No. 8, Original: Arizona v. California - Reply to Exception of State Parties



No. 8, Original


In the Supreme Court of the United States

STATE OF ARIZONA, COMPLAINANT

v.

STATE OF CALIFORNIA, ET AL.

ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER

EXCEPTION OF THE UNITED STATES
AND
BRIEF FOR THE UNITED STATES
IN SUPPORT OF EXCEPTION



SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
F. PATRICK BARRY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



In the Supreme Court of the United States

No. 8, Original
STATE OF ARIZONA, COMPLAINANT

v.

STATE OF CALIFORNIA, ET AL.

ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER


EXCEPTION OF THE UNITED STATES


The United States excepts to the Special Master's recommendation that a1983 judgment of the United States Claims Court, approving the settlementof an action brought against the United States by the Quechan Indian Tribeof the Fort Yuma Reservation, precludes the United States and the Tribefrom claiming a reserved water right, in this original action, for 25,000acres of land that the United States and the Quechan Tribe assert are partof the Tribe's Reservation.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General


DECEMBER 1999



In the Supreme Court of the United States

No. 8, Original
STATE OF ARIZONA, COMPLAINANT

v.

STATE OF CALIFORNIA, ET AL.

ON EXCEPTIONS TO THE REPORT
OF THE SPECIAL MASTER

BRIEF FOR THE UNITED STATES
IN SUPPORT OF EXCEPTION


STATEMENT

The proceedings that are the subject of the Special Master's Report area sequel to this Court's decisions in Arizona v. California, 373 U.S. 546(1963) (Arizona I), and Arizona v. California, 460 U.S. 605 (1983) (ArizonaII), which address the rights of the Colorado River Basin States and otherentities to the use of the waters of the Colorado River. On October 10,1989, this Court granted the motion of Arizona and California to reopenthis original action to resolve questions of water rights arising out ofdisputed boundary claims with respect to the Fort Yuma, Fort Mojave, andColorado River Indian Reservations. See Arizona v. California, 493 U.S.886 (1989). The United States, the Metropolitan Water District of SouthernCalifornia, and the Coachella Valley Water District, as well as Arizonaand California and the three Indian Tribes that occupy those reservations,are parties in this litigation.

The Special Master, Frank J. McGarr, has conducted proceedings and prepareda recommendation resolving the disputed boundary issues. The Master hasrecommended that the Court reject the claims of the United States and theQuechan Tribe for the Fort Yuma Reservation on the ground that they areprecluded by prior litigation between the Tribe and the United States. McGarrReport 6-8, 12. He has also recommended that the Court approve the parties'proposed settlement of the claims respecting the Fort Mojave and ColoradoRiver Indian Reservations. Id. at 8-12, 12-14. We briefly describe the historyof the litigation and the Master's recommendations in the case. We thenturn to the United States' exception to the Master's report, which is limitedto his recommendation that the Claims Court's 1983 judgment, approving asettlement of an action brought by the Quechan Tribe against the UnitedStates under the Indian Claims Commission Act, precludes the United Statesand the Quechan Tribe from seeking a determination of water rights for landsthat the United States and the Tribe both submit are part of the Tribe'sReservation.

A. The History Of The Arizona v. California Litigation

In 1952, the State of Arizona initiated this original action against theState of California and its public agencies to confirm Arizona's entitlementto the use of water in the Colorado River Basin and to limit California'sconsumption of that water. See Arizona I, 373 U.S. 546 (1963); see alsoArizona II, 460 U.S. 605, 608-613 (1983) (describing the history of thelitigation). The States of Nevada, Utah, and New Mexico became parties tothe suit, by intervention or joinder, and the United States intervened onbehalf of various federal establishments that are entitled, under federallaw, to use the Colorado River's waters. See Arizona II, 460 U.S. at 608-609.Those establishments include five Indian reservations: (1) the ColoradoRiver Indian Reservation; (2) the Fort Mojave Indian Reservation; (3) theFort Yuma (Quechan) Indian Reservation; (4) the Chemehuevi Indian Reservation;and (5) the Cocopah Indian Reservation. Id. at 609.

The Court appointed a Special Master, Simon Rifkind, who conducted extensiveproceedings and recommended a division of the Colorado River's waters. TheCourt issued a detailed decision that largely adopted the Master's recommendations,see Arizona I, 373 U.S. 546 (1963), and the Court later embodied its judgmentin a judicial decree, 376 U.S. 340 (1964) (the 1964 Decree). The Court recognizedthat the Colorado River Compact, set out at 70 Cong. Rec. 324 (1928), providedfor a division of water between the Upper Basin States (Colorado, Wyoming,Utah and New Mexico) and the Lower Basin States (Arizona, Nevada, and California).See 373 U.S. at 557-558. But the Compact did not provide for a further subdivisionof water among the three Lower Basin States. Ibid.

The Court ultimately concluded that the Boulder Canyon Project Act, ch.42, 45 Stat. 1057 (1928), which authorized the construction of the All-AmericanCanal and other Colorado River diversion works, accomplished that subdivision.Under that Act, the first 7,500,000 acre-feet of mainstream waters eachyear are allocated in the amount of 4,400,000 acre-feet to California, 2,800,000acre-feet to Arizona, and 300,000 acre-feet to Nevada. California and Arizonaare each entitled to one-half of any surplus in excess of 7,500,000 acre-feet,and each State is entitled to full use of the tributaries within its borders.See Arizona I, 373 U.S. at 564-565; see also Arizona II, 460 U.S. at 609-610.

The Court also determined that the United States had reserved water rightsfor the five Indian reservations in accordance with the Court's decisionin Winters v. United States, 207 U.S. 564 (1908). See Arizona I, 373 U.S.at 598-600; see also Arizona II, 460 U.S. at 609. Under Winters, the UnitedStates' creation of an Indian reservation to provide an agriculture-basedhomeland includes a reservation of sufficient water to irrigate those reservationlands that are capable of growing crops. See Arizona I, 373 U.S. at 601;see also Arizona II, 460 U.S. at 609-610. The Court adopted the Master'sfindings respecting the amounts of practicably irrigable lands on the variousreservations, the corresponding amounts of water that the Tribes were entitledto withdraw from the mainstream of the Colorado River, and the prioritydates of those "present perfected rights." Ibid. The 1964 Decreespecifically recognized the Tribes' federally reserved water rights. SeeDecree Art. II(D), 376 U.S. at 344-345.

Nevertheless, the Court did not finally resolve all aspects of the waterrights for the Indian reservations. The Court disagreed with the Master'sdecision to determine the disputed boundaries of the Fort Mojave IndianReservation and the Colorado River Indian Reservation. The Court stated:

We hold that it is unnecessary to resolve those disputes here. Should adispute over title arise because of some future refusal by the Secretaryto deliver water to either area, the dispute can be settled at that time.

Arizona I, 373 U.S. at 601; see also Arizona II, 460 U.S. at 610-611 &n.3. Article II(D) of the 1964 Decree accordingly provided that the entitlementof the United States to water for those two reservations "shall besubject to appropriate adjustment by agreement or decree of this Court inthe event that the boundaries of the respective reservations are finallydetermined." 376 U.S. at 345.

Between 1969 and 1978, the Secretary of the Interior issued orders determiningthe boundaries of the Fort Yuma, Fort Mojave, and Colorado River IndianReservations. See Arizona II, 460 U.S. at 631-634. Meanwhile, the partiesin the original action moved this Court to revise the 1964 Decree to setout their rights with greater specificity. The five Indian Tribes for whosereservations the United States had claimed reserved water rights in theprevious proceedings moved to intervene and make claims for additional water,and the United States later joined the Tribes in seeking additional water.Id. at 612. Without resolving those additional issues, the Court entereda Supplemental Decree setting out the "present perfected rights tothe use of mainstream water in each State and their priority dates"under the 1964 Decree. Arizona v. California, 439 U.S. 419, 420 (1979).The Supplemental Decree described the water rights for all five Indian reservationsunder the 1964 Decree, id. at 423, 428, but also noted that the rights forall five reservations "shall continue to be subject to appropriateadjustment by agreement or decree of this Court in the event that the boundariesof the respective reservations are finally determined." Id. at 421.The Court denied the Tribes' motions to intervene insofar as they soughtto oppose entry of the Supplemental Decree. Id. at 437. At the United States'suggestion, the Court otherwise referred the Tribes' motions to intervene,as well as the further matters raised by the United States and the Tribes,to a Special Master, Senior Judge Elbert P. Tuttle. See id. at 436-437;Arizona II, 460 U.S. at 611-612.

