Transcript

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA, Complainant v. STATE OF CALIFORNIA, ET AL.

No. 8, Original

April 25, 2000

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:11 a.m.

APPEARANCES:

JEFFREY P. MINEAR, ESQ., Assistant to the Solicitor General, Department of Justice, on behalf of the United States.

MASON D. MORISSET, ESQ., Seattle, Washington; on behalf of the Quechan Indian Tribe. JEROME C. MUYS, ESQ., ; on behalf of the State Parties.

PROCEEDINGS

(11:11 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 8, Original, the State of Arizona v. the State of California.

Mr. Minear.

ORAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE UNITED STATES

MR. MINEAR: Mr. Chief Justice, and may it please the Court:

This case presents another chapter in the Arizona v. California water rights adjudication. The case involves the so-called boundary land claims that were left undecided in Arizona I and Arizona II.

The United States takes exception to the Master's recommendation that a 1983 Claims Court consent judgment between the United States and the Quechan Tribe precludes litigation of their water rights claim concerning the Quechan boundary lands. The Master concluded that the settlement extinguished the tribe's right to those lands and, therefore, eliminated the basis for claiming water rights in this adjudication.

QUESTION: Mr. Minear, where do we find the best map showing the boundaries of the land in question?

MR. MINEAR: I think the -- the best map would be that that is appended to the tribe's brief, the red-colored brief.

QUESTION: Okay.

MR. MINEAR: There are two maps here. One is the general locator map which shows the --

QUESTION: Well, the big one is just -- it's too small to see. The -- the one at page 24a, exhibit E? Is that what you're referring to?

MR. MINEAR: I was looking at locator map number 2 that's also included here, yes, the one that you're showing me there.

QUESTION: And are the -- is it blue boundary that -- in that map that shows the land in question?

MR. MINEAR: I believe that's so, although it's actually more complicated than that because due to a number --

QUESTION: I just couldn't find anything that really showed me what we were dealing with. But you think it's basically the land encompassed in blue.

MR. MINEAR: Yes, with -- with the understanding that there are a number of allotments and other lands that are excepted from that area.

QUESTION: Yes.

MR. MINEAR: The actual lands --

QUESTION: But -- and the total is some 25,000 acres?

MR. MINEAR: That is correct. The total -- the maximum claim would be 25,000 acres.

QUESTION: And is all of that land practicably irrigable as the -- the cases deal with that term, all 25,000 acres, or some smaller portion of it?

MR. MINEAR: A smaller portion of it, Your Honor.

QUESTION: And we don't know how much because it hasn't been determined?

MR. MINEAR: That is correct. There were preliminary determinations that were made by Special Master Tuttle in the report that was reviewed in Arizona II. However, the Court did not reach these issues with regard to the amount of practicable irrigable acreage because of the way it disposed of that case.

QUESTION: And the preliminary studies show how -- how much in acre-feet of water year are we talking about, probably?

MR. MINEAR: I think it could be as much as 70,000 acre-feet.

QUESTION: And how would that impact on existing distribution and users? Is that a significant figure?

MR. MINEAR: It's a relatively small amount, but of course, we're dealing with a part of the country where all water is quite precious. The total amount of water that's divided by the -- the Boulder Canyon Act is 7 and a half million acre-feet. So, 70,000 acres is -- is significant, but a relatively small portion of the total amount.

I would like to return to the point I was making before with regard to the Master's determination in this case. He concluded, as I said, the tribe's lands were extinguished by the Claims Court consent judgment and, therefore, there was no basis for claiming water rights in this case. And we -- we respectfully submit the Master erred because he misunderstood the judgment and the scope of its preclusive effect.

QUESTION: Well, Mr. Minear, now the Government takes the position here with respect to the preclusion claim which the Master rejected; that is, the change of position on the part of the Government when the Interior Solicitor changed his mind. There the Government says that that claim, the preclusion claim, was waived. I take it with respect to the Court of Claims judgment preclusion argument you don't take the position that that's waived?

MR. MINEAR: That hasn't been our -- been our argument, no. Our argument has been simply the judgment does not have issue-preclusive effect.

And the reason for that is that for a judgment to have preclusive effect, the issue underlying it must be actually litigated and determined, and that determination must be essential to the judgment that is entered. And that simply is not the case in this situation.

QUESTION: Mr. Minear, I think that the States are saying there's some kind of special preclusion rule that they call a statutory preclusion. They concede that the ordinary rule is the consent judgment doesn't decide any issues. They say -- they use a term I hadn't heard before, statutory preclusion.

MR. MINEAR: Your Honor, the -- the State parties are referring to the provisions for claim preclusion that exist in the Indian Claims Commission Act. And our understanding of that act is as follows. That act dealt with the creation of a special commission, a Article I court, to resolve Indian claims. And in the course of enacting the statute, Congress made quite clear what the preclusive effect of that administrative body's claims would be.

And that's, of course, an appropriate thing for Congress to do because, as this Court indicated in University of Tennessee v. Elliott, it's for Congress to determine what preclusive effect a -- an administrative body might have.

And our view is that the statutory preclusion that's provided is simply the equivalent of the merger in bar rules that would -- would apply to a judicial decision. Now, that deals with the question of claim preclusion not issue preclusion.

And what we have here with regard to the consent judgment is a question of -- the more narrow question of issue preclusion. There's no doubt that the judgment by the Claims Court precluded any further assertions by the tribe against the United States with respect to these lands. The question that's presented here is whether it made a determination with regard to the status of the boundary lands. And we believe it did not.

QUESTION: Do you think it really was the -- the intent of the legislation that established the Indian Claims Commission that the United States should acquire a judgment which lets the United States off and settles matters as far as the Government is concerned but leaves all of the settlers who -- who are on the reservation entirely up in the air as to whether -- you know, what their rights are with respect to the land?

MR. MINEAR: Well, first, with regard to this claim, none of those --

QUESTION: It doesn't seem to me that a -- that a just -- just Government would do something like that.

MR. MINEAR: None of those issues -- in this case those issues will not arise, and the reason is this. The judgment itself was predicated on the Secretary's 1978 order which dealt with those specific issues. And so, we do believe that it would have claim-preclusive effect in the sense that it was predicated on that judgment. But those issues are simply not before the Court here. There is -- there hasn't been any dispute with regard to any of the settlers whose rights were protected by the Secretary's order himself.

