

Effect, as I said, can be given to both McCarren and the disclaimers by holding that the McCarren Amendment’s waiver of sovereign immunity applies to adjudication of Indian water rights in the federal courts of the disclaimer states.

This result achieves the primary purpose of the McCarren Amendment, ensuring that all water rights on a stream, including the government’s and the Indians’, will be subject to adjudication.

There is no basis anywhere in the McCarren Amendment or in the governing rules for construing two statutes that bear on a common subject but totally subordinating and ignoring the disclaimers in favor of the McCarren Amendment.

Both laws can and therefore should and must be given effect.

Now, the petitioners’ primary argument, however, is that the disclaimers are nothing more than a reservation of federal authority over Indians and their lands, and that Congress exercised this authority when it enacted McCarren, but this is contrary to what the disclaimers say.

They do not say that Congress reserves authority.

They say that Indian lands shall remain subject to the absolute jurisdiction and control of the United States until they are revoked.

They are solemn compacts pledging that Indians and their lands would not involuntarily be made subject to coercive state jurisdiction unless Congress and the people of the states consent.

This is an exercise of authority, not a reservation, and the disclaimers have been so applied by this Court on numerous occasions.

The state’s argument also, I point out, flies in the face of Public Law 280, in which Congress partially repealed the disclaimers because they were viewed as legal impediments to the assumption of state court jurisdiction over Indians.

Now, the federal government takes a somewhat different tack in arguing against the disclaimer.

It objects to distinguishing between disclaimer and non-disclaimer states on policy grounds.

Since Colorado River upheld non-disclaimer state court jurisdiction over Indian water rights, the United States argues that the same rule now should be applied to disclaimer states.

In effect, the government reads the Colorado River decision as an implied sub silentio repeal of the disclaimers.

The obvious response is that the disclaimers are duly enacted laws of the United States.

They must be given effect unless they are found to be unconstitutional or impliedly repealed, and the government does not even attempt to show that the standards for finding an implied repeal have been met.

Congress obviously was aware that states admitted after 1889 were made subject to different laws than previously admitted states, and Congress has frequently applied different rules to Indians in different states.

There is neither a compelling need for uniformity nor consistent historical practice of–

William H. Rehnquist:

How about the equal footing clause?

Robert S. Pelcyger:

–The equal footing doctrine only prohibits the United States from asserting unique conditions on statehood that Congress would not otherwise have authority to impose, and since Congress has plenary and full authority to impose virtually any condition and any exercise, any authority over Indians, the equal footing doctrine is not a concern in this case.

William H. Rehnquist:

Well, in Pollard against Hagen, the objection was not that Congress didn’t have authority in the abstract to reserve water out of its own territory that was making a state, but that it hadn’t done it with the other states.

Robert S. Pelcyger:

I’m sorry.

I missed the beginning of your question.

William H. Rehnquist:

In Pollard against Hagen, which I think is the leaving equal footing case.

Robert S. Pelcyger:

Well, there is no question, and Arizona against California specifically held that Congress has full authority to reserve water for Indian reservations pre-statehood and post-statehood, and there is a full range of court decisions which hold… Winters against the United States is probably the leading case holding that the equal footing doctrine does not prohibit any federal legislation dealing with Indian affairs or any reservation of rights for Indians.

William H. Rehnquist:

No, but that was not addressed to this kind of a disclaimer.

Robert S. Pelcyger:

Well, the disclaimers have been given effect by this Court, the Indian disclaimers have been given effect by this Court time and time again, in Williams against Lee, in Fisher against the District Court, in McClannahan in 1973, and the equal footing doctrine under the cases cited in our brief at Pages 46 to 47 is just not a factor in dealing with Indian affairs, for the reasons that are explained in those cases.

Now, if the government believes that disclaimer and non-disclaimer states should be treated exactly alike, it is addressing its argument to the wrong institution.

Congress created that distinction, and it is for Congress, not this Court, to do away with it, and indeed, only a year after McCarren was enacted, when the disclaimers were specifically brought to the attention of the Congress, Congress did exactly that.

It repealed the disclaimers in Public Law 280 in order to permit disclaimer state courts to assume limited civil and criminal jurisdiction over Indian disputes but of course specifically excluded the adjudication of Indian water rights.