Master Tuttle issued a preliminary and a final report. See Arizona II, 460U.S. at 612-613. He granted the Tribes leave to intervene, and he determinedthat the Secretary of the Interior's administrative actions had determined,with finality, the boundaries of the Tribes' reservations for purposes ofArticle II(D) of the 1964 Decree. 460 U.S. at 613; see also id. at 631-634(describing Secretary's actions). Those "boundary lands" determinationsresulted in an enlargement of the reservations, entitling the Tribes toadditional water. Id. at 613. Master Tuttle also determined that there wereadditional lands - the so-called "omitted lands"-within the recognized1964 boundaries that were entitled to water under the practicably irrigableacreage standard. He therefore recommended that the Court reopen the 1964Decree to award the Tribes additional water rights. The States filed exceptionsto those determinations. Ibid.

This Court overruled the exceptions in part and sustained them in part.Arizona II, 460 U.S. at 613-642. The Court first rejected the States' objectionto the Tribes' intervention, concluding that the Tribes were entitled torepresent their interests in this case. Id. at 613-615. It next examinedthe States' exception to the Master's recommendation that the 1964 Decreeshould be reopened to award the Tribes additional water on account of the"omitted lands" that were within the 1964 reservation boundaries,but had not received water rights under the practicably irrigable acreagestandard. Id. at 615-628. The Court sustained that exception, ruling that"principles of res judicata advise against reopening the calculationof the amount of practicably irrigable acreage." Id. at 626.

The Court also addressed the States' exception to the Master's conclusionthat the Secretary of the Interior's determination of the Tribes' reservationboundaries was a "final determination" of those boundaries, entitlingthe United States (and the Tribes) to additional water commensurate withthe actual size of the reservations. Arizona II, 460 U.S. at 628-641. TheCourt ruled that the Secretary's determinations were not, in themselves,final determinations of the boundary disputes, because the States had nothad an opportunity to obtain judicial review of the Secretary's decisions.Id. at 636-638. The Court noted that California's agencies had initiateda judicial action in federal district court challenging the Secretary'sdeterminations, Metropolitian Water Dist. of S. Cal. v. United States, Civ.No. 81-0678-GT(M) (S.D. Cal.), and it suggested that that litigation "shouldgo forward, intervention motions, if any are to be made, should be promptlymade, and the litigation expeditiously adjudicated." Arizona II, 460U.S. at 638-639.

In remitting the boundary lands dispute to the district court, the Courtexpressly declined to intimate an opinion "as to the Secretary's poweror authority to take the actions that he did or as to the soundness of hisdeterminations on the merits." Arizona II, 460 U.S. at 637. Furthermore,the Court noted that the United States had moved to dismiss the districtcourt action on various grounds, including sovereign immunity. Id. at 638.The Court stated that "[t]here will be time enough, if any of thesegrounds for dismissal are sustained and not overturned on appellate review,to determine whether the boundary issues foreclosed by such action are neverthelessopen for litigation in this Court." Ibid.1

The district court litigation went forward with seven of the parties fromthe prior proceedings: the United States, the States of Arizona and California,the Metropolitan Water District of Southern California, the Coachella ValleyWater District, and the Quechan, Fort Mojave, and Colorado River IndianTribes. The district court rejected the United States' sovereign immunitydefense and, on cross-motions for summary judgment, voided the Secretary'sdetermination of the Fort Mojave Reservation's boundaries. MetropolitanWater Dist. of S. Cal. v. United States, 628 F. Supp. 1018 (S.D. Cal. 1986).The district court certified its order for interlocutory appeal, pursuantto 28 U.S.C. 1292(b), and the court of appeals remanded the case with directionsto dismiss for lack of jurisdiction. Metropolitan Water Dist. of S. Cal.v. United States, 830 F.2d 139 (9th Cir. 1987), aff'd, 490 U.S. 920 (1989).The court of appeals concluded that the Quiet Title Act, 28 U.S.C. 2409a,which preserves the United States' sovereign immunity from suits challengingthe United States' title "to trust or restricted Indian lands,"28 U.S.C. 2409a(a), barred the plaintiffs' suit. 830 F.2d at 143-144. ThisCourt granted a petition for a writ of certiorari to review the court ofappeals' judgment and affirmed that judgment by an equally divided Court.California v. United States, 490 U.S. 920 (1989).

B. The Current Litigation

Following this Court's decision in California v. United States, supra, theStates and their agencies moved this Court to reopen the 1964 Decree inArizona v. California. They specifically asked the Court to determine whetherthe Quechan, Fort Mojave, and Colorado River Indian Reservations are entitledto additional boundary lands and whether the Tribes are entitled to additionalwater rights that would be associated with such additions. See McGarr Report4-5. Neither the United States nor the Tribes objected to that course ofaction, and the Court granted the motion. 493 U.S. 886 (1989).

The Court appointed Professor Robert B. McKay as Special Master to conductthe reopened proceedings. 493 U.S. 971 (1989). Professor McKay died in 1990,and the Court appointed Special Master McGarr to succeed him. 498 U.S. 964(1990). The Master has issued a series of orders that have culminated inhis Report setting out his recommended resolution of these proceedings.The Master has recommended that the Court reject the claims of the UnitedStates and the Quechan Tribe respecting the Fort Yuma Reservation. See McGarrReport 6-8, 12. He has also recommended that the Court approve the parties'proposed settlements respecting the Fort Mojave and Colorado River IndianReservations, finding that those settlements "equitably resolve thewater rights disputes in the matter referred to me." Id. at 14. Seealso id. at 8-12, 12- 13.

The Master concluded that principles of res judicata preclude the QuechanTribe from seeking additional water for the boundary lands of the Fort YumaReservation. The claim concerning the Fort Yuma Reservation arises out ofa dispute over the validity of an 1893 agreement between the United Statesand the Tribe, which essentially provided that the Tribe would cede a portionof its Reservation lands (including the so-called boundary lands) on thecondition that the United States would provide irrigation for other landswithin the Reservation. See Arizona II, 460 U.S. at 632-633; App., infra,1a-10a (text of 1893 Agreement). The Master rejected the States' contentionsthat this Court's Arizona I and Arizona II decisions prevented the Tribefrom seeking additional water for the boundary lands. See McGarr ReportApp. 2(A), at 7. The Master nevertheless concluded that the Tribe couldnot pursue those claims because of a 1983 judgment of the United StatesClaims Court, which approved a settlement between the United States andthe Tribe respecting those lands. Id. at 9-10. See Quechan Tribe of theFort Yuma Reservation v. United States, No. 320 (Cl. Ct. Aug. 11, 1983)(final judgment) (reprinted at App., infra, 66a-67a). The Master appearsto have concluded, contrary to the submissions of the United States andthe Tribe, that their settlement divested the Tribe of any claim to theboundary lands and the corresponding water rights. McGarr Report 7-8 &App. 2(A), at 9-10. The Master denied a series of motions for reconsideration.See id. App. 2(B)-(D).

The Master also determined that the Court should approve the parties' proposedsettlement of the dispute respecting the boundaries of the Fort Mojave Reservation.The claim to additional water for that Reservation arises out of a disputeover the accuracy of a survey of the so-called Hay and Wood Reserve portionof the Fort Mojave Indian Reservation. See Arizona II, 460 U.S. at 631-632.The parties agreed to settle that matter through a proposed agreement, theprincipal provisions of which: (1) specify the boundary of the Reservationin the vicinity of the Hay and Wood Reserve; (2) preserve the claims ofthe parties respecting title to and jurisdiction over the bed of the lastnatural course of the Colorado River within the specified boundary; (3)entitle the Tribe to divert the lesser of an additional 3022 acre-feet ofwater or enough water to supply the needs of 468 acres; (4) preclude theUnited States and the Tribe from claiming additional water rights from theColorado River water for lands within the Hay and Wood Reserve; and (5)disclaim any intent to affect any private claims to land or to determinetitle to or jurisdiction over such land. See McGarr Report 8-9 & App.3.