The question here instead is a quite different one.

QUESTION: How are they protected by the Secretary's '78 order? I didn't --

MR. MINEAR: The -- the Secretary's '78 order, followed by the Secretary's 1981 order, identified the particular tracts of land that are owned by private persons that the tribe has no claim to, and the tribe has -- has indicated that it agrees with that -- that outcome. So, those issues simply won't arise here.

The only question is --

QUESTION: Well, they might change their mind in the future.

QUESTION: Yes.

QUESTION: You say they won't arise because the tribe now agrees, but they might change their mind. They changed their mind about this.

MR. MINEAR: Well, I don't believe they changed about this, that the tribe's positions -- they've put forward alternative positions, but they have been consistent.

QUESTION: Well, the Secretary certainly changed his mind about this.

MR. MINEAR: The Secretary did change his mind, but the position since 1978 has been consistent.

QUESTION: Now, what if -- what if the -- what if we were to accept the State's submission that the Special Master's ruling on that aspect of res judicata was wrong and that the fact that the Government changed its mind is not a basis for going back into the case again? How would that affect the Government's position with respect to the rest of the articles -- the rest of its arguments?

MR. MINEAR: Well, I think that our position here is that the -- the Secretary was entitled -- this matter had not been determined and had been preserved by this Court's decision in Arizona I in its decree in 1979. The Court --

QUESTION: Yes, but the -- the -- it was argued to the Special Master that the Secretary's changing his mind, not just the Solicitor's changing his mind, was something that avoid the effect of res judicata.

MR. MINEAR: No, I'm afraid I don't understand that argument. As -- I believe that the -- what had happened here --

QUESTION: I -- as I read these -- the Master's report, it said that the -- it was an unforeseen circumstance that the Margold opinion would be reversed by a -- a later Solicitor and that, therefore, res judicata didn't apply.

MR. MINEAR: That was -- that was the ruling that the Master gave in rejecting the State's argument with regard to res judicata.

QUESTION: Right. Now, what if -- what if we think the Master was wrong in rejecting the State's argument for that reason?

MR. MINEAR: I think the Master's decision, his judgment, should still be affirmed for a quite different reason, and that is that this Court in Arizona I made clear that the boundary land issues would simply not be reached in this litigation in Arizona I. And it made that clear in its 1964 decree, and it extended it to this -- to this reservation in its 1979 decree.

QUESTION: Well, what was the reason then for arguing preclusion on this basis before the Master if it didn't make any difference?

MR. MINEAR: Well, we think that the -- the Master simply misunderstood the law and the prior proceedings here.

We think there are two issues here and let me try and walk through each of them.

One is the -- the claim preclusion argument the State is making in -- in an exception to the Master's ruling which held that there was no claim preclusive effect from this Court's past decisions. This Court in Arizona I said that we're not going to decide the boundary land issues. In Arizona II, the issue arose again.

QUESTION: Well, it said boundary land issues with regard to reservations, other than this one. It didn't name this one as one of the boundary land issues, did it?

MR. MINEAR: In 1963, they addressed two boundary land issues --

QUESTION: Right.

MR. MINEAR: -- the Fort Mojave --

QUESTION: Right.

MR. MINEAR: -- and the Colorado River Indian Reservation.

In 1979, it became clear, after the Secretary's decision here, that there were three other reservations that had these issues. The Court in response, in 1979, entered a -- modified its decree to make clear that all five reservations would now be -- their boundary lands would be open. And let me read the language to you from the '79 decree.

The quantity fixed in paragraph 1 through 5 of article II(d) of said decree -- which deals with the Indian reservations, all five of them -- shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined.

Special Master Tuttle, when he saw this provision, said, well, all of these issues are open, but he said, ultimately I'm going to accept the Secretary's decision as a final, conclusive determination of those water rights -- and -- of those boundary lands and the accompanying water rights.

This Court in Arizona II said, no, there has to be judicial review of the Secretary's decision. And that's what the United States has sought since that time with regard to the Quechan Tribe, and that's all we're asking for here.

QUESTION: How does that -- that's the -- when you say judicial review -- maybe you could answer this later if I'm not right on the point. I think I am. But my understanding of this is that this whole problem arises because we don't really know who owns this land, and there was an opinion in the Interior Department that said at one point the United States still owns it and then at another point that the Indian tribe owns it.

MR. MINEAR: That's basically correct.

QUESTION: But suppose we accept your arguments completely. It's still open under the second decree to make the argument and the settlement doesn't preclude it. We still haven't answered who owns the land, have we?

MR. MINEAR: That's --

QUESTION: And so what's supposed to happen next? Aren't we supposed to -- I mean, we'll solve all these problems and we can find out who owns the land. At one point the district court was going to litigate that, and they reached an answer, and the Ninth Circuit set it aside for some reason and this Court split 4/4.

MR. MINEAR: That's correct.

QUESTION: All right. So, we can't send it to the district court or we can? Who's supposed to know --

MR. MINEAR: Right now at the -- after the -- the California case, the Ninth Circuit decision, this Court appointed Special Master McGarr to decide these issues and we thought to decide them on the merits.

QUESTION: So, he's supposed to decide. If you're right, we then send it back to the Special Master and ask him now to decide the question of who owns the land.

MR. MINEAR: Yes. Or in the alternative -- the ultimate reason why we're trying to determine the land here is to determine the amount of water that ought to be dealt --

QUESTION: I know but you can't get the water till you decide who owns the land.

MR. MINEAR: Yes.

QUESTION: And -- and so, it's -- I just wanted to know who is supposed to decide that if you are right.

MR. MINEAR: Yes.

QUESTION: And the answer is the Special Master.

MR. MINEAR: The Special Master should decide it.

QUESTION: Well, actually this Court should decide it upon the --

MR. MINEAR: Recommendation.

QUESTION: -- recommendation of the Master I assume.

QUESTION: Correct, correct, correct.

QUESTION: Is that correct?

MR. MINEAR: That is -- that is correct.

QUESTION: I don't think we should do it without sending it back.

MR. MINEAR: To -- to be specific, obviously this Court acts with the assistance of the Special Master.