So, what both the petitioners and the government’s position have in common that they are asking this Court to do what Congress has never done, repeal the disclaimers in order to permit state court adjudications of Indian water rights.

Since effect, though, can and therefore must be given to both statutes, we submit that the federal courts should retain jurisdiction to adjudicate Indian water rights.

Now, turning to the conflict of interest–

William H. Rehnquist:

Are you going to discuss Organized Village of Kake in your oral argument?

Robert S. Pelcyger:

–I wasn’t planning to, but I’ll be glad to.

Organized Village of Kake against Egan, I think, was fully distinguished from our situation by this Court’s opinion in McClannahan which pointed out that Kake against Egan does not provide any rules or guidelines for determining the relative contours of state jurisdiction when Indian reservations are involved.

That was an off-reservation case that was… there were no Indian reservations involved there, and that’s what the Court said in McClannahan in dealing with Kake against Egan.

Now, in Colorado River, the Court… I am dealing now with the conflict of interest issue… the Court expressly did not decide

“whether dismissal of the federal suit would be warranted if the state proceeding were in some respect inadequate to resolve the Indian claims. “

Recently, in Moses H. Cohn Memorial Hospital case, this Court elaborated on the overriding importance of this inadequacy criterion in cases of this kind.

The Court stated,

“When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state court litigation will be an adequate vehicle for the complete and prompt resolution of the issue between the parties. “

“If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or to dismiss at all. “

In this case, the state court proceedings are unsatisfactory and inadequate because the government is called upon to represent numerous conflicting interests, and therefore cannot adequately represent the tribes’ interests.

As a result, the judgment may not be binding on the tribes.

The government’s evident conflicts were recognized by the Ninth Circuit.

They literally litter the landscape.

To take one example, on the Milk River in Montana, the United States claims rights to water for the Glacier National Park, for a Bureau of Reclamation project, for five national wildlife refuges, for three wildlife production areas, for two military reservations, four reservoirs, and in addition to all of these federal proprietary interests, four separate Indian reservations.

Now, the only way to correct this obvious problem, to remove this taint from the state court proceedings, to avoid this inadequacy, is for the tribes to be parties to the adjudications in their own right, represented by their own attorneys.

In that way, their interests will be fully and fairly represented, and the resulting judgment will not be subject to direct or collateral attack on–

Byron R. White:

Well, the Attorney General of Montana suggests that the tribes should file their claims in the state proceedings.

Robert S. Pelcyger:

–Well, that remains to be seen, but assuming that–

Byron R. White:

Well, do you assume that they cannot?

Robert S. Pelcyger:

–No–

Byron R. White:

Do you assert they cannot?

Robert S. Pelcyger:

–I do not assume they cannot.

It would be a question of whether the state courts allowed them to intervene, which nobody can predict, but I submit the Ninth Circuit considered that question and said that it would be unfair to put the tribes to that Hobson’s choice.

I point out that Congress had this question before it on two occasions.

When the McCarren Amendment was enacted, Congress did not waive the tribes’ immunity.

Congress could have waived the tribes’ immunity and made them subject to suit in state court, but did not, waived only the government’s immunity.

William H. Rehnquist:

So far as worrying about collateral attack, doesn’t the Heckman case pretty well take care of that?

The tribes are bound by the United States representation.

Robert S. Pelcyger:

Not if there is a denial of due process.

William H. Rehnquist:

Well, nothing you have told me so far suggests a denial of due process.

Robert S. Pelcyger:

Well, if the government is… if the government’s conflict prevents them from adequately representing the Indians’ interests, and the Indians have not had a full and fair opportunity to be heard owing to the government’s conflict, then that would be a denial of due process that would cloud the resulting judgment.

Now, the second… the second point is that–

Byron R. White:

What is the… what is the… Is there a statute giving tribes sovereign immunity, or a case?

Robert S. Pelcyger:

–No, that is an inherent attribute of sovereignty that was reaffirmed in Santa Clara Pueblo against Martinez–

Byron R. White:

So they may not be sued without their consent?

