COLORADO RIVER WATER CONS. DIST. v. U.S.

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Argument of Kenneth Balcomb

Chief Justice Warren E. Burger: We will hear arguments next in 940 Colorado River Conservation District against the United States and the consolidated case.

Mr. Balcomb you may proceed when you are ready.

Mr. Kenneth Balcomb: Mr. Chief Justice and may it please the Court.

These two petitions here consolidated arose out of one case below in the United States District Court.

Some of the petitioners joining in all of the petitions here and some separately and of course had by the Court consolidated.

All petitioners involved joined in the opening brief here, in the reply brief and have agreed that this one argument will surface for all.

At Appendix D in the petition in 74-490, the last page 41A was a small map which shows a large portion of Western Colorado that some Western Colorado, West of Continental Divide and was intended to show when relief Water Division Number 7.

We will --

Unknown Speaker: That map is the same as has been furnished (Voice Overlap)?

Mr. Kenneth Balcomb: Yes sir.

Unknown Speaker: (Voice Overlap) are these identical?

Mr. Kenneth Balcomb: With this exception we have asked the clerk to distribute xerox copies of it upon which we have roughly superimposed the boundaries of Water Division Four, Five and Six to emphasize and illustrate some later discussions.

The entire geographic area of Colorado, West of the Continental Divide is tributary to the Colorado River and this of course includes that area in Water Division Number Seven.

Since the 1971 decisions in this Court in Eagle County in Water Division Number Five, the United States has been improving upon its claims of all nature and from whatever source they might have been derived, including there Reserve Rights in Water Divisions Four, Five and Six and the Water Courts in those divisions.

They have not, however, done so to date in Water Division Number Seven.

If the Court will remember, in 1969 the Colorado legislature abandoned the Water District method of adjudication of water, there are then some 70 Water Districts and established seven divisions for such purpose.

Each division embracing for practical purposes, major water sheds or major tributary water sheds to a major river.

The 1969 Act in pertinent part is reproduced as Appendix C at page 42 of the petition for certiorari in 74-949 which is made by the state of Colorado and others.

I have the feeling that neither in 1971 nor to date as the Solicitor General’s Office clearly understand the present Adjudicatory Statute in Colorado, that is the 1969 Act because it went into affect on July 1, 1969, the water course rope through business on a continuing basis as contrast to the previous law requiring an affirmative action of opening and adjudication in a particular Water District.

So the United States could have filed its claims in middle 1969 in Water Division Seven and certainly after this Court's decision in Eagle County in Water Division Five, could have been expected so to do.

Instead on November 14, 1972, United States filed what can only be denominated as a quiet Title Action in United States District Court for the District of Colorado, asserting the claims of the United States as to waters of the San Juan River, naming almost 1000 other users and unknown number of unknown persons.

The claims such as in Water District Four, Five and Six are varied and include national monuments, forest, appropriate rights under state Law and finally claims on behalf of the Southern Ute and Mountain Ute Indian Reservations.

Very promptly thereafter in December of 1972 the United States was served pursuant to the McCarran Amendment in Water Division Number Seven proceedings where upon they filed claims, similar nature except as to the Indian claim, the Indian Reservation claims as to there rights on the Dolores River which is the other principal tributary arising in Water Division Seven to the Colorado River.

All petitioners here moved to dismiss the Federal Court action which the District Court did orally from the bench, referring specifically to the intent of McCarran and to the two previous unanimous decisions of this Court in Eagle County in Water Division Five.

The District Court found that it should apply comity and abstention because Colorado had a well defined and workable system relating to the questions at hand developed over 100 years.

The U.S. had been served and under McCarran that was all that was required, a point I think that was admitted on Monday in connection with the pupfish case by the Solicitor General’s Office.

The solution to be granted by the Federal Court would be piecemeal only and would result in a duality of adjudication within one Water Division.

Justice Byron R. White: What did the District Court do?

Mr. Kenneth Balcomb: Sir?

Justice Byron R. White: What did the District Court do?

Mr. Kenneth Balcomb: It dismissed.

Justice Byron R. White: Well, that is more than just abstention I mean that has made dismissed the case.

Mr. Kenneth Balcomb: Well, they dismissed I believed on the grounds of comity.

Justice Byron R. White: And with the idea that any Federal claims to Water Rights would be submitted to the state court?

Mr. Kenneth Balcomb: Yes sir.

Justice Byron R. White: I mean, any -- even any claims that were controlled by Federal Law?

Mr. Kenneth Balcomb: Yes sir.

Yes as they are doing in four, five and six.

Justice Potter Stewart: Well, that is what the two cases held, (Voice Overlap) Eagle on Water District contemplated that Federal claims be submitted to the --

Mr. Kenneth Balcomb: Yes sir and the --

Justice Potter Stewart: -- state proceeding?

Mr. Kenneth Balcomb: -- that the state court apply Federal law.

Justice Potter Stewart: Right.

Mr. Kenneth Balcomb: And the state -- and the District Court below so found that they must apply federal law.

In affect, they followed what we believe the rule in Burford that a state Regulatory System was involved and it was up to the state to see that regulation was proper, but the real basis for his decision was the impracticability of assuming jurisdiction and his complete oral opinion is set forth in 74-940 petition at 17A.

The Court of Appeals' opinion is set forth in the petition, in that same petition as 74-790 at 1A.

The Court of Appeals' opinion cannot be said to be at a very great disparity with the District Court and did not rule that jurisdiction was federal or was exclusive in the Federal Court or the state court for that matter, but substituted in its own opinion a disagreement as to the result of abstention and ignored comity entirely.

We cannot help, but feel that this Court had already settled this problem that is again before it.

The government has brought us back and has raised additional points which namely attempt to re-argue the application of McCarran to the Federal Reserve Right which the Court has all ready ruled upon, effectively, again, attempted to -- again raised the possibility that fair treatment will not be accorded them in the state court which this Court has all ready ruled emphatically on, just dismissed that problem out of hand and are using, we feel, the problem of the separate Indian Reserved Water Rights as a spring board to take all Federal cases, Federal Reserve Rights and adjudicatory rights back into the Federal Court or this Court effectively dropped them out off.

Justice William H. Rehnquist: But in the Eagle the Government was the defendant, was is not Mr. Balcomb?

Mr. Kenneth Balcomb: The Defendant?

Justice William H. Rehnquist: Yes and here the Government is a plaintiff that --

Mr. Kenneth Balcomb: In the sense that a person is a defendant in a water matter, yes sir.

Justice Byron R. White: But they were the defendants in the Eagle case?

Mr. Kenneth Balcomb: In this case?

Justice Byron R. White: In the Eagle case.

Mr. Kenneth Balcomb: No.

