STATE OF ARIZONA, ET AL., PETITIONERS V. SAN CARLOS APACHE TRIBE OF
ARIZONA, ET AL.
   STATE OF MONTANA, ET AL., PETITIONERS V. NORTHERN CHEYENNE TRIBE OF
THE NORHTERN CHEYENNE INDIAN RESERVATION, ET AL.
   No. 81-2147
   No. 81-2188
   In the Supreme Court of the United States
   October Term, 1982
   On Writs of Certiorari to the United States Court of Appeals for
the Ninth Circuit
   Brief for the United States
            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes and State constitutional provisions involved
   Statement
      A. The Arizona cases
          1. San Carolos Apache Tribe v. Arizona
          2. Navajo Nation v. United States
      B. The Montana cases
   Argument:
      Introduction and summary
      I. State courts have jurisdiction to adjudicate Indian
          water rights even in disclaimer states
      II. A federal court whose jurisdiction is timely
          invoked should adjudicate Indian water rights
          A. The tradition of federal jurisdiction in
             Indian affairs argues in favor of federal court
             adjudication of tribal water rights
          B. The Tribes' rights of self-representation and
             unfettered access to a federal forum argue
             in favor of federal court adjudication of
             tribal water rights
          C. Timely federal court adjudication of Indian
             water rights does not enervate the policy of
             the McCarran Amendment or involve
             duplication, undue burdens or delays
          D. Application of these principles to the present
             cases calls for affirmance with some
             modifications
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals in San Carlos Apache Tribe v.
Arizona (81-2147 Pet. App. A) is reported at 668 F.2d 1093;  that
court's opinion in Navajo Nation v. United States (81-2147 Pet. App.
B) is reported at 668 F.2d 1100;  and the opinion of the same court in
Northern Cheyenne Tribe v. Adsit (81-2188 Pet. App. 26-52) is reported
at 668 F.2d 1080.  The opinion of the district court in San Carlos
Apache Tribe v. Arizona (81-2147 Pet. App. E) is reported at 484 F.
Supp. 778 (D. Ariz.).  The opinion of the district court in Navajo
Nation v. United States (81-2147 Pet. App. D) is unreported.  The
opinion of the district court in Northern Cheyenne Tribe v. Adsit
(81-2188 Pet. App. 53-61) is reported at 484 F. Supp. 31 (D. Mont.).
                             JURISDICTION
   The judgment of the court of appeals in San Carlos Apache Tribe v.
Arizona, was entered on February 23, 1982, and in Navajo Nation v.
United States on February 24, 1982.  The petition for a writ of
certiorari in No. 81-2147, covering both cases, was filed on May 12,
1982.  The judgment of the court of appeals in Northern Cheyenne Tribe
v. Adsit was entered on February 22, 1982.  The petition for a writ of
certiorari in No. 81-2188 was filed on May 21, 1982.  Both petitions
were granted on October 4, 1982, and the cases were consolidated.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).
         STATUTES AND STATE CONSTITUTIONAL PROVISIONS INVOLVED
   Section 20 of the Enabling Act for Arizona and New Mexico of June
20, 1910, ch. 310, 36 Stat. 569, and Article XX, Section 4, of the
Arizona Constitution are reproduced in relevant part at 81-2147 Pet.
2-3.  Section 4 of the Enabling Act for Montana (andother States) of
Feb. 22, 1889, ch. 180, 25 Stat. 676-677, and Ordinance No. I of the
Montana Constitution of 1889 and Article I of the Montana Constitution
of 1972 are reproduced in relevant part at 81-2188 Pet. 3-4.  The
McCarran Amendment, Act of July 10, 1952, ch. 651, 66 Stat. 560, 43
U.S.C. 666, is reproduced at 81-2147 Pet. 3-4 and 81-2188 Pet. 4-5.
                          QUESTIONS PRESENTED
   1. Whether the disclaimers of State jurisdiction over Indian lands
contained in the Enabling Acts for Arizona and Montana and in their
Constitutions disable the courts of those States from adjudicating
Indian reserved water rights.
   2. Whether, assuming both the State and federal courts enjoy
concurrent jurisdiction in the premises, a federal court whose
jurisdiction is timely invoked by the United States or the affected
Tribe for the sole purpose of quantifying Indian Reservation water
rights should dismiss such an action in order to permit the State
court to determine those rights in a general stream adjudication.
                               STATEMENT
   This brief addresses two consolidated groups of cases presently
before this Court:  No. 81-2147, in which the Court is reviewing two
judgments of the Court of Appeals for the Ninth Circuit disposing of
several Arizona cases;  and No. 81-2188, in which the write is
addressed to a single judgment of the same court covering a number of
Montana cases.
                         A. The Arizona Cases
                 1. San Carlos Apache Tribe v. Arizona
   On March 7, 1979, six Indian tribes filed suit in the United States
District Court for the District of Arizona seeking to prevent the
adjudication of their rights to the water of the Salt, Verde and Gila
River systems in State proceedings.  /1/ Some of the actions sought
removal to the district court.  /2/ The other suits prayed for (1) a
declaratory judgment that Arizona State courts lack jurisdiction to
determine Indian water rights because of disclaimers of State
jurisdiction over Indian lands contained in the Enabling Act of June
20, 1910, ch. 310, 36 Stat. 557, 569, and the State Constitution,
Arizona Constitution, Article XX, Section 4, and (2) an injunction
against fur ther State court proceedings.  /3/ A month later, the Fort
McDowell Mohave-Apache Indian Community and the San Carlos Apache
Tribe filed actions asking the federal court to determine their rights
in the Verde and Salt Rivers, respectively.  /4/
   The district court remanded the removed actions to State court and
dismissed the other suits, /5/ holding inter alia, that the disclaimer
provisions did not preclude State court jurisdiction over Indian water
rights.  The Tribes appealed from this decision, except for the remand
of the removed actions.  The appeals were consolidated in the court of
appeals and were argued on July 15, 1981.
   The same panel of judges which heard argument in the Arizona
appeals (both San Carlos Apache Tribe v. Arizona and Navajo Nation v.
United States) also heard argument on the same day in consolidated
appeals from Montana, Northern Cheyenne Tribe v. Adsit, involving
similar issues and now before this Court in No. 81-2188.
   On February 23, 1982, the court of appeals rendered its decision in
San Carlos Apache Tribe v. Arizona, reversing and remanding the
decision of the District court.  The Ninth Circuit held (81-2147 Pet.
App. A-8 to A-9, A-11) that the disclaimer provisions in Arizona's
Enabling Act and Constitution barred the State from asserting
jurisdiction over Indian water rights.  In reaching this result, the
court adopted in full the reasoning on this point of its decision the
day before in Northern Cheyenne Tribe v. Adsit (id. at C-3 to C-11).
The court stated (id. at A-9) that, "(a)s in the Northern Cheyenne
case, we find it necessary to remand for a determination of whether
Arizona has obtained jurisdiction over the Indians pursuant to Public
Law 280." The court noted (id. at A-10) that its holding on the
disclaimer issue made it unnecessary for the court to decide whether
dismissal under the doctrine of "wise judicial administration" would
have been proper if Arizona had not disclaimed jurisdiction over
Indian lands.
                   2. Navajo Nation v. United States
   On April 17, 1979, the Navajo Tribe filed a complaint in the United
States District Court for the District of Arizona, which as
subsequently amended, requested a determination of the Navajo's rights
in the Little Colorado River.  /6/ The district court stayed all
proceedings in this action pending a State court general stream
adjudication for the Little Colorado 81-2147 Pet. App. D-1).  The
Navajo Nation appealed.  The Ninth Circuit reversed and remanded by
decision of February 24, 1982 (id. at B-1), stating (id. at B-4) that
its holding in San Carlos Apache Tribe v. Arizona that Arizona has
disclaimed jurisdiction over Indian water rights compelled reversal of
the district court's order.  Because of this ruling on the disclaimer
question, the court did not find it necessary to address other issues,
including the United States' claim that sovereign immunity barred the
Navajos from suing the United States in this action (81-2147 Pat. App.
B-4).  /7/
   The United States was not a party to the San Carlos Apache Tribe
group of cases, although it participated in the district court
proceedings as amicus curiae in support of the Tribes.  Being a
defendant in Navajo Nation, the United States participated in the
court of appeals as appellee in that case.
                         B. The Montana Cases
   On January 30, 1975, the Northern Cheyenne Tribe brought an action
/8/ in the United States District Court for the District of Montana
seeking an adjudication of its rights in certain streams in that
State.  Shortly therefafter, in the same year, the United States filed
two suits /9/ in the same district court seeking a determination of
water rights on behalf of several Indian Tribes and on its own behalf.
 On April 5, 1979, the United States filed four other actions /10/ in
the same court also seeking a determination of Indian and non-Indian
federally-owned rights in other Montana streams.  Unlike the Arizona
cases, all six of the actions filed by the United States requested a
determination of the rights of all claimants on the named streams.
/11/
   On May 11, 1979, Montana enacted a new statutory scheme for the
adjudication of water rights throughout the State.  /12/ Approximately
six months thereafter, and almost five years after the filing of the
Northern Cheyenne Tribe's suit, the district court, on November 29,
1979, dismissed all of the actions in favor of State adjudicatory
proceedings, to be conducted pursuant to the recently enacted water
rights determination statute.  In dismissing the suits, the district
court relied on the "wise judicial administration" doctrine set out in
Akin (see 81-2188 Pet. App. 60).