Robert S. Pelcyger:

–That’s correct, and Congress in 1966, when it enacted 28 USC Section 1362, which my colleagues will be talking more about, specifically recognized the existence of this conflict problem, recognized that there were instances when the Attorney General would not be able to represent the tribes’ interest owing to the conflict, and provided a federal forum, consciously did not provide a state forum for tribes to sue under those circumstances and to represent its own interests.

So, I think under those circumstances the Ninth Circuit was quite right not to require the tribes to intervene in the state courts.

John Paul Stevens:

May I ask you a question about that?

I don’t quite understand why the conflict of interest is any different in the state court than in the federal court.

Robert S. Pelcyger:

No, I agree with that in principle.

The fact is that the tribes–

John Paul Stevens:

Then it is not a reason for picking one forum over the other.

Robert S. Pelcyger:

–Yes, it is where the tribes have participated and are participating in the federal court, because the problems posed by the conflict do not exist if the tribes are independently represented.

They are in the federal courts.

They are not in the state courts.

John Paul Stevens:

Well, some of them elected to proceed to the federal courts represented by the United States, as I remember.

Robert S. Pelcyger:

That’s correct, and with regard to those cases, the conflict factor would not point either way, but it would be decisive where the tribes are participating in the federal court but are not participating in the state court–

John Paul Stevens:

Well, unless they elected to participate in the state court.

I can’t imagine the states would want to keep them out.

Robert S. Pelcyger:

–What I am suggesting is that they are immune from suit, and that in these circumstances–

John Paul Stevens:

Well, that is a sovereign immunity argument.

Robert S. Pelcyger:

–Yes.

John Paul Stevens:

I understand that.

Robert S. Pelcyger:

Well, and that it would be unfair to put them to the… to force them to compel their immunity by intervening in federal court, particularly when Congress has provided a federal forum for them.

John Paul Stevens:

But that is all true without the conflict of interest.

Robert S. Pelcyger:

Yes, but there is a–

John Paul Stevens:

It just seems to me the conflict of interest doesn’t really add much to the argument.

Robert S. Pelcyger:

–Well, conflict of interest shows the inadequacy of the state court proceeding.

Thank you.

Warren E. Burger:

Mr. Rifkind.

Simon K. Rifkind:

Mr. Chief Justice, and may it please the Court, my argument will be addressed to the considerations which necessarily must underlie the argument of this case as I see it, and that is a discussion of the factors addressed to our attention in the Akin case, the case that we have all decided to call Akin, Colorado River against… but I should like to open with this one sentence.

One of the problems of a consolidated proceeding of this kind is that it homogenizes 12 different district cases, and the facts do not always fit a single pattern.

I should therefore like to deal in the course of my argument with the facts as they are set forth in the Navajo case, and only in the Navajo case, because I think that gives you a simple structure and a simple situation.

Now, if the Akin case leaves room for any Indian water claim, I say if, then this is the case, and that I shall try to demonstrate in the course of my argument.

As I listened to the arguments of my distinguished friends from Arizona and Montana, I got the impression that they never will find a case under Akin which will enable an Indian claim to remain in the federal court, but if that is so, then the statements in Akin which proclaim again and again that it is the exception and not the rule that seems to be turned upside-down, then we have the rule of abstention set forth in Akin become the universal rule, and then there are no cases which are outside of that.

That I cannot accept.

Now, in considering Akin, I want to deal with the factors involved, and one of them is history, and therefore, to the extent that occasionally I overlap the argument made by my friend who just preceded me, it isn’t because I want to assert the disclaimer argument.

I simply want to narrate that as part of the history of this controversy.

The Navajo nation, whom I represent, and by reason of the consolidation to some extent I speak for the other Indian tribes, are united in their perception that the choice of forum, which is the problem before us, in these cases is critical to their prosperity in future.

From the vigor of the opposition by Arizona and Montana, I infer that they regard the Indians’ perception is correct.

This common perception springs from a long history, and of course within the few minutes of my disposal I can only mention a few points, a few aspects of it.

After years of warfare, the United States from time to time entered into treaties with the Indian tribes.

I can’t quote them all, but I refer you to the Apache Treaty of July 1, 1852, the Navajo Treaty of 1849, and the source of my claim to water, the particular source to which I shall advert, the Navajo Treaty of 1868.

And the common aspect of these treaties is that the Indians are promised by this great nation, and I quote the words, “federal jurisdiction and federal protection”.

