Jicarilla Apache Tribe v. U.S.

• Decision Date: 22 June 1979
• Docket Number: No. 77-1737,77-1737
• Citation: 601 F.2d 1116
• Parties: JICARILLA APACHE TRIBE, Appellant, v. UNITED STATES of America et al., Appellees, State of New Mexico, ex rel. S. E. Reynolds, State Engineer, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1116

601 F.2d 1116

JICARILLA APACHE TRIBE, Appellant, v. UNITED STATES of America et al., Appellees,

State of New Mexico, ex rel. S. E. Reynolds, State Engineer,

Amicus Curiae.

No. 77-1737.

United States Court of Appeals, Tenth Circuit.

Submitted March 12, 1979.

Decided June 22, 1979.

Edward J. Shawaker, Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Washington, D. C., Victor R. Ortega, U. S. Atty., Charles N. Estes, Jr., Asst. U. S. Atty., Albuquerque, N. M., Dirk D. Snel, Dept. of Justice, Washington, D. C., on the brief), for appellees.

Richard A. Simms, Sp. Asst. Atty. Gen., Santa Fe, N. M., for the State of New Mexico, amicus curiae.

Lester K. Taylor, of Nordhaus, Moses & Dunn, Albuquerque, N. M., for appellant.

Before HOLLOWAY and BARRETT, Circuit Judges, and MILLER, ^* Judge, United States Court of Customs and Patent Appeals.

BARRETT, Circuit Judge.

The Jicarilla Apache Tribe, residing on a Reservation in the State of New Mexico, appeals from a Sua sponte Order entered July 19, 1977, dismissing the Tribe's complaint filed December 12, 1975. ¹

A detailed recitation of the multi-faceted litigative history will facilitate our review.

Litigative History

a. State Action

Prior to the filing of the Tribe's complaint in the case at bar, the State of New Mexico, by and through its State Engineer, filed, on March 13, 1975, a complaint in the New Mexico State District Court for the County of San Juan seeking a general water rights adjudication pursuant to New Mexico statutes of all the water rights and uses, both surface and underground, of the San Juan River Stream System, which includes the San Juan River and its tributaries. That action, entitled State of New Mexico, ex rel. Reynolds, State Engineer v. United States of America, et al., San Juan County District Court, No. 75-184, was pending on December 12, 1975 when the instant suit was filed. In that action, the United States of America was named as a party defendant pursuant to the McCarran Amendment, 43 U.S.C.A. § 666(a), in its own behalf and on behalf of its wards, to-wit, three Indian tribes, including the Jicarilla Apache Tribe, hereinafter referred to as Tribe, who use and occupy federally owned Indian Reservation lands within the stream system in the State of New Mexico.

On April 14, 1975, the United States filed its petition for removal of the action to federal district court. Simultaneously, the United States moved to dismiss the Indian water rights adjudication from the state court's jurisdiction on the premise that the removal jurisdiction of the federal district court was derivative from the San Juan County District Court and that the state court lacked jurisdiction to adjudicate the rights of the United States for its Indian wards. The State of New Mexico and some defendants moved to remand.

On October 23, 1975, the federal district court entered an order remanding the cause to the state district court for San Juan County. The court found that the state court was vested with jurisdiction over the water rights of the United States, as fiduciary on behalf of the three Indian tribes.

The United States again petitioned to remove the proceeding from state court to federal district court. The court denied the petition for removal and granted the motion to remand to the district court of San Juan County based on an express finding that the state court had jurisdiction to adjudicate both the Indian and non-Indian water right claims of the United States. The United States, following this remand, filed a motion to dismiss in the District Court for San Juan County alleging that the state court lacked jurisdiction over the claims on behalf of the three Indian tribes because of alleged conflicts of interest confronting the United States in adequately representing the Indian wards. The members of the Tribe moved to appear Amicus curiae in support of the United States' motion to dismiss. The motion was denied. The United States was directed to assert and file water right claims on behalf of the three tribes.

Thus, when the instant action was filed, the jurisdictional dispute, i. e., general adjudication of water rights between state court vs. federal court, had been presented several times.

b. Federal Action

The Tribe's complaint, filed on December 12, 1975, in the case at bar, was two-pronged in terms of relief sought. First, it sought a general adjudication of water rights on the Navajo River System and its tributaries, for use in the State of New Mexico. Second, it sought injunctive relief against the Secretary of the Interior and the United States to restrain the Secretary from diverting water from the Chama Rio Grande River system through the San Juan-Chama Project insofar as such diversions are in excess of the amounts of water which can be beneficially used by parties who have contracted with the Secretary of the Interior for said waters. The Tribe alleged, Inter alia, that the diversions by the Secretary violated provisions of the Upper Colorado River Compact.