   The United States and various Tribes /13/ appealed.  As we have
noted, the same panel of the court of appeals which heard argument on
July 15, 1981, in the consolidated Montana appeals also heard
arguments on the same day in San Carlos Apache Tribe v. Arizona and
Navajo Nation v. United States, supra.
   On February 22, 1982, the court of appeals issued its decision
(81-2188 Pet. App. 26).  The court determined (id. at 31) that the
McCarran Amendment, 43 U.S.C. 666, had not repealed the disclaimer of
State jurisdiction over Indian lands contained in Montana's Enabling
Act and Constitution.  Without finally deciding the point, the court
found no indication that Montana had otherwise validly repealed the
disclaimer (81-2188 Pet. App. 31-38).  The court ultimately held (id.
at 38-39) that even if it were determined that Montana had effectively
assumed concurrent jurisdiction, the district court's ruling must be
vacated because the doctrine of "wise judicial administration" relied
on in Akin did not support dismissal.  Accordingly, the court of
appeals reversed, concluding that the governing factors "favor
retention of federal jurisdiction" (id. at 45).  /14/
                               ARGUMENT
                       INTRODUCTION AND SUMMARY
   Here, as all too often, the will of Congress is not clearly
revealed, and it ultimately falls to this Court to determine
congressional intent from sometimes contradictory indications embodied
in a variety of statutes, some of different periods and others almost
contemporaneous, all speaking indirectly to the discrete question
presented by these cases, but none so narrowly focussed on the
particular problem as to be obviously controlling.  Specifically, the
two issues presented are:  whether unrepealed provisions of the
Enabling Acts for the admission of most Western States (including
Arizona and Montana) disclaiming "jurisdiction" over Indian lands,
were in part overridden by the McCarran Amendment of 1952 so as to
permit State courts to adjudicate water rights held by the United
States on behalf of Indians or Indian Tribes in such States;  and, if
so, whether a persistent legislative tradition exempting restricted
Indian property, including water rights, from State adjudication,
apparently preserved by Public Law 280 in 1953 and re-inforced by the
enactment of 28 U.S.C. 1362 in 1966, counsels a federal court whose
jurisdiction is timely invoked for the discrete purpose of quantifying
Indian water rights, not to abdicate the task in deference to newly
filed State proceedings.  We answer both questions in the affirmative.
 That resolution, we believe, most nearly accommodates the competing
concerns that underlie congressional policy in this difficult context.
                                  A.
   The first issue, we submit, is ultimately controlled by the Court's
recent decision in Colorado River Water Conservation District v.
United States (hereinafter "Akin"), 424 U.S. 800 (1976).  It was there
held that the McCarran Amendment, 43 U.S.C. 666, conferred on State
courts concurrent jurisdiction to adjudicate Indian water rights in a
general stream adjudication.  To be sure, Akin arose in Colorado, a
State which had not expressly disclaimed jurisdiction over Indian
lands, whereas the present cases involve States admitted on condition
that, absent congressional consent, they would not assert jurisdiction
over Indian lands.  In our view, however, that difference ought not
produce disparate procedural rules in disclaimer and non-disclaimer
States.
   We reach this conclusion primarily because any other result would
trivialize the Akin ruling.  Indeed, of all the Western States where
water is an acute problem, only four are non-disclaimer States, and
more than nine-tenths of Indian lands -- with their appurtenant water
rights -- lie in disclaimer States.
   What is more, there is no apparent reason for attributing to
Congress an intent to treat the States differently in respect of
jurisdiction over Indian water rights, depending upon the conditions
imposed by their respective Enabling Acts.  On the contrary, the
familiar disclaimer clauses seem to reveal no more than a historical
pattern initiated in 1889 and followed thereafter, but reflecting no
change of policy.  Arguably, the disclaimer clauses merely state
explicitly a general rule, denying State court jurisdiction over
Indian real property rights, that applied in all States, including
those admitted before 1889.  But, so far as water rights are
concerned, Akin holds that the McCarran Amendment has lifted any such
obstacle, and we cannot reasonably confine the effect of that
decision, and the Amendment itself, to the relatively few Indian
Reservations outside disclaimer States.
                                  B.
   While conceding State jurisdiction, the Court in Akin equally
clearly re-affirmed the unimpaired concurrent jurisdiction of the
federal courts.  Thus, the question arises whether an action timely
filed in the Federal forum ought to be dismissed in favor of a State
proceeding initiated contemporaneously.  In the special case of Indian
water rights, we believe the McCarran Amendment does not require that
result and that other concerns counsel the exercise of jurisdiction by
the federal courts to perform that discrete task.
   Our submission is informed by three considerations, which we
discuss in turn.
   1. First (pages 16-23, infra), we notice the long and continuing
tradition of insulating Indian Reservation rights from State
authority, including the jurisdiction of State courts, and the
consistent practice of this Court to construe cautiously congressional
legislation relinquishing the protective umbrella of federal law and
federal courts.  This, we suggest, counsels against reading the
McCarran Amendment as requiring abdication of federal jurisdiction
except where necessary to accomplish its limited objective.
   2. Second (pages 23-27, infra), we address the question left
unresolved by Akin:  the situation in which the Tribe, rather than the
United States, invokes the federal forum.  In light of the explicit
right of self-representation confirmed to Indian Tribes and the
unfettered access to the federal courts granted by Congress in Section
1362 of the Judicial Code, we are reluctant to construe the McCarran
Amendment as defeating those privileges in respect of water rights --
perhaps the most valuable asset of the Western Tribes.  Nor do we
believe the result should be different because the United States
champions the tribal claims -- unless the Tribe and the United States
are content to submit those water rights to State adjudication.
   3. Finally (pages 27-35, infra), we turn to the policies of the
McCarran Amendment to determine whether the solution proposed, because
of duplication, or undue burdens or delays, would enervate the
congressional objective.  We conclude no serious problem is created,
provided the jurisdiction of the federal court is promptly invoked and
its judgment is incorporated into the eventual State court decree and
is made subject to administration by the appropriate State
authorities.
   4. It remains only to apply the suggested rule to the suits now
before the Court (pages 35-38, infra).  The procedural history of the
cases amply demonstrates that federal jurisdiction was timely invoked
in each instance.  But, if our submission is correct, the pleadings,
in some of the cases, require amendment, either by restricting the
prayer to seek a federal court adjudication of Indian rights only, or
by explicitly asking a quantification of those rights and joinder of
the United States as a party.  With these modifications, we conclude
that the judgments below should be affirmed and the several district
courts should be directed to proceed.
 I. STATE COURTS HAVE JURISDICTION TO ADJUDICATE INDIAN WATER RIGHTS
EVEN IN DISCLAIMER STATES
   In Colorado River Water Conservation District v. United States, 424
U.S. 800 (1976), this Court unanimously held that the McCarran
Amendment, 43 U.S.C. 666, conferred upon State courts concurrent
jurisdiction to determine reserved water rights held by the United
States on behalf of Indians or Indian Tribes as part of a general
stream adjudication.  The first question presented in the cases now
before the Court is whether that rule applies in States which, like
Arizona and Montana but unlike Colorado involved in Akin, were
required by the Enabling Acts authorizing their admission to the Union
expressly to disclaim "jurisdiction and control" over Indians lands.
   There is force to the proposition that neither the McCarran
Amendment nor any other provision of federal law has removed the
jurisdictional obstacles of such Indian disclaimer clauses as applied
to water rights, a species of restricted real property.  We have
sketched the affirmative argument in the Memorandum we filed in
response to the petitions (at 9-12) and it is elaborated in the Brief
of Respondent Crow Tribe of Indians.  At the end of the day, however,
we believe there is intolerable tension between the rule of Akin for
non-disclaimer States and a different rule for disclaimer States.
   1. The fact is that, in the West, where most Indians live and water
is scarce, disclaimer provisions are the norm, not the exception.  Of
the twelve States west of the 100th Meridian (including Alaska but not
Hawaii), all but four -- California, Oregon, Nevada and Colorado --
are disclaimer States.  So are three other States with substantial
Indian populations:  North Dakota, South Dakota and Oklahoma.  /15/
Almost half the Indians live in disclaimer States.  See U.S. Dep't of
Commerce, Statistical Abstract of the United States 1981, Table 36, at
32 (102 ed. 1982).  And, perhaps most significant because Indian water
rights are usually measured in accordance with irrigable acreage
rather than population, more than nine-tenths of Indian land
(excluding Alaska) -- including the 21 largest Indian Reservations --
lie in disclaimer States.  See id. Table 389, at 228;  U.S. Dep't of
Commerce, Federal and State Indian Reservations (1974).
   The upshot is that confining the Akin ruling to the non-disclaimer
States is to relegate it to relative insignificance.  To paraphrase
the words of that decision (424 U.S. at 811), it is difficult to avoid
the conclusion that "a construction of the (unanimous Akin decision)
excluding (Indian water rights in disclaimer States) from its coverage
would enervate the (decision's) objective."
   2. There is, moreover, no apparent justification for different
treatment of disclaimer States and other States with Indian
Reservations.  So far as we can discern, Congress made no policy
decision to retain exclusive federal jurisdiction of Indian property
interests in some States, but not in others.  The historical fact is
that, from 1889 onwards, every newly admitted State was required to
disclaim jurisdiction over Indian Reservations.  /16/ Apparently,
Congress was reacting to the then recent decision in United States v.