The Master likewise determined that the Court should approve the parties'proposed settlement of the dispute respecting the Colorado River IndianReservation. The claim to additional water for that Reservation arises primarilyout of a question whether the Reservation boundary is the ambulatory westbank of the Colorado River or a fixed line representing a past locationof the River. See Arizona II, 460 U.S. at 631-632. The Master issued aninitial order resolving the boundary issue against the Tribe, and the partiesthereafter negotiated a proposed settlement of the issue. Under the termsof that settlement, the parties would agree to leave the Reservation boundaryunadjudicated in this litigation and would instead recognize that the Tribeis entitled to a fixed amount of water in resolution of the Tribe's underlyingwater rights claim. That settlement, among its principal terms: (1) awardsthe Tribes the lesser of an additional 2100 acre-feet of water or enoughwater to irrigate 315 acres; (2) precludes the Tribe or the United Statesfrom seeking additional reserved water rights from the Colorado River forlands in California; (3) expresses the understanding that the parties willnot adjudicate in these proceedings the correct location of the disputedboundary; (4) preserves the competing claims of the parties to title toor jurisdiction over the bed of the Colorado River within the Reservation;(5) provides that the agreement will become effective only if the Masterand the Court approve the settlement. See McGarr Report 9-10 & Apps.4-5. The Master expressed some concern that the settlement does not resolvetitle to the disputed boundary lands, but he recognized that the settlementdoes achieve the end aim of this litigation: a final determination of theTribes' water rights respecting the disputed boundary lands. Id. at 10-12,13- 14.

The Master has submitted a proposed draft of a Supplemental Decree thatwould carry his decision into effect. McGarr Report App. 6.

SUMMARY OF ARGUMENT

The United States supports the Master's recommendations that the Court approvethe settlements respecting the Fort Mojave Indian Reservation and the ColoradoRiver Indian Reservation. The settlements will produce an equitable resolutionof two longstanding water rights disputes and will provide all of the interestedparties in the Colorado River Basin with greater certainty and stabilityrespecting their entitlement to the use of the Colorado River. The UnitedStates excepts, however, to the Master's determination of the water rightsclaim respecting the Fort Yuma Indian Reservation.

The Master concluded that the Quechan Tribe was precluded from claimingwater rights on account of a 1983 settlement, entered as a consent judgmentin the United States Claims Court, between the United States and the QuechanTribe regarding the boundary lands at issue in this litigation. The Mastermisapprehended the scope and significance of the Claims Court judgment.The historical record shows that the Tribe brought suit against the UnitedStates under the Indian Claims Commission Act challenging an 1893 agreementin which the Tribe purported to cede those lands to the United States. TheTribe argued, among other things, that the 1893 agreement was invalid andfailed to divest the Tribe of its lands. The Secretary of the Interior ultimatelyconcluded that the Tribe was correct and entered an administrative decisionrecognizing the Tribe's entitlement to the boundary lands. The United Statesand the Quechan Tribe thereafter settled the Tribe's claim for compensationunder the Indian Claims Commission Act, and that settlement was enteredas a judgment of the Claims Court. Under the terms of the settlement, theUnited States paid the Tribe $15 million in settlement of the Tribe's claimsfor compensation for the temporary deprivation of the boundary lands priorto 1978 and the permanent loss of other lands. The parties stipulated thatthe judgment resolved all of the Tribe's claims against the United Statesrespecting its lands.

The Master concluded that, because the Claims Court settlement resolvedall of the Tribe's claims, it must have divested the Tribe of the boundarylands and deprived the Tribe of any claim of water rights to those lands.The Master is clearly mistaken. The United States agreed to settle the Tribe'ssuit because it recognized that the Tribe owned the boundary lands. Thecorresponding consent judgment precludes the Tribe from bringing any furtherclaims against the United States respecting the boundary lands, but it doesnot preclude either the United States or the Tribe from asserting reservedwater rights for those lands in these proceedings. The Claims Court judgmentdid not decide any question concerning reserved water rights for the boundarylands, and that matter remains to be determined on the merits in these proceedings.

The Master's recommendation regarding the Fort Yuma Reservation has improperlydenied the United States and the Tribe their opportunity to adjudicate themerits of the existence of reserved water rights for the boundary landsof that Reservation, has cast a cloud over the Tribe's equitable title tothe disputed lands, and has perpetuated an injustice that should be corrected.This Court should sustain the United States' exception and remand the casefor further proceedings to determine and quantify the reserved water rights.
ARGUMENT

THE UNITED STATES CLAIMS COURT'S 1983 JUDGMENT DOES NOT PRECLUDE THE UNITEDSTATES OR THE QUECHAN TRIBE FROM OBTAINING A DETERMINATION OF RESERVED WATERRIGHTS IN THESE PROCEEDINGS

The Master has recommended that the United States and the Quechan Tribeshould be precluded from asserting water rights in this litigation becausethe Tribe entered into a compromise judgment with the United States in theUnited States Claims Court respecting its ownership of the lands for whichit claims those rights. The Master's recommendation is mistaken. The UnitedStates and the Quechan Tribe reached a compromise based on their joint understanding,reflected in an order of the Secretary of the Interior, that the lands inquestion are part of the Tribe's Reservation. The resulting judgment accordinglyprovides no basis for barring the United States or the Tribe from seekinga judicial determination of reserved water rights for those lands. The Master'serror is apparent from the historical record and the documents that setout the basis for the Claims Court's judgment. We therefore begin by tracingthe history of the Quechan Tribe's boundary lands claim. We then explainthe specific flaws in the Master's reasoning and suggest the appropriatecourse for proceedings on remand.

A. THE CLAIMS COURT'S JUDGMENT RESTS ON THE JOINT UNDERSTANDING OF THE UNITEDSTATES AND THE QUECHAN TRIBE THAT THE TRIBE OWNS THE LANDS IN QUESTION

The Claims Court's judgment arose from the Quechan Tribe's longstandingchallenge to an 1893 agreement between the United States and the Tribe inwhich the Tribe ceded a portion of its Reservation to the United States.The Tribe challenged the validity of that agreement through requests forreview by the Department of the Interior and through judicial proceedingsunder the Indian Claims Commission Act of 1946, ch. 959, 60 Stat. 1049,25 U.S.C. 70 et seq. (1976). The Tribe's efforts culminated in a determinationby the Secretary of the Interior that the conditions specified in the 1893agreement for the cession by the Tribe to be effective had not been satisfiedby the United States (the Secretarial Order) and a judicial settlement ofthe Tribe's suit under the Indian Claims Commission Act, which was enteredas a final judgment in the Claims Court (the Claims Court judgment). Thehistory of the Tribe's claims and their resolution demonstrates-contraryto the Master's understanding-that the United States and the Tribe reachedtheir compromise on the understanding that the Quechan Tribe owns the landsin question and that the United States and the Tribe would be entitled toseek water rights for those lands in these proceedings.

1. The 1893 Agreement

On January 9, 1884, President Chester A. Arthur issued an Executive Order(the 1884 Executive Order) creating the Fort Yuma Reservation for the benefitof the Quechan Tribe, whose members were then described as the "YumaIndians." 1 Charles J. Kappler, Indian Affairs Laws and Treaties 832(1904). The 1884 Executive Order described a tract of land, approximately72 square miles in size, located along the Colorado River in California.1 Kappler, Indian Affairs at 832. In 1893, the Tribe, which had historicallyengaged in farming, petitioned the President and Congress to have its landsirrigated, and it offered to cede its rights to a portion of the Fort YumaReservation to the United States in exchange for allotments of irrigatedland to individual Indians. See S. Exec. Doc. No. 68, 53d Cong., 2d Sess.14-16 (1894). By the Act of March 3, 1893, Congress authorized the Secretaryof the Interior to negotiate with any Indian Tribe for surrender of a portionof its reservation, provided that the agreement would be subject to ratificationby Congress. Ch. 209, 27 Stat. 633. In the case of the Quechan Tribe, theSecretary appointed a three-member commission, which met with the male tribalmembers and, on December 4, 1893, concluded an agreement (the 1893 Agreement).Congress ratified that agreement the following year. See Act of Aug. 15,1894, ch. 290, § 17, 28 Stat. 332 (the 1894 Act); see App., infra,1a-10a.

