Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983)

JUSTICE MARSHALL, dissenting.

In Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), this Court recognized a narrow rule of abstention governing controversies involving federal water rights. We stated that, in light of "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them," id. at 817, "[o]nly the clearest of justifications," id. at 819, will warrant abstention in favor of a concurrent state proceeding. Substantially for the reasons set forth in JUSTICE STEVENS’ dissenting opinion, I believe that abstention is not appropriate in these cases. Unlike the federal suit in Colorado River, the suits here are brought by Indian Tribes on their own behalf. These cases thus implicate the strong congressional policy, embodied in 28 U.S.C. § 1362, of affording Indian tribes a federal forum. Since § 1362 reflects a congressional recognition of the "great hesitancy on the part of tribes to use State courts," S.Rep. No. 1507, 89th Cong., 2d Sess., 2 (1966), tribes which have sued under that provision should not lightly be remitted to asserting their rights in a state forum. Moreover, these cases also differ from Colorado River in that the exercise of federal jurisdiction here will not result in duplicative federal and state proceedings, since the District Court need only determine the water rights of the Tribes. I therefore cannot agree that this is one of those "exceptional" situations justifying abstention. 424 U.S. at 818.

1. See ante at 549, n. 1 (quoting the statutory text).

2. See, e.g., BankAmerica Corp. v. United States, 462 U.S. 122, 128-130 (1983); Morrison-Knudsen Construction Co. v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624, 630-632 (1983); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982); Bread Political Action Committee v. FEC, 455 U.S. 577, 580-581 (1982); Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

3. See generally Note, Indian Reserved Water Rights: The winters of Our Discontent, 88 Yale L.J. 1689, 1690-1701 (1979).

4. Although giving lipservice to the balancing of factors set forth in Colorado River, the Court essentially gives decisive weight to one factor: the policy of unified water rights adjudication purportedly embodied in the McCarran Amendment. Ante at 552, 569-570. The Court’s entire discussion of the applicability in these cases of the four Colorado River factors is found in a single vague sentence. Ante at 570. It is worth noting, however, that the Court leaves open the possibility that Indian water claims will occasionally be heard in federal court. Ante at 569.

5. See Comptroller General of the United States, Reserved Water Rights for Federal and Indian Reservations: A Growing Controversy in Need of Resolution 18 (Nov.1978) ("Indian reserved water rights present a more pressing problem than Federal reserved water rights. Unlike Federal reservations, which are not expected to have large consumptive water demands, many Indian reservations are expected to require significant water quantities to satisfy reservation purposes"). In addition, national forests, national parks, and other federal uses provide benefits to non-Indian residents, including lumbering operations, grazing, recreational purposes, watershed protection, and tourist revenues. See Note, Adjudication of Indian Water Rights Under the McCarran Amendment: Two Courts are Better Than One, 71 Geo.L.J. 1023, 1053-1054 (1983).

6. Congress has been particularly solicitous of Indian property rights, including water rights, even when it has expanded the governmental role of the States with respect to Indian affairs. In 1953, a year after the McCarran Amendment was passed, Congress authorized the States to assume general criminal and limited civil jurisdiction within "Indian country," but it expressly withheld certain matters, including water rights, from state adjudication. Pub.L. 280, 67 Stat. 588, codified at 28 U.S.C. § 1360(b). The Court held in Colorado River that this proviso to Pub.L. 280 did not purport to limit the special consent to jurisdiction given by the McCarran Amendment. 424 U.S. at 812-813, n. 20. But, even assuming that state courts have jurisdiction to adjudicate Indian water claims, the proviso casts serious doubt on the assertion that Congress intended state courts to be the preferred forum.

7. The statute provides:

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

Enacted in 1966, § 1362 was designed to remove the $10,000 jurisdictional amount limitation with respect to these claims.

8. The majority recognizes that there is "a good deal of force" to the assertion that "[s]tate courts may be inhospitable to Indian rights." Ante at 567, 566. Federal officials responsible for Indian affairs have consistently recognized the appropriateness of deciding Indian claims in federal, not state, courts. See, e.g., H.R.Rep. No. 2040, 89th Cong., 2d Sess., 2 (1966) (describing position of Interior Department); National Water Comm’n, Water Policies for the Future, Final Report to the President and to the Congress of the United States 478-479 (1973). American Indian Policy Review Commission, Task Force Four, Report on Federal, State, and Tribal Jurisdiction 176 (Comm.Print 1976); American Indian Policy Review Commission, Final Report 333-334 (Comm.Print 1977).

Although the Court correctly observes that state courts, "as much as federal courts, have a solemn obligation to follow federal law," ante at 571, state judges, unlike federal judges, tend to be elected, and hence to be more conscious of the prevailing views of the majority. Water rights adjudications, which will have a crucial impact on future economic development in the West, are likely to stimulate great public interest and concern. See Note, supra,n. 5, at 1052-1053.

9. The Senate Report stated:

Currently, the right of the Attorney General of the United States to bring civil actions on behalf of tribes without regard to jurisdictional amount, a power conferred on him by special statutes, is insufficient in those cases wherein the interest of the Federal Government as guardian of the Indian tribes and as Federal sovereign conflict, in which case the Attorney General will decline to bring the action.

The proposed legislation will remedy these defects by making it possible for the Indian tribes to seek redress using their own resources and attorneys.

S.Rep. No. 1507, at 2. If federal courts defer to state court proceedings, then the Indian tribes will be unable to represent themselves without waiving tribal sovereign immunity from state court jurisdiction.