McBratney, 104 U.S. 621 (1882), where the Court, condoning the
exercise of State authority within an Indian Reservation, pointedly
noted that jurisdiction over Indian lands had not been excluded when
the State of Colorado was admitted and seemed to open the door to
general State jurisdiction.  Id. at 623-624.  See Goldberg, Public Law
280:  The Limits of State Jurisdiction over Reservation Indians, 22
U.C.L.A. L. Rev. 535, 570 (1975).
   In short, the disclaimer provisions appear to be an express
confirmation of the general rule, not the fashioning of a new
principle.  And, indeed, the Court itself, both before and after the
first disclaimer clauses were written in 1889, made clear that absence
of an express disclaimer did not oust federal jurisdiction or subject
Indian land to State authority.  See, e.g., United States v.
Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), 108 U.S. 491
(1883) (Minnesota);  United States v. LeBris, 121 U.S. 278 (1887)
(Minnesota);  United States v. Kagama, 118 U.S. 375 (1886)
(California);  Donnelly v. United States, 228 U.S. 243 (1913)
(California).
   3. Accordingly, we believe it would be wrong to follow a different
procedural rule in the disclaimer States on the ground that Congress
meant to treat them with special distrust in Indian matters.  We are
therefore confronted with two alternatives:  (1) to read the Enabling
Act disclaimers as reflecting a general congressional policy to oust
State jurisdiction over Indian Reservation property interests,
including water rights, and to conclude that this rule, as applicable
to Reservation water, was not effectively revoked by the McCarran
Amendment or by Public Law 280;  or (2) to construe the McCarran
Amendment as conferring on State courts competence to adjudicate
Indian water rights in all States, and, to that extent, impliedly
removing the Enabling Act impediments.
   It is too late in the day to suggest the first course.  Indeed,
once it was determined that the McCarran Amendment reached not only
water rights acquired by the United States under State law, but also
"reserved" federal water rights (United States v. District Court for
Eagle County, 401 U.S. 520 (1971)), "the logic of those cases"
extended to reserved water rights held by the United States on behalf
of Indian Reservations wherever located.  See Akin, supra, 424 U.S. at
810.  Assuming an underlying policy of the McCarran Amendment to
permit the contemporaneous adjudication of all competing claims to the
water of a single stream system, it makes little practical sense to
exempt Indian water rights in disclaimer States, where, as it happens,
most such rights arise.  At least when the jurisdiction of a federal
court is not promptly invoked to quantify Indian Reservation rights,
the objective of the McCarran Amendment, as declared by this Court,
would be defeated if State courts were powerless to perform the task.
Thus, the momentum of the Court's past decisions carries the day
against the disclaimer ruling below.
   4. Conceding the concurrent jurisdiction of the State courts in all
States does not, however, resolve the question whether a federal
court, whose jurisdiction is timely invoked, ought to refuse to
proceed.  In Akin, while stressing "the virtually unflagging
obligation of the federal courts to exercise the jurisdiction given
them" and cautioning that only "exceptional" circumstances and "the
clearest of justifications" will warrant dismissal of the federal suit
(424 U.S. at 817, 818, 819), the Court articulated certain factors
that will justify a federal court in declining to entertain an action
for the adjudication of Indian Reservation water rights.  Id. at
818-820.  After some experience under this regime, we deem it
appropriate to ask the Court to clarify this aspect of the Akin
decision.  The balance of our brief is devoted to articulating a
proposed solution.
 II. A FEDERAL COURT WHOSE JURISDICTION IS TIMELY INVOKED SHOULD
ADJUDICATE INDIAN WATER RIGHTS
   While fully accepting the basic ruling of this Court in Akin that
State courts enjoy concurrent jurisdiction to adjudicate reserved
water rights held by the United States on behalf of Indians or Indian
Tribes, we believe that, in the particular case of Indian water
rights, special concerns require a federal court whose jurisdiction is
timely invoked, whether by the United States or a Tribe, to proceed to
adjudicate those claims.
 A. The tradition of federal jurisdiction in Indian affairs argues in
favor of federal court adjudication of tribal water rights
   1. At least since the Constitution removed the "shackles" on
national power that theretofore had maintained an ambiguous regime of
divided authority between State and federal governments over Indian
affairs (Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 558-560 (1832);
The Kansas Indians, 72 U.S. (5 Wall.) 737, 755 (1866)), it has been
accepted that Indian Tribes within their own territory are largely
insulated from State jurisdiction.  E.g., Rice v. Olson, 324 U.S. 786,
789 (1945);  McClanahan v. Arizona State Tax Commission, 411 U.S. 164,
168, 174-175 (1973);  DeCoteau v. District County Court, 420 U.S. 425,
427 and n.2 (1975);  Bryan v. Itasca County, 426 U.S. 373, 376 n.2
(1976);  Washington v. Yakima Indian Nation, 439 U.S. 463, 470-471
(1979).  In important measure, national policy has permitted the
Tribes to retain their aboriginal sovereignty, over their members,
their lands, their water, their natural resources, and over activities
occurring on their territory that significantly implicate tribal
interests.  Williams v. Lee, 358 U.S. 217, 220, 223 (1959);  Warren
Trading Post v. Arizona Tax Comm'n, 380 U.S. 685, 690 (1965);  United
States v. Mazurie, 419 U.S. 544, 557-558 (1975);  United States v.
Wheeler, 435 U.S. 313, 324 (1978);  Santa Clara Pueblo v. Martinez,
436 U.S. 49, 56, 59, 65-66 (1978);  Washington v. Confederated Tribes,
447 U.S. 134, 152-154 (1980);  White Mountain Apache Tribe v. Bracker,
448 U.S. 136, 142, 151 (1980);  Montana v. United States, 450 U.S.
544, 565-566 (1981);  Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,
137-144, 146-148 (1982).  At the same time, Indian Tribes are
dependent on the national government and subject to its plenary power.
 United States v. Kagama, 118 U.S. 375, 383-385 (1886);  Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191, 207-212 (1978);  United States
v. Wheeler, supra, 435 U.S. at 323, 327-328, 331;  Washington v.
Confederated Tribes, supra, 447 U.S. at 154.  But, except as Congress
has provided otherwise, tribal Indian communities remain in most
respects apart from the State in which they reside.  Anomalous as it
may seem, this is the rudimentary principle from which all our law
concerning Indian affairs derives.  In these cases, as in all others,
it must be the starting point.
   2. Of course, the wall separating Indian enclaves from State
interference is no longer absolute.  Where tribal interests are
unaffected or relatively minor, the State has been allowed to punish
or tax or regulate non-Indians whithin a Reservation.  E.g., United
States v. McBratney, 104 U.S. 621 (1882);  Utah & Northern Ry. v.
Fisher, 116 U.S. 28 (1885);  Thomas v. Gay, 169 U.S. 264 (1898);  Moe
v. Salish & Kootenai Tribes, 425 U.S. 463 (1976);  Washington v.
Confederated Tribes, supra;  Montana v. United States, supra.  And, in
specific contexts, State law has been imported to govern the Indians
themselves.  E.g., 25 U.S.C. 231, 232-233.  What is more, in two
relatively short-lived and later repudiated experiments (exemplified
by the General Allotment Act of 1887 and Public Law 280 of 1953),
Congress has invited in State jurisdiction more generally.  But,
however many the gates that have been opened, the Reservation wall
stands and cannot be scaled or breached with impunity.
   Thus, to this day, sovereign immunity shields Indian Tribes from
State suits.  See Puyallup Tribe v. Washington Game Dept., 433 U.S.
165 (1977);  Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 58.
States and their non-Indian citizens may not acquire Indian land
without federal permission (25 U.S.C. 177;  see Oneida Indian Nation
v. County of Oneida, 414 U.S. 661 (1974));  traders may not enter a
Reservation without a federal or tribal license (25 U.S.C. 261-264;
see Central Machinery Co. v. Airzona Tax Comm'n, 448 U.S. 160 (1980));
 and, indeed, except as federal or tribal law grants special leave,
all non-members may be excluded from tribal lands (see Merrion v.
Jicarilla Apache Tribe, supra).  The State may not tax Indian
Reservation land or personal property or income (see McClanahan v.
Arizona State Tax Clmmission, supra;  Moe v. Salish & Kootenai Tribes,
supra;  Bryan v. Itasca County, supra), or most on-Reservation
dealings with the Tribe even when the legal incidence of the tax falls
on non-Indians (see White Mountain Apache Tribe v. Bracker, supra;
Ramah Navajo School Board v. Bureau of Revenue, No. 80-2162 (July 2,
1982)).  Except where the State has timely accepted Congress'
invitation to assert jurisdiction, crimes involving Indians within
"Indian country" are the exclusive concern of federal or tribal law
and federal or tribal courts.  18 U.S.C. 1152-1153;  see Williams v.
United States, 327 U.S. 711, 714 (1946);  United States v. John, 437
U.S. 634 (1978).  Nor may the State regulate the activities of tribal
members within the Reservation (see Fisher v. District Court, 424 U.S.
382 (1976);  Montana v. United States, supra), or, for the most part,
the intercourse there between Indians and others (see Williams v. Lee,
supra).
   The upshot is that, even today, the application of State law and
the jurisdiction of State courts with respect to Indian affairs is the
exception, not the rule.  And, of special relevance here, exemption
from State authority has usually included its judicial tribunals,
whether or not bound to apply federal substantive law.  E.g., McKay v.