Article I of the 1893 Agreement provides in relevant part that the QuechanTribe, "upon the conditions hereinafter expressed, do hereby surrenderand relinquish to the United States all their right, title, claim, and interestin and to and over the following described tract," 28 Stat. 332-334,which consists of approximately 25,000 acres. Articles II and III providefor the allotment of lands to tribal members (28 Stat. 333), and ArticlesIII and IV address the sale of other lands to raise revenue for tribal irrigationand agriculture (28 Stat. 334). Article V states that the allotments shallbe held in trust (28 Stat. 334), while Article VI states that lands thatcannot be irrigated shall be open to settlement under the general land laws(28 Stat. 334). Article VII preserves an Indian school on the Reservation(28 Stat. 334-335). Article VIII states that the Agreement shall be in forceafter its approval by Congress, which Congress provided in the 1894 Act,together with statutory provisions granting private rights-of-way throughthe Reservation for a railroad and an irrigation company. 28 Stat. 335-336.

2. The Department Of The Interior's Initial Rejection Of The Quechan Tribe'sLand Claims

The 1893 Agreement has been a source of legal conflict since as early as1935. The construction of the All-American Canal, which precipitated theinterstate conflict in Arizona I, see 373 U.S. at 554-555, prompted a separatecontroversy on the Fort Yuma Reservation. The Department of the Interior'sBureau of Reclamation sought to route the canal, which was designed to provideColorado River water to non-Indian farmers in California, through the Reservation.The Department of the Interior's Indian Office asserted that the Bureauof Reclamation was required to pay the Quechan Tribe compensation for theright-of-way. The Bureau disputed that the Tribe was entitled to compensation,arguing that the canal passed through lands that the Tribe had relinquishedto the United States through the 1893 Agreement. The Secretary of the Interiorsubmitted the question to the Solicitor of the Interior, Nathan Margold,who agreed with the Bureau that the 1893 Agreement had unconditionally cededthe lands in question. See 1 Dep't of the Interior, Opinions of the SolicitorRelating to Indian Affairs 596 (No. M-28198 Jan. 8, 1936).

3. The Quechan Tribe's Commencement Of Suit Under The Indian Claims CommissionAct

In 1946, Congress enacted the Indian Claims Commission Act, ch. 959, 60Stat. 1049, 25 U.S.C. 70 et seq. (1976), which created an Article I tribunalwith power to decide claims of Indian Tribes against the United States.2The Quechan Tribe filed an action before the Commission challenging the1893 Agreement. See Petition for Loss of Reservation, Quechan Tribe of theFort Yuma Reservation v. United States, No. 320 (filed Aug. 10, 1951) (App.,infra, 11a-23a). The Tribe's petition was styled as a "Petition forLoss of Reservation," but it sought relief on a variety of theories.It alleged for example, that the 1893 Agreement had resulted in an "expropriation"of part of the Tribe's original reservation, id. at 13a-14a, and that theAgreement had been obtained through fraud, coercion, and unconscionableconsideration, rendering it "wholly nugatory," id. at 17a-18a.The Tribe sought both monetary compensation, id. at 19a, 21a, 22a, and "suchother and further relief as to [the] Commission may appear just and equitable,"id. at 23a. In June 1958, the Tribe amended its petition to add additionalallegations, including that the United States had defaulted on its obligationsunder the 1893 Agreement and that, if the Commission determined that the1893 Agreement is valid and binding, the Tribe should be awarded damagesfor the United States' breach. Id. at 26a-27a.3

The Commission conducted a trial on liability, but stayed further proceedingsin 1970 because legislation had been proposed in Congress to return thedisputed lands to the Tribe. The legislation was not enacted, and the Commissionvacated the stay. See Quechan Tribe of the Fort Yuma Reservation v. UnitedStates, 26 Ind. Cl. Comm'n 15 (1971) (App., infra, 29a-34a). Upon the liftingof the stay, the Tribe requested permission to supplement the record withadditional evidence showing the invalidity of the 1893 Agreement, so thatthe Tribe could establish that it retained title to the land. Id. at 30a-31a.The Commission granted the Tribe the opportunity to introduce such evidence,but the Commission also stated that it lacked the power to declare the Agreementinvalid. Id. at 31a-34a. The Commission observed that the evidence neverthelesscould be relevant to the question of damages on other available theoriesof recovery. Id. at 32a. On December 15, 1976, the Indian Claims Commissiontransferred the matter to the Court of Claims. See H.R. Doc. No. 383, 96thCong., 2d Sess. 121 (1980); see note 2, supra.

4. The Department Of The Interior's Reconsideration Of The Quechan Tribe'sLand Claims

Faced with the Indian Claim's Commission's statement that it had no authorityto invalidate the 1893 Agreement, the Tribe requested the Department ofthe Interior to reconsider its position that the 1893 Agreement was valid.4The ensuing events are set out in a 1977 Opinion that Interior SolicitorScott Austin prepared in response to congressional oversight hearings intothe Quechan land dispute. See Opinion of the Solicitor, Dep't of the Interior,No. M-36886 (Jan. 18, 1977), 84 Interior Dec. 1 (1977) (the Austin Opinion);Quechan Tribe of Fort Yuma Reservation, California: Hearings Before theSubcomm. on Indian Affairs of the Senate Comm. on Interior and Insular Affairs,94th Cong., 2d Sess. (1976) (1976 Hearings).

The Austin Opinion recites that the Tribe's counsel met with Solicitor Frizzellin 1973 and that the Solicitor agreed to initiate an examination into thelegal question and the underlying facts. 84 Interior Dec. at 33. Attorneyswithin the Solicitor's office examined the matter and prepared a numberof drafts of an opinion. Ibid. In 1976, Secretary Kleppe and other officialsmet with representatives of the Quechan Tribe and non-Indian interests.Secretary Kleppe referred the matter to Solicitor Austin, who concluded,in accordance with the 1936 Margold Opinion, that the 1893 Agreement wasvalid, and he so notified the Tribe. Id. at 33- 34. Solicitor Austin's actionprompted the congressional oversight hearings cited above. See 1976 Hearings,supra. In those hearings, the Secretary agreed to direct the Solicitor toprepare a written legal opinion explaining his decision. See note 6, infra.Solicitor Austin published his opinion on January 17, 1977, in responseto the congressional and other inquiries. 84 Interior Dec. at 2. The AustinOpinion sets out in detail the history of the Quechan land dispute. Seeid. at 2-34. It concludes that the 1893 Agreement is valid and enforceable,relying primarily on a determination that the Tribe's cession of the disputedboundary lands was unconditional and did not depend on the government'sfulfillment of its undertakings in the Agreement. Id. at 35-41.5

Less than two years later, while the Quechan Tribe's actions under the IndianClaims Commission Act remained pending (albeit transferred from the Commissionto the Court of Claims, see note 2, supra), Solicitor Leo Krulitz reconsideredthe matter in response to the requests of the Quechan Tribe, the Bureauof Indian Affairs, and Chairman Henry Jackson of the Senate Committee onInterior and Insular Affairs. See Dep't of the Interior, Opinion of theSolicitor, No. M-36908 (Dec. 20, 1978), 86 Interior Dec. 3, 4-5 (1979) (KrulitzOpinion). Solicitor Krulitz noted at the outset that the Quechan land disputehad provoked considerable debate within the Interior Department and thatthe Austin opinion had been issued under unusual circumstances. Id. at 4.6The "sharp and continuing divergence in legal views with respect tothis issue" prompted the Solicitor to direct a "review of theDepartment's files and all previously prepared legal opinions to providean independent evaluation of the Quechan claim to the 25,000 nonirrigableacres." Id. at 4.

Based on that review, Solicitor Krulitz concluded that "the 1893 agreementand 1894 ratifying statute provided for a conditional cession of the nonirrigableacreage." 86 Interior Dec. at 4. He summarized his basic conclusionas follows:

The conditions articulated in the agreement, which included the allotmentand irrigation of irrigable land to the Indians, the sale of surplus tosettlers under strictly prescribed conditions, the construction of an irrigationcanal, and the opening of nonirrigable lands to settlement, were not metby the United States. No lump sum, or other form of compensation, was providedfor the land cession. Allotment and irrigation did not occur on the reservationuntil Congress passed a 1904 statute (33 Stat. 189), which applied the ReclamationAct to the Ft. Yuma and Colorado River Reservation. The 1904 Act appearsto be totally unrelated to the 1893 cession agreement, except for mentionof it in the legislative history as part of the explanation of the continuinglack of irrigation on the reservation. In short, the conditional cessionin 1893 was never effected and the title to the nonirrigable acreage, therefore,remains in the Tribe.

