the Nation's Trust obligation to the Indians and a breach of responsibility owing to the Supreme Court.161 Gravest aspect of the Justice [LXXXVIII] Department's course of conduct is the denial of the main stream Indian Reservations of having their day in court respecting their rights in the main stream of the Colorado River and its tributaries. It is not for the Justice Department to adjudge, declare and determine whether those Indians have rights within the State of Colorado. Only by a final determination on the subject of those rights within the State of Colorado by a court of competent jurisdiction, can those rights be adjudged or denied. It is on that concept of the Nation's obligations to the Indians, in the words of the President in his July 8, 1970 Message, that the United States as Trustee is obligated to advocate the Indian position "*** without reservation and with the highest degree of diligence and skill." 162

(b) Erroneous statements by Justice Department to the Supreme Court, respecting American Indian rights to the use of water-refusal of Justice Department to correct erroneous statements.-Indians' Winters Doctrine rights to the use of water have been reviewed in detail.163 Indian retention of their immemorial rights to the use of water when their interests were conveyed to the United States by treaty or agreement, has been extensively discussed. Indian ownership of the rights of fishery in various streams was adjudged in Winans.164 Ownership of immemorial rights to the use of water [LXXXIX] retained by the Indians is the Supreme Court ruling in Winters. Particular reference has been made to the Supreme Court's statement controlling in that case in regard to the May 1888 agreement pursuant to which the Indians retained-did not grant-their immemorial rights to the use of water. 165 There is a coalescence of the tenets of both Winans and Winters regarding the retention by the Indians of their immemorial rights to the use of water in Ahtanum.166

Let this fact be emphasized: In each of those cases the title to the rights to the use of water involved was retained by-not granted to the Indians either expressly or impliedly by the United States. Most assuredly in those cases the rights to the use of water were not reserved for the use of the United States. Yet, in grave error the Justice Department says to the Supreme Court this:

"Reserved rights entitle the United States to use as much water from sources on land withdrawn from the public domain as is necessary to fulfill the purposes for which the lands were withdrawn, *** Winters v. United States, 207 U.S. 564, 577; Arizona v. California, 373 Ú.S. 546, 598, 601." 167

Winters, as reviewed above, is a reservation of rights to the use of water by by the Indians for themselves, not for the "United States to use ***." Indeed, the Supreme Court in Winters specifically [XC] adjudged "The Government is asserting the rights of the Indians." 168

Errors by the Justice Department to the Supreme Court are reiterated and repeated throughout its Eagle River Adjudication brief:

**** United States unquestionably has the right to use as much water * * * on lands withdrawn from the public domain ***" 169

Winters is again cited to support that erroneous statement, as is Arizona v. California. Neither decision supports the erroneous concept.

Continuing in error to the Supreme Court, the Justice Department brief in the Eagle River Adjudication, says this: "In Winters where the United States asserted this right with respect to an Indian reservation ***". -a quotation stripped from context is set forth.170 Nature of that quoted error is obvious

181 See above, a review of rights of the Indians in the main stream and tributaries of the main stream of the Colorado River within Colorado, page 54.

162 Congressional Record, Senate, July 9, 1970, pp. S10894, S10896, Sec. 8, Indian Trust Counsel Authority.

163 See above, pages 37 et seq.

164 See above, pages 40 et seq.

165 See page 41 et seq. Winters: "The [Winters] case, as we [the Supreme Court] view it, turns on the agreement of May, 1888, **** between the Indians and the United States pursuant to which the Indians retained their immemorial rights to the use of water. 166 See above, page 49 et seq.

167 Appendix, Page 20.

169 See above, page 44. Note: Arizona v. California likewise cited will be separately considered. It underscores the Justice Department misstatement to the Court. 100 Appendix, Page 21.

170 Appendix, Page 21. Note: The statement in Winters stripped from context by the Justice Department simply declares that the Indian rights retained by them in their May 1888 agreement were impliedly reserved against the State of Montana by the United States when Montana was admitted to the Union. Efforts to blur the main thrust of the Winters opinion is unworthy of the high degree of skill and diligence required by the Justice Department. See above, Immemorial Indian Rights" pages 42 et seq., footnote 99 reviewing full history of Winters facts and law.