One sentence out of the 1868 treaty uses that language a little bit more quaintly.

It says,

“if bad men among the whites shall commit any wrong upon the person or property of the Indians, the United States will proceed at once to cause the offender to be arrested and punished according to the laws of the United States. “

Out of these treaties and others of similar import, there has been distilled historically a national policy, first enunciated in these words in Rice against Olson back in 1945, and more recently in the McClannahan case in 1973, in these words:

“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation’s history. “

And I say that that is a factor that should be taken into consideration in engaging in the weighing process that Akin instructs us to undertake.

Simon K. Rifkind:

The Navajos, for whom I speak, never agreed to subject themselves or their property to the jurisdiction or laws of any state, and so the United States understood.

They understood that that was their treaty arrangements with the Navajos, and in order to keep its promise to the Indians, and to put the matter beyond dispute, the United States Congress in 1910, before admitting the State of Arizona to the Union, exacted a promise from the people of that state that they would forever disclaim, and so forth, as you have heard from my friend, Mr. Pelcyger.

The most recent step taken by the Congress consistent with this United States promise to the Indians, was the enactment in 1966 of Section 1362 of Article 28 to the Code conferring direct access upon the Indian tribes to the federal forum.

In the light of this history, it was perfectly natural that the Navajos turned to the federal court when they filed their complaint for a declaration of their federal rights only to the waters of the Little Colorado and for a quantification of those rights under the doctrines of the Winters case and the more recent case of California against Arizona.

Now, the Navajos filed this complaint in the District Court of Airzona on the 17th of April, 1979.

At that time, there was no statute for stream adjudication in the state of Arizona.

That was enacted a little later, April 24th, 1979, but I lay no stress upon that time factor.

I regard it as without significance.

But I do stress that the Navajos’ complaint is very narrowly focused.

I quite agree with the gentleman from Montana.

It is very narrowly focused.

It asks for a declaration of the rights to the waters of the Little Colorado as determined by its treaty with the United States and as interpreted in Winters and Arizona.

Such a declaration is sought against everyone, but it asks no determination of the rights of all the users of the Colorado River inter sese.

Once its rights have been determined and declared, then there is a provision in the Arizona water statute which says that you can take this decree and enfold it into the Arizona decree in its proper hierarchy of rights of all the other users.

So that as a practical matter… as my time is running out very fast… it is… avoids any possibility of competition between the two proceedings.

There is no duplication, and even if the matter were all in the state courts, you would find that the Indian water rights, since it is derived from an entirely different set of principles, utterly unrelated to appropriation, utterly unrelated to beneficial use, utterly unrelated to any of those factors which determine rights in Arizona for private users–

Sandra Day O’Connor:

Would it be related to the quantity of water in the stream?

Simon K. Rifkind:

–It would of course be related to the water… quantity of waters in the stream, but in the most generalized sense of that term only, not because some other user is applying it beneficially to his property.

The point that I am trying to make is this, that if this case, Indian and non-Indian rights, were tried in one court, you would find that the Indian claim would have to be encapsulated in a separate proceeding and treated separately as in fact has been done in quite a number of proceedings which have already taken place, because the two don’t mingle, and that’s what I mean when I say that there is no duplication, there is no possibility of conflicting decision, there is no piecemealing in the sense in which the term is used in the Akin case.

It is more like a bifurcation of a case, say, under the antitrust laws, where you have–

Byron R. White:

Well, Mr. Rifkind, the same is true of claims by the United States on its own behalf.

Those rights would be determined by federal law, and yet the United States has to go litigate them in the state proceedings.

Simon K. Rifkind:

–Yes, Your Honor, but the United States–

Byron R. White:

And they would be… stand on a completely separate basis–

Simon K. Rifkind:

–That is correct.

Byron R. White:

–just like the Indian claim.

Simon K. Rifkind:

Yes, Mr. Justice, but the United States, through the Act of its Congress, acquiesced in such an arrangement.

Byron R. White:

I understand.

Simon K. Rifkind:

The Indians never acquiesced in such an arrangement.

They hold a promise from this great nation, and they want that promise performed.

William H. Rehnquist:

Well, then, I take it… I take it–

–Well, you want to overturn Winter.