But our -- our concern here is that this claim has not been determined on the merits. And it -- it deserves its day in court. And so, we think that the Master simply pretermitted this issue without --

QUESTION: Now, there was a case from the Ninth Circuit in the Pend Orielle case that seemed to apply issue preclusive effect to the Indian Claims Commission judgment in a suit between the tribe in that case and third parties. So, at least the Ninth Circuit has found issue preclusion on circumstances like the ones here.

MR. MINEAR: Well, Your Honor, I think there's a distinction here. We don't argue that there can be issue preclusion from an issue that is actually litigated and determined by the --

QUESTION: Cannot be. You do not argue that there cannot be.

MR. MINEAR: There cannot be. Excuse me. There cannot be issue preclusion where the issue is actually litigated and determined. In the Pend Orielle case -- I'd like you to take a look to that -- at that case because it's quite clear there that the -- looking at the opinion on page 926 F.2d 1508, the opinion indicates that the status of the lands at issue there had plainly been adjudicated by the commission.

The same is true with the other cases that are cited by the State. In Gemmill, the ICC made a finding that the land had been taken. The settlement that was dealt with there dealt with the question of damages, not the question of liability. There's been no liability --

QUESTION: So, you say if -- if the Claims Commission procedure had really dealt specifically and expressly with the issues, then fine.

MR. MINEAR: That's correct.

QUESTION: Preclusion.

MR. MINEAR: That's right.

QUESTION: But that that didn't happen here?

MR. MINEAR: That's correct. And I think you can tell that from the -- the judgment that is -- that is reproduced in our brief at pages 66a and 67a. The judgment simply states, a judgment is rendered for plaintiff --

QUESTION: What -- what page are you reading from?

MR. MINEAR: This is 66a of the gray brief, our exceptions brief.

QUESTION: Thank you.

MR. MINEAR: Judgment is rendered for plaintiff in the amount of $15 million. It doesn't explain the theory for that award. It simply is a settlement of the suit.

Moreover, on page 67a, the parties made clear they do not expect it to have preclusive effect. The final judgment is based on a compromise and settlement and shall not be construed as an admission by either party for the purposes of precedent or argument in any other case.

QUESTION: Well, can -- can a court limit the preclusive effect of its judgment, I mean, by simply saying this shall not have preclusive effect?

MR. MINEAR: Well, I think that a court can -- has that power. It can determine what the scope of its judgment is. What I think is important here is that there never was any actual litigation over the issue, and that's essential.

QUESTION: Let me just get one thing clear. The -- Judge McGarr apparently thought that one of the issues that was resolved by the settlement was the ownership of the land. Is that a fair reading of his understanding of what happened?

And your position is that really was not an issue in the litigation that was settled.

MR. MINEAR: It certainly was not actually litigated and determined.

QUESTION: It wasn't litigated, but was it an issue that conceivably the settlement might have been intended to resolve?

MR. MINEAR: Well, there are two -- two different approaches, yes. The issue -- ultimately the litigation was aimed at that, and the tribe had two different views. One was that either we had taken the land. The other view was we -- the tribe still owned the land, but they're entitled to temporary damages. And the tribe and United States agreed in that latter view of what this case was about. Now, that -- you have to go beyond the judgment to determine that, and we don't think you really need to do that. We think it's enough here simply to realize that the Court itself did not adjudicate --

QUESTION: The judgment itself didn't say which of those two views it was taking.

MR. MINEAR: That's correct.

QUESTION: They may have gotten money either for the taking or for the fact that although it hadn't been taken, the Government had occupied it temporarily for some time.

MR. MINEAR: From the judgment --

QUESTION: You can't tell which of the two they were given the money for.

MR. MINEAR: You cannot from the judgment. We believe if you look behind the judgment, it would support our view that in fact it was for a temporary occupation, but we don't think you need to reach that.

I'd like to reserve the remainder --

QUESTION: That -- that was put in -- that second theory -- by an amendment later on. Right? Originally it was like the other cases. It was a taking claim?

MR. MINEAR: No. I think -- actually, Your Honor, I think that the claim was -- existed in the initial petition. There was a claim that the agreement that -- that removed the land was entirely nugatory. The tribe vacillated back and forth between the various theories. There was a later amendment, but we think that amendment went more to a taking rather than to the idea that the agreement was invalid and the tribes, therefore, still owned the land.

I would like to reserve --

QUESTION: Very well, Mr. Minear.

Mr. Morisset.

ORAL ARGUMENT OF MASON D. MORISSET ON BEHALF OF THE QUECHAN INDIAN TRIBE

MR. MORISSET: Mr. Chief Justice, and may it please the Court:

I'd like to address Justice Scalia's point about the settlers and the farmers. I want to make it very clear, as I think is pointed out in the letter of counsel to the tribe in '83, which is reproduced in our red brief at page 9a, that the tribe was well aware at the time of the settlement that it was being paid for the lands which had passed into ownership with settlers, as you say, or -- or farmers, ranchers, and other interests at the time of the agreement.

On page 10a, counsel says, after telling the tribe that they have persuasive evidence about damages, quote, at the very top of the page, the loss of the so-called Bard lands, the lands that were taken for levies, the lands taken for the All-American Canal, and the sand and gravel removed from the reservation, period, unquote.

QUESTION: This is -- this is -- where were you reading from, Mr. Morisset?

MR. MORISSET: This is -- this is page 10a of our red brief. It's appendix B.

QUESTION: Whereabouts on the page?

MR. MORISSET: The very top of the page, top of page 10a.

QUESTION: Oh, thank you.

MR. MORISSET: Now, if the question to me is -- and I think this is implied -- does the tribe have a claim against settlers, the answer is no. Can the tribe in any way move to get that land back? No. The tribe has been paid for that. The Secretary made it very clear in his order, as the Solicitor General has -- has so well put, that all perfected rights are protected and those do not somehow go back to the tribe. The tribe doesn't have any claim on them.

QUESTION: What about that provision at the end of the opinion? It says, this judgment is not usable in any other -- in any other litigation. I mean, if somehow you sued the settlers, it wouldn't be useable.

MR. MORISSET: Well, if -- I think it would be useable in the sense that you need to look beyond -- behind the agreement to see what happened at the time and whether or not the tribe has any claim left on those kinds of claims. The answer is no, they do not.