But they are also defendants in the Water Divisions Seven case pending now in the Seventh --

Justice Byron R. White: That is the new one, that is the one that was filed after the Federal (Inaudible)

Mr. Kenneth Balcomb: Yes sir.

Justice Byron R. White: But in the proceeding that was going on before the Federal case was filed, it was not a defendant.

It could have been gone in and filed its claim, but it was not a defendant?

Mr. Kenneth Balcomb: That is correct.

But our point is that they are having putting into affect in Water Division Seven a dual system of adjudication.

Justice Byron R. White: Yes, but the United States has another claim I take it that whatever Eagle said about Reserve Rights and submitting them to a state court, whatever it said does not apply to whether Indian Water Right is involved?

Mr. Kenneth Balcomb: Yes sir.

But they jumped over that problem themselves when they filed not only -- the claim was for the two Indian Reservations, but the whole shooting match, including Adjudicatory Rights, rights they acquired under state law.

Had they confined themselves to Indian that might be one problem, although we think it is still would have been in violation of McCarran, but they did not do that.

They only took one river.

Justice Byron R. White: But you have that special problem in here even if the Adjudicatory Rights, even if certain United States rights should be submitted to the state Courts, United States says that the Indian Rights should not be?

Mr. Kenneth Balcomb: It is our position and I think it was admitted by the as I say by the Solicitor General’s Office at the pupfish case that Nevada could still commence an action under McCarran in Nevada and make the United States come in (Voice Overlap)

Justice Byron R. White: Well yes, but that did not involve Indian Rights?

Mr. Kenneth Balcomb: No, but they could still come in, so we filed an action now in Water Division Seven and we say they should have automatically filed all their claims because that is what this Court said in Eagle.

Justice Byron R. White: Well, even if the United States agreed with you about all the rights except Indian Rights, they do not agree with you about Indian Rights?

Mr. Kenneth Balcomb: I agree but in -- if they do not --

Justice Byron R. White: And Eagle did not have Indian Rights in it?

Mr. Kenneth Balcomb: I do not think Eagle excluded Indian Rights either Your Honor.

In fact, I think the United States, one of them included in anticipating, they would very possibly win that case and they wanted all the Reserve Rights covered by the win and they lost.

Justice Byron R. White: Yes, they did.

Mr. Kenneth Balcomb: The Court of -- the point here we believe that has been conclusively decided as I say it and I think so also that the District Courts in its oral opinion.

The Court of Appeals did not disagree with that, but merely said that the District Court should not have abstained and as I say ignored the problem of Federal state relationship, the Federalism Theory that is recognized in comity.

We disagree with the conclusion obviously of the Court of Appeals and I think they should be reversed for all of the practical considerations used by the District Court and he used that word --

Justice William J. Brennan: (Inaudible) are you suggesting that even were they right on classical abstention, but they know constitutional questions, but even on that basis, so there was no reason to abstain, nevertheless comity principles --

Mr. Kenneth Balcomb: Comity dictated we think.

Justice William J. Brennan: Comity required deference to the state procedure?

Mr. Kenneth Balcomb: And where we think also that abstention could have been used as a ground and of course --

Justice William J. Brennan: Well, even if -- I gather even a questionable constitutional.

Mr. Kenneth Balcomb: Sir.

Justice William J. Brennan: Nothing, no constitutional question to be avoided by abstention here, is it?

Mr. Kenneth Balcomb: No.

Justice William J. Brennan: Yes, but there would be Federal questions?

I mean, abstention you usually abstain to that state question to be decided not Federal question and reserve rights with federal question?

Mr. Kenneth Balcomb: Yes, but we have a specific statute here.

Justice Byron R. White: That is something else again, I agree with that.

Justice William J. Brennan: But I would say trying to get why it was -- and what you said I thought you were suggesting that even if you are wrong that abstention may have been, at least comity should have let them to defer to the state court procedures?

Mr. Kenneth Balcomb: Do you state regulatory system and you add numerous other claimants of water involved and a very complicated situation which is --

Justice William J. Brennan: Precisely as in McCarran Act?

Mr. Kenneth Balcomb: Yes sir and you have the special Federal statute authorizing the state court to proceed.

Justice William H. Rehnquist: Then there was an ongoing base in adjudication in the Colorado Courts, but the United States was not a party defendant at the time it filed its suit?

Mr. Kenneth Balcomb: They had not been serve under McCarran and I think a very similar situation in far as this is concerned within specific livestock where the Federal Court stopped this action and let the state court proceed and it was an adjudication proceeding.

Justice Byron R. White: But they were served in a state suit soon after the Federal Court suit was filed?

Mr. Kenneth Balcomb: I think it was approximately the 15th of December they were served and (Voice Overlap)

Justice Byron R. White: And it was before anything substantial happened in the Federal Court?

Mr. Kenneth Balcomb: I think five defendants were served and there never has been one shred of evidence taken and those defendants were the state bodies, the parliament part of which were named.

Justice William H. Rehnquist: You have not cited I believe our opinion last term in the Hicks against Miranda where the Court held that the comity situation of Federal Courts deferring to state constitutional adjudications, even though the Federal Court proceeding commenced first if nothing much had happen in the Federal Court proceeding, the Federal Court should still defer to the state?

Mr. Kenneth Balcomb: I believed we cited it at page 27 of our opening brief, Your Honor.

Justice William H. Rehnquist: Oh! I apologize.

I did not realize it.

Mr. Kenneth Balcomb: Pardon me, page 20 (Voice Overlap) I am reading across the wrong line.

Unknown Speaker: In any event you do not like to raise to the courthouse aspect that I think the District (Voice Overlap).

Mr. Kenneth Balcomb: As a doctrine is frowned upon and in this particular --

Justice Byron R. White: Fort Dix had a criminal case in the state courts and this is civil, but you have the McCarran Act, wholly aside from Younger against Harris, I think cases like that, you have got the McCarran Act that says that this Federal Government should litigated its interest in the state court --.

Mr. Kenneth Balcomb: I did not want to go on into it of course because it is our position that no matter what the Federal Reserve Right is, it should have been adjudicated in the state court and as soon a service is made they must start their proceedings in the state court.

Realizing from the position of the government that they were going into that question, we then attempted that to revisit in our reply brief a little bit of McCarran, but it was exhaustively covered as the Court will remember in the briefs in Eagle County, all of the legislative history.

And I think it can be unquestionably said that first of all Mr. McCarran was concerned very much about Indians in all of the hearings.

They were held, Indians not appearing on every page were certainly considered again and again and again and considered to be included by the Justice Department, by the Department of Interior, by the OMB reporting for President, everybody and we have made citations in our reply brief to that effect.

Second of all, when they -- we believe that when this Court acted on the cases they thought that Indians were involved in the Federal Reserve Rights.