Id. at 4-5. See id. at 6-22 (setting out the Solicitor's legal analysis).The Solicitor accordingly overruled the Austin Opinion and concluded that"[t]itle to the subject property is held by the United States in trustfor the Quechan Tribe." Id. at 22. On December 20, 1978, Secretaryof the Interior Cecil Andrus entered the Secretarial Order based on theKrulitz Opinion, see App., infra, 41a; Arizona II, 460 U.S. at 632-633,and Secretary of the Interior James Watt later reissued that Order to describe,with greater particularity, the Fort Yuma Reservation's boundaries, see46 Fed. Reg. 11,372 (1981).7

5. The Impact Of The Secretarial Order On Pending Litigation

The Secretarial Order had a direct impact on ongoing litigation, both withrespect to this Court's proceedings in Arizona v. California and with respectto the Quechan Tribe's suit under the Indian Claims Commission Act, whichby that time was pending in the Court of Claims (see note 2, supra). TheSecretarial Order expressly recognized that the Quechan Tribe held titleto the affected boundary lands. As a result, the United States was requiredto modify its litigation positions in those cases to reflect that changein view. The Master's recommendation rests on a fundamental misunderstandingof the United States' corresponding actions in the two cases.

In the case of the Arizona v. California original action, the SecretarialOrder prompted the United States to file a water rights claim for the affectedboundary lands, and it provided the basis for the Quechan Tribe's interventionin the original action to assert a similar (albeit larger) water rightsclaim. See Arizona II, 460 U.S. at 632-633; Report of Special Master Tuttle62 (Feb. 22, 1982); see also 46 Fed. Reg. at 11,375 (provision in Orderreissued by Secretary Watt, restating provision in 1978 Secretarial Order,specifically contemplating the filing of a claim for water rights for theboundary lands in Arizona v. California). Those water rights claims are,of course, the precise claims that the Court has referred to Special MasterMcGarr for adjudication in these proceedings. See McGarr Report 5.

In the case of the Quechan Tribe's suit under the Indian Claims CommissionAct, the Secretarial Order fundamentally altered the posture of the case.As we have explained, the Tribe's claims under the Indian Claim CommissionAct rested on alternative theories. On the one hand, the Tribe argued thatthe 1893 Agreement was invalid. If that was true, and the Agreement wastherefore ineffective in accomplishing a cession of Tribal lands, the Tribewould own the disputed land and the United States would be potentially liablefor trespass or for the Tribe's temporary loss of the use of the lands.8On the other hand, the Tribe argued in the alternative that the 1893 Agreementwas valid, but resulted in a permanent uncompensated taking of those landsor gave rise to damages under a "fair and honorable dealings"theory. The Secretarial Order amounted to an admission by the United Statesthat the Agreement was ineffective to accomplish a cession of the Tribe'slands and that the Tribe owned the disputed lands. To be sure, the SecretarialOrder could be challenged by affected third parties in other litigation.See Arizona II, 460 U.S. at 636-639. But unless set aside in third-partylitigation, the Secretarial Order would establish crucial elements of theTribe's former theory and largely moot the Tribe's claim under the secondtheory.9

On May 26, 1983, less than two months after this Court's decision in ArizonaII, the United States and the Quechan Tribe filed a joint memorandum withthe United States Claims Court (which had succeeded to the jurisdictionof the Court of Claims over claims under the Indian Claims Commission Act10),in which they expressly acknowledged the consequences of the SecretarialOrder. See Joint Memorandum re Stipulations (May 26, 1983) (App., infra,35a-41a). The joint memorandum stated that, "[a]ccording to the orderof the Secretary of the Interior, dated December 20, 1978, and by SupplementalDetermination and Directives of the Secretary of the Interior, dated January30, 1981, the 1884 executive order boundary of the Fort Yuma Indian Reservation* * * still remain[s] the reservation boundary." Id. at 36a; accordid. at 36a-37a. The joint memorandum then stated:

8. If the December 20, 1978, secretarial order is upheld, there are no remainingissues as to the liability of the United States for the acquisition of portionsof the Quechan Reservation. The issues remaining in the case relate to thedetermination of the damages sustained by the Quechan.

9. If the December 20, 1978, secretarial order is upheld, the proper measureof damages for the portions of the reservation which were permanently acquiredfrom the Quechan [e.g., the right-of-way for the All-American Canal, seenote 9, supra] is the fair market value of those portions of the reservationon the effective dates of the permanent acquisitions. No stipulation isentered into as to the measure of damages for the temporary deprivationof those lands which were reaffirmed by the executive order of December20, 1978, or of those lands which, after a period of temporary deprivation,were permanently acquired.

App., infra, 37a-38a.

The United States and the Tribe were unable to enter into a stipulationrespecting the measure of damages for the temporary deprivation of the landbecause they disagreed on the way such damages should be calculated. TheTribe offered to stipulate that, as a result of the Secretarial Order ofDecember 20, 1978, there were no remaining liability issues and that damagesrespecting the Tribe's retained boundary lands should be measured on thebasis of their fair rental value. App., infra, 39a. The United States, however,declined to enter into those stipulations because of this Court's conclusionin its then-recent decision in Arizona II that there must be a judicialdetermination of the boundary (see 460 U.S. at 636-639), and because theUnited States contended in any event that the proper measure of damagesfor a temporary deprivation is the rents actually received by the UnitedStates. App., infra, 39a-40a. The United States' concern is understandable:If the United States unconditionally stipulated that the Tribe owned thedisputed lands, and a third party (e.g., a party in the Arizona v. Californiawater rights litigation) later obtained a judgment invalidating the SecretarialOrder while the Claims Court action remained pending, then the United Statescould remain bound by the stipulation in the Claims Court proceedings andperhaps be liable for damages based on the premise that the SecretarialOrder was valid, even though it had been judicially determined not to be.Indeed, it was possible that the United States could remain liable on thebasis of the stipulation and, at the same time, be subject to renewed tribalclaims (such as a resurrected "fair and honorable dealings claim"predicated on a permanent loss of the boundary lands under the 1893 Agreement)under the Indian Claims Commission Act.

6. The Settlement Of The Quechan Tribe's Indian Claims Commission Act Suit

The Quechan Tribe ultimately submitted a proposal for settling the Tribe'sclaims under the Indian Claims Commission Act that provided a monetary paymentfor the Tribe's outstanding claims and, at the same time, resolved the UnitedStates' concern about continuing liability if the Secretarial Order wereinvalidated in collateral litigation. The United States accepted that proposal(after it was approved by a general membership meeting of the Tribe andby the Tribal Council), and the parties jointly submitted it for entry asa final judgment. See Stipulation for Settlement and Entry of Final Judgment(filed Aug. 5, 1983) (App., infra, 42a- 62a). Under the terms of the finaljudgment, the United States agreed to pay the Quechan Tribe $15 millionin full settlement of the Tribe's claims. Id. at 42a. The parties stipulatedthat the payment would constitute full satisfaction of all current and futureliability, including-

all rights, claims, or demands which plaintiff has asserted or could haveasserted with respect to the claims in Docket 320, and plaintiff shall bebarred thereby from asserting any further rights, claims, or demands againstthe defendant and any future action on the claim encompassed on Docket 320* * *.[11]

Ibid. The United States and the Tribe additionally stipulated:

The final judgment entered pursuant to this stipulation shall be construedto be a compromise and settlement and shall not be construed as an admissionby either party for the purpose of precedent or argument in any other case.

Id. at 43a. The Claims Court found the proposed settlement equitable andjust to both parties and entered it as a final judgment. See Final Judgment(entered Aug. 11, 1983) (App., infra, 66-67a). The Judgment recited theparties' stipulations concerning the preclusive effect of the judgment asbetween the Tribe and the United States. Ibid. The practical effect of thejudgment is plain from the its terms and the stipulations of the parties.