You want to overturn Akin.

Simon K. Rifkind:

Oh, no, Your Honor.

Byron R. White:

I take it you would say there is no claim involving an Indian water right that would ever be appropriate to be tried in a state court.

Simon K. Rifkind:

If the state brings a proceeding?

Byron R. White:

You suggest that the other side says there is never one that would be proper for the federal court.

Simon K. Rifkind:

I do not say the contrary.

Byron R. White:

When would an inquiry be proper?

Simon K. Rifkind:

If Arizona brings an action for stream adjudication and the Indians don’t do anything, and they bring in the Indian claims by serving the United States, then Akin would say that can go on in the state court.

I have no question–

Byron R. White:

And the Indians can be bound by it?

Simon K. Rifkind:

–Oh, I have no doubt of it.

Byron R. White:

Even though, even though determining the Indian water right in that proceeding would be a separate matter resting on a separate foundation?

Simon K. Rifkind:

Yes.

I am simply saying that it does not generate the kind of conflict that was pointed out in the Akin case when we were weighing two parallel proceedings.

In that case, the United States started a general stream adjudication, the states started a… there were two wasteful proceedings both moving towards the same target.

Obviously, there was going to be a collision at the end of that terminal.

Somewheres those two trains would come together, and there would be a crash.

No such thing can happen here.

Byron R. White:

Well, what if in Montana the… what if in Montana… the United States has filed some claims on behalf of Indians in the state proceeding.

Simon K. Rifkind:

Well, all I–

Byron R. White:

So let us assume that proceeding goes forward, the federal court proceeding goes forward, one court ends up saying, well, the Indian claim is worth so many acre feet of water, and in the other proceeding it says it is a different–

Simon K. Rifkind:

–I apprehended that you might ask me that question, and therefore I found out the answer from among my colleagues.

We are still in the pleading stage.

Byron R. White:

–Ah ha.

Simon K. Rifkind:

Nothing has happened beyond the pleading stage.

0 [Generallaughter.]

And I can say to this Court that all these gentlemen representing the Indians are quite happy to adjust their pleadings to such form as this Court will find agreeable in order to ensure their safe residence within a federal forum.

Byron R. White:

Well, you know, then, that something is going to have to be done to avoid a conflict.

Simon K. Rifkind:

There is no conflict in the system that I have described.

Byron R. White:

Well, I know, but something is… unless this Court or somebody does something, those two proceedings are going to go on side by side, and there could easily be a conflict.

Simon K. Rifkind:

Justice White, if you say that the Navajo plan, the complaint that I worked out in Navajo, which I did with both my eyes focused on the Akin case, and I made sure that I never trespassed one foot inside that territory, and I did it with eyes open, and I have accomplished it, I believe, and having done that, then the others can accommodate themselves to the same kind of a complaint that will be safe in the federal court.

Byron R. White:

If we held to the contrary, the people in the federal courts will just have to accommodate themselves.

Simon K. Rifkind:

I would be… I am just–

Harry A. Blackmun:

You wouldn’t mind if Akin were overruled, would you?

Simon K. Rifkind:

–I am not here to ask you to revisit Akin.

I wouldn’t mind if Akin was overruled.

I can live with it.

0 [Generallaughter.]

Warren E. Burger:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court, the question we have asked ourselves in respect of these cases is whether it is unavoidable to have an all or nothing solution to have water rights adjudication, Indian, non-Indian, federal, all in the state court or all in the federal court, as indeed Akin suggests must be the result.

It has seemed to us, after some years of experience under Akin, we ask the Court to revisit only that aspect of the Akin holding.

It is that it is indeed possible, practical, and desirable to divide the task between the federal and state courts.

It is cooperative federalism to attempt that if it can be done consistently with the statutes and consistently with practical realities.

It is the way of attempting to reconcile and accommodate apparently conflicting indications from the Congress.

And it seems to us not to present the problems that what apparently were in the forefront of the Court’s mind when it decided Akin.

It seems to us there is no duplication, there is no prospect of conflict, there is no wasted judicial resource.

On the contrary, there can be, and once the lines are clearly drawn, hopefully will be a cooperation between the two court systems.