Kalyton, 204 U.S. 458 (1907);  Minnesota v. United States, 305 U.S.
382 (1939);  Williams v. Lee, supra;  Kennerly v. District Court of
Montana, 400 U.S. 423 (1971);  Fisher v. District Court, supra.
Indeed, when opening the federal courts more widely to tribal claims
by enacting 28 U.S.C. 1362 in 1966, Congress stressed the importance
to the Tribes of avoiding the State courts.  S. Rep. No. 1507, 89th
Cong., 2d Sess. 2-3 (1966);  H.R. Rep. No. 2040, 89th Cong., 2d Sess.
2-3 (1966).  And this Court has likewise pointed to the availability
of a federal forum to adjudicate Indian property rights as a
significant safeguard.  See Oneida Indian Nation v. County of Oneida,
supra, 414 U.S. at 676, 678-682;  Wilson v. Omaha Indian Tribe, 442
U.S. 653, 673-674 (1979).
   3. What is more, whenever the national government has determined
upon a policy of relinquishing its monopoly over Indian affairs,
Congress has been explicit in its cession and punctilious about the
timing and conditions for the transfer.  See Williams v. Lee, supra,
358 U.S. at 220-221;  Kennerly v. District Court of Montana, supra,
400 U.S. at 424-429;  McClanahan v. Arizona State Tax Commission,
supra, 411 U.S. at 177;  Bryan v. Itasca County, supra, 426 U.S. at
381, 389-390.  Even the General Allotment Act of 1887, while
contemplating the eventual dissolution of Indian Reservations and the
application of State law to both the allotted and alienated lands, was
careful to preserve the protective umbrella of federal law for a
generation (25 U.S.C. 348, 349), subject to extensions which
ultimately carried into the indefinite future.  See Mattz v. Arnett,
412 U.S. 481, 496 & nn. 17 & 18, 497 (1973).  And, at the same period,
beginning in 1889, Congress insisted that newly admitted States
formally and irrevocably disclaim "jurisdiction and control" over
Indian lands "until the title thereto shall have been extinguished by
the United States." E.g., Section 4 of the Enabling Act of Feb. 22,
1889, ch. 180, 25 Stat. 676-677, for North Dakota, South Dakota,
Montana and Washington;  Sections 2 and 20 of the Enabling Act of June
20, 1910, ch. 310, 36 Stat. 557, 558-559, 569-570, for New Mexico and
Arizona.  So, also, when the Congress of 1953 authorized the States to
assume general criminal and limited civil jurisdiction within "Indian
country," it expressly withheld certain matters -- including water
rights (25 U.S.C. 1322(b);  28 U.S.C. 1360(b)) -- and required most
States to take positive legislative action where they were free to
assert authority.  Act of Aug. 15, 1953, ch. 505, Sections 6 and 7, 67
Stat. 590;  See Kennerly v. District Court of Montana, supra;
Washington v. Yakima Indian Nation, supra.
   Nor has Congress abandoned this cautious approach.  On the
contrary, the pattern has been to restrict, or even reverse, the force
of assimilationist legislation.  Thus, the allotment policy was
delayed by repeated extensions of the trust period and finally ended
by enactment of the Indian Reorganization Act in 1934, 25 U.S.C. 461
et seq.  See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-152
(1973);  Mattz v. Arnett, supra, 412 U.S. at 496 & nn. 17 & 18.  And,
beginning in the mid-1960's, Congress repudiated another "termination"
era by once again committing the Nation to encouraging and protecting
the autonomy of Indian Tribes.  In 1966, the doors of the federal
courts were opened wider to tribal claims.  28 U.S.C. 1362;  see Moe
v. Salish & Kootenai Tribes, supra, 425 U.S. at 472-475.  In 1968,
Public Law 280 was amended to require tribal consent before a State
could assume jurisdiction within an Indian Reservation (25 U.S.C.
1322(a), 1326;  see Kennerly v. District Court of Montana, supra, 400
U.S. at 428-430), and the Indian Civil Rights Act was enacted.  25
U.S.C. 1301-1303;  see Santa Clara Pueblo v. Martinez, supra.  Several
terminated Tribes have been restored to their former status and
territory.  E.g., Menominee Restoration Act of 1973, 25 U.S.C. 903 et
seq.  And, still more recently, Congress has carried forward the same
goals in the Indian Financing Act of 1974, 25 U.S.C. 1451 et seq., and
the Indian Self-Determination and Education Assistance Act of 1975, 25
U.S.C. 450 et seq.  See Bryan v. Itasca County, supra, 426 U.S. at
388-389 n.14;  White Mountain Apache Tribe v. Bracker, supra, 448 U.S.
at 143 and n.10;  Ramah Navajo School Board v. Bureau of Revenue,
supra, slip op. 7-8.
   It hardly needs saying that this Court has generously accepted the
political decision to foster tribal self-government and
self-sufficiency, largely free from State interference.  Accordingly,
legislation looking in the opposite direction has been read cautiously
and ambiguities have been resolved against conceding jurisdiction to
State authorities, including State courts.  As early as 1907, the
Court declined to read an ambiguous statute, now 25 U.S.C. 345, as
granting State tribunals power to adjudicate a claim to an allotment.
McKay v. Kalyton, supra.  In Minnesota v. United States, supra, a
provision permitting condemnation of Indian land "under the laws of
the State," 25 U.S.C. 357, was construed to require resort to a
federal court.  See, also, United States v. Clarke, 445 U.S. 253, 254
(1980).  A Termination Act was held not to abrogate the Tribe's
privilege of hunting and fishing free of State regulation.  Menominee
Tribe v. United States, 391 U.S. 404 (1968).  Effect was denied to a
purported assumption of State jurisdiction because of failure to
follow required procedures.  Kennerly v. District Court of Montana,
supra.  The Court declined to read legislation "opening up" a
Reservation as intending to disestablish it and subject it to State
law.  Mattz v. Arnett, supra.  So, also, restrictive effect was given
to Section 6 of the General Allotment Act of 1887, 25 U.S.C. 349, in
light of later enactments.  Moe v. Salish & Kootenai Tribes, supra,
425 U.S. at 477-479.  And the general terms of Public Law 280 were
construed as not embracing State taxing power.  Bryan v. Itasca
County, supra.
   4. In light of this tradition, it is somewhat surprising to find
that a very bare statute of 1952 -- which does not mention Indians
and, on its face, only addresses the sovereign immunity of the United
States -- has silently subjected Indian water rights to State
jurisdiction.  But, accepting the basic holding of Akin that, through
the McCarran Amendment, Congress authorized this result, it would be
extravagant to read that enactment as intending to overturn the usual
rule beyond what is required to satisfy the limited purpose of the
legislation.  Especially is this so when we remember that, only a year
later in Public Law 280, Congress explicitly reserved Indian water
rights from State adjudication.  25 U.S.C. 1322(b);  28 U.S.C.
1360(b).
   To be sure, this Court has ruled that Public Law 280's specific
exemption of Indian water rights from State court adjudication does
not "limit the special consent to jurisdiction given by the McCarran
Amendment." Akin, supra, 424 U.S. at 813 n. 20.  But this does not
authorize us wholly to disregard the explicit reluctance of a
contemporaneous Congress to entrust to State adjudication tribal
restricted property, including water rights, except when necessary.
/17/ Plainly, our duty is to accommodate the continuing tradition of
exempting Indian property rights from State authority -- whether
legislative or judicial -- with the goal of the McCarran Amendment to
assure that water rights held by the United States, including those
held on behalf of Indian Tribes, do not escape timely adjudication.
   Our submission is an attempt to reconcile these competing concerns.
 On the one hand, we concede the unfettered jurisdiction of State
courts to join the United States in a general stream adjudication,
both as trustee for Indians or Indian Tribes and as holder of other
rights, and to proceed to quantification if no federal proceeding has
been initiated or promptly intervenes.  On the other hand, we submit
that a federal court whose jurisdiction is timely invoked has a duty
to perform the limited role of quantifying Indian water rights -- a
discrete task that will not duplicate and need not delay the general
State adjudication.  See Point C, infra.  Ultimately, the federal
judgment can be incorporated in the comprehensive State court decree,
which will be administered by State authorities, subject only to the
power of the federal court to assure implementation of its judgment.
In this way, two apparently conflicting congressional mandates both
can be faithfully executed.
 B. The Tribes' rights of self-representation and unfettered access to
a federal forum argue in favor of federal court adjudication of tribal
water rights
   There is another reason for insisting that a federal court proceed
to adjudicate tribal water rights when its jurisdiction is timely
invoked.  It rests on the tribal prerogative of self-representation
and unfettered access to the federal forum expressly confirmed by
Congress in 28 U.S.C. 1362.  If those rights are to be taken
seriously, they ought not be vulnerable to effective defeasance by the
simple expedient of joining the United States as guardian of the Tribe
in State court.  Thus, when an Indian Tribe seeks quantification of
its reserved water rights in federal court, we submit that court
cannot abdicate its jurisdiction.  Indeed, in Akin, this Court was
careful to distinguish that situation.  424 U.S. at 820 n.26.  But we
go further, joining Justice Stevens in suggesting that it would be
anomalous to require a different result when the United States is the
federal court plaintiff, suing on behalf of the Tribe.  See 424 U.S.
at 827.