The Indians themselves thought so as our brief would indicate because in the 1971, what I call Kennedy Hearings, but they were concerning various Indian Rights, a great human cry was made about the fact at the Eagle County and Water Division Five covered the Indian Water Rights.

And the Court will remember that the -- some of the Indians themselves thought so because they filed a novel piece of paper in a big red binder in which they wanted to express in it an interest in the case and suggested this Court had no jurisdiction because they had covered Indians by the decision.

And all the way up to now, up to the last hearings the Indians have been sure that they were covered until all of a sudden when the last government brief and amici brief for the Indians has filed here and they raise other defenses than that.

We did not want as I say that is the Government’s defense to this problem.

It is not our -- we did not want to re-argue McCarran.

We did not think it was necessary, we did not think this Court should have to bother with it again and we think this is merely a guise to try to get the adjudication Federal Reserve Rights back in the Federal Court if they can beat us to the Courthouse.

Justice Byron R. White: May I ask, I notice that you recite that the United States filed -- in filing its reserve rights included national forests?

Mr. Kenneth Balcomb: Yes sir.

Justice Byron R. White: Now, tell me how you -- I take it what they are saying is that if you want to analogize to putting something to beneficial use once you have taken something from the public domain you have automatically announced your intention of using whatever water you need for that purpose?

Mr. Kenneth Balcomb: Yes sir.

We have no cruel with that.

Justice Byron R. White: Yes.

Now but -- now what kind of a water right do you claim for a national forest?

Mr. Kenneth Balcomb: They are claiming the aesthetic value of flowing streams, the right to control head gate diversions or storage of water on national forest to make bypasses --

Justice Byron R. White: But they do not need to do that -- I mean that is a -- I take it that you do not have any cruel with the idea that the Federal Government in national forest can keep state -- keep the states from covering up the national forest with a dam.

You do not have much, I am not sure (Voice Overlap) but what I want to know -- go ahead, you say that they can claim to maintain the level of the flowing streams?

Mr. Kenneth Balcomb: Yes sir and to require a bypass for fishery purposes, for aesthetic purposes and all of that of a certain quantity.

Justice Byron R. White: But as far as beneficial use of water is concerned --

Mr. Kenneth Balcomb: They claim those to be beneficial uses under Federal Law.

Justice Byron R. White: I know.

But they do not -- is that not a consumptive use at all for a national forest?

Mr. Kenneth Balcomb: Only to the extent that might create a little evaporation which is a benefit also.

Justice Byron R. White: Yes.

But under -- I suppose on a navigable streams and if there is going to be dam it is going to be approved by the -- who does that have to be approved by?

Mr. Kenneth Balcomb: Department of Agriculture, Forest Service.

Justice Byron R. White: So the Federal --

Mr. Kenneth Balcomb: You have to get a special use permit.

Justice Byron R. White: Now, they would have to do that even without a water right?

Mr. Kenneth Balcomb: That is correct, but not -- many structures were built before the special use thing came into existence and United States is claiming a right antedate those water rights (voice Overlap).

Justice Byron R. White: And I suppose if there was some proposal to divert water from one water shed to another and lower the level of the flowing stream through a national forest there, there might be a complaint?

Mr. Kenneth Balcomb: Yes sir, and that of course is one of the problems that they are having in a lower court because this is exactly what Twin Lakes is doing and this is exactly what the San Juan County of Denver is doing in Colorado Springs and so forth and the forest, they are litigating this in the lower courts.

How is it going to come out, I do not know.

It is been four years in progress.

That is an awful lot and I could describe to you the print out that the Forest Service alone filed and on the right of a national forest was approximately an inch thick and I do not know how many rights it contains, but when you total it all up it amounted to about a thousand acre feet of water and a hundred flow -- a second/feet of direct flow presently in use.

It covers up variety of things like stock watering holes and the like.

Well, as I indicated we would like to see the District Court judgment reinstated and it is at 20A in our petition for the totality of the reasons expressed under abstention or by comity as the District Courts said which I think also is very similar to the languages by Mr. Justice Douglas in his opinions in the Eagle County and Darrell (ph) case.

Unknown Speaker: (Inaudible).

Mr. Kenneth Balcomb: Sir?

Unknown Speaker: You were here (Voice Overlap)

And one --

Chief Justice Warren E. Burger: Mr. Shapiro.

Unknown Speaker: And one.

Argument of Howard E. Shapiro

Mr. Howard E. Shapiro: Mr. Chief Justice and may I please the Court.

I think the issue in this case is narrow.

It is whether the District Court should have dismissed the United States complaint for determination of its Water Rights and those of its Indian wards.

The merits of the Federal Reserve Rights Doctrine are not before the Court.

This is a question of federal jurisdiction.

Justice William H. Rehnquist: MMr. Shapiro the merits of that pupfish claim that your colleague Mr. Randolph argued on Monday were before is not -- there maybe some spill over at least in the minds that some of us between the two.

I notice on page 7 of the Government’s brief that the Government asserts apparently a reserved Reserve Right of water claim by reason of the reservation of the San Juan National Forest which is I recall is a huge area in Southwestern Colorado.

Now, what is the nature of the Government’s Reserve Right Claim when it is talking simply about a national forest?

Mr. Howard E. Shapiro: The basic claim is for stock watering, camp sites, the preservation of streams, waters sources for wild life.

The demands, the total demands of the national forest for water in that context are relatively now.

In fact, there is a study which was prepared in 1969 for the use of the Public Land Law Review Commission which is described at Page 844, of a (Inaudible) releases casebook on Water Law, a 1974 edition and it points out that even if you take all of the Government's Federal Reserve Rights as of 1969 --

Justice William H. Rehnquist: You mean all the rights it claimed?

Mr. Howard E. Shapiro: All rights, the Indian Rights, well the entire range of a Federal Reservations, you come out with a percentage of something like -- well 2.2 million acre feet out of 363 million acre feet that arise in the 11 Western States where most of the water comes from and that amounts to about less than one percent of the total.

Now, I should say in candor that there is a problem about shale oil because if shale is developed, the water demands are going to be high in the shale areas, but I understand the Federal Government has indicated to the companies that will exploit that that they are going to have to get their own Appropriated Rights under state Procedures.

Now, returning to this case the merits --

Justice Byron R. White: (Inaudible) even the Government would have the nerve to go in and say that because we removed certain property from the public domain and made it a National Forest we intended at the time to reserve enough water to develop shale?

Mr. Howard E. Shapiro: I think that is right Your Honor.

Although there is a reservation, there are some reservations, navy reservations which were put aside as shale outlet stations. (Voice Overlap).

Justice Byron R. White: That may be, that is different.

Mr. Howard E. Shapiro: That is a different and that really gets astound to what the Reserved Rights Doctrine is about.

I might as well state it very briefly.

It is always qualified by the purpose of the reservation and really that is what we were seeking in this case is relatively narrow.