QUESTION: So, it useable then.

MR. MORISSET: I don't think it's useable by the tribe. It might be useable by someone else in defense.

QUESTION: That doesn't square with my understanding of that provision at the end of the -- at the end of the settlement agreement, but --

MR. MORISSET: Well --

QUESTION: -- it would be nice. I don't see how you get it out of that language.

MR. MORISSET: I think it -- I think it's clear from the language and the underlying facts that at the time the tribe and the United States were in complete agreement on who owned the land, and the answer was the United States in trust for the tribe. And they did not, in any way, attempt to get compensation for that kind of claim per se. They did -- were willing to give up their claim against the United States as part of the deal, and their claim against the United States is now foreclosed by the judgment.

It's an entirely different question as to whether or not this is still land in reservation. As has been pointed out, who's going to decide this? Because if -- if we drop the case at this point, it's never going to be clear who owns the land unless we insist, as the tribe would insist, that the Solicitor is correct and it's still within the reservation boundaries. We think that this -- this boundary question needs to be decided by this Court after remand for a fact finding by -- by a -- a special master so we can put this at rest.

We are talking about a drop in the bucket of the overall water, 1 -- less than 1 percent of the water, but a huge bucket for the tribe. This is a desert tribe. They need that water for -- for agriculture. We're talking somewhere between 6,000 to 10,000 acres that might be irrigable in answer to Justice O'Connor's question. The Master went through that in great detail: peanuts versus cauliflower versus lettuce. But -- so, it's not quite clear how much land there would be, but somewhere along those lines. The rest --

QUESTION: Mr. Morisset, would you explain that to me in relation to the famous 1978 decision? Because what's called the Krulitz opinion consistently refers to this disputed land as non-irrigable acreage. So, if -- if it's non-irrigable acreage, then they'll -- even if the tribe title loses -- or the United States as trustee's title is -- is settled, if there's no irrigable acreage, that would be the end of the matter. Right?

MR. MORISSET: Well, the -- Special Master Tuttle found -- and I don't think that that would be overturned on a -- a new remand to a new special master -- that in fact there were -- there was some irrigable acreage and there was a great deal of technical discussion about what that meant, having to do with soil types, whether you could get water there, whether you could grow crops or not.

I think the -- the Solicitor of the Department in '78 was speaking generally because generally we are talking about, as Justice O'Connor has pointed out, the land that's in this upper northwest corner, which is a mesa territory, and much of that is non-irrigable.

But I think now in the cession, there is -- and again, it's still contentious exactly how much -- somewhere between 6,000 to 8,000 to 10,000 acres that could be irrigated under modern techniques.

I'd like to yield the rest of my time to the Solicitor General for reply if necessary, Mr. Chief Justice.

QUESTION: Mr. Muys, we'll hear from you.

ORAL ARGUMENT OF JEROME C. MUYS ON BEHALF OF THE STATE PARTIES

MR. MUYS: Mr. Chief Justice, and may it please the Court:

The States of Arizona and California, the Coachella Valley Water District, and the Metropolitan Water District of Southern California all support Special Master McGarr's report and recommendations.

We are pleased that we were able to resolve the 50-year-old water rights disputes on the Fort Mojave and Colorado River Reservations and obtain the Special Master's endorsement of those settlements. We urge the Court to approve them also, and further to adopt the Special Master's disposition of the Government's and the Quechan Tribe's additional water right claim for certain disputed boundary lands on the Fort Yuma Indian Reservation.

The Fort Yuma controversy over the title status to the 25,000 acres we've heard about, relating to a cession of those lands by the tribe under an 1893 agreement approved by Congress in 1894 and on which the tribes and the Government rely, has been with us almost for 100 years. It was seemingly resolved in a 1936 decision by the Secretary of the Interior approving Solicitor Margold's opinion which found that the cession under the 1893 agreement was effective and had conveyed title to these lands to the Government. Indeed, the tribe relied on that as a final decision by the Secretary in filing its 1951 petition with the Indian Claims Commission in which it sought compensation for what it called the wrongful expropriation of those 25,000 acres of land. The Government's answer to that position before the Indian Claims Commission asserted that the Government had title to those lands and indeed had performed all of its obligations under the 1893 agreement.

The Government's later assertion of a winner's reserved water right for the Fort Yuma Indian Reservation when it intervened in Arizona I 2 years later in 1953 proceeded on that same premise. And this Court's decision in 1963 awarded the Government its full claim for the Fort Yuma Reservation for all the practicably irrigable acreage within the Fort Yuma Reservation as determined by the Secretary's 1936 decision.

20 years later in 1983, the tribe's Indian Claims Commission action finally culminated in a settlement judgment, approved by the Claims Court which awarded the tribes $15 million for, quote, all rights, claims, or demands which the tribe has asserted or could have asserted, closed quote, in that action which plainly included the tribe's claim for the taking of the disputed boundary lands. The language of --

QUESTION: But it also included the tribe's claim that it was their land all along and the damages were for trespass on land to which they held or the Government as trustee held title.

MR. MUYS: That is correct, Justice --

QUESTION: And it settled that claim too.

MR. MUYS: It had a whole array of claims in their petition, including all the language I think from the Indian Claims Commission Act, unfair and dishonorable dealings with the Government. It had a whole laundry list of claims, but the -- the principal claim was that the -- the disputed lands had been unfairly taken under the 1893 cession agreement.

QUESTION: How do you know that --

QUESTION: Well, I -- I suppose the usual rule is that when lands are -- are taken and there -- there is -- is a finding in favor of the previous owner, the Government ends up owning those lands. But is that true in all cases if the damages are marked just for trespass?

MR. MUYS: No. If -- if the tribe had had only a claim for trespass by the Government and got paid for it and still retained title to its lands, there's no doubt that if some other settlers or some third parties had trespassed on their land, they would have a further claim against those third parties.

But under the Indian Claims Commission Act, when you bring a claim for a taking of aboriginal or trust lands and you get an agreement, either an adjudicated or a settlement agreement, that is paid -- that Congress pays, that does not -- not only extinguishes the claims against the United States, it extinguishes title that the tribe had in those reservation --

QUESTION: Is that right? I mean, I don't remember my A. James Kausner property law too well, but my -- my basic thought there was that land is special and you have to go through a lot of formalities to transfer title in land.

