Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit

• Decision Date: 22 February 1982
• Docket Number: 80-3028,80-3038,80-3040,80-3032,Nos. 79-4887,s. 79-4887
• Citation: 668 F.2d 1080
• Parties: The NORTHERN CHEYENNE TRIBE OF the NORTHERN CHEYENNE INDIAN RESERVATION, et al., Plaintiffs-Appellants, v. Thomas Ralph ADSIT, et al., Defendants-Appellees. to 80-3042, 80-3044, 80-3045 and 80-3061 to 80-3063.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1080

668 F.2d 1080

The NORTHERN CHEYENNE TRIBE OF the NORTHERN CHEYENNE INDIAN

RESERVATION, et al., Plaintiffs-Appellants, v. Thomas Ralph ADSIT, et al., Defendants-Appellees.

Nos. 79-4887, 80-3028, 80-3032, 80-3038, 80-3040 to 80-3042,

80-3044, 80-3045 and 80-3061 to 80-3063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1981.

Decided Feb. 22, 1982.

Thomas Pacheco, Dept. of Justice, Washington, D. C., for U. S.

Jeanne S. Whiteing, John E. Echohawk, Boulder, Colo., Calvin Wilson, Busby, Mont., for Cheyenne Tribe.

R. Anthony Rogers, John Michael Facciola, Glenn P. Sugameli, Wilkinson, Cragun & Barker, Washington, D. C., Thomas J. Lynaugh, Lynaugh, Fitzgerald, Schoppert & Skaggs, Billings, Mont., for Crow Tribe and The Confederated Salish & Kootenai Tribes.

Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D. C., for Assiniboine and Sioux Tribes, intervenors.

Steven L. Bunch, Montana Legal Services Ass'n, Helena, Mont., for Bowen.

Helena S. Maclay, Deirdre Boggs, Bruce McEvoy, Missoula, Mont., Bert W. Kronmiller, James E. Seykora, Douglas Y. Freeman, Hardin, Mont., for State of Mont.

Cale Crowley, Crowley, Haughey, Hanson, Gallagher & Toole, Maurice R. Colberg, Jr., Hibbs, Sweeney, Colberg, Jensen & Koessler, Billings, Mont., for numerous defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before MERRILL, CHOY and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

The United States government and various Montana Indian tribes appeal the dismissal of consolidated actions brought to adjudicate federal and Indian water rights in Montana. The federal court actions were dismissed in favor of state court proceedings. Dismissal was predicated on the Supreme Court's decision in Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (hereinafter "Akin"). Because Akin was erroneously applied to the facts of the Montana litigation, we reverse.

I. PROCEDURAL HISTORY.

In January, 1975, the Northern Cheyenne Tribe brought suit in United States District Court for the District of Montana to adjudicate water rights in the Tongue River and Rosebud Creek in Montana. Jurisdiction was alleged under 28 U.S.C. § 1362. ¹ In March, 1975, the United States brought suit pursuant to 28 U.S.C. § 1345 ² for the same purpose, in its own right and as fiduciary on behalf of the Northern Cheyenne and other reservation tribes. In July, 1975, the Montana Department of Natural Resources and Conservation ("DNR") filed petitions in state court for a determination of all existing rights to those waters in accordance with existing state law.

In August, 1975, the United States brought suit in the district court on behalf of the Crow Tribe. Judge Battin consolidated the cases and stayed proceedings in February, 1976, pending the Supreme Court's decision in Akin. The State of Montana, a defendant in those cases, moved to dismiss as a result of that decision. At the same time, the Crow Tribe moved to intervene. Both motions were argued in the summer of 1976.

In February, 1979, the federal government and the tribes moved for expedited consideration. In April, 1979, the United States filed more actions in the district court seeking a declaration of water rights on behalf of the United States and four additional tribes.

On May 11, 1979, an amended state water consolidation plan, Montana Senate Bill 76, took effect. The Montana Supreme Court ordered implementation and authorized the DNR to notify relevant parties in June, 1979.

In July, 1979, Judge Hatfield stayed the federal actions initiated in 1979. In November of that year, Judges Battin and Hatfield issued a joint opinion dismissing all federal actions as an exercise of "wise judicial administration" as outlined in Akin. Northern Cheyenne Tribe v. Tongue River Water Users, 484 F.Supp. 31 (D.C.Mont.1979).