   1. It was once usual for Indian Tribes to be viewed as incompetent
"wards" of the National Government, on whose behalf the United States
appeared as "guardian" to assert or defend tribal property rights in
its own name.  See, e.g., United States v. Rickert, 188 U.S. 432
(1903);  Heckman v. United States, 224 U.S. 413 (1912);  United States
v. Minnesota, 270 U.S. 181, 193-195 (1926).  But, increasingly since
the passage of the Indian Reorganization Act in 1934, 25 U.S.C. 461 et
seq., Tribes have become involved in administering their own property
and vindicating their rights through their own attorneys.  This trend
was given important congressional endorsement in 1966 by the addition
of Section 1362 to the Judicial Code.  As a result, Indian Tribes
today are fully authorized to prosecute their own claims judicially
and commonly do so, especially when the United States -- for wahtever
reasons -- declines to take the initiative.  See Moe v. Salish &
Kootenai Tribes, supra, 425 U.S. at 472-475.
   Unless it is unavoidable, this right of self-representation ought
not to be sacrificed in respect of a resource so vital as water.  No
doubt, most State courts would permit intervention by affected Tribes.
 Yet, it is not safe to assume that none will accept the argument of
the State parties in the recent proceedings in Arizona v. California,
No. 8, Original (argued Dec. 8, 1982), resisting tribal intervention
on the ground that, under Heckman, the representation of the United
States is "complete." See 224 U.S. at 444-446.  At all events, the
Tribes would be required to waive their own sovereign immunity --
unaffected by the McCarran Amendment -- in order to participate in a
proceeding not of their choosing.  That is hardly according full
effect to the principle of tribal sovereignty or to the congressional
policy reflected in Section 1362.
   There is, moreover, good reason to concede the leading role to
tribal counsel when the Tribe prefers to advocate its own rights and
the United States is content to acquiesce in that course.  We are far
from suggesting any disabling conflict of interest on the part of the
federal government.  /18/ But there is no denying that past defaults
by agencies of the United States in vindicating Indian rights, as well
as the continuing competition for water by other federal programs,
have engendered doubts concerning federal representation of the Tribes
in some instances.  In such circumstances, mutual trust and the
appearance of justice are better served by permitting the Tribe to
prosecute its own claims.  See Poafpybitty v. Skelly Oil Company, 390
U.S. 365, 368-372, 374 (1968);  cf. Trbovich v. United Mine Workers,
404 U.S. 528, 538-539 (1972).
   In order to assure a binding judgment, the United States should be
a party to the proceeding.  See pages 30-31 and note 22, infra.  And,
in any event, the government will always have a right to participate
and, indeed, a duty to assure itself that the rights it holds on
behalf of the Tribe are adequately protected.  But performance of that
obligation may not inevitably call for separate advocacy by government
counsel.  On the other hand, if the affected Tribe does not itself
seek quantification of its water rights and deters the government from
invoking federal jurisdiction for that purpose, the policy of the
McCarran Amendment may require those claims to be presented by the
United States as a defendant in State proceedings.  See our Brief in
Opposition (filed Sept. 1982) in White Mountain Apache Tribe v. Smith,
No. 81-2334, petition for cert. pending.  All we suggest is that the
Tribe ought to have the opportunity to exercise its prerogative of
self-representation by timely instituting an action to adjudicate its
water rights.
   2. An equally important aspect of Section 1362 is the widened
access it gave to a federal forum.  There is no doubt that the
Congress of 1966 was quite deliberately opening the federal courts to
tribal claims because, in its view, that was the appropriate and
preferred forum for such an adjudication.  Among the reasons cited
were the long "tradition" of committing Indian claims to federal
courts, their greater "expertise" in deciding these issues, and the
"reluctance" of the Tribes to submit themselves to State jurisdiction.
 H.R. Rep. No. 2040, 89th Cong., 2d Sess. 2-3 1966);  S. Rep. No.
1507, 89th Cong., 2d Sess. 2-3 (1966).  As the Interior Department
communication annexed to State Report summed it up, "(t)he issues
involved are Federal issues and the tribes should not be required to
conduct the litigation in the State courts." S. Rep. No. 1507, supra,
at 3;  see also, H.R. Rep. No. 2040, supra, at 3.
   There is certainly no basis for excepting tribal water rights
claims from the scope of Section 1362.  Like Section 1345 of the
Judicial Code -- applicable to suits by the United States -- Section
1362 is untouched by the McCarran Amendment.  See Akin, supra, 424
U.S. at 806-809;  Cappaert v. United States, 426 U.S. 128, 145-146
(1976).  And see Akin, supra, 424 U.S. at 809 n.15 (Section 1331 also
unaffected).  Hence, we must give it such effect as we can in the
present context.  Except as a clear mandate demands it, the special
solicitude of Congress to afford the Tribes unrestricted access to the
federal courts to vindicate their property rights ought not to be
vitiated by a construction of the McCarran Amendment that requires
Indian water rights to be adjudicated in State courts as against the
United States as trustee.  Cf. Moe v. Salish & Kootenai Tribe, supra,
425 U.S. at 477-479.
   3. We conclude that where a Tribe has timely exercised its
privilege of invoking the jurisdiction of the federal court in its own
name, it would be contradictory to require dismissal of that suit and
to compel the Tribe to submit unwillingly to the presentation of
tribal claims by the United States in the State forum.  What is more,
with respect to Indian water rights, we cannot justify a different
result merely because the United States is the plaintiff, pressing the
tribal claims.  The solution, we submit, is not to make the result
turn upon whether the United States or the Tribe invokes federal
jurisdiction.  In our view, Justice Stevens was right in suggesting
that avoidance of such an anomaly argues for a rule that requires
federal courts to adjudicate Indian Reservation water rights when
their jurisdiction is timely invoked, whether by the Tribe or the
United States.  See 424 U.S. at 827.
 C. Timely federal court adjudication of Indian water rights does not
enervate the policy of the McCarran Amendemnt or involve duplication,
undue burdens or delays
   However faithfully it may carry forward the tradition of preferring
federal adjudication of tribal rights and implement the privilege of a
federal forum Congress opened to the Tribes for their vindication, our
submission must be rejected if the McCarran Amendment clearly requires
a different result.  So, also, we recognize that practical
difficulties -- duplication, undue burdens or delays -- would weigh
against an otherwise attractive option.  But, in our view, there are
no serious impediments in the way of the solution we propose.
   1. The central concern of the McCarran Amendment was to end the
regime under which the United States, standing on its sovereign
immunity, could remain aloof while the relative rights of all other
users on a stream system were adjudicated.  Not bound by the decree
controlling others, federal officials could satisfy the needs of
federal establishments in a way that impinged on competing claimants;
or, at least, the potential of such action rendered the decreed rights
insecure.  See S. Rep. No. 755, 82d Cong., 1st Sess. 5-6, 9 (1951).
Moreover, the United States could later have its own water rights
determined in a judgment that might be at odds with the prior general
decree.  See Departments of State, Justice, Commerce and the
Judiciary, Appropriations for 1953:  Hearings on H.R. 7289 Before the
Senate Comm. on Appropriations, 82d Cong., 2d Sess. 1349 (1952);
Adjudication of Water Rights:  Hearings on S. 18 Before the Senate
Comm. on the Judiciary, 82d Cong., 1st Sess. 49 (1951).
   To be sure, the United States often solved the problem by itself
provoking a general stream adjudication.  But there were sufficient
abuses to persuade Congress that a remedy was required.
   The solution was to lift the sovereign immunity of the United
States when its participation was necessary to the complete
adjudication of competing rights on a stream.  And, as this Court has
held, the waiver reaches even reserved water rights of the government,
including those it holds on behalf of Indians.  United States v.
District Court for Eagle County, 401 U.S. 520 (1971);  United States
v. District Court for Water Division No. 5, 401 U.S. 527 (1971);
Akin, supra.  As these decisions make clear, the sovereign immunity of
the United States was lifted in both federal and State courts.  But
the continuing jurisdiction of federal courts was left unimpaired.
Akin, supra, 424 U.S. at 806-809.
   Our submission is entirely consistent with these principles.  We
fully accept that it is intolerable to permit unquantified Indian
water rights indefinitely to cast a shadow over competing diversion
claims simply because neither the United States nor the Tribe is ready
or willing to submit the matter to adjudication in any forum.
Accordingly, we deem it right to say to the United States and the
Tribe:  Either of you may obtain a determination of Reservation water
rights in the federal forum, but, if you do not act promptly, those
rights must be adjudicated in the State proceeding.  On the other
hand, the McCarran Amendment announces no preference for State court
adjudication of Indian rights and there is no obvious reason why a
federal court whose jurisdiction is timely invoked to determine the
existence and extent of Indian Reservation water rights should not
proceed to decide that discrete federal question, so long as this does
not materially delay the adjudication of the overall controversy or
carry the risk of inconsistent decrees.