MR. MUYS: Yes.

QUESTION: And a settlement can't transfer title unless -- unless, you know, these certain formalities are -- certainly wouldn't cut off third parties. And I guess if it isn't litigated, it wouldn't even cut off second parties from suing somebody else.

Now, is -- is there some special thing in -- in respect to the tribal land that means those ordinary precautions are not applicable?

MR. MUYS: Well, they're something special in the Indian Claims Commission Act, Justice Breyer.

QUESTION: All right. But if the Indian Claims Commission Act is different, then under ordinary principles, it would not work. It's dependent on that act.

MR. MUYS: Quite correct.

QUESTION: All right. That -- that act -- you know, they have a whole -- I'm trying to look at the words of that, and I thought the words of that don't necessarily favor you too much.

MR. MUYS: Well, the words of that act make it clear that the -- the claims brought by the tribe against the United States are extinguished as against the United States.

QUESTION: No. It's shall be a full discharge of the United States of all claims.

MR. MUYS: Correct. But if you talk -- if the -- if the claim is for taking of land and the Government pays for the lands that were taken, the courts have interpreted the statute as saying obviously the title to those lands has been extinguished. When the tribe got money, they no longer had title to the --

QUESTION: Okay. That's the part I don't quite see because why be extinguished as except against the United States? Why would third parties be involved and why, if it weren't litigated, second parties, et cetera?

MR. MUYS: Because otherwise the act's finality purposes would be utterly frustrated. The tribes would come in, get paid by the Government for their claims for extinguishing title, then they'd go out and sue the settlers Justice Scalia mentioned. They'd assert water rights for lands they didn't own anymore. They could roam --

QUESTION: If litigated, absolutely. If not litigated?

MR. MUYS: Well, the act does not -- we agree with the Government and the tribes that under collateral estoppel you need a litigated, adjudicated issue before you -- there's any preclusion, but not under the Indian Claims Commission Act. The Indian Claims Commission Act says that the Attorney General is authorized to settle cases and settlement judgments are treated the same as adjudicated judgments. They're sent to Congress and Congress pays them. In the Ninth Circuit and this Court in United States against Dann in 1985 said that when that happens, the tribe's title is extinguished by operation of the --

QUESTION: So -- so, all settlements under the Indian Claims Commission Act must be treated as adjudications?

MR. MUYS: I think as a practical matter, that's -- that's the result of the statute and that's the way the Ninth Circuit and the Eighth Circuit have interpreted final judgments by the Claims Court on Indian Claims Commission --

QUESTION: Are you relying on the Pend Orielle case?

MR. MUYS: Yes, Pend Orielle --

QUESTION: But there, there was specific --

MR. MUYS: There were specific findings.

QUESTION: -- litigation of the issue and findings, and we don't have it here. And it's -- I'm not sure you have to read that into section 22 of the Indian Claims Commission Act.

MR. MUYS: Well, you have -- you have the judgment and the -- I read the part of the judgment that says all the tribe's claims are -- that could have been asserted can no longer be asserted against the United States or in any future action, which we read as against anybody. And that's the way the Ninth Circuit has read it. The Ninth Circuit has said not only is the tribe's title extinguished as against the United States, but as against third parties. And it's Pend Orielle, Gemmill, Western Shoshones. We -- we cite the cases I think at page -- oh, in our --

QUESTION: But that's of those cases, if you're looking at it.

MR. MUYS: Right.

QUESTION: Is there any one -- I grant you the Ninth Circuit says this sort of thing.

MR. MUYS: Right.

QUESTION: And that -- that's their law.

MR. MUYS: Right.

QUESTION: But in the cases themselves, is there any case that doesn't involve either a litigated matter or findings that have the equivalent effect?

MR. MUYS: Well, the -- the cases the Special Master relied on, Gemmill and Pend Orielle, were settlement judgments, but there had been earlier litigation on liability in which there were findings made by the Indians Claims Commission.

No findings were made in the Quechan situation because they never got to that point. They did the -- the early stages on liability and then the -- the tribe moved to stay the proceedings while they tried to get Congress to reconvey the land to them. Congress refused to do so. The tribe reopened the -- the Claims Court proceedings and settlement occurred.

The settlement was prompted by this Court's 1983 decision in Arizona II in which the agreement that the Government says they had with the tribe, that the 1978 secretarial order had finally and conclusively established the tribe's title in these disputed lands was put in serious doubt by this Court. They said that's just not the way it works. A series of ex parte orders in which the affected parties, not just landowners, but water users had no -- no role just doesn't cut it. And they said, go back to the district court and -- and finish that litigation.

QUESTION: Mr. Muys, the problem I have -- I -- I can accept your -- your proposition that the -- that settlements under the Claims Commission Act are -- are different and that even if the matter is not litigated, it -- it is binding on the parties, and if they say so, as they did here, as against other parties as well.

But only as -- what's distinctive about this case is that there were alternative claims for relief and you don't know which one of the two they got the money for. The Indians said either -- either --

MR. MUYS: Well, the fact --

QUESTION: -- the land was taken away from us and you owe us damage for taking it away, or the land wasn't taken away from us and you owe us damages for trespassing on it. And without deciding which of the two is true, how can we decide which of those -- which of those two propositions to cram down the throat of everybody else in the future? They -- they go in different directions.

MR. MUYS: We say all of the above, Your Honor.

QUESTION: Well, you can't. They're -- they're contradictory. I mean --

MR. MUYS: Five of the laundry list of all sorts of claims, but the judgment says that I quoted -- and this is at page 18 of our reply brief. The judgment says they got $15 million for all rights, claims, or demands which the tribe has asserted. Now, there's no room -- wiggle room in there to exclude any of the particular alternative theories.

QUESTION: But if you say --

QUESTION: Well --

QUESTION: -- the claim for trespass, they got $15 million for trespass damages for all the years that the United States has trespassed.

The -- in the -- in the number of cases that you cited --

MR. MUYS: Right.

QUESTION: -- for the special preclusion effect of these settlements, as far as I know, none of them put forth this alternative. The others all said the Government took our land, we want to be compensated, and then there was a determination.

But here, it seems to me it's like when a case goes to the jury on alternate theories, they come back with a general verdict. Then you don't know which one they relied on. There's no preclusive effect from that general verdict, is there?