"the right" purportedly asserted by the United States was not for its "use" but rather in the explicit words of the Court in Winters—the “Government” was asserting the right of the Indians retained by them in their May 1888 agreement with the United States.171

[XCI] Erroneous statements that the Indian rights were "reversed" by the United States for use of the United States pervade every part of the Petition for Certiorari in the Eagle River Adjudication and in its brief in that adjudication. Hallmark of that erroneous presentation to the Supreme Court is this statement: "Reserved rights have been defined by this Court as the entitlement of the United States to use as much water from sources on land withdrawn from the public domain *** Arizona v. California, 373 U.S. 546, 595-601." 172 "Reserved rights" [XCII] have not been defined as the Justice Department states, in Arizona v. California, or elsewhere. That Court in the last mentioned citation did not declare the "reserved rights" were for the "United States to use. "On the first page of the citation in the last quoted excerpt from Arizona v. California 173 the Court specifically referred to the mainstream Congressional and Executive Order Indian Reservations and recited: "The Government, on behalf of five Indian Reservations in Arizona, California and Nevada, asserted rights to water in the mainstream of the Colorado River." Repeatedly the Justice Department is misrepresenting principles enunciated in the decisions adjudging and declaring Indian rights to the use of water citing the 1963 Supreme Court decision of Arizona v. California.174

It is essential carefully to review the precise language of that decision. Reject out of hand the Justice Department assertion that the Court declared Indian rights to the use of water entitled the "United States to use" Indian water. That misstatement cannot be found either expressly or impliedly in Arizona v. California o any other decision. In the 1963 decision, having reiterated and reaffirmed the tenets of law upon which the American Indian Rights to the use of water are predicated, as reviewed above,175 what the Court did say was this: "* * * the principle underlying the reservation of water rights for Indian Reservations was equally applicable to other federal establishments such as National Recreation Areas and National Forests." 176 [XCIII] That power of the National Government to exercise rights to the use of water, title to which resides in it, in connection with withdrawn public domain-subject to any rights acquired antecedent to withdrawal, says the Court, stems from "*** the broad powers of the United States to regulate navigable waters under the Commerce Clause and to regulate government lands under Art. IV, §3, of the Constitution."177

It is reiterated: There is not a single authority to support the Justice Depart ment statement in regard to either the immemorial rights of the Indians or their invested rights, which entitled "*** the United States *** to use ***" Indian water. That fact gave rise to the demand from one of the Nation's outstanding law firms in the field of Indian law, to the Justice Department: "We request that in

171 See above, pages 44 et seq.

172 Appendix, Page 2-Petition for Certiorari; Note: Appendix, pages 1, 2-3; 19, 20-21. An all-pervasive error in the Justice Department's presentation to the Supreme Court is this variously repeated statement predicated almost exclusively upon the Indians' Winters Doctrine as enunciated by the Supreme Court in the year 1908: "* * * the United States unquestionably has the right to use as much water from sources on lands withdrawn from the public domain as is necessary to fulfill the purposes for which the lands were withdrawn, subject only to water rights vested as of the date of the withdrawal. Arizona v. California, 373 U.S. 546, 595-601; Winters v. United States, 207 U.S. 564; United States v. Ahtanum Irrigation District, 236 F.2d 321 (C.A. 9), certiorari denied, 352 U.S. 988; United States v. Walker River Irrigation District, 104 F.2d 334, 336-337, 339-340 (C.A. 9). In Winters, where the United States asserted this right with respect to an Indian reservation, this Court said (207 U.S. at 577): [T]he power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied and could not be. The United States v. The Rio Grande Ditch and Irrigation Co., 174 U.S. 690, 702; United States v. Winans, 198 U.S. 371. * * *."

[What the Highest Court actually stated, but Justice Department does not recite: "The Government is asserting the rights of the Indians' (207 U.S. 546, 576 (1908))not of the United States-vastly different propositions. As is reviewed. Winters Doctrine Indian rights to the use of water are under concerted attack because of their great value. If this failure to distinguish Indian private rights from federal reserved rights weakens the principles of the Winters Doctrine, the Indians can be more easily deprived of their rights either by legal or illegal seizure.]