What our complaint asks is that the Federal Court determine three things affirmatively for the United States.

Number one, it determined the purpose of the various Federal Reservations we have alleged in our complaint.

I think the examination of that complaint which is set forth in the petition for cert will show that all except perhaps two of the claims are Reserve Rights Claims.

Justice Byron R. White: Well Mr. Shapiro let me -- it might help me of my -- you would be here making the same argument I take it even if you had been served as a defendant in a state adjudication prior to beginning of the federal suit and even if you had filed your claims as Eagle said you had to do in that litigation, you would still be here saying you could file in the Federal Court and have the Federal Court adjudicate the three questions that you are about to tell us about?

Mr. Howard E. Shapiro: With -- well not quite Your Honor.

If we were made a party in the McCarran Act proceeding before we filed in the Federal suit then the Federal -- the state court would have jurisdiction, the Eagle County and Division Five make that go there --

Justice Byron R. White: So this is another --

Mr. Howard E. Shapiro: With one exception, I must state the exception.

Justice Byron R. White: Indian water (Voice Overlap).

Mr. Howard E. Shapiro: That is exactly right.

Justice Byron R. White: You say you have the right that you say that McCarran Act does not reach Indian Rights at all and that the state courts have no jurisdiction whatsoever to adjudicate Indian Water Rights?

Mr. Howard E. Shapiro: Or perhaps qualifying it another way even if McCarran waives immunity for Indian Rights it would waive it only in Federal Courts because I suppose -- well McCarran on its face does not restrict itself to state courts, state or federal.

Justice Byron R. White: Well, that it is not --

Mr. Howard E. Shapiro: But it would not --

Justice Byron R. White: That is (Voice Overlap) you do not have any -- you do not have any superior -- you do not have authority for that I guess?

Mr. Howard E. Shapiro: What, that it is -- that it would apply to Federal Courts as well?

Justice Byron R. White: No, that the McCarran Act did not intend to --

Mr. Howard E. Shapiro: Reach Indian Rights?

Justice Byron R. White: Yes.

Mr. Howard E. Shapiro: Well, I think I do have authority for it.

Perhaps I should turn to it, although our position is that you do not need to reach it in this case.

If you agree with our contentions (Voice Over)

Justice Byron R. White: Well I know, I know but --

Mr. Howard E. Shapiro: Let us turn to it now because it is extremely (Voice Overlap).

Justice Byron R. White: But you make it -- you just say that because you got to the Courthouse first, the Federal Court can go ahead?

Mr. Howard E. Shapiro: That is part of the argument.

Justice Byron R. White: Yes and even though nothing had happened in the Federal Court of substance?

Mr. Howard E. Shapiro: That is right which is not much different than any other plaintiff who has a choice of a forum, Federal or state, who chooses a federal forum.

Justice Byron R. White: Are we --

Chief Justice Warren E. Burger: (Voice Overlap) beyond that proposition is that they not only can, but the Federal Court must proceed?

Mr. Howard E. Shapiro: That is right.

In the circumstances here because none of the considerations of the Abstention Doctrine and the Comity Doctrine apply.

Justice Potter Stewart: We have got close to, but have never really faced up to whether Younger against Harris is going to apply in civil --

Mr. Howard E. Shapiro: That is right.

You have come -- the closest you have come is with the nuisance litigation involving obscenity in cases like, I think Hoffman against Pursue last term --

Justice Potter Stewart: Quasi criminal, so to speak?

Mr. Howard E. Shapiro: I beg your pardon?

Justice Potter Stewart: Well, quasi criminal -- (Voice Overlap) quasi criminal --

Mr. Howard E. Shapiro: Quasi criminal (Voice Overlap)

Justice Potter Stewart: -- in which the state was a party?

Mr. Howard E. Shapiro: But this is quite different because here is the situation in which you have traditional concurrent jurisdiction, there is no question --

Justice Byron R. White: Yes.

But is this different also if you have the McCarran Act which states a preference for United States in litigating its claims in a comprehensive proceeding in the state court?

Mr. Howard E. Shapiro: Well, on the face of the statute no preference is declared.

All it says and we set it forth in brief at page three, I mean, the operative words, the crucial words are simply consent is here by given to join the United States as a defendant in any suit for general adjudication of Water Rights whether administration and (Inaudible)

Justice Byron R. White: Simply a waiver of sovereign immunity?

Mr. Howard E. Shapiro: Simply a waiver of sovereign immunity.

Now in --

Justice Byron R. White: Well, you have now had been named as a -- in a Federal -- in a state case?

Mr. Howard E. Shapiro: That is right.

Justice Byron R. White: You are now party to the adjudication in Water District Number Seven and you have submitted your claims except for your Indian claims?

Mr. Howard E. Shapiro: No.

What we have submitted in Water District Number Seven are only the claims --

Justice Byron R. White: Only your adjudicative claims under the state?

Mr. Howard E. Shapiro: No.

Only the claims on the Dolores River, if Your Honors will look at the map --

Justice Byron R. White: Well, why is that?

Mr. Howard E. Shapiro: Because the Dolores River --

Justice Byron R. White: I know, but why are those the only ones that you submitted?

Mr. Howard E. Shapiro: Those are the only ones we have submitted because the Dolores River is geographically separate from the tributaries of the San Juan, which all run through the Indian Reservations.

We have tried to put all our claims with respect to the tributaries to the San Juan in one proceeding.

The Dolores is geographically separate.

The only claims we have on the Dolores, which runs to the Northwest, are claims I think for the Western (Voice Overlap).

Justice Byron R. White: I will confine it to the Dolores then.

You still think you are entitled to go ahead in the Federal Court in the Dolores?

Mr. Howard E. Shapiro: No.

Only on the San Juan.

Justice Byron R. White: Well, did you file them?

Did you file them?

Are your Federal -- is your Federal Court case only on the San Juan?

Mr. Howard E. Shapiro: Yes, Your Honor.

Justice Byron R. White: I see, okay.

Alright.

Mr. Howard E. Shapiro: That is all we brought.

Justice Potter Stewart: And is that only Indian Reservations?

Mr. Howard E. Shapiro: No.

Justice Potter Stewart: No?

Mr. Howard E. Shapiro: The Federal claim, the complaint is for all of the tributaries of the San Juan.

Well, perhaps Your Honors ought to look at our map which is in the back of our brief there is a -- well we wanted to show to you Indian Reservations because they are fairly --

Unknown Speaker: Accepting the Eagle decision as conclusive on the Dolores situation?

Mr. Howard E. Shapiro: We are accepting Eagle as conclusive on the right of the state Courts to make as a party.

Unknown Speaker: (Inaudible) but you have no Federal Proceeding that -- no Federal Court proceeding pending on the Dolores?