Sandra Day O’Connor:

Mr. Claiborne, since in the last analysis it all depends in these dry western states on how much water there is, how do you handle the determination by both the federal court and the state court of different quantities of available water?

Louis F. Claiborne:

Justice O’Connor, I don’t know whether your question suggests that either decree will adjudicate more water than is available.

I don’t think that specter has been put forward.

If not–

Sandra Day O’Connor:

No, a different determination of how much water is available.

Those figures can vary depending on who is deciding the case.

Louis F. Claiborne:

–Justice O’Connor, all we suggest the task of the federal court will be is simply to determine adversely to all those who want to contest it in the federal court forum the number of acre feet of water to which Indian reservations are entitled and the priority date appropriate.

Sandra Day O’Connor:

But doesn’t that depend in part on how much water there is?

Louis F. Claiborne:

Only to the extent that the number of acre feet which a river bed bore might be greater, computing so many acre feet per acre for each acre than is available.

Otherwise, the federal court simply says, and there may be earlier priorities… of course, that would have to give way… the federal court merely makes the determination that assuming enough water is available, the reservation is entitled to so many acre feet per year.

That is all and as far as the federal court goes.

Louis F. Claiborne:

The state court in its comprehensive adjudication takes that decree and places it in the proper sequence.

If there is an earlier priority date, it must be satisfied before the reservation claim.

More usually, the reservation claim will be an earlier one, and the adjudicated claims for others will come afterwards.

The state decree at the end of the day will be comprehensive and will include this determination, this quantification accomplished by the federal court.

It seems to us that that is indeed the way in which state proceedings have proceeded when it is all in the state court.

We cite the Wyoming example.

There, the water master quite reasonably, it seems to us, and almost inevitably, determined first the federal Indian reserve claims with a view to incorporating that in his ultimate decree.

He did that by inviting all those who wished to contest it to appear.

Very few did.

Byron R. White:

Do you think not only the quantification of the reserved right but also its date would be determined in the federal court?

Louis F. Claiborne:

Yes, the date, Justice White, and of course that may be–

Byron R. White:

But the state law would determine its priority?

Louis F. Claiborne:

–I take it that in the western states there is no dispute, the trust in right… first in time is first in right, and I don’t think this is–

Byron R. White:

Well, that might be an assumption that isn’t universally applicable, but anyway, you would… your answer is yes, I take it.

Louis F. Claiborne:

–I think my answer is yes.

The date is normally not a matter of great dispute.

At least it has been the indication from this Court that the priority date… Arizona versus California, most notably… is the date on which Congress or the executive–

Byron R. White:

Well, do you think at least for the purpose of finally firming up the state… the Indian water right in its priority, somebody is going to have to go and have it included in the state decree?

Louis F. Claiborne:

–The United States itself will be a party to the state decree.

Byron R. White:

Well, what if the Indians don’t want you to be?

What if they… If they want a decree, want a water right decree, isn’t somebody going to have to take their claim to the state court?

Louis F. Claiborne:

The–

William J. Brennan, Jr.:

For example, Mr. Claiborne, are you going to comment on that motion of the Blackfeet Indian tribe?

They don’t want you to represent them.

Louis F. Claiborne:

–We have in effect answered the motion in the letter we sent to the–

William J. Brennan, Jr.:

Your letter of March 15th?

Louis F. Claiborne:

–That is so, Mr. Justice–

William J. Brennan, Jr.:

I see.

Louis F. Claiborne:

–That is to say that in the absence of any intervention by the tribe, it is the power and duty of the United States to represent Indian claims, whether the tribe wishes it or not, and so to that degree we are here.

We cannot default and say the Blackfeet tribe are unrepresented.

Louis F. Claiborne:

The reasons why it is appropriate for the federal court to adjudicate the federal Indian rights which are for federal water determined in accordance with federal law principles are too obvious to need elaboration if the McCarren Amendment did not make that solution impossible.

The Akin decision was at pains to point out that federal jurisdiction over water claims was not in any way diminished by the passage of that legislation, and accordingly, as my brother, Judge Rifkind, pointed out, if the reservation of that federal jurisdiction was to be meaningful, it must apply in at least some cases.

If these cases, particularly the Montana cases, in which the claims were filed in federal court almost five years before the state in its leisurely way prepared itself to begin an adjudication, and the federal court effectively sat on those complaints for that length of time, do not satisfy the Akin factors, it is hard to imagine one that does.