First, the judgment granted the Tribe monetary relief on its outstandingclaims. See App., infra, 66a. The United States' payment necessarily restedon the Secretarial Order, which recognized that the Tribe owned the disputedboundary lands and might be additionally entitled to compensation for apermanent loss of certain lands that remained in government ownership andfor a temporary deprivation of the boundary lands. See note 7, supra; 46Fed. Reg. at 11,375. That understanding is manifest in the documents thatthe parties submitted with their stipulations and motion to approve thesettlement, including "a copy of the letter approving the settlementof the litigation by the Department of the Interior." App., infra,64a. That letter recognized that the Secretarial Order affirmed the Tribe'sright to most of the lands in question and that the Tribe was seeking damagesfor a temporary loss of the use of those lands that terminated with theDecember 20, 1978, issuance of the Secretarial Order. See id. at 59a ("Thiscase involves claims of the Quechan Tribe for damages for the taking ofparts of their reservation after 1893 and the loss of use of other partsof the reservation from 1893 to 1978.").

Second, the Claims Court judgment recognized, as this Court specificallynoted in Arizona II, that the Secretarial Order would be subject to judicialchallenge by third parties in other fora. App., infra, 67a. The parties'stipulations made clear that the Claims Court judgment was based on "acompromise and settlement" and "shall not be construed as an admissionby either party for the purposes of precedent or argument in any other case."Ibid. Those court-approved stipulations expressly affirmed the parties'understanding that the judgment, based on a compromise rather than adjudicationof the issues, would not affect the parties' ability to litigate relatedissues-such as reserved water rights -in other fora.

Third, the judgment protected the United States from the prospect of futureliability in the event that litigation in other fora resulted in the invalidationof the Secretarial Order. The judgment made clear that the Quechan Tribe"shall be barred thereby from asserting any further rights, claims,or demands against the [the United States] and any future action on theclaims encompassed on Docket 320." App., infra, 67a. The Claims Courtjudgment thus definitively concluded the Tribe's Indian Claims CommissionAct suit against the United States. But that judgment was not intended,by any measure, to prevent the United States or the Tribe from assertingclaims against other entities in other fora, including claims for reservedwater rights in the Arizona v. California litigation for the very landsthat, as both the United States and the Tribe agreed, continued to be heldby the United States in trust for the Tribe.

Those provisions, read against the history of the Quechan land dispute,demonstrate that the Claims Court judgment does not preclude either theUnited States or the Tribe from asserting a water rights claim in the Californiav. Arizona litigation. The United States and the Quechan Tribe were ableto reach a settlement of the Tribe's suit because the Secretarial Orderestablished (at least as between the United States and the Tribe) that theTribe owned the lands in question. The parties structured the compromisejudgment to ensure that it would conclusively resolve the litigation betweenthe United States and the Tribe, while allowing the United States and theTribe to assert claims to reserved water rights for the lands in question.

B. THE MASTER MISUNDERSTOOD THE NATURE OF THE CLAIMS COURT'S JUDGMENT ANDITS LEGAL SIGNIFICANCE

The Master's conclusion that the Claims Court's judgment precludes the Tribe(and the United States) from pursuing water rights claims rests on a misunderstandingof that judgment and a misapplication of the legal principles governingclaim and issue preclusion.

1. The Master Misunderstood The Nature Of The Claims Court's Judgment

The Master explained his rationale for rejecting the Quechan Tribe's claimfor water rights in his Memorandum Opinion and Order No. 4. See McGarr ReportApp. 2(A). He first noted that the Claims Court's judgment was based onthe stipulations of the United States and the Tribe, which stated that theTribe would -

". . . be barred thereby from asserting any further rights, claimsor demands against the defendant or any future action on the claims encompassedon docket no. 320 . . ."

and that the United States and the Tribe agreed to

". . . waive all rights to appeal from or otherwise seek review ofsuch final determination . . ."

McGarr Report App. 2(A), at 10. The Master then stated:

If the boundary lands claim of the Quechan Tribe here are lands also thesubject of and part of Court Claims Docket No. 320, and I assume that thisis so, the above quoted language precludes the Quechan Tribe from waterrights claims based on boundary lands claims in this case.

Ibid. The Master additionally stated:

The ex parte action of the Secretary in 1978 cannot be viewed as any waydispositive of this issue. The final order of the Court of Claims addressesitself to all the claims of the Tribe then pending, presumably includingthe land in issue here, and is not affected, as a final judicial decision,by an earlier adminitrative order.

Ibid.

The Master's reasoning overlooks the fact that the United States and theTribe entered into a settlement precisely because they now agreed, in lightof the Secretarial Order, that the Tribe owned the land in question. Ifthere could be any doubt on that point, it is dispelled by the consistentposition of the United States and the Tribe in this case ever since theDecember 20, 1978 date of the Secretarial Order-both prior to entry of theClaims Count's judgment, see Arizona II, 460 U.S. at 632, and thereafter-thatthere is a reserved water right for irrigable acreage within the boundarylands precisely because the Tribe owns those lands. Indeed, in light ofthat agreement between the United States and the Tribe, there could noteven have been be a case or controversy, as between the United States andthe Tribe in the Claims Court, over that issue. The only justiciable questionthat remained with respect to the boundary lands that are at issue in thiscase was the Tribe's right to compensation for the loss of the use of thoselands prior to December 20, 1978, when the Secretary of the Interior formallyrecognized the Tribe's title to the lands. The United States' payment of$15 million represented a compromise of that claim.

The United States clearly and consistently made those points throughoutthe proceedings before the Master. The Master nevertheless failed to grasptheir significance. When the United States emphasized those points in itsmotion for reconsideration, the Master suggested that the United States'position was a "new- comer on this long litigated scene," McGarrReport App. 2(B), at 2, and he then proceeded to dismiss the government'sargument by misstating it:

The United State certainly did not pay $15 million to the Quechan Tribeto settle a Court of Claims case which it believed was not pending becauseit had been mooted by a Solicitor's ruling many years before.

Ibid. As the United States had repeatedly explained to the Master, the $15million payment was made primarily to compensate the Tribe for a temporarydeprivation of the boundary lands at issue in this litigation-lands that,under the Secretarial Order, the Tribe continued to own. See Opening Memorandumof the United States 20-22; Reply Memorandum of the United States at 9-12;Motion for Reconsideration of the United States, at 1-5; Reply Memorandumof the United States on Motion for Reconsideration at 1-9. Indeed, SecretaryWatt's Secretarial Order, like the 1978 Secretarial Order, specificallyacknowledged that the United States might be required to make such a payment.See 46 Fed. Reg. at 11,375 ("Nothing contained herein shall preventthe Tribe from recovering whatever compensation it may be determined isappropriate in any proceeding now pending or hereafter brought against theUnited States for past use of such lands.").

The Master's Memorandum Opinions and Orders accordingly demonstrate thatthe Master had a flawed understanding of the Claims Court's judgment. Forthat reason alone, his recommendation is erroneous and should be overruled.In addition to that flaw, however, the Master also incorrectly applied hornbookprinciples of claim and issue preclusion to reject the Tribe's claim.

2. The Master Misapplied Settled Law Respecting Claim And Issue Preclusion

The Master concluded that the Claims Court's judgment, which was based ona settlement between the United States and the Quechan Tribe of the Tribe'soutstanding Indian Claims Commission Act claims, precluded the Tribe fromclaiming reserved water rights for the lands at issue in that case. Thatconclusion rests on a mistaken understanding of the law.

The principle of res judicata recognizes that, as a general matter, a "validand final personal judgment is conclusive between the parties." Restatement(Second) Judgments § 17 (1982). That principle embraces the conceptof "claim preclusion,"-sometimes referred to as the rules of mergerand bar-which generally bar parties from litigating claims against one anotherthat were or could have been advanced in an earlier proceeding. See id.§ 17 cmts. a-b. It also embraces the concept of issue preclusion-sometimesreferred to as collateral estoppel-which generally bars parties from relitigatingissues arising from the same or different claims. See id. § 17, cmt.c. See, e.g., State v. Kerr McGee Corp., 898 P.2d 1256 (N.M. Ct. App. 1995)(applying the concepts of claim and issue preclusion to an Indian ClaimsCommission Act judgment).