MR. MUYS: There is, and -- and I think we -- we tried to emphasize, as the Ninth Circuit and we think this Court in approving the Ninth Circuit's several Dann decisions agreed, that the Indian Claims Commission Act is something unique.

QUESTION: But even -- even on the Indian Claims Act preclusion, shouldn't we consider in fact -- or may we not at least consider, for whatever value it may have, the -- the amount of money that they got?

Your -- your brother has pointed out to us that on page 10a of the -- the red brief, the terms of the settlement are set out. The terms of the settlement cover occupational trespass damage, lack of -- loss of rents, as well as certain takings for the canal, and levies and so on. And they got $15 million for that, which suggests to me that if there had been a settlement which took into -- which -- which had been a settlement for a taking and had valued the land in fee, the amount of the settlement would have been more than $15 million.

Can we not bear in mind the amount that they got and say that tends to support the argument that, despite the language and despite the language of the statute, the only thing they were settling, in effect, was an occupational claim, a trespass kind of claim, plus a few incidental takings? Is -- is that an illegitimate line of reasoning?

MR. MUYS: Well, we think it's not appropriate to go behind the judgment, Your Honor. The tribe itself --

QUESTION: The -- the judgment includes the $15 million.

MR. MUYS: Yes, but it also says $15 million is for all claims that were asserted. Why should the Court, why should we, why should anyone have to try and parcel out and figure out --

QUESTION: Because you can't have it -- you say all of the above. The answer to that is you can't have it both ways. They -- they settled on -- on a -- if -- if they had -- if they had come up with -- let's put it this way. If they had come up with a settlement that said, we don't know, but regardless of whether your claims are for trespass or whether your claims are for taking, we'll give you this and you take this and you go away, that would have been a situation in which there would have been total ambiguity and there would have been no way to go behind the general language that you quote.

Here, however, there is a way to go behind it, and if -- if you accept the general principle that you can't have it both ways, why not go behind it and give effect to what they actually agreed upon?

MR. MUYS: You mean figure out what $15 million may have bought?

QUESTION: Well, figure -- take the $15 million as support for the claim that they -- the argument that they are making here, that the only thing they settled was the trespass claim plus incidentals. And -- and it seems to me that as to that, the $15 million is probably good evidence.

MR. MUYS: Well, actually on -- on your point, Your Honor, the tribe concedes -- and the fact is that the -- if you were paying for 25,000 acres of raw desert land that was taken in -- in 1893, it would be worth -- I believe something in the record -- about 50 cents an acre. So, it would be a much lower level of damages than what the tribe astutely sought.

QUESTION: Well, also that whole --

QUESTION: You're saying you can't reason that way.

QUESTION: That whole analysis assumes that the tribe is 100 percent correct in -- in its -- in its legal position ---

MR. MUYS: That's right.

QUESTION: -- without any discount for the fact that it may be wrong.

MR. MUYS: When you look at the -- what happened after this Court's decision in Arizona II, as we point out in our brief, the Government backed away from what it says was its complete agreement with the tribe that -- conclusively -- the tribe conclusively got title in the 1978 Secretary's opinion. They said, wait. This is all very contingent. We may lose out in San Diego or somewhere. They didn't because they invoked a sovereign immunity defense and precluded any decision on the merits.

QUESTION: That's entirely fair to play it both ways as against the Government. We don't know what the money was for, whether it was for the trespass or for the taking. You waived them both. So, as against the United States, you can't claim either one. Fair.

But when you try to apply the same principle against other parties, you have to make up your mind which of the two you're going to impose on the other parties. Are you going to impose the proposition that the Indians own the land, or are you going to impose the proposition that they don't own the land because it's been taken away. And with this kind of a -- of a settlement, you have no way of knowing which of the two to impose. You have to impose the one or the other.

Which one of the two does this settlement require us to impose on third parties? You can't say both because they lead to inconsistent results.

MR. MUYS: We don't think they lead to inconsistent results, Your Honor. And I think it's not, you know, coincidental that this --

QUESTION: Sure, they do. If the Indians own the land, they're entitled to the water. If they don't own the land, they're not entitled to the water. Now, which -- which -- do I impose that portion of the settlement that may have been given them -- to them for the taking or that portion that was given to them for the trespass? I have no idea.

MR. MUYS: But when the tribe brings a claim for a taking and the Government pays them for that claim and a whole bunch of other claims, and then the Government and the tribe draft an unambiguous judgment which says all claims, everything in there, are gone --

QUESTION: Well, I thought -- I thought they brought a claim for more than a taking, that they have --

MR. MUYS: They did.

QUESTION: -- alternative theories. And the thing that's striking about this procedure is that now you have the two parties to the settlement agreement, the United States and the tribe, coming in and telling us the same story, which is it isn't what you say it is.

MR. MUYS: It would have been very easy to say what they were settling in the judgment.

QUESTION: Well, but they're telling us now. It didn't tell us in the judgment, and they're telling us now. Do we disregard that?

MR. MUYS: But -- but it's their -- it was their judgment, and I guess if the parole evidence rule means anything and if finality of judgments means anything, as Judge McGarr said, if a final judgment that says you're getting $15 million and your title is extinguished means anything, this argument is completely specious. That -- the -- the tribe's title is gone. They got $15 million, maybe not all of it for a taking --

QUESTION: Why does it mean your title is extinguished?

MR. MUYS: Because that's what --

QUESTION: It means you don't have a claim against the Government. That's different from saying your title is extinguished.

MR. MUYS: Well, the Ninth Circuit, which -- this is the circuit that done most of the interpreting of the act, has said that the effect of the compensated judgment under the Indian Claims Commission Act, when you had a -- a takings claim is to extinguish the tribe's title.

QUESTION: Is that -- is that --

QUESTION: -- be willing to accept that if --

MR. MUYS: Not in --

QUESTION: -- it were only a takings claim, but it wasn't only a -- it was an alternative claim for either a taking or -- or a trespass. And -- and the Ninth Circuit decision doesn't speak to that. I honestly don't know which of the two effects of the judgement to impose upon somebody else. They're -- they're inconsistent --

MR. MUYS: Well, but what is --

QUESTION: -- because they were alternative theories.