   2. Admittedly, if a federal court determines tribal claims and the
rights of other users are quantified in State proceedings, some
"piecemealing" will result.  But, it should be pointed out, that is
the usual practice even when the State courts perform the task of
adjudicating Indian water rights.  The reason is simply that reserved
Indian rights, like other federal reserved water rights, are of an
entirely different character than rights enjoyed by other claimants
under the law of first appropriation, the governing principle in the
West.  See Cappaert v. United States, supra, 426 U.S. at 138-139.  In
the case of Indian water rights, the relevant inquiry is not what
quantity of water was put to beneficial use on a given date.  Rather,
diversion rights appurtenant to an Indian Reservation are, by
hypothesis, reserved as of the date the Reservation was established,
regardless whether the water was then used, and quantification is
premised on the future needs of the Indians, usually measured in terms
of irrigable acreage.  See Arizona v. California, 373 U.S. 546,
598-601 (1963).  The fact is that the adjudication of Indian water
rights requires a separate proceeding, whatever court system
undertakes the task, and the bifurcation is not appreciably different
if a federal court performs that role.  /19/ There is accordingly
scant basis for the charge that the determination of Indian
Reservation water rights by a federal court will delay or disrupt the
general stream adjudication of all other claims in the State
proceedings -- normally a more protracted undertaking.  /20/
   Nor does the suggested procedure entail any duplication or
potential for inconsistent judgments.  The federal court will quantify
the Indian rights only if it is asked to do so before the State court
has embarked on the task.  And, of course, once the United States
district court has indicated its determination to perform that limited
role, we assume the State tribunal will turn its attention to the
typically more complex business of adjudicating all other claims on
the stream.  In the usual case, the federal court will have completed
its function earlier and its quantification of Indian water rights
will simply be incorporated in the comprehensive State court decree.
   3. Eschewing objections premised on jurisdictional jealousy or
forum shopping, petitioners nevertheless have conjured up a full menu
of obstacles to this accommodation.  One of these builds on the
situation in which a Tribe (rather than the United States) invokes the
federal forum to have it own claims quantified and the United States
or another Tribe has competing claims on the same river and declines
to intervene.  In such a case, it is argued, the McCarran Amendment
does not permit involuntary joinder of the United States (as trustee
for another Indian Tribe or as holder of non-Indian water rights), so
that the judgment would remain subject to challenge by the federal
government.  We take up that objection first.
   The short answer is that the waiver of sovereign immunity
accomplished by the McCarran Amendment does not depend upon all rights
on a stream being adjudicated simultaneously in a single action where
there are interrelated proceedings through which all claims will be
determined "inclusively in the totality" and each user will be bound
by the decrees ultimately entered.  Whatever contrary indications
might have been derived from Dugan v. Rank, 372 U.S. 609, 617-619
(1963), this was settled by the Court's ruling in Eagle County, supra,
401 U.S. at 525-526, and Water Division No. 5, supra, 401 U.S. at
529-530, which sustained the involuntary joinder of the United States
in supplementary proceedings that, added to what had gone before,
would, result in interlocking decrees adjudicating all outstanding
rights and binding all users.  /21/ There, to be sure, the separate
proceedings contemplated were all in State court.  But nothing in the
McCarran Amendment distinguishes between "piecemealing" in a single
court system and a like class-by-class adjudication procedure divided
between the State and federal courts.
   Thus, in those of the present cases that were instituted by a Tribe
and to which the United States is not yet a party, if the government
determines not to intervene, it can and should be made an involuntary
defendant -- together with all claimants on the stream -- so that it
will be bound by the judgment.  /22/ So, also, the United States will
be a party in the State proceedings, and, at the end of the day, all
users will be controlled by the comprehensive State court decree that
incorporates the federal court quantification of tribal rights.  The
policies of the McCarran Amendment will then be fully satisifed.
   Nor does our submission present any unusual problems when there are
two or more Indian Tribes with competing claims on the same stream.
Normally, when one of them initiates a federal proceeding to have its
rights adjudicated, the other Tribes will seize the occasion to
advance their own claims.  If they do not, the other Tribes must be
content to be represented by the United States -- as they would be in
the State court.  In no case will any Tribe be free to stand aside and
avoid quantification of its diversion claims.
   In sum, no scenario we can envisage, however improbable in
practice, leads to a jurisdictional impasse.  Our submission permits
no claimant to escape adjudication of his rights or to emerge from the
combined federal-State proceedings without being fully bound.  That
is, after all, the true goal of the McCarrn Amendment.
   4. The final objection interposed by petitioners rests on the
allegedly duplicate burden imposed on all stream users if they are
required to appear in both federal and State court proceedings.  We
are not insensitive to that consideration, albeit it cannot
automatically prevail over the important prerogative of Indian Tribes
to have their federal rights determined in federal court.  But, in
truth, the problem has been much exaggerated.
   We stress, once again, that the federal court proceeding we
envisage is limited to the quantification of Indian rights.  No other
claimant is required -- or permitted -- to establish his own rights in
that action.  /23/ Of course, other users may have an interest in
holding down the tribal entitlement, since it will often enjoy a
relatively early priority.  But all those concerned on that score have
the same interest and can make common cause.  In practice, the burden
of challenging the tribal claim will be delegated to one or a limited
number of non-Indian users.  The State itself, an affected
municipality, an industrial consumer, an irrigation district or a
water users' association, or a combination of such organizations,
typically will take up the task, leaving smaller claimants free to
watch from the sidelines.
   At all events, the situation is no different when the State court
bifurcates the proceeding, first quantifying federal and Indian
reserved rights, as is common.  See note 19, supra.  There, as under
our suggested procedure, every competing water user has, in principle,
two separate cases to make -- one against the Indian claims and
another to establish his own rights.  But actual experience teaches
that the first task will be shouldered by the larger corporate or
institutional claimants.  Indeed, it is not uncommon for the rights of
individual small users to be agreed by all.  See, e.g., the
Supplemental Decree in Arizona v. California, 439 U.S. 419, 424-427,
429-436 (1979), in which all "Miscellaneous Present Prefected Rights"
other than those of the principals were adjudicated by consent.
   This is not to say that smaller claimants ought not be represented
in the federal proceedings.  Most likely, the State itself will
represent their interest in challenging any allegedly excessive tribal
claims, as was the case in Arizona v. California, 373 U.S. 546 (1963).
 /24/ See National Water Commission, Water Policies for the Future:
Final Report 479 (1973).  Indeed, in the cases now before the Court,
the small private users seem content to leave that task to the
petitioning States or other large public entities.
   Alternatively, as in United States v. Truckee-Carson Irrigation
District, 71 F.R.D. 10 (D. Nev. 1975), /25/ a defendant class can be
certified.  See Fed. R. Civ. P. 23.  No doubt, notice should be given
to each potential claimant.  But, even if every user must be
individually notified, that poses no insurmountable problem.  Usually,
such a list is already available to the State Engineer and, in any
case, must be compiled for the complementary State proceedings.  There
is no reason that list of users cannot be furnished to the plaintiff
in the federal court.  See United States v. Truckee-Carson Irrigation
District, supra, 71 F.R.D. at 18.  Indeed, in some cases at least, it
may be practical to serve all potentially affected persons in both
actions by a single mailing.  At all events, it borders on the
frivolous to argue that if two sets of notices must be mailed, a
federal court ought to abdicate its responsibility on that ground.
   At the end of the day, it is difficult to appreciate the objections
advanced against federal court adjudication of Indian rights founded
on federal law, while the State court determines all other rights -- a
result which seems to us to further cooperative federalism.  We may
assume that, once their respective responsibilities are clearly
defined, the State and federal courts will coordinate their
proceedings in such a way as to avoid any potential conflicts as to
timing or other procedural matters.  And it is perhaps not too
fanciful to suppose that eliminating the occasion for jurisdictional
maneuvering will encourage the litigants themselves to agree
resolution of at least some competing claims at the conference table.
 D. Application of these principles to the present cases calls for
affirmance with some modifications
   Thus far, we have addressed the question presented without focusing
on the particular facts or the special procedural history of the cases
now before the Court.  That is because experience under the Akin
decision has led us to the conclusion that a clearer and more
generalized rule is required if the wasteful and acrimonious
procedural skirmishing illustrated by the present cases is to be
avoided for the future.  Our submission is designed to suggest a
firmer guideline.  It remains, however, to apply the principles we
have outlined to the actual cases presented to the Court.
   1. First, we share petitioners' view in No. 81-2147 that the court
of appeals inappropriately remanded the cases "for a determination of
whether Arizona has obtained jurisdiction over the Indians pursuant to
Public Law 280." 81-2147 Pet. App. A-9.  See, also, id. at A-11, B-4.
And the same observation applies to the Montana cases involved in No.
81-2188 if that judgment envisages a like remand.  /26/ Like
petitioners, we read Public Law 280 as expressly exempting Indian
water rights from the optional assumption of jurisdiction pursuant to
that statute.  25 U.S.C. 1322(b);  28 U.S.C. 1360(b).  See Akin,
supra, 424 U.S. at 812-813 n.20.  If the Indian disclaimer provision
of the Arizona and Montana Enabling Acts is a bar to the adjudication
of water rights by the State courts and the McCarran Amendment did not
remove it, we do not appreciate how State legislation alone could
override that federal law impediment.  On the other hand, if the
Enabling Act disclaimers are inapplicable or were set aside by the
Amendment (as we believe), there is no basis for requiring Arizona and
Montana to enact special legislation to overcome the State
constitutional disclaimers.  That condition, we believe, applies only
to State assumption of jurisdiction under Public Law 280, which is not
invoked here.  See 25 U.S.C. 1324.
   In our view, the court of appeals should have simply reversed the
several district court judgments dismissing or staying proceedings,
directing those courts to proceed to adjudicate the Indian water
rights claims tendered on the sole condition that the pleadings be
appropriately amended within a reasonable time.