Under principles of claim preclusion, the Claims Court's judgment precludesthe Quechan Tribe from relitigating the claims the Tribe asserted againstthe United States in the proceedings under the Indian Claims CommissionAct. That result is embodied in the express terms of the judgment itself,which provides that the Quechan Tribe is barred from asserting any claimthat the Tribe "has asserted or could have asserted" against theUnited States in those proceedings. And the judgment goes on to providethat the United States similarly is barred from asserting against the Tribeany claim, counterclaim, or offset the United States "has assertedor could have asserted" against the Tribe in the Indian Claims CommissionAct proceedings. App., infra, 67a. Nothing in the judgment purports to bareither the United States or the Tribe from asserting different claims againstother parties in other fora, and the judgment's express provision for onlya narrower preclusive effect as between the parties would seem to foreclosesuch a result. Nor is the assertion of such claims by either the UnitedStates or the Tribe barred by principles of claim preclusion, either withrespect to judgments in general or with respect to judgments under the IndianClaims Commission Act in particular.12 The principles of claim preclusionaccordingly pose no bar to the claim by the United States and the QuechanTribe for reserved water rights in this original action. The Tribe's IndianClaim Commission Act claims, which can be asserted only against the UnitedStates for a money judgment, are different from the claims asserted by theUnited States and the Tribe for a judicial declaration of reserved waterrights for lands that the United States holds in trust for the Tribe. See,e.g., Kerr-McGee, 898 P.2d at 1259-1260.

Under principles of issue preclusion, the Claims Court's judgment wouldgenerally prevent the United States and Quechan Tribe from relitigatingbetween themselves an issue that was "actually litigated and determinedif its determination was essential to that judgment." Restatement (Second)Judgments § 17(3) (1982); see also id. § 27 (restatement of thegeneral rule); id. § 28 (exceptions). The application of issue preclusionis not necessarily limited, however, to litigation between the originalparties; in some circumstances, it can also prevent parties from relitigatingan issue in a later suit involving persons who did not participate in theoriginal proceedings. See id. § 29; but see United States v. Mendoza,464 U.S. 154 (1984) (nonmutual collateral estoppel does not apply againstUnited States). We therefore may assume, arguendo, that in some circumstancesa Claims Court judgment in a case such as this could prevent the Tribe concernedfrom relitigating issues that were decided by the Claims Court with personswho are parties in other litigation, such as the Arizona v. California water-rightslitigation involved here. See ibid. But issue preclusion applies only ifthe issue at stake was "actually litigated and necessary to the outcomeof the first action." Parklane Hoisery Co. v. Shore, 439 U.S. 322,326 n.5 (1979); see, e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 463-464(1998) ("Absent actual and adversarial litigation * * *, principlesof issue preclusion do not hold fast."); Cromwell v. County of Sac,94 U.S. 351, 353 (1877) ("[T]he judgment in the prior action operatesas an estoppel only as to those matters in issue or points controverted.* * * [T]he inquiry must always be as to the point or question actuallylitigated."); see also Brown v. Felson, 442 U.S. 127, 139 n.10 (1979);Montana v. United States, 440 U.S. 147, 153 (1979). Here, that essentialprecondition is not satisfied.

The Claims Court judgment does not preclude litigation in this originalaction of the existence of reserved water rights for the Fort Yuma Reservation,because that judgment did not result in the actual litigation of any issuethat would collaterally estop either the United States or the Tribe fromclaiming that the United States holds the boundary lands in trust for theTribe and that reserved water rights should be recognized for those lands.The Claims Court did not decide whether the Quechan Tribe owned the boundarylands or whether those lands included reserved water rights. The court enteredits judgment "based on a compromise and settlement," and it expresslystated that the judgment "shall not be construed as an admission byeither party for the purposes of precedent or argument in any other case."App., infra, 67a. See Kerr-McGee Corp., 898 P.2d at 1260; see id. at 1260-1264(rejecting the argument that a compromise judgment of land claims underthe Indian Claims Commission Act precluded the Tribe from litigating itswater rights respecting those lands); see also Devils Lake Sioux Tribe v.North Dakota, 917 F.2d 1049, 1055-1056 (8th Cir. 1990) (interpreting anambiguous Indian Claims Commission Act settlement as not precluding theTribe's claim to a lakebed where the United States acknowledged that thelakebed had not been taken and no compensation had been paid for it).

As a general matter, "a judgment entered by confession, consent, ordefault" cannot result in issue preclusion because "none of theissues is actually litigated." Restatement (Second) Judgments §27 cmt. e (1982). Accord 1B James Wm. Moore, Moore's Federal Practice ¶0.443[3], at 814 (1988) ("collateral estoppel in its usual connotationshould not result from a consent judgment, because the requisite litigationand judicial determination of issues are normally not present"). Here,the United States and the Tribe settled the Tribe's Indian Claim CommissionAct claims because the Department of the Interior determined that the Tribeowned the disputed boundary lands. By virtue of the government's concession,there remained no controversy between the United States and the Tribe respectingthat issue. See pages 27-28, supra. As the New Mexico Court of Appeals correctlyrecognized in analogous circumstances, "a consent judgment usuallyfalls short of a full-blown contested adjudication of all issues, so thatthe end result, being achieved by negotiation, may well include mattersthat were not actually and necessarily decided by the court." Kerr-McGeeCorp., 898 P.2d at 1260.

Quite aside from the fact that the Claims Court's judgment was entered onthe basis of a settlement, there is simply no basis for inferring that theClaims Court adjudicated any issue respecting the Tribe's title to the boundarylands or the existence of reserved water rights for those lands. The judgmentis entirely silent on those matters. It is hornbook law that an "opaquejudgment fails to preclude relitigation." 18 Charles Alan Wright, etal., Federal Practice and Procedure § 4420, at 184 (1981). "Thefirst rule for identifying the issues to be precluded is that if there isno showing as to the issues that were actually decided, there is no issuepreclusion. The burden is on the party asserting preclusion to show actualdecision of the specific issues involved." Id. § 4420, at 184-185.13

The stipulations of the United States and the Quechan Tribe provide no basisfor precluding litigation of the Tribe's water rights. To the contrary,those stipulations, together with the Secretarial Order and this Court'sdecision in Arizona II, manifest agreement between the United States andthe Tribe that the Tribe owns the boundary lands and that the United Statesand the Tribe would be entitled to assert a claim for reserved water rightsfor those lands in these proceedings and have that claim decided on themerits. See pages 24-26, 28, 30-33, supra. It is simply inconceivable thatthe United States and the Tribe would have consented to entry of the judgmentby the Claims Court if the effect of that judgment were to deny the UnitedStates and the Tribe any opportunity to establish the existence of reservedwater rights for the very lands that both parties agree are held by theUnited States for the benefit of the Tribe.

For the foregoing reasons, the Master has misapplied the doctrines of claimand issue preclusion and has unfairly denied the United States and the Tribeof their day in court.

C. THIS CASE SHOULD BE REMANDED TO THE MASTER FOR A DETERMINATION OF THEEXISTENCE AND QUANTIFICATION OF RESERVED WATER RIGHTS FOR THE BOUNDARY LANDS

The United States submits that the Master properly recommended approvalof the settlements respecting the Fort Mojave and the Colorado River IndianReservations, but erred in failing to determine the existence of reservedwater rights for the boundary lands at issue in this case. We thereforesubmit that, while it would be appropriate for the Court to enter a supplementaldecree at this time respecting reserved water rights for the Fort Mojaveand Colorado River Reservations, the water rights claims for the Fort YumaReservation should be remanded to the Master for determination on the merits.The United States remains hopeful that the parties may be able to negotiatea proposed settlement of those claims, but if a settlement proves elusive,then the United States and the Tribe are entitled to have those claims adjudicated.The question of the existence of reserved water rights for the boundarylands basically turns on whether the 1893 Agreement made the Tribe's cessionof the lands at issue conditional on the government's performance of itsundertakings and, if so, whether the government failed to fulfill its obligations.The measure of the water rights asserted here, as in the case of the otherIndian water rights involved in Arizona v. California, is the practicablyirrigable acreage standard.

The water rights claims for the boundary lands of the Fort Yuma Reservationconstitute the only outstanding issues that remain to be decided in Arizonav. California. Upon final determination of those claims, the Court willbe able to enter a final consolidated decree and bring this suit to a close.

CONCLUSION

The exception of the United States to the Report of the Special Master shouldbe sustained.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
F. PATRICK BARRY
Attorney

DECEMBER 1999

1 The Court noted that several of the Tribes had obtained an adjudicationof some of the boundary lands in dispute through litigation quieting titleto individual tracts. See Arizona II, 460 U.S. at 633, 636 n.26. The Courtalso recognized that Congress had directed the Secretary to add federallyowned land to the Cocopah Reservation. See id. at 633, 636 n.26. The Courtconcluded that those matters had been finally determined and accepted theMaster's determination of the practicably irrigable acreage within thoseareas. Id. at 636, 640-641.