MR. MUYS: -- the basis for even going behind the judgment? A judgment says, all claims are extinguished. Can that be any clearer?

QUESTION: I -- I assume you're right about that.

MR. MUYS: Yes.

QUESTION: I assume you're right about that, but I still want to go in just a little bit to ask you about the Ninth Circuit's holding --

MR. MUYS: Certainly.

QUESTION: -- because has the Ninth Circuit said that the Indian Claims Commission, when in -- in a situation like this, it extinguishes claims of third parties? I mean, it's --

MR. MUYS: Yes.

QUESTION: In other words, title passes as against the world? I mean, that would be enormously unfair, wouldn't it? You could have two parties who want to transfer land for some reason, and then suddenly everybody else is cut off. They didn't have a chance to appear. They had no -- I mean, who knows what third parties have claims against the Government or against the tribe? And why should two parties be able to get together and quiet title as against the world? I don't see that.

MR. MUYS: Well, they didn't --

QUESTION: You're saying that -- that was Justice Souter's question. And it's the -- in my next question, if you're going to say, it does quiet title against the world, I'm going to ask why. And it seems enormously unfair. If you're going to make the more limited claim that all it does is stop this party from litigating against the world, that's quite different. But then I'm going to say if you're prepared to cut back, why not cut back on that too to ordinary collateral estoppel principles.

MR. MUYS: Well, all I can say, Your Honor, is that Congress was very concerned about having finality come to these Indian claims.

QUESTION: Sorry. Which is the answer? That is, is it the case that the Ninth Circuit says that a settlement, as between the Government and the tribe, cuts off all claims as -- that the world might assert, quiets title as to the world? What do they say?

MR. MUYS: Well, they said it quiets title as against the world as far as the tribe's name. The tribe cannot assert title.

QUESTION: You're -- you're not arguing here that the world is --

MR. MUYS: No. I'm not saying the world --

QUESTION: That's -- so, that was the answer to Justice Souter's question. That's what I was looking for.

QUESTION: Well, you're simply saying that the tribe is bound because it was a party to the thing.

MR. MUYS: Right, and the judgment extinguished their title.

QUESTION: There's no third party -- no third party relying -- going against the judgment.

MR. MUYS: No. And Judge McGarr says if you have title -- the tribe's title extinguished --

QUESTION: Then -- then that is my question.

MR. MUYS: -- that's the end of it.

QUESTION: All right. No. Yes. But the reason I wanted to get the answer to Justice Souter is that you agree that ordinary property rules govern in respect to those third parties. So, my question then is, and why shouldn't they govern too in respect to ordinary rules of collateral estoppel?

MR. MUYS: Because the Indian Claims Commission Act superseded ordinary common law rules of collateral estoppel and res judicata and established a statutory bar that takes effect when payment is made to a tribe for their claims. And that -- when their title is extinguished, that's the end of it. They can't -- they can't have the Government owning the disputed lands as a result of the title being extinguished and then come against third parties such as Arizona and California water users and say, well, yes, our title is extinguished against the Government --

QUESTION: Mr. Muys?

MR. MUYS: -- but it was resurrected somehow --

QUESTION: Are you going to cover the State's other res judicata argument?

MR. MUYS: I'd be happy to move that, Your Honor.

I might say that this is not an insignificant amount of water that's involved here. There are 78,500 acre-feet of water at issue on these disputed boundary lands. That's enough water to serve the annual requirements of a city of 375,000 individuals. Rule of thumb is an acre-foot of water covers the needs of a family of five for a year. So, it's not an insignificant amount of water.

It comes out of the hides of the Arizona and southern California urban water users. Southern California's current supply is -- is woefully inadequate even meet their current needs. Arizona's are rapidly reaching that same kind of critical stage. It's not an insignificant amount of water. These Indian rights would have priority over all the other water users on the lower river. They'd have an 1884 priority ahead of all the Arizona, California, and Nevada water users.

But as to our res judicata point, we -- we think the -- the finality principles that the Court applied in Arizona II to omitted lands and precluded an assertion of water rights for those lands applies here. What the Government knew in 1936 -- in 1951 when Arizona against California was filed and then the Government intervened, they knew that the Secretary had rendered his 1936 decision saying that the disputed lands were owned by the Government.

QUESTION: But the so-called omitted lands -- correct me if I'm wrong -- were -- were not within the disputed boundary areas, were they?

MR. MUYS: They were not. They were within the conceded boundaries.

QUESTION: And -- and I -- I had thought that the decrees of the Court in Arizona I and II indicated that it was not conclusive as to the boundary lands.

MR. MUYS: It's true. There was nothing in the '79 -- in the '64 decree or '79 decree or '84 decree that precluded this claim. The language of the decree expressly left open -- the words of the Court -- left open all the boundary disputes.

QUESTION: So, it seems to me that -- that the Court's treatment of omitted lands and boundary lands for preclusive purposes is quite different.

MR. MUYS: Well, no -- no preclusion argument was made with respect to boundary lands, Your Honor. But after this Court's decision in Arizona II and after the Court's later decision in Nevada against United States, the light finally dawned on the State parties that there is a valid preclusion -- or res judicata argument here with respect to Fort Yuma. And here's the way we think it would work.

When the Government was preparing its case in Arizona I, they -- they made a claim for all the practicably irrigable acreage within the reservation. They looked at the reservation. In one corner of the reservation were a lot of marginally irrigable lands. They decided not to make a claim for those, not to overreach and prejudice their broader claims. These were the so-called omitted lands.

In the other corner of the reservation, are 25,000 acres of disputed lands. The Government looked at the situation. They said, well, the tribe and the Bureau of Indian Affairs all asserted this much broader boundary and the title to these lands, but the Secretary rejected it. So, they made a strategic litigation decision not to make a claim for those disputed boundary lands.

To us, it's the same principle. It's the same bedrock res judicata principle. What is your claim? Why did you not make it? Well, now they say they didn't make it because they couldn't make it. They -- we could not have made a claim for --

QUESTION: It's kind of ironic for you to be making that claim when you woke up later, and you do acknowledge that -- that any preclusion claim is ordinarily an affirmative defense, and if you don't raise it on time --

MR. MUYS: Correct.

QUESTION: -- at the first opportunity to do so, you lose it.