   2. In the Montana cases, the subject of the petition in No.
81-2188, there can be no question that federal jurisdiction was timely
invoked.  Three of the actions were initiated in federal court in
1975, four years before the comprehensive Montana water plan was
enacted, and, in the words of the court of appeals (81-2188 Pet. App.
41), "the district courts stayed proceedings, apparently awaiting the
state legislation." Even the remaining actions were filed before the
new Montana statute took effect and were held in abeyance for more
than seven months (id. at 27-28).  Moreover, although we do not share
the view that the United States suffers any disabling "conflict of
interest" in representing the Tribal water claims (see id. at 43-44,
42), it is relevant that the Indian Tribes are parties (or seeking to
intervene) in most of the cases, anxious to assert their own claims
through attorneys of their choosing, and have invoked the federal
court's jurisdiction under 28 U.S.C. 1362 to that end (81-2188 Pet.
App. 44-45).
   In these circumstances, we think it clear that the court of appeals
was right in holding that the federal court should have retained
jurisdiction.  To be sure, in our view, the district court ought to
confine itself to quantifying the Indian water rights, without
otherwise interfering with the State stream adjudication proceedings.
But we do not read the judgment of the court of appeals as barring
that accommodation.  For our part, we undertake to amend our
complaints so as to eliminate any prayer that non-Indian water claims
(federal, State or private) be adjudicated in the federal forum, and
we believe the Northern Cheyenne Tribe, the original plaintiff in one
of the cases, as well as the intervening Tribes, should be required to
do likewise if they are not to suffer dismissal.
   3. The Arizona cases involved in No. 81-2147 present a somewhat
more complex procedural history.  Although four separate proceedings
before the State Land Department to determine rights on the Salt,
Verde, Gila and Little Colorado Rivers were filed between 1974 and
1978, no service of process was attempted in any of these cases until
early 1979, and service has not yet occurred in two instances.  Each
of the six Indian Tribes involved invoked the jurisdiction of the
federal court in the Spring of 1979, seeking various relief.  Only
thereafter did Arizona enact legislation to transfer the task of
determining water rights from the Land Department to the State courts,
and not until late 1981 did the Arizona Supreme Court consolidate the
proceedings relating to the Gila River and its major tributaries, the
Salt and Verde Rivers.  See 81-2147 Pet. 7-8.  To this date, no
evidentiary proceedings of any kind have occurred in the State courts,
and all further action has been suspended pending this Court's ruling.
 81-2147 Pet. App. G-1, H-1.
   In this posture of the cases, we believe the district court should
have assumed jurisdiction to quantify the Indian Reservation water
claims.  In at least three instances, the Tribe expressly sought such
a limited adjudication by the federal court.  /27/ In the remaining
cases, it appears that the Tribe was not asking for a quantification
of its rights and, in our view, such a prayer must be made if
adjudication by the State court is to be avoided.  But, in the present
situation, that request would not be untimely.  /28/ Finally, except
in the Navajo suit, the United States should be made a party, whether
by intervention or joinder as a defendant.  On these conditions, we
believe the judgments of reversal in the Arizona cases should be
affirmed.
                              CONCLUSION
   The judgments of the court of appeals in both Nos. 81-2147 and
81-2188 should be affirmed with the modifications indicated.
   Respectfully submitted.  REX E. LEE Solicitor General CAROL E.
DINKINS Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor
General THOMAS H. PACHECO Attorney
   JANUARY 1983
   /1/ The State proceedings were initiated pursuant to Arizona's
water rights determination procedure.  See Ariz. Rev. Stat. Ann.
Sections 45-231 et seq. (1956), Ariz. Rev. Stat. Ann. Sections 45-251
et seq. (Cum. Supp. 1981).
   /2/ White Mountain Apache Tribe Petition for Removal, No. CIV
79-182 PHX VAC;  Gila River Indian Community Petition for Removal, No.
CIV 79-183 PHX VAC;  Salt River Pima-Maricopa Indian Community
Petition for Removal, No. CIV 79-184 PHX VAC.
   /3/ Salt River Pima-Maricopa Indian Community v. Arizona, No. CIV
79-185 PHX VAC;  San Carlos Apache Tribe v. Arizona, No. CIV 79-186
PHX VAC (removal sought in the alternative);  Payson Community of
Yavapai-Apache Indians v. Arizona, No. CIV 79-187 PCT VAC (removal
sought in the alternative.
   /4/ Fort McDowell Mohave-Apache Indian Community v. Salt River
Valley Water Users' Assocation, No. CIV 79-267 PHX VAC (complaint
filed Apr. 13, 1979);  San Carlos Apache Tribe v. Arizona, No. CIV
79-269 PHX CAM, and No. CIV 79-104 GLO MAR (complaints filed Apr. 16
and 17, 1979).
   The Fort McDowell action was brought against several water users
individually and as representative members of a defendant class of
users (I J.A. 330).
   /5/ The only exceptions are the two San Carlos Apache Tribe suits
cited in note 4, supra, which remain in abeyance before the district
court, the time for service of process having been extended.
   /6/ Navajo Nation v. United States, No. 79-276 PCT VAC (complaint
filed Apr. 17, 1979).  The complaint, as amended, named several water
users as representative members of a defendant class of similarly
situated users.  This is the same approach taken in Fort McDowell
Mohave-Apache Indian Community v. Salt River Valley Water Users'
Association (supra, n.4).
   /7/ Judge Merrill dissented in the San Carlos Apache Tribe and
Navajo Nation decisions (81-2147 Pet. App. A-11, B4), as he did in
Northern Cheyenne Tribe (id. at C-18).
   /8/ Northern Cheyenne Tribe v. Tongue River Water Users Assn., et
al., No. CIV-75-6-BLG.
   /9/ United States v. Tongue River Water Users Assn., et al., No.
CV-75-20-BLG (filed Mar. 7, 1975);  United States v. Big Horn Low Line
Canal, et al., No. CV-75-34-BLG (filed Apr. 17, 1975).
   /10/ United States v. Aasheim, et al., No. CV-79-40-BLG;  United
States v. Aageson, et al., No. CV-79-21-GF;  United States v. AMS
Ranch, Inc., et al., No. CV-79-22-GF;  United States v. Abell, et al.,
No. CV-79-33-M.
   /11/ The action brought by the Northern Cheyenne Tribe was
consolidated with United States v. Tongue River Water Users Assn., et
al., supra.
   /12/ See 1979 Mont. Laws ch. 697, Sections 1-38 ("Senate Bill 76")
(81-2188 Pet. App. 102).  Montana joined the United States as a
defendant in its water rights proceedings under the authority of the
McCarran Amendment, 43 U.S.C. 666.
   /13/ Besides the Northern Cheyenne Tribe, other Tribes participated
in the district court proceedings;  these Tribes intervened as
plaintiffs in the district court, or as appellants in the court of
appeals, or sought permission to so intervene.
   /14/ Judge Merrill dissented (81-2188 Pet. App. 46, 48) on both the
disclaimer and "wise judicial administration" issues.
   /15/ In the order of their admission to the Union, the eleven
disclaimer States are:  North Dakota, South Dakota, Montana and
Washington (all covered by the Enabling Act of Feb. 22, 1889, ch. 180,
25 Stat. 676), Idaho (Admission Act of July 3, 1890, ch. 656, 26 Stat.
215), Wyoming (Admission Act of July 10, 1890, ch. 664, 26 Stat. 222),
Utah (Enabling Act of July 16, 1894, ch. 138, 28 Stat. 108), Oklahoma
(Enabling Act of June 26, 1906, ch. 3335, 34 Stat. 270), New Mexico
(Enabling Act of June 20, 1910, ch. 310, 36 Stat. 558-559), Arizona
(Enabling Act of June 20, 1910, ch. 310, 36 Stat. 569-570), and Alaska
(Enabling Act of July 7, 1958, Pub. L. No. 85-508, 72 Stat. 339, as
amended by Pub. L. No. 86-70, 73 Stat. 141).  In the case of Idaho and
Wyoming, the Indian disclaimers are to be found only in their
respective Constitutions (Idaho Const., Art. 21, Section 19;  Wyoming
Const., Art. 21, Section 26), but, presumably, those provisions,
submitted to Congress for approval before admission, were effectively
required as a condition of statehood.  See Kake Village v. Egan, 369
U.S. 60, 68 (1962).  For the special case of Kansas, of little
practical importance today, see note 16, infra.
   /16/ Although the first disclaimer clause in the familiar language
involved here is to be found in the 1889 Enabling Act for the
admission of Washington, North Dakota, South Dakota and Montana, there
were precedents of some relevance.  In several Acts of Congress
establishing territorial governments, Congress inserted a proviso
preserving "the rights of person or property now appertaining to any
Indians," including treaty rights, and reserving "the authority of the
Government of the United States to make any regulations respecting
such Indians, their lands, property, or other rights." See, e.g., 5
Stat. 11 (1836, Wisconsin Territory);  5 Stat. 235 (1838, Iowa
Territory);  9 Stat. 323 (1848, Oregon Territory).  More significant,
perhaps, is the Act of Admission for the State of Kansas in 1861,
which, in addition to preserving "the rights of person or property now
pertaining to the Indians," wholly exempted from State jurisdiction,
as "no part of the State," any territory which, by treaty with such
Indian tribe, is not, without the consent of said tribe, to be
included within the territorial limits or jurisdiction of any State or
Territory." 12 Stat. 127.  It is not clear, however, whether the
latter provision, referring to the Treaty with the Shawnees of 1831 (7
Stat. 357), ever had any bite in light of a later treaty of 1854.