2 The Indian Claims Commission Act authorized any Indian Tribe, band, orother identifiable group of Indians to commence an action against the UnitedStates, for

(1) claims in law or equity arising under the Constitution, laws, treatiesof the United States, and Executive orders of the President; (2) all otherclaims in law or equity, including those sounding in tort, with respectto which the claimant would have been entitled to sue in a court of theUnited States if the United States was subject to suit; (3) claims whichwould result if the treaties, contracts, and agreements between the claimantand the United States were revised on the ground of fraud, duress, unconscionableconsideration, mutual or unilateral mistake, whether of law or fact, orany other ground cognizable by a court of equity; (4) claims arising fromthe taking by the United States, whether as a result of a treaty of cessionor otherwise, of lands owned or occupied by the claimant without the paymentfor such lands of compensation agreed to by the claimant; and (5) claimsbased upon fair and honorable dealings that are not recognized by any existing rule of law orequity.

§ 2, 60 Stat. 1050. See generally United States v. Dann, 470 U.S. 39(1985). The Commission resolved more than 500 cases between 1946 and 1978.Pursuant to Act of Congress (Pub. L. No. 94-465, 90 Stat. 1990), the Commissionceased its operations on September 30, 1978, and transferred its remainingcases to the Court of Claims. See United States Ind. Cl. Comm'n, Final Report,H.R. Doc. No. 383, 96th Cong., 2d Sess. (1980).

3 It appears that, during the long course of the litigation, the Tribe sometimesemphasized its theory that the 1893 Agreement was invalid and that the Triberetained title to the land, while at other times it emphasized its alternativetheory that the 1893 Agreement resulted in an uncompensated taking of triballands or required the payment of damages based on an alleged violation ofa duty of fair and honorable dealings (see note 2, supra). See Quechan Tribeof the Fort Yuma Reservation v. United States, 26 Ind. Cl. Comm'n 15 (1971)(App., infra, 29a-34a); Dep't of the Interior, Opinion of the Solicitor,No. M-36886 (Jan. 18, 1977), 84 Interior Dec. 1, 31-32 (1977) (Austin Opinion)(discussed at pages 22-24, infra).

4 In 1968, Solicitor Edward Weinberg had reaffirmed the Department's viewthat the 1893 Agreement was valid in an unpublished memorandum issued inconnection with a Bureau of Land Management lease. See Austin Opinion, 84Interior Dec. at 33.

5 Solicitor Austin also concluded that: (1) Congress's enactment of legislationin 1904 providing for the irrigation of tribal lands did not implicitlyrepeal the 1893 Agreement (84 Interior Dec. at 41-44); (2) assuming arguendothat the cession was conditional, the government had satisfied the conditions(id. at 44-47); (3) the government had not treated the disputed lands asif they continued to belong to the Tribe (id. at 47-49); (4) the specialrules governing construction of agreements with Indian Tribes did not compela different result (id. at 49-50); (5) the Tribe had failed to documentits allegations of fraud, coercion, and inequity (id. at 50-53); and (6)prior judicial and administrative precedents supported his interpretation(id. at 53).

6 "Prior to the issuance of the [Austin Opinion], a draft Solicitor'sOpinion to the opposite effect was widely circulated. That Opinion concludedthat the 1893 agreement and the 1894 ratifying statute provided for a conditionalcession of the nonirrigable lands, that the conditions were not fulfilled,and that the cession of the nonirrigable lands had therefore not been effected.Department files on this subject reveal that the draft opinion was seriouslyconsidered, and that extensive preparations were made for the issuance ofa decision in favor of the tribe. The February 1976 decision by the Solicitorupholding the 1936 opinion was an unexpected event. The Senate Subcommitteeon Indian Affairs held hearings in May and June of 1976, to air the controversyand learn the legal basis of the 1976 decision by the Solicitor. In thosehearings, the Secretary agreed to direct the Solicitor to prepare a writtenlegal opinion supporting the 1976 decision. A written opinion, [the AustinOpinion], was published on Jan. 17, 1977." 86 Interior Dec. at 4.

7 The Secretarial Order recognized that the Quechan Tribe was not entitledto lands and property interests that the United States had acquired pursuantto Act of Congress or had conveyed to third parties prior to December 20,1978, and the Order expressly identified those property rights. See 46 Fed.Reg. at 11,372-11,375. The Secretarial Order also recognized that the "[n]othingcontained herein shall prevent the Tribe from recovering whatever compensationit may be determined is appropriate in any proceeding now pending or hereafterbrought for past use of such lands," but that the Tribe had relinquishedany claims against third parties for trespass. Id. at 11,375.

8 As we have explained, the Indian Claims Commission stated in a 1971 opinionthat it lacked the authority to invalidate the 1893 Agreement. See pages21-22, supra. The Commission, however, could award damages for trespassor temporary occupation if the United States conceded that the Tribe retainedownership of the affected lands. See Northern Paiute Nation v. United States,490 F.2d 954, 956, 959 (Ct. Cl. 1973); Goshute Tribe v. United States, 31Ind. Cl. Comm'n 225, 291-306, aff'd, 512 F.2d 1398 (Ct. Cl. 1975).

9 The Secretarial Order would not completely moot the Tribe's taking claimbecause the Tribe sought reimbursement for certain lands that the UnitedStates had acquired without paying compensation and would permanently retainregardless of the validity of the 1893 Agreement. See note 7, supra. Thoselands included, for example, the right of way for the All-American Canal,which had prompted the original Margold opinion. See pages 17-18, supra.

10 See Federal Courts Improvements Act of 1982, Pub. L. No. 97-164, §149, 96 Stat. 46.

11 Correspondingly, the stipulation also barred the United States from assertingany claims, offsets or counterclaims against the Tribe that had been orcould have been asserted in Docket 320. See App., infra, 42a-43a.

12 Section 22(a) of the Indian Claims Commission Act, § 22(a), 60 Stat.1055, 25 U.S.C. 70u(a) (1976), provides that "payment of any claim* * * shall be a full discharge of the United States of all claims and demandstouching any of the matters involved in the controversy" (emphasisadded). See United States v. Dann, 470 U.S. 39, 45 (1985). Section 22(a)also provides that a report by the Commission to Congress determining thatthe claimant is entitled to recover "shall have the effect of a finaljudgment of the Court of Claims." The effect of a judgment of the Courtof Claims (now the Court of Federal Claims) is prescribed by 28 U.S.C. 2519,which provides: "[a] final judgment of the United States Court of FederalClaims against any plaintiff shall forever bar any further claim, suit,or demand against the United States arising out of the matters involvedin the case or controversy" (emphasis added). See Dann, 470 U.S. at45 & n.10. The statutory provisions governing the effect of the ClaimsCourt's judgment thus reinforce the conclusion that that judgment does notbar claims by the United States (or by the Tribe) against third parties.

13 Indeed, the lower courts commonly state that "[t]he party seekingto preclude litigation of an issue has the burden of showing with clarityand certainty that the issue was actually and necessarily determined; ifthe basis of the prior decision is unclear, subsequent litigation may proceed."Kerr-McGee Corp., 898 P.2d at 1260; accord Clark v. Bear Stearns & Co.,966 F.2d 1318, 1321 (9th Cir. 1992); Connors v. Tanoma Mining Co., 953 F.2d682, 684 (D.C. Cir. 1992); Ottley v. Sheepshead Nursing Home, 784 F.2d 62,65 (2d Cir. 1986).

APPENDIX A

Act of Aug. 15, 1894, Ch. 290, 28 Stat. 286

* * * * *

AGREEMENT WITH THE YUMA INDIANS IN CALIFORNIA

SEC. 17. Whereas Washington J. Houston, John A. Gorman, and Peter R. Brady,duly appointed commissioners on the part of the United States, did on thefourth day of December, eighteen hundred and ninety-three, conclude an agreementwith the principal men and other male adults of the Yuma Indians in theState of California, which said agreement is as follows:

Articles of agreement made and entered into this 4th day of December, A.D.1893, at Fort Yuma, on what is known as the Yuma Indian Reservation, inthe county of San Diego, State of California, by Washington J. Houston,John A. Gorman, and Peter