Mr. Howard E. Shapiro: That is right.

We have never sought it.

Unknown Speaker: So that when state proceedings are brought and you were made a party that precluded your start in any Federal proceeding, in light of the McCarran Act?

Mr. Howard E. Shapiro: Well, it was subject perhaps to an argument about and Eagle.

Subject perhaps to an argument about removal, which is not here and is somewhat complicated.

We have --

Unknown Speaker: Why had you interrupted Mr. Shapiro.

I do not quite understand.

There is a state proceeding on the San Juan pending too, is it not?

Mr. Howard E. Shapiro: Well, as Mr. Balcomb has explained under Colorado procedure there is always a state proceeding.

It is continuous proceeding month by month and the Water Division Five explains that in the totality you get to a total --

Justice Potter Stewart: And this is Water Division Seven and every month there is a state proceeding?

Mr. Howard E. Shapiro: Every month there is a new set of new claims.

Justice Potter Stewart: Right.

Mr. Howard E. Shapiro: Where people can come in and ask for new permits, permit is the wrong word in the Colorado practice.

Justice William J. Brennan: What is it you -- Federal (Inaudible)?

Mr. Howard E. Shapiro: It precedes our joinder in that proceeding.

Justice William J. Brennan: Just procedural joinder in that proceeding?

Mr. Howard E. Shapiro: Yes.

Justice William J. Brennan: But it was a pending state proceeding?

Mr. Howard E. Shapiro: Well, in a sense that they --

Justice William J. Brennan: (Voice Overlap) you have not been joined?

Mr. Howard E. Shapiro: In the sense there is (Voice Overlap)

Justice William J. Brennan: What do you do with the second sentence of McCarran Act?

The United States when a party of any section shall one begin to have waive any right to proceed, the state laws are inapplicable and United States is not amenable thereto by reason of its sovereignty and shall be subject to the judgments, orders and decrees of the Court having jurisdiction and so forth.

Without regard though, the fact that -- what is a reenact statute would suggest that your position is different in respect to the application of that sentence, if you started your proceeding before you were joined, the federal proceeding for the (Inaudible).

Mr. Howard E. Shapiro: The difference is that the Federal Court has now obtained jurisdiction over the United States.

Justice William J. Brennan: No, no, I am asking, when is it -- when in this -- in McCarran Act, tells you that your position is any different?

Mr. Howard E. Shapiro: From being joined as a defendant?

Justice William J. Brennan: Right.

Mr. Howard E. Shapiro: The language is limited to the waiver of Sovereign Immunity where we are the defendant.

That is all it refers to --

Chief Justice Warren E. Burger: Well we are at party -- we are at the party.

Mr. Howard E. Shapiro: Well, no.

What it says is that the United States when a party to such suit shall be deemed to have waive any right to plead that state Laws are inapplicable or that the United States is not arraignable thereto by reason of its sovereignty.

We do not claim that we cannot be made a party in the state proceeding under Sovereign Immunity. What we are saying is that we can proceed in the Federal Court for the affirmative determination of our claims.

Justice William J. Brennan: And may the state court proceed simultaneously?

Mr. Howard E. Shapiro: The State Court can certainly proceed with respect to determination of the rights of the non-federal parties, that is rights of parties other than the United States.

Justice William J. Brennan: I know but the United States may not proceed?

Mr. Howard E. Shapiro: The affirmative claim of the United States should be determined in the Federal Court which first had jurisdiction.

Justice Byron R. White: If your Federal suit did not involve Indians at all and you had filed your suit on the -- and settle your rights in the San Juan basis and then the state court started it -- then you were joined in the state proceeding.

You would be making exactly the same one?

Mr. Howard E. Shapiro: Yes.

That is correct and --

Justice William H. Rehnquist: How can at sub paragraph 2 on page 3 of your brief, the language which Justice Brennan was just referring to, shall be subject to the judgments, orders and decrees of a Court having jurisdiction may obtain review thereof.

That does not indicate that you can exempt yourself from that if you have filed a case in the United States Court?

Mr. Howard E. Shapiro: Well, it is the usual situation of adjusting the relationship between two Courts having jurisdiction.

Justice William H. Rehnquist: Is it priority in time at the (Voice Overlap)

Mr. Howard E. Shapiro: That is right.

Let me use an illustrative case which I think is dispositive.

In Markham against Allen, which was a suit by the United States for the determination of its claims on behalf the alien property custodian to the estate of the deceased alien.

The state court had complete jurisdiction over the Reese (ph) of the estate.

The Federal Government sued in Federal Court for determination under the Trading with the Enemy Act as to its interest that property.

And this Court when case reached it noted that there was the issue, there was the Reese in both Courts and it said that the interest of the United States in that Reese could be determined in the Federal Court even though the state court had jurisdiction.

Well, that is very much what we are involved with here.

There is not always a continuous proceeding going on in the Colorado Courts over the Rivers there, but at the same time we were suggesting that the interest of the United States can be determined in the Federal Court subject to later integration in the state proceeding.

Justice William H. Rehnquist: If you win here on this case, I presume Colorado Water lawyers can go back the day our mandate comes down and join the United States as parties in each of the basin adjudications and then that argument that you just made would not be available to you in a subsequently commenced suit in the United States District Court for the District of Colorado?

Mr. Howard E. Shapiro: That is right.

What would happen -- well this goes into Colorado procedure, but in effect, we could walk into the -- after the Federal Court decrees that the rights that we are concerned with.

It says that the United States is entitled that two priorities of 1868, 1875, 1932 with respect to Reservations x, y and z in the Indian Rights.

And it says that the purposes of the Reservations are agriculture, forestry and so on and the third thing it says that you get so many acre feet, it quantifies them.

If we take that decree in our hand and we either brought into the Colorado Court which is most likely are we going and we presented and say tabulate this into your overall base in adjudication.

Now, that actually has happened.

There is a case which is mentioned in our complaint, the Morris and Ditch Decree, which is entered in 1932 with respect to some Indian Water Rights.

It was adjudicated in Federal Court long before McCarran of course.

When the process of tabulation which is now going on in Colorado begun, the state Engineer in his tentative tabulation included that Federal Decree.

And this is simply an application of the general rule that a Federal Decree determining in personam Rights is to be given full faith and credit in a state proceeding and that the ordinary rules of res judicata apply.

Justice William H. Rehnquist: But what should be the disposition if the United States Attorney in the Colorado tomorrow decides to file a case in the District Court -- the Federal District Court for adjudication of the Governments’ Rights on the Dolores River?

Mr. Howard E. Shapiro: In that instance I think that since the priority of filing in what is essentially an in personam proceeding is in the state court, there would be a substantial ground for the Federal (Voice Overlap).

Justice William H. Rehnquist: Then Judge Fine Silver should dismiss even in --

Mr. Howard E. Shapiro: On the ground on priority of filing.