Every case cited pertains either exclusively to Indian rights or, as in the case of Arizona v. California, predominantly to Indian rights. Yet the Justice Department in error declares the United States "has the right to use' that water. Those are Indian rights, private in character, held in trust by the United States for the benefit of the Indians not as the Justice Department says, for the "use" of the United States.

173 373 U.S. 546, 595 (1963).

174 Id. at 595-601.

175 See supra, page 37 et seq.

178 373 U.S. 546, 601 (1963).

177 Arizona v. California, 373 U.S. 546, 597-598 (1963).

future briefs filed by the United States in these cases the United States call the attention of the Supreme Court to the error in the statements heretofore made in the briefs filed in Docket No. 87 [Eagle River Adjudication]."178 As reviewed above, response to that demand to correct "the error in the statements" to the Supreme Court was the cryptic footnote discussed above. Failure to correct that mistake as requested in the last quoted excerpt, shocks the conscience. For the future not only of the Indian people but for the Nation as a whole, that adamant refusal by the Justice Department correctly to present a legal proposition to the Supreme Court, evidences a sinister amorality due to the inherent conflict of interest within that Department, in which, as the President stated to Congress, "No self-respecting" law firm would engage.179

[XCIV] (c) Denigration of Indian rights to the use of water would be accomplished by reversal of Indian authorities by needless request to “reaffirm" Winters and other Indian decisions

Having misstated to the Supreme Court the law respecting Indian rights to the use of water, the Justice Department, without reason or justification, requests the Supreme Court to "reaffirm" the Indians' Winters Decision and others. This odd language preceding that needless request in regard to the misstated legal proposition requires specific reference. Justice stated to the Highest Court: "While the Colorado Supreme Court has not specifically denied the existence of federal reserved water rights in Colorado or elsewhere in the West, its statements casting doubt on their existence underline our concern that State courts and State law together would, in fact, eliminate such rights." 180 As emphasized above, the principles of law reiterating and reaffirming the Winters Doctrine concepts as related to invested Indian rights to the use of water, were announced by the Court as recently as 1963 in Arizona v. California.181 Continuing, the Justice Department, having admitted that the Colorado Supreme Court did not deny the principles of the Winters Doctrine 182 but stated in effect-wait until the trial on the merits says this to the Supreme Court: "For this reason, we urge this Court specifically to reaffirm the principle that the United States has reserved water rights in the western States, including Colorado and other States with similar constitutional provisions." 183

[XCV] For the Justice Department to invite a challenge to the principles of Indian law in the "state of Colorado and other States with similar constitutional provisions" 184 while denying Indian interests, underscores the gravity of the problems confronting the Indian people by these adjudications. Failure properly to present the nature of the Colorado State police regulations enacted into law by the Colorado legislature is one of the gravest deficiencies of the Justice Department's brief. It is manifest, as will be reviewed, that Colorado's authority to provide methods for persons and corporations within Colorado's jurisdiction for acquiring and having administered their rights to the use of water cannot be construed to apply to Indian rights to the use of water or to subject them to that type of police regulation by the State. Indeed, it would be unconstitutional, as will also be emphasized, to subject the Nation's lands or rights to the use of water to Colorado's police regulations whether they stem from a constitutional proviso of the State or State statutes. Failure of the Justice Department to discuss-indeed, to mention those basic propositions of law highlights the deficiencies of its presentation to the Supreme Court.

(d) Denigration of Indian rights by Justice Department greatly aids Reclamation Bureau and other agencies which invade Indian rights to obtain, without legal authority, the water supplies for their projects.

From its inception Interior's Reclamation Bureau has invaded Indian rights to the use of water for its projects. There have been [XCVI] chronicled some of the Reclamation projects which constitute crass seizure of Indian rights to the use of water.185 Planned destruction of Pyramid Lake by the Reclamation Bureau is a prime example of that Bureau's wanton invasion of Indian rights. Adamant refusal to protect Indian rights to the use of water by the Justice Department has greatly aided Reclamation in its course of outrageous conduct against the Indians.186

178 Appendix, Page 73.

179 See above, page 63, "Presidential Condemnation of 'Inherent Conflict of Interest' respecting American Indian rights which pervades Justice Department *

180 Appendix, Page 22.

181 See above, page 52 "(3) American Indian invested rights to the use of water".

183 Appendix, Page 15.

183 Appendix, Page 22.

184 Appendix, Page 15.

185 "Federal Encroachment on Indian Water Rights and the Impairment of Reservation Development" *** 91st Cong. 1st Sess., pp. 493 et seq.