Now, we have urged the Court to draw a clearer line only because the jurisdictional skirmishing that has ensued from the decision seems to us extremely wasteful and acrimonious.

There is an ingredient in this case that was not present in Akin, and it is one of some importance, it seems to us.

It is the Congressionally granted prerogative to Indian tribes to invoke the federal forum and very pointedly the federal forum under Section 1362 of the judicial code, and to do so in their own name.

Regardless of any conflict of interest, it is desirable to attempt to accommodate that Congressional directive, the availability of a federal court to the Indian claims, with the policy of the McCarren Amendment, if that can be done.

It seems to us that it can indeed be done, and at least when the tribes invoke that jurisdictional base as they have in all of the Arizona cases, and as they have in most of the Montana cases, by intervening, that choice should be respected, and it is a choice which respects the Congressional judgment that Indian claims are more appropriately adjudicated in the federal court.

And that can live together with the concerns of the McCarren Amendment, which are to avoid a situation in which a tribe or the United States stands aloof, refusing to participate in the adjudication of its water rights in any forum.

But we say that so long as by a joint effort of state and federal courts all of the rights in the stream can be adjudicated contemporaneously–

Byron R. White:

Would you say, Mr. Claiborne, that the claims of the United States in the Montana case were properly referred to the state court, or were there any?

Louis F. Claiborne:

–There were claims of the United States, not on behalf of–

Byron R. White:

No, no, I mean, the United States’ own claims.

Were they properly referred to the state?

Louis F. Claiborne:

–We say they were.

Byron R. White:

Under… under Colorado River?

Louis F. Claiborne:

Under Colorado River–

Byron R. White:

So those factors in Colorado River would not only authorize but require the reference of the United States claims to the state court, but not the Indian claims?

Louis F. Claiborne:

–Yes.

Well, we are content whether we would be entitled to resist that referral to the state court to say that the special reasons for preserving the federal jurisdiction of Indian claims most obviously indicated in the reservation of water rights in Public Law 280 and Section 1362–

Byron R. White:

But it wouldn’t… I don’t see how you can say that the reference of the United States claims was quite proper under Colorado River, and yet the reference of the Indian claims were not under those same factors.

Akin didn’t distinguish between Indian claims and United States claims.

Louis F. Claiborne:

–The Akin court was not, at least at the instance of the United States, invited to focus on the special situation under the Acts of Congress for Indian claims, most specifically, Section 1362.

Here we have, as was not true in Akin, tribes invoking what Congress gave them, a right of entry to the federal court, and it would be a meaningless gift it can be taken away from them by the expedience of suing the United States in state court.

Byron R. White:

I think you really are, then, asking that we really redo Colorado River with respect to Indian claims, that those factors just… however much they might be satisfied with respect to the claims of the United States itself, are nevertheless either not satisfied or there are additional factors that come into being that must be brought to bear on Indian claims.

Louis F. Claiborne:

I must candidly concede that we are asking the Court to reconsider one aspect of Akin in light of Section 1362, not involved there, and that the experience under Akin has led us to invite the Court to draw a firmer line.

We do point out that the federal courts would… the state courts would nevertheless, as they did in the Wyoming case, have jurisdiction to adjudicate Indian claims if neither the United States nor the tribe invoke in a timely way its prerogative to remain in–

Byron R. White:

But you would say what our rule ought to be is a bright line rule.

Any time in a timely way the United States or the Indian tribe invoked the jurisdiction of the federal court, the quantification and the date of priority of the Indian claim should be adjudicated by the federal court.

Louis F. Claiborne:

–We invite the Court to that result, though we likewise endorse the intermediate position put forward by Judge Rifkind.

Louis F. Claiborne:

All right.

Warren E. Burger:

Do you have anything further, Mr. Kyl?

Jon L. Kyl:

Mr. Chief Justice, and may it please the Court, yes, I do have some remarks.

The tribes and the government speak of history and policy.

We believe that the history is the McCarren Amendment, that Congress’s legislative intent was clear, and that that is where policy issues should be resolved.