MR. MUYS: We do, Your Honor. But we're saying that this Court has recognized that in -- in trial courts, even though a party may be held to have waived its claim, the -- a district court on its own motion or an appellate court on its own motion may assert a --

QUESTION: And we are ourselves --

MR. MUYS: You are the trial court.

QUESTION: -- the trial court here.

MR. MUYS: So, we say if you feel we waived it, we urge you to, on your own motion, invoke it.

QUESTION: Why?

MR. MUYS: Because it's -- it's consistent with the whole principle of res judicata. This litigation has to be brought to an end. The claim --

QUESTION: The -- the whole principle of preclusion, as I understand it, is it ordinarily follows a party presentation. It's a defense for you to raise or not raise. Sometimes parties don't want to raise it. They want to get a litigated decision. And yes, a court can but ordinarily a court won't. The court will say you could have raised it, you didn't, I'm not going to raise it for you.

MR. MUYS: Well, we are late, Your Honor.

QUESTION: Well, the -- the Master treated it on the merits, didn't he?

MR. MUYS: He did. He --

QUESTION: He didn't --

MR. MUYS: -- he found we hadn't waived it and that we weren't untimely. We think he's correct. And -- and there's no prejudice that we can see. And the Government and the tribes haven't argued any for the delay.

So -- and the Court has said in connection in preclusion defenses, the big controlling factor is that the other side have a fair opportunity to defend and were they prejudiced in somehow. Those factors aren't present here.

But the Special Master, although he held we weren't untimely, he ruled against our res judicata argument because he said, oh, there's a new circumstance. This 1978 Solicitor's opinion overruling three prior Solicitor's opinion which is something new. That's not the kind of changed circumstance that courts rely on to -- to excuse an otherwise applicable res judicata bar. The operative facts remain the same. The 1893 agreement was there. The 1894 act was there.

All Solicitor Krulitz did was take the -- the rejected legal theory that the Secretary didn't adopt in 1936 and belatedly apply it to the same facts. That -- that just doesn't make any sense. If you could keep avoiding a res judicata bar by changing your mind repeatedly and coming up with new legal theories on the same operative facts, res judicata would be a worthless doctrine.

QUESTION: May I ask one question?

MR. MUYS: Yes.

QUESTION: The settlement that we're trying to puzzle out occurred in 1983 I think. And under one version of the settlement, the -- the land thereafter was within the reservation. In another version of the settlement, the land was not within the reservation. Is there any evidence in this record as to how the parties treat it? Where -- did they put up boundary signs anywhere or say you're in the reservation now or not? Or what -- is there any evidence to tell us how the parties to that settlement viewed the consequences with respect to the land?

MR. MUYS: Well, the -- the parties to the settlement, the Government and the tribe, of course adopted and supported, indeed, obtained the final Solicitor's opinion that reversed the three earlier Solicitor's opinion and held that the tribe had title to those lands. And in making that --

QUESTION: That was before the settlement.

MR. MUYS: That's before the settlement.

QUESTION: That was before the settlement. And after the settlement, did they continue to treat the disputed land in the same way?

MR. MUYS: Well, they didn't -- they -- I don't think anything has changed on the ground. The secretarial order is still applicable. Certain private interests have been protected, and --

QUESTION: So, there was no conduct post-1983 in which the tribe, in effect, moved the boundary lines back to say, I guess, we've given up title to this land. Nothing like that.

MR. MUYS: They haven't -- they haven't gone out and developed it.

QUESTION: But your theory is that they did give up that part of the reservation in the settlement.

MR. MUYS: Yes. The title was extinguished.

QUESTION: Yes.

MR. MUYS: Nothing has happened to that land in the disputed area since 1983 decision. The -- the tribe and the Government prevented a decision on the merits before Judge Brewster in the San Diego district court. Then they acquiesced in our motion to reopen the decree, presumably preferring to have -- hoping to have Judge Tuttle reappointed as Special Master as opposed to the -- the adverse decisions they got from Judge Brewster in San Diego. But --

QUESTION: Thank you, Mr. Muys.

MR. MUYS: Thank you, Your Honor.

QUESTION: Mr. Minear, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE UNITED STATES

MR. MINEAR: Thank you, Your Honor.

I'd like to first just simply make the point with regard to the State's exception that our -- our position here is -- is rather simple. Arizona I made clear that boundary land issues would not be determined in that litigation. So, we could not have raised the Quechan boundary land issue at that time. It simply wasn't available.

In 1979, the Court made that clear.

QUESTION: I thought it only said boundary lands with respect to two other reservations. It didn't specifically say boundary lands here.

MR. MINEAR: It implicitly -- I think that you could read that implicitly into the -- into what the Court determined. That's how Master Tuttle read it. But what's explicit is the Court's 1979 decree where it makes clear that all five -- all five reservation boundaries remain open. And I think that discloses the -- the claimed preclusion effect of this Court's past decisions.

With regard to the issue-preclusive effect of the consent judgment. I'd like to make several points on that.

First of all, in answer to Justice Stevens' question about the change in position of the United States, since 1978, we have consistently taken a position with regard to these lands. It's articulated in the 1978 and 1981 decisions of the Secretary, and we have continued to rely on those decisions. We have not suggested in any way that the boundaries that are laid out quite specifically in those orders have been renounced in any way. And in fact, our assertion of the water right throughout this whole period indicates that we believe the consequences of the judgment of the Claims Court was simply to preclude the claims against the tribe -- by the tribe against the United States.

The United States and the tribe agreed on who owned the land. That's what led to the settlement. There is simply no longer a controversy after the 1978 decision that these lands were held by the tribe and that we were paying trespass damages. The judgment doesn't say that, but if you look behind it, that's what you're going to find.

In that -- given that situation, we think the fair thing to do is to litigate this question of the validity of the Secretary's decision on the merits.

QUESTION: It isn't just the judgment doesn't say it, it's also that one of the claims that they made was -- was the claim that was just inconsistent with the -- with the fact that they accepted the Solicitor's new opinion.

MR. MINEAR: That's absolutely right, and I think that the point that you made is well taken that there's a contradiction here.

CHIEF JUSTICE REHNQUIST: Thank -- thank you. Thank you, Mr. Minear.

The case is submitted.

(Whereupon, at 12:07 p.m., the case in the above-entitled matter was submitted.)