186 Id. at page 497 et seq. "Destruction of Pyramid Lake **

Most recent events in the cooperation of the Justice Department with Reclamation interests in the seizure of Indian rights to the use of water are reviewed by the above mentioned study of the Senate Committee on the Judiciary.187 That report reveals the expenditure by Reclamation of millions of dollars in constructing a non-Indian project through the commitment and use of rights to the use of water decreed to the Yakima Indians. 188 A review of the invasion by the Reclamation Bureau of the Pueblo rights to the use of water on the Rio Grande is instructive of the all-pervasive amorality of that Bureau and the Justice Department's cooperation with it.189

Threat to the rights to the use of water of the Agua Caliente Tribe of Palm Springs, California, by the Corps of Engineers, Department of the Army, is a matter under study at the present time. Invasion of the Indians' rights by the Bureau of Land Management and the Bureau of Sport Fisheries and Wildlife, Department of the Interior, have been 【XCVII] analyzed in detail.190 Reclamation's Central Arizona Project being constructed without a water supply, is but another example of a grievous threat to the existence of the Colorado River Indians.191

Justice Department attempts-but fails-to represent the American Indians whose rights are seized and encroached upon by the same Federal agencies which it vigorously supports against the Indians.

Retraction by the Justice Department of its misrepresentation to the Supreme Court of its definition of "reserved rights" is essential. Its adamant refusal to act on the basis of its legal and moral obligations constitutes a full disclosure of the inherent conflict of interest which the President condemned, all as has been reviewed,192

FAILURE OF THE JUSTICE DEPARTMENT PROPERLY AND ADEQUATELY TO REPRESENT THE AMERICAN INDIAN PEOPLE BEFORE THE SUPREME COURT AND IN THE COURTS BELOW RESPECTING 43 U.S.C. 666 193

There have been reviewed above salient facts and principles of law relating to the American Indian interests before the Supreme Court and in the courts below in the two adjudications which are the 【XCVIII] subject matter of this consideration. Two elements are involved: (1) Indian title to rights to the use of water in the main stream of the Colorado River and its tributaries; 194 (2) The precedents, Nationwide in scope, that must be expected by any decision of the Supreme Court whether it accepts or rejects the Justice Department's position in regard to the immunity of "reserved rights" as erroneously defined by that Department to the Supreme Court,195 Cryptic nature of the Justice Department denial of Indian interests to the Supreme Court in its footnote reference, must be condemned.196 Yet, as stated above, the footnote is subject to understanding when read in the light of the all-pervasive inherent conflict of interest which subverts the activities of the Justice Department respecting its responsibilities to the American Indians.197

187 “A Study of Administrative Conflicts of Interest ✦ ✦ ✦" Reid Peyton Chambers, 91st Cong., 2d Sess., page 9.

is Id. at page 17.

19 Id. at page 18 et seq.

Joint

10 Federal Encroachment on Indian Water Rights and the Impairment of Reservation Development, 91st Congress, 1st Session, *** A Compendium of Papers • Economic Committee * Vol. 2, p. 497 et seq.

181 See above, page 35.

14 See above, pages 63 et seq.

18 See Appendix, page 1 et seq. : 43 U.S.C. 666 :

Suits for adjudication of water rights. (a) Joinder of United States as defendant; costs Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a perty to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is "capiénable thereto by reason of its sovereignty, and (2) shall be subject to the judements, orders, and decrees of the court having jurisdiction, and may obtain review thereof in the same manner and to the some extent as a private individual under like eirenmstances: Provided, That no Judgment for costs shall be entered against the United States in any such suit.

Pages 10 et seq. ; pages 37 et seq.

Pages 66 et seq.