Justice William J. Brennan: (Inaudible) the rule on priority of the file?

Mr. Howard E. Shapiro: No.

Of course they could.

Justice William J. Brennan: And is there not a question here whether in the McCarran Act the Congress has already that rule?

Mr. Howard E. Shapiro: There is a question but there is also an answer.

Justice William J. Brennan: Well I know.

Mr. Howard E. Shapiro: And the answer lies in what Senator McCarran himself characterized this statute as doing.

In Eagle County there is a quotation of it.

It is in his letter to Senator Magnuson in the report.

He assured the Senator, he assured everybody on the floor that the only purpose of this legislation is to waive the sovereign immunity of the United States to permit the joinder in general adjudications.

It did not command the dismissal of affirmative suits by the United States.

There is no fall out from the statute beyond that.

Now, I really have to turn very briefly to the question of the Indian Rights because it is been asserted that the Indian Rights issue was adjudicated in the Eagle County case.

I do not see how that could be when there were no Indian Rights before the Court, where no claims are involving Indian Rights at all.

Instead the rights involved concerned non-Indian claims and --

Justice William H. Rehnquist: Certainly Justice Douglas’ language when he speaks of Reserve Rights and mentions the Indian claims involved in Arizona versus California suggests that he did not see any difference between Indian claims and other Reserve Right Claims, is that not a fair statement?

Mr. Howard E. Shapiro: Well, I think that -- since the question was not before the Court, I do not know whether it can be said to fair when no one really litigated it.

Justice William H. Rehnquist: Well, it is certainly is not a holding and maybe you can say that if someone had asked him or asked the other people to join the opinion are you sure you want to do this in view of the Indian Rights they would have come to different conclusion.

But the intimation of the language for whatever its worth is that there is no difference as to among Reserve Rights for purposes in the McCarran Act?

Mr. Howard E. Shapiro: I would argue that since the issue was not here at most it would have to be oversight because of the way Indian Rights are treated.

There is a very firm rule that Indian state jurisdiction over Indian Rights is not recognized except when expressly granted by Congress even when there is a waiver of sovereign immunity.

Now, there is a case called United States against Minnesota, which involves, which we have cited in our brief, which involves a statute that permitted the condemnation under state Law of Indian LRT land and a suit to condemn was brought in the Minnesota state courts and when that case reached this Court, the Court held -- it is true the condemnation proceeding can go forward, there is a waiver of immunity to that extent, but it has to be brought in a Federal Court.

Now, that principle is well known to the Congress.

You will not find a word in the statute.

You will not find a word in a legislative history by any of the proponents of the legislation indicating that they thought that Indian Rights were to be swept into the state Courts and then finally, just 13 months after this statute, Congress passed its PL 280 which sets up a procedure by which Indian Rights can be brought before the state courts if the states will follow that the method set forth in this --

Justice William H. Rehnquist: But that is General Civil Procedure, there was no reference specifically to Water Rights?

Mr. Howard E. Shapiro: That is my point.

There was a reference to Water Rights Your Honor.

They expressly excluded Water Rights of Indians for which the United States is trustee and it is 13 months later.

I do not see how it can be said that this statute where nobody, where there is no mention of it somehow swept the Indian Rights in.

Justice William J. Brennan: Your Federal Courts suit involves more than Indian Rights, does it?

Mr. Howard E. Shapiro: Much more.

Justice William J. Brennan: Much more.

Mr. Howard E. Shapiro: Yes.

Justice William J. Brennan: And do you suppose without the Indian Rights you cannot succeed with this argument?

Mr. Howard E. Shapiro: I was only addressing the Indian Rights if I loose the others Your Honor.

Justice William J. Brennan: No.

Well, I suppose if you loose the Indian Rights and you lose the whole works, but may you even if you are properly in the Federal Court where Indian Rights might you drag in everything else?

Mr. Howard E. Shapiro: No, no question.

We have the same right (Voice Overlap).

Justice William J. Brennan: what do you mean no question?

Mr. Howard E. Shapiro: No question because we are simply asserting affirmative claims.

Justice William J. Brennan: No.

What I am trying to suggest is, if your foreclosed from asserting any Indian Rights in your Federal Court suit because you have Indian Rights involved, may you sweep in other things that otherwise you could not bring it into Federal Court?

Mr. Howard E. Shapiro: Well I do not think that the Indian Rights themselves off themselves create any additional jurisdiction in the Federal Court.

No, I do not mean to assert that. Our argument is there is no question we can assert non-Indian Rights in Federal Courts simply because there is jurisdiction under 28 U.S.C. 1345 and under 1331.

Justice William J. Brennan: I guess I have made myself clear what I am trying to get at.

You are wrong in the non-Indian Rights.

They have to be adjudicated in the state proceedings.

May you nevertheless insist that the Federal Court decide the non-Indian Rights because you are proper in the Federal Courts in Indian Rights?

Justice Potter Stewart: Kind of jurisdiction idea, forget it.

Justice Byron R. White: Or maybe because you cannot really adjudicate the Indian Rights without knowing what the other rights are.

Mr. Howard E. Shapiro: Well, it has been argued that if you are going to adjudicate a stream it is helpful to have as much as many rights as possible -- asserted at the same time.

Unknown Speaker: On that basis, you should be in the state court, where everybody else (Voice overlap)

Mr. Howard E. Shapiro: But no, I am stating the assertion.

But in fact the -- it is perfectly possible do the contract.

For example a Water Rights proceeding separates two kinds of claims, one can be an affirmative claim in saying determine my priority and my quantity and you can come in as a defendant and saying, he is not entitled to his priority and his quantity.

Now, the plaintiff’s side of it does not have to be adjudicated all at one time as Division Five recognized.

You can do it piecemeal as long as they are ultimately integrated in the totality and what we suggest is what I have suggested under Markham v. Allen that doing it this way is not inconsistent with the McCarran Amendment.

The basic purpose of the McCarran Amendment is to get the United States out from behind Sovereign Immunity to get it to assert its claims.

We are doing that.

Unknown Speaker: (inaudible)

Mr. Howard E. Shapiro: The removal provision was removed.

There was an express -- in Senator McCarran’s Bill there was an express reference to removable which would have permitted the United States to remove the --

Justice Byron R. White: And have its claim litigated in the Federal Court if it wanted it to?

Mr. Howard E. Shapiro: By removal, where it was a defendant, that is right.

But of course the elimination of the removal provision does not in itself indicate that the United States could not be a plaintiff.

In fact this is recognized in a one extensive discussion of removal --

Justice Byron R. White: No.

But if the state proceeding is going on it certainly indicated that maybe if there some preference to have the Federal Government go ahead and adjudicate its right in the state court rather in the Federal?