This Court interpreted the McCarren Amendment in its Colorado River decision, and I suggest that most of the suggestions of the tribes and the government are indeed to revisit that case.

For example, the suggestion that the McCarren Amendment did not waive Indian tribal sovereignty.

Indian tribal sovereignty is deemed waived because the assertion of the claims is by the United States, and the United States’s tribal… sovereign immunity is waived under the McCarren Amendment.

The reading of the Congressional intent with respect to Section 1362 that Mr. Claiborne just offered to you would suggest to you that the Indian tribes have a greater right to access to the federal courts under Section 1362, which only eliminated the $10,000 jurisdictional barrier, than the United States has under Section 1345, which this Court was dealing with in Colorado River, a truly anomalous result.

That is not what either Congress has intended or what this Court would intend in the Colorado River decision.

Mr. Pelcyger suggests that the McCarren Amendment… excuse me, that the disclaimer really suggests that there is an absolute bar.

The disclaimer is not an absolute bar, as this Court has suggested in its prior decisions.

For example, in the Mescalero Apache tribe case, this Court specifically said that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law.

That was a New Mexico case.

Similar language is found in Arizona cases, in Montana cases, in Washington cases, in many of the disclaimer states.

This Court has said on many prior occasions that the absolute jurisdiction of the federal government does not oust the state of all jurisdiction.

William H. Rehnquist:

When confronted with a claim under a disclaimer statute?

Jon L. Kyl:

Mr. Justice Rehnquist, I am not aware of what a disclaimer statute would be.

William H. Rehnquist:

No, with a disclaimer… I mean, say the Washington cases, the New Mexico cases, Mescalero, that you are referring to.

Was that statement by the Court that you quote made in the context of the disclaimer provision in the state’s constitution being argued?

Jon L. Kyl:

Mr. Justice Rehnquist, no, the disclaimers are occasionally mentioned in these cases, but they have never been seen as a bar.

With respect to the theory of the government, I want to allude particularly to the Navajo tribe, because Justice O’Connor was making a point that has a great deal of validity in these semi-arid states.

Both in terms of identifying legally what water has been appropriated, which is done in the state court proceedings, and identifying physically how much water is available, it is very important to be able to integrate everything.

The Navajo tribe was put together in 17 different sections at 17 different times.

There are claims of non-Indians interspersed among those various parts of the Navajo Indian reservation.

That same situation exists with respect to other reservations.

Whatever court is going to determine all of these rights is going to have to have all of the parties before it to hear all of the claims at the same time, identify the various dates and the priorities, how much water is physically available, what prior rights were established, and then put it all together.

This is what Congress had in mind when it adopted the McCarren Amendment.

The legislative history is clear that it was pointing to many of the various state statutes that permitted precisely that.

This Court in Footnote 2 of the Colorado decision referred to the Arizona statutes as among those statutes that could determine all of these rights, and the Court has declared on several prior occasions that the adjudication of water rights are a unique kind of litigation that require the… all of the parties before the Court in a unitary proceeding.

Jon L. Kyl:

Unless that is true, you have intolerable conflicts between courts, for example, the administration of the same water by a federal court on the one hand and a state court on the other hand.

To which court do the parties go if a conflict develops with respect to the administration of the decree at a later date?

The conflicts are intolerable.

And if that kind of a proposal is necessary to satisfy the government’s concern, it can easily be addressed to Congress, which could then change the law to try to address some of these policy considerations, but it has not done so.

We submit, if it please the Court, that the only way that the state of Arizona and the other arid and semi-arid states of the west are going to finally get a complete and binding determination of water rights so that everyone, Indians and non-Indians alike, can move forward, can develop their economies, is if all of the parties are before the same court at the same time.

This Court in Colorado River said that the rights of the Indians would not be imperiled by sending them to state court.

There has been no suggestion by any of the Indian tribes in the cases before you now that the state courts of Arizona or Montana are hostile to the Indian tribes, and in Colorado River you specifically rejected the argument of the government.

You said that is an erroneous assumption, to assume that if the Indian tribes have to go to state court, that somehow state court judges are going to deprive them of their rights.

In any event, this Court sits in final review of any question which has been preserved that comes from a state court.

We submit that these cases should be returned to the district court, and that the state court adjudications should be allowed to proceed.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at 10 a.m..