In its Answer to the Tribe's Complaint, the United States pleaded Inter alia, (a) that the United States owns lands in the watershed of the Navajo River and its tributaries administered by the Secretary (of Interior) and various government agencies, for which the United States claims the right to impound and divert the waters of the Navajo River and its tributaries, Which claims are adverse to the claims of the Tribe . . . . Included in said lands are lands administered by the Bureau of Land Management, lands on which public watersheds and springs are located reserved for public watering purposes, and National Forest lands; and (b) that the United States claims the right to impound, divert and use waters of the Navajo River and its tributaries (and has done so) But denied that the diversions of the waters from the rivers for the San Juan-Chama Project (reclamation) are adverse to and jeopardize the rights of the tribe. (Emphasis supplied.) (R., Vol. I, pp. 10, 11.)

Motions to dismiss were also filed. In partial but significant resistance to the Motion to Dismiss In the case at bar, the Tribe argued, Inter alia :

Plaintiff (Tribe) alleges that this Court has jurisdiction under 28 U.S.C. § 1362 and 43 U.S.C. § 666(a) . . . .

28 U.S.C. § 1362 states:

The district court shall have original jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.

43 U.S.C. § 666 is the McCarran Amendment.

28 U.S.C. § 1362 enables Indian tribes to bring suits in federal court to protect property granted them by the Federal Government when the United States has declined to act in their behalf. Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135 (C.A. 8, 1974). Poafpbitty v. Skelly Oil Co., 390 U.S. 365 (88 S.Ct. 982, 19 L.Ed.2d 1238) (1968).

The plaintiff has on numerous occasions demanded that the United States or its appropriate agency take action to protect the Tribe's water rights and that the Secretary and his agencies cease wrongful diversion of water from the Navajo and Little Navajo Rivers in violation of the rights of the Tribe . . . the United States has ignored these demands . . . the issue of Plaintiff's rights to the water claimed (as against the alleged improper diversion by the United States) cannot be raised in that (State) Court . . . The Jicarilla Apache Tribe is not a named party in the (State) case . . . The United States of America is a named party . . . The plaintiff herein cannot, because of its sovereign immunity, be joined as a party . . . The United States as the named defendant is the only party which can protect the Tribe's water rights in (the State action) . . . This places the United States in the position of making claims against itself; an obvious conflict of interest . . . The United States . . . is charged (under the McCarran Amendment) with the duty of representing the Bureau of Reclamation, the National Park Service, the Bureau of Land Management, the Bureau of Sport Fisheries (R., Vol. I, pp. 34-36.)

and the three Indian tribes previously named, in their adverse claims to the waters . . . The conflicts of interest inherent in the position of the United States cannot be resolved (in the State Court proceeding) . . . In this case, claims are asserted against the Secretary separate from the issues of adjudication of water rights. . . . (Emphasis supplied.)

Hearing Below

The District Court conducted a hearing July 5, 1977, on the State's Suggestion of Want of Jurisdiction. The Court observed that the Tribe ". . . is claiming that the United States doesn't represent them . . . (and) . . . that they have sovereignty separate and apart from the United States." (R. Vol. II, p. 7.) With respect to the alleged "conflict of interest" problem, the Court requested that the parties address the question whether, without assuming jurisdiction for general adjudication of water rights on the system, the Court should independently entertain jurisdiction of that portion of the Tribe's suit involving the trans-mountain diversion, i. e., the diversions through the San Juan-Chama Project. (R., Vol. II, p. 12.)

a. Jurisdiction Relative to General Water Rights Adjudication

In the course of the hearing the State contended, relating to the general water rights adjudication, that this could only be accomplished in one forum and that the state court action was pending prior to the instant suit. Further, the State argued that the United States is the actual claimant on behalf of the Tribes by virtue of the McCarran Amendment. (R., Vol. II, p. 18.) Counsel for the Tribe challenged the jurisdiction of the New Mexico State Engineer (and, thus, the jurisdiction of the state court) to adjudicate the Tribe's claim that the Secretary of the Interior and the Bureau of...