Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit

• Decision Date: 09 December 1983
• Docket Number: 80-3044,80-3042,Nos. 79-4887,80-5138,80-3028,80-3041,80-3063,80-5137,80-3062,80-3061,80-3045,80-5471 and 80-5837,80-3040,80-3032,80-5219,80-3038,80-5189,s. 79-4887
• Parties: The NORTHERN CHEYENNE TRIBE OF the NORTHERN CHEYENNE INDIAN RESERVATION, Plaintiff-Appellant, v. Thomas Ralph ADSIT, et al., Defendants-Appellees. SAN CARLOS APACHE TRIBE OF ARIZONA, Plaintiff-Appellant, v. The STATE OF ARIZONA, et al., Defendants-Appellees. NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1187

721 F.2d 1187

The NORTHERN CHEYENNE TRIBE OF the NORTHERN CHEYENNE INDIAN

RESERVATION, Plaintiff-Appellant, v. Thomas Ralph ADSIT, et al., Defendants-Appellees.

SAN CARLOS APACHE TRIBE OF ARIZONA, Plaintiff-Appellant, v. The STATE OF ARIZONA, et al., Defendants-Appellees.

NAVAJO NATION, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.

Nos. 79-4887, 80-3028, 80-3032, 80-3038, 80-3040, 80-3041,

80-3042, 80-3044, 80-3045, 80-3061, 80-3062,

80-3063, 80-5137, 80-5138, 80-5189,

80-5219, 80-5471 and 80-5837.

United States Court of Appeals, Ninth Circuit.

Dec. 9, 1983.

Thomas H. 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 &amp 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, Missoula, Mont., Bruce McEvoy, Kalispell, 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.

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

Before MERRILL, CHOY and FERGUSON, Circuit Judges.

These appeals are here on remand from the Supreme Court, Arizona v. San Carlos Apache Tribe, --- U.S. ----, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983), in which the Court reversed our judgments in Northern Cheyenne Tribe v. Adsit, 668 F.2d 1080 (9th Cir.1982), San Carlos Apache Tribe v. Arizona, 668 F.2d 1093 (9th Cir.1982), and Navajo Nation v. United States, 668 F.2d 1100 (9th Cir.1982). After we issued a decision on remand, 713 F.2d 502, affirming the judgments of the district courts, 484 F.Supp. 31, and 484 F.Supp. 778, several parties petitioned for rehearing. We then requested the parties to present their views as to the course this court should follow on remand. We now grant the petition for rehearing and withdraw our original decision on remand.

A number of appellees have urged that we affirm the judgments appealed from, which would result in dismissal, albeit without prejudice, of most of the actions. We believe that course unwise. As some of the Tribes have pointed out, many thousands of parties defendant already have been served in the federal actions. We think that the federal suits are "well enough along [so that] dismissal would itself constitute a waste of judicial resources and an invitation to duplicative effort." 103 S.Ct. at 3215 (citations omitted). A stay of the federal actions would be preferable to a dismissal here so the federal forum would most readily be available if warranted by a "significant change of circumstances" such as that referred to in note 21 of the Court's opinion. See Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 594, 88 S.Ct. 1753, 1754, 20 L.Ed.2d 835 (1968).

Many of the Tribes have argued that this litigation would proceed most expeditiously if we resolved at the appellate level two threshold questions: whether the state courts have jurisdiction under state law, and whether the state proceedings are "adequate" to adjudicate water rights, see 103 S.Ct. at 3215. We do not agree.

The question of jurisdiction under state law is one to be...