Mr. Howard E. Shapiro: Well, it is just as consistent.

I think to say that --

Justice Byron R. White: But you would not suggest that he -- if it was a party that the state court proceeding that it could then successfully file and prosecute a Federal case?

Mr. Howard E. Shapiro: I think there are circumstances in which we could remove if we otherwise come with an existing statutes governing removable, 1441 (a) and that may have been in Congress’ mind as well, we have not got it.

There is an argument for removal, which is not presented in this case, but it essentially is that when United States is asserting Federal Water Rights claims in its plaintiff capacity, it has made the defendant a general adjudication and it has asked, whether your Federal Water Rights Claim state them affirmatively.

It is really an involuntary plaintiff.

Well, if it is an involuntary plaintiff, there is jurisdiction in the Federal Court under 28 U. S. C. 1345 and in under 1331 with respect to the federal claims.

That is removable under 1441 (a).

I mean so there is an argument, which is not here.

Justice William H. Rehnquist: You certainly wasted a lot of time in the Eagle then.

Mr. Howard E. Shapiro: No.

What we arguing over in Eagle essentially was whether the statute permitted reserved rights of a non-Indian nature to be adjudicated under McCarran. Now that is over with and we know that.

We can still bring our claims affirmatively in the Federal Court.

Justice William H. Rehnquist: But Eagle really is not over if you write about you are right about your right to remove.

Mr. Howard E. Shapiro: Well, I think that there is still, after the federal affirmative adjudication filing the removal, we still come back to the State Court with our decree.

We indicate that --

Justice William H. Rehnquist: Would it not be been settled outside at the State Court system?

I mean that is no burden on the Government system.

Mr. Howard E. Shapiro: But neither is it a burden on the State Court system Your Honor.

Justice William H. Rehnquist: Well, except that it denies to the State Court system the right to do the adjudication, which one might fairly say the McCarran Act intended to be done there.

Mr. Howard E. Shapiro: Well, McCarran does not indicate anything about the affirmative adjudication; it simply makes us amenable to state, to suit as a defendant.

And of course if you -- well, it makes a great deal of sense I think to recognize that you are going to have to separate out in the state court proceedings the federal claims in any event.

What is happened in Eagle on remand is interesting.

In Divisions Four, Five and Six the cases have been consolidated.

Then they have been set before a single special referee and they will be reviewed by a single Water Judge, so that they have had to create a separate federal proceeding inside the state proceeding.

Now the federal suit is exactly that.

It is what is going on now in the Pyramid Lake case, United States against Nevada which was remanded by this Court to the -- not remanded but we were referred to the District Court to bring our suit there.

That is exactly what is going on here now.

Now the federal suit does that.

It makes it possible to have review of our affirmative claims in the Court of Appeals.

It takes care of the Indian problem because the Federal Court, in an affirmative suit, clearly has jurisdiction over the Indian problems and it is possible to integrate the whole thing, the whole federal decree back into the state proceeding.

Now if you start with the proposition that federal -- that since 1789 the United States had the right to bring its affirmative claims in Federal Court and its Indian claim in Federal Court, and you recognize that is not state court jurisdiction over the Indian claims in any event.

And it makes a great deal of sense for us to bring these claims affirmatively in the Federal Tribunal recognizing that we will ultimately integrate them into the state court proceeding.

Chief Justice Warren E. Burger: Well, there is something McCarran Act.

Mr. Howard E. Shapiro: That is if -- McCarran Act is the spur Your Honor.

We are, in effect, in the position of one who can be -- it is told either bring your claims out affirmatively, so they can be determined and adjudicated and quantified or you will be brought into the state courts, or perhaps the federal Court because I think the Act applies both, to have them adjudicated.

So what we have done here is to get up off our chairs and affirmatively assert what our Water Rights are?

Justice Lewis F. Powell: I think that is something you described, I think what you have just said suggests that the Congress could not allow the determination, adjudication of the Indian Rights in state courts.

Mr. Howard E. Shapiro: Congress certainly could if it affirmatively chose to do so.

Justice Lewis F. Powell: I know that again is my suggestion, that is one of the -- what we have got to decide is the effect of McCarran Act as Indian Rights or anything else.

Mr. Howard E. Shapiro: Well, certainly that aspect of the McCarran Act, if you wish to reach, it does have to be decided because the matter is of tremendous importance to the Indians.

Now, in this connection as one final point to be made aside from Public Law 280 which I have mentioned.

Even the most recent full-scale study of Indian Water Rights and National Water Rights channel, the National Water Commission report suggested that because of doubts over what the impact of McCarran Amendment was on Indian Rights, that really the Indian Rights ought to be adjudicated in Federal Court.

Now these are a body of -- this is a body of experts which is listening to all of the arguments about this question, and that body concludes that the Indian Rights should be adjudicated in a Federal Court, even if other rights are adjudicated in the State Court.

Because of the Indians concern over being subjected to state court jurisdiction that shows two things not only the Indians concern but also the fact that you do not need to have every affirmative claim asserted in the same court as long as ultimately for purposes of administration.

All of the adjudicated rights, the affirmatively adjudicated rights are integrated in a single proceeding.

Now the -- I do not think that it would serve any purpose to argue about the abstention doctrine. The traditional doctrine just does not apply to this case.

We are not dealing with uncertain state law, which is what abstention is about; we are not dealing with constitutional questions; we are not dealing with an attempt to review a state administrative determination.

So we can put abstention aside.

Now that leaves us with comity but there is nothing in the comity doctrine that has ever been extended this far.

You would have to find that somehow McCarran has a fallout a shadow around it that requires that the United States not be allowed to sue affirmatively.

Thank you Your Honor.

Chief Justice Warren E. Burger: Very well.

Mr. Balcomb do you have anything further?

Rebuttal of Kenneth Balcomb

Mr. Kenneth Balcomb: If I may Your Honor.

Chief Justice Warren E. Burger: Well try it to be as short as possible.

Justice John Paul Stevens: Mr. Balcomb before you start, I put a question to you that you will answer during your few minutes. If a state property owner should seek a declaratory judgment against the United States on some water question, could such an action be entertained by the Federal Court?

Mr. Kenneth Balcomb: Declaratory judgment?

Justice John Paul Stevens: Yes.

Mr. Kenneth Balcomb: Yes sir.

Justice John Paul Stevens: It could be entertained by the Federal Court?

Mr. Kenneth Balcomb: I would say yes, sir.

I just want to remark on just two to three minor items or maybe some of them are not so minor because they are important.

The National Water Commission recognized that Eagle and Water Division Five covered Indian Water Rights and recommended that Congress do something about the problem.

The Justice Department recognized that as late as 1955 and suggested to the Indians at hearings that they should go to Congress and get something done about the problem.

Unknown Speaker: That is to limit the determination of their rights to Federal Court procedure?