The United States and the Indian tribes appeal that dismissal, arguing that it is predicated on an erroneous application of Akin. They maintain that because the Montana constitution and enabling act contain disclaimers of jurisdiction over Indian tribes, the litigation in that state differs from the Colorado litigation which was the subject of Akin. Further, they argue that the specific factors underlying the Akin decision are not present in the Montana litigation and that the contrast requires retention of federal jurisdiction.

II. THE DISCLAIMER ISSUE.

A. Jurisdiction over Indian Water Rights.

Traditionally, Indian water rights have been reserved in trust to the federal government. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), overruled on other grounds, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1977). Federal courts have consistently exercised jurisdiction over Indians on reservations, Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939), unless jurisdiction is explicitly granted to the states by congressional statute. Fisher v. District Court of Montana, 424 U.S. 382, 388, 96 S.Ct. 943, 947, 47 L.Ed.2d 106 (1976). Congress has granted state courts jurisdiction over Indian rights with respect to various criminal and civil matters, but in each grant, jurisdiction over Indian water rights has been specifically excluded. 28 U.S.C. § 1360(b); 18 U.S.C. § 1162(b); 25 U.S.C. § 1322. ³

In 1952, Congress passed the McCarran Amendment, 43 U.S.C. § 666, granting state courts jurisdiction over the United States when litigation involves comprehensive adjudication of water rights and the United States is a necessary party.

Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit ....

43 U.S.C. § 666(a). The Amendment does not mention Indians or reservations. It is limited to waiving the sovereign immunity of the federal government with respect to water rights acquired "by ... appropriation ... or otherwise." In no way does the McCarran Amendment repeal any of the jurisdiction of the federal courts. The Amendment merely extends the United States' consent to suit in certain cases.

In 1976, the Supreme Court interpreted the McCarran Amendment as a grant of jurisdiction over water rights of Indian tribes when the right is asserted by the federal government as fiduciary. Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (Akin ). When the United States is a party to a proceeding involving these rights, the Court held that the ability of the state to assert jurisdiction over the federal government implicitly allows jurisdiction over the rights of tribes that, without the McCarran Amendment, would have been immunized by federal statutes against suits in state court.

In a crucial footnote, the Court noted the restrictions on jurisdiction over Indian water rights provided in 25 U.S.C. § 1322(b) and 28 U.S.C. § 1360(b). ⁴ Id. at 812, n.20, 96 S.Ct. at 1244, n.20. The Court, however, held that limiting language in those sections only qualifies the import of the general consent to state jurisdiction given by those sections; the language does not purport to limit the special consent to jurisdiction given by the McCarran Amendment. Id. Accordingly, the Court dismissed the federal proceeding in favor of the comprehensive ongoing state proceeding.

B. Montana's Disclaimers and Public Law 83-280.

The Montana litigation raises a question not at issue in Akin. In a state which, unlike Colorado, expressly disclaims jurisdiction over Indian lands within its constitution and enabling act, does the McCarran Amendment grant jurisdiction and thereby repeal the state disclaimers? We hold that it does not.

Montana was admitted to statehood in 1889 on condition that it disclaim right and title to jurisdiction over Indian lands. Montana's enabling act provides that the state "disclaim(s) all right and title to the unappropriated public lands ... owned or held by any Indian or Indian tribes ..." 25 Stat. 676 (1889). The disclaimer of title in the enabling act is reinforced by the disclaimer of jurisdiction in the Montana Constitution that specifically provides, "all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the United States ...." Art. I, Mont.Const. 1972.

Only a year after the passage of the McCarran Amendment, Congress passed Public Law 83-280 establishing a procedure whereby states could repeal disclaimers in their constitutions and enabling acts. Public Law 280, "the first jurisdictional statute of general applicability to Indian reservation lands," Washington v. Yakima Indian Nation, 439 U.S. 463, 471, 99 S.Ct. 740, 746, 58 L.Ed.2d 740 (1979), dealt with "the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement." Bryan v. Itasca County, 426 U.S. 373, 379, 96 S.Ct. 2102, 2106, 48 L.Ed.2d 710 (1953). Section 7 of that Act provides for automatic transfer of jurisdiction to the states by legislation. Section 6 deals with states which disclaim jurisdiction over Indians.

Notwithstanding the provisions of any enabling Act for the admission of a State the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil or criminal jurisdiction in accordance with the provisions of this subchapter. The provisions of this...