When the Court came to decide the case of The Kansas Indians, 72 U.S.
(5 Wall.) 737 (1866), this disclaimer was noted (id. at 739, 740-741),
but the Court rested its result on the more general recognition of
Indian property in the Act of Admission and the protective
jurisdiction of the United States.  Id. at 755-757.
   /17/ It should be noted that the Public Law 280's exemption of
water rights and other restricted Indian property from the
jurisdiction of State courts was not an afterthought.  Most of the
early bills, it is true, focused exclusively on criminal jurisdiction.
 See State Legal Jurisdiction in Indian Country:  Hearings on H.R.
459, H.R. 3235 and H.R. 3624 Before the Subcomm. on Indian Affairs of
the House Comm. on Interior and Insular Affairs, 82d Cong., 2d Sess.
1-2, 9-10 (1952) (hereinafter "1952 Hearings").  But as early as
mid-1951, Congress had before it a draft, endorsed by the Department
of Interior, that provided for ceding civil jurisdiction with an
explicit exception for "any civil action, probate, or other proceeding
affecting the ownership, title, possession, or any other interest" in
"any property, real or personal, including water rights, belonging to
any Indian or Indian Tribe, band, group, or community (that is) held
in trust by the United States or (is) subject to restrictions against
alienation." 1952 Hearings at 103-104.
   With immaterial changes, that provision was included in every
subsequent draft submitted to Congress by the Interior Department.
See 1952 Hearings at 28-30;  Hearings on H.R. 1063 Before the Subcomm.
on Indian Affairs of the House Comm. on Interior and Insular Affairs,
83d Cong., 1st Sess. 19-21 (June 29, 1953, unpublished but, once
again, lodged with the Court).  Nor did the provision pass unnoticed.
It was highlighted by the Interior Department spokesman at the June
29, 1953 Hearings (at 19-21), and was included in the bill reported by
both House and Senate Committees.  See H.R. Rep. No. 848, 83d Cong.,
1st Sess. 2, 10 (1953);  S. Rep. No. 699, 83d Cong., 1st Sess. 3, 9
(1953).
   /18/ Even when there are other claims to water by the United States
on the same stream, attorneys for the government represent a single
party -- the United States -- which, by law, has two interests in the
case, arising from its capacity as trustee with respect to the lands
in which Indians have a beneficial interest and its capacity as owner
of the other federal lands involved.  Congress has provided that the
Attorney General or attorneys subject to his supervision shall appear
on behalf of the United States in cases in which it has an interest.
28 U.S.C. 516 and 519.  The attorneys for the United States therefore
must represent the position of the United States that reflects its
several capacities or interests.
   /19/ The point is illustrated by the procedure followed by the
Water Master appointed by the Fifth Judicial District Court of Wyoming
in In re:  The General Adjudication of All Rights to Use water in the
Big Horn River and All Other Sources, State of Wyoming, Civil No.
4993.  In that case, the Master severed for a separate trial, prior to
the general adjudication, the quantification of the rights reserved
for the Wind River Indian Reservation.  The decision of that matter
will be "plugged in" when the comprehensive decree is ultimately
entered.  Obviously, that task could have been performed, with no
greater disruption, by a federal court or a Master appointed by such a
court (perhaps, even, the same Water Master acting for theState
court).  See Fed. R. Civ. P. 53.
   /20/ Indeed, that appears to be the view of the Montana Supreme
Court which, in denying our motion to delay the State adjudication,
observed that "(t)he pendency of federal litigation does not affect
the State of Montana in proceeding to adjudicate non-Indian claims."
81-2188 Pet. App. 143-144.
   /21/ In Water Division No. 5, supra, 401 U.S. at 529, the Court
explained Dugan v. Rank, stating "the words 'general adjudication'
were used in Dugan v. Rank, 372 U.S. 609, 618, to indicate that 43
U.S.C. 666 does not cover consent by the United States to be sued in a
private suit to determine its rights against a few claimants." The
fact is that in Dugan all claimants were not joined in the proceeding.
 See California v. Rank, 293 F.2d 340, 348 (9th Cir. 1961).  Nor was
there any prospect that all rights would be adjudicated.
   /22/ Presumably, the United States should be joined even if there
are no non-Indian federal claims on the stream, on the ground that it
is the legal "owner" of tribal water rights and, unless a party to the
adjudication, would not be bound by the judgment.  See United States
v. Hellard, 322 U.S. 363 (1944);  United States v. Candelaria, 271
U.S. 432 (1926);  Privett v. United States, 256 U.S. 201 (1921).  The
point is largely academic, however, since, almost invariably, there
will be other federal claims on the streams of the West where most
Indian Reservations are located.  At all events, the safer course for
any Tribe initiating a proceeding to quantify its own rights is to
join the United States, if not otherwise a party, leaving it to the
government to determine whether it wishes actively to participate.
   Concededly, what we say here is at odds with the stance of the
United States in the Navajo case below.  Fortunately, however, neither
the district court nor the court of appeals decided the point and the
case comes to this Court unembarassed by any prior ruling on the
propriety of a Tribe joining the United States as an involuntary
defendant in a proceeding seeking quantification of tribal water
rights alone.
   /23/ Here, as throughout this brief, we assume that a general
stream adjudication has been initiated in the State courts.  That is
the situation in Arizona and Montana and, predictably, will be the
case in any Western State as soon as the United States or a Tribe
invokes federal jurisdiction to quantify water rights.  But, of
course, if no State proceedings are underway or promptly begun, the
federal court will have no occasion to defer and should proceed to
adjudicate at least all rights derived from federal law or held by the
United States.  See, e.g., Cappaert v. United States, supra.
   /24/ It is no ground of distinction that Arizona v. California was,
in part, an interstate apportionment of diversion rights, invoking the
original jurisdiction of this Court.  The fact is that, from the time
the United States intervened with leave of the Court (344 U.S. 919
(1953)), we sought a quantification of Indian Reservation rights
within each of the three Lower Basin States (see 373 U.S. at 595), and
judgment was entered accordingly (376 U.S. 340 (1964);  439 U.S. 419
(1979)), although no competing claimant, other than the State itself,
was a party to the proceeding in Arizona or Nevada, and, in the case
of California, the only additional participants were municipalities
and a limited number of other State agencies.  Obviously, the
underlying rationale was that, vis-a-vis the Indian claims, the State
was appropriately acting as parens patriae for all non-Indian users
within the State.  Cf. New Jersey v. New York, 345 U.S. 369, 372-373
(1953).  If that is permissible in this Court, we do not appreciate
why it is not equally so in a district court proceeding.  Cf.
Washingtion v. Fishing Vessel Ass'n, 443 U.S. 658, 692 n.32 (1979).
See, also, the stance taken in this Court by the State of Nevada in
its brief (at 22 n.25) in Nevada v. United States, No. 81-2245.
   What Arizona v. California teaches, it seems to us, is that the
adjudication of Indian Reservation water rights is a discrete task,
quite distinct from the more complex determination of other rights
inter sese under the law of first appropriation, which, like the
apportionment of an interstate stream between States, properly can be
accomplished separately, and preferably first, as against all
competing claimants whose common interest may be vindicated by the
State or other representative agencies.
   /25/ This case is now before the Court sub nom. Nevada v. United
States, No. 81-2245, Truckee-Carson Irrigation District v. United
States, No. 81-2276, and Pyramid Lake Paiute Indian Tribe v.
Truckee-Carson Irrigation District, No. 82-38, cert. granted, Oct. 12,
1982.
   /26/ On its face, the opinion in the Montana cases unconditionally
reverses the order of dismissal and directs the district court to
proceed to adjudication.  81-2188 Pet. App. 45, 46.  On the other
hand, the opinion in the San Carlos Apache case, in referring to the
Montana cases, recites that they, also, have been remanded for a
determination whether the Montana constitutional disclaimer has been
effectively overriden as a matter of State law.  81-2147 Pet. App.
A-9.  We assume this latter statement is erroneous.  At all events,
this Court's decision presumably will make it unnecessary to resolve
any ambiguity.
   /27/ These are the Fort McDowell Mohave-Apache, the San Carlos
Apache and the Navajo cases.  See nn. 4-6, supra.  But see n.28,
infra.
   /28/ Indeed, federal court actions, initiated by the United States
or the Tribe, or both, have since been filed, seeking, inter alia,
adjudication of the water rights of the Gila River Indian Community
and the Salt River Pima-Maricopa Indian Community.  See United States
v. City of Phoenix, et al., No. CIV. 82-2173 PHX WPC (filed Dec. 29,
1982);  Salt River Pima-Maricopa Indian Community v. Aguilar, et al.,
No. CIV 82-2162 PHX VAC (filed Dec. 23, 1982), Motion to Intervene by
Gila River Indian Community in United States v. Gila Valley Irrigation
District, et al., Globe Equity No. 59 (filed Dec. 27, 1982);  United
States v. Roosevelt Conservation District, et al., No. CIV. 82-2174
PHX CLH (filed Dec. 29, 1982);  Gila River Indian Community v. Asarco,
et al., No. CIV 78-145 TVC MAR (filed June 30, 1978).