Mr. Kenneth Balcomb: Yes Sir.

Unknown Speaker: That is what they suggested.

Mr. Kenneth Balcomb: That is what they suggested.

And major Indian water lawyers have recognized that Eagle County and Darrell (ph) cover the situation as far Indian Water Rights are concerned and that Congress should do something about it and Congress has done nothing.

And we submit that if they interpret it that way why should not this Court agree with them when I think it did in the first place.

In answer to one of the questions which related what happened to the Removal Provision.

In the original Act it was removed at the request of the Justice Department, and now the Justice Department is asking Congress to put it back in, because almost every case that they attempted to remove was filed in State Court initially, is bounced back where the Federal Court and one was just bounced back to the State Court by the New Mexico, United States District Court the other day.

There is a copy of it in the back of our reply brief.

The Shale Reservation; the two different problems involved here.

The Government is making a claim for water supposedly reserved in connection to the Naval Oil Shale Reservations.

And that is the only one of the federal claims that has not yet been tried below.

When it will be set up, I do not know and it does represent a large quantity of water.

There was some attempt made in connection with the lease of tracts, Colorado A and Colorado B recently, as well as the Utah tract to say that there was a Water Right in connection with them.

And what Interior finally said was no, it is just like an oil and gas well.

If you drill your own gas well and it water bong on public lands, it bongs to us.

And that is in all the leases and that is the way they interpreted the Oil Shale problems out on the regular public domain where the only limitation was a right to file claims.

I want to call the Court’s attention to the relief asked by the Government in the complaint.

They want a Special Water Master which is not necessary; they want a Special Administrator to control the stream separate and apart from the state System, and they want every single property owner already in decree to be enjoined from violating the Federal Court decree when do we all ready have administrator system, a set up to take care of that problem.

Now I do not know if I have made myself clear about the proposition that the Water Judge in Water Division Number 7 has jurisdiction over, simultaneous jurisdiction over both the San Juan and the Dolores Rivers.

And that everybody on both the San Juan and the Dolores Rivers is bound by whatever he finally decides in connection with the Water Rights.

And the consequences of this reflect itself as this Court is aware, at lee farriers on over the division is made between the Upper Basin Waters and the Lower Basin Waters.

So it becomes very important to bind everyone in litigation.

I might add that the and maybe counsel is not aware of this the motion for decree that entered in Federal Court has been administered by the State Engineer of Colorado.

I want to --

Justice Byron R. White: Would you be here arguing if there had never been a suit filed against the United States?

If they had never been named a party to the state proceeding?

Mr. Kenneth Balcomb: What would be here -- I am afraid I have to take the position that I would not be because McCarran would not be applicable.

Justice Byron R. White: And except for McCarran does a -- does a suit in Federal Court might could and should go ahead.

Mr. Kenneth Balcomb: Might be going right ahead, yes, if referring and one of the Justices read a part of the McCarran Amendment.

The counsel, he calls specifically to the fact that the United States is not amenable thereto, in other words the United States cannot plead that it is not amenable thereto on account of its sovereignty.

And I want to emphasize the word sovereignty because if they are waiving that which is one of the strongest principles, they certainly can -- would be talking about everybody, as I view the matter.

I want to also call the Court’s attention to the, without taking up too much of the Court’s time, within the reply brief at Page 28.

In the letter that came down from the Director of the Bureau of the Budget speaking for the President of the United States that appears in the archives escorting to footnote, referring to section 208, the italicized language.

The complaint was there made as it was made by the Justice Department and by Interior that if that provision was left in the Appropriations Act, National Parks, Indian Reservations, power installations, Military and Atomic Energy Establishments and irrigation projects are only a few of the interest that would be affected by the McCarran Amendment.

They all knew what was intended to cover.

Justice Byron R. White: Mr. Belcamp can I ask you, what about the Indian tribes and Indians in within reservations who have the title to their property?

Mr. Kenneth Balcomb: I believe that those are primary, the pueblos in New Mexico and most those cases has been in Federal Court.

Justice Byron R. White: What about the -- do you think that the state courts have jurisdiction?

Could you name the Indian tribes and individual Indians as defendants in your state proceeding.

Mr. Kenneth Balcomb: In my state -- our state proceeding?

There are only two, there are two tribes it is the --

Justice Byron R. White: And do you --

Mr. Kenneth Balcomb: The interest of the United States in the Reservation Water Right.

Justice Byron R. White: And have you named them as dependents?

Mr. Kenneth Balcomb: Southern Utes and we have not done anything except served the United States and ask them to come forward and lay out their claims like anybody else.

Justice Byron R. White: Now do you think that by binding the United States you bind the tribes?

Mr. Kenneth Balcomb: They have the title.

Just like they have the title to the forest and title to the military reservations.

Justice Byron R. White: Yes, but how about -- what would you think if they were patented their property inside Indian Reservations?

Mr. Kenneth Balcomb: If they had some patent of property as I say that might compare to the pueblo situation, I do not know that that is --

Justice Byron R. White: What about it?

Mr. Kenneth Balcomb: I do not know if that is true or not.

But if it is true the government has to name them too in their complaint.

Justice Byron R. White: How do you bind them?

Mr. Kenneth Balcomb: Our preceding?

Justice Byron R. White: How do you find the Indians who own some property and own some water in connection, well they think they do.

Mr. Kenneth Balcomb: If McCarran is applicable you bind them by serving United States Your Honor, I believe.

Justice William H. Rehnquist: The Old Candelaria case in 271 U.S. says that you have -- the only way to bind the Indians is by serving the Government, I believe.

It is not res judicata in a later action by the Government on behalf of the Indians if you have not served United States the first time.

Mr. Kenneth Balcomb: The Indians themselves apparently filled by --

Justice Byron R. White: My question was do you bind the Indians by serving United States?

Mr. Kenneth Balcomb: Yes sir.

Justice Byron R. White: Yes.

That is it.

Mr. Kenneth Balcomb: The last thing --

Justice Byron R. White: You hope.

Mr. Kenneth Balcomb: Pardon me.

Justice Byron R. White: You Hope.

Mr. Kenneth Balcomb: I Hope.

The last thing I want to call to is the recitation, everybody has recited it including Mr. Justice Douglas in Eagle County and everybody seems to attempt to ignore it when they discuss what an adjudication is.

It is at Page 5 of our reply brief; it comes out of the Senate report on the McCarran Amendment, and it says, “Leaving part of a doubt, in a suit wherein it is necessary to adjudicate all of the rights of the various owners on a given stream.

This is so because unless all of the parties, owning or in the process of requiring Water Rights on a particular stream, can be joined as party’s defendant.

Any subsequent decree would be of little value.”

In other words, the McCarran Amendment would be out of the window.

Thank you very much Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.