**pendix, Pace 79. footnote 3. Appendix, Pages 66 et sop

Comprehension of the threat to the Indian interests requires further analysis of the second sentence of the cryptic footnote. To the Supreme Court Justice Department says that if it should decide that 43 U.S.C. 666 is applicable to the "federal reserved rights" [XCIX] which that Department has incorrectly defined to include Indian rights "*** there would remain the further question (not presented by this case) whether" 43 U.S.C. 666 “***covers water rights held by the United States in trust for specific Indian tribes-frequently pursuant to treatyrather than for the benefit of the general public." 198 That the Justice Department, Respondents and Amici Curiae proceeded upon the basis that the Indian rights were before the Court until forceful Indian objection was interposed to the Solicitor General, is too clear for doubt-hence, the record can only safely be read as including Indian rights.199 As emphasized, the almost total reliance upon Indian law respecting their rights to the use of water belies the footnote representation to the Supreme Court. Underscoring the tenuousness of the Justice footnote is the repeated erroneous statement that "reserved rights" were defined by the Supreme Court as meaning "the entitlement of the United States [not the Indians] to use water *** 200

Specific reference in the footnote to "treaty" rights in itself contsitutes a grave peril to the rights of the American Indians whose rights are predicated upon Executive Orders and Acts of Congress.201 Increasing that peril to the Indians on the main stream of the Colorado River 202 is the specific declaration of the Supreme Court that those [C] rights stem from Executive Orders and an Act of Congress 203—not treaties. It is, moreover, the citation set forth below in which the Justice Department-in error-states that Supreme Court defined "reserved rights" entitles the United States-not the Indians-to "use the waters thus reserved.204 On that background reference will be made to the principles which preserve the immunity of the Indian rights to the use of water from suit, irrespective of the ultimate disposition of the issues presented to the Supreme Court for determination.

(a) American Indian rights to the use of water are immune from the application of 43 U.S.C. 666

"These Indian Nations are exempt from suit without Congressional authorization." 205 That quoted excerpt from a keystone decision by the Supreme Court in regard to Indian immunity from suit is controlling in regard to 43 U.S.C. 666. The Indian rights to the use of water do not come within the purview of it.

Recently Arizona's Supreme Court said this specifically in regard to the Colorado River Indian Tribe, which has rights in the main stream of the Colorado River decreed to it by the Supreme Court: 206

"An impressive body of law has developed recognizing the immunity of Indian tribes from suit." 207

[CI] Following a recitation of the numerous authorities on the subject the Arizona court, regarding the Colorado River Tribe, said this:

"It is clear that Congress alone must determine the extent to which immunities afforded tribal status are to be withdrawn." 208

A condition precedent to subjecting Indian rights to the use of water to State court jurisdiction, adjudication, control and administration, which is wholly lacking in 43 U.S.C. 666, is precise action by Congress in regard to those Indian rights. Supporting that conclusion is this statement from a frequently cited decision in regard to the Choctaw Tribe of Indians: "*** Being a domestic and dependent state, the United States may authorize suit be brought against it. But for obvious reasons, this power has been sparingly exercised. It has been the settled policy of the United States not to authorize such suits except in a few cases, where the subject-matter of the controversy was particularly specified, and was of such a nature that the public interest, as well as the interests of the [Indian] Nation seemed to require the exercise of the jurisdiction. It has been 198 See above, pages 4, 5 et seq.; pages 79 et seq.

199 See above, pages 10 et seq.

200 See above, pages 7 et seq.; pages 66 et seq.

201 See above analysis of Indian Treaty rights "Immemorial rights" and Indian "Invested rights", pages 37 et seq.; pages 52 et seq.

202 See Plate I and facing sheet.

203 Arizona v. California, 373 U.S. 546, 596 et seq. (1963).

204 Appendix, Page 2 "Statement" second full paragraph.

205 United States v. United States Fidelity Co., 309 U.S. 506, 512 (1939).

206 See Plate I and facing page; See page 21 et seq.

207 Morgan v. Colorado River Indian Tribe, an organized Indian Tribe, 103 Ariz. 425; 443 P.2d 421, 423 (1968).

208 Morgan v. Colorado River Indian Tribe *** 103 Ariz. 425; 443 P.2d 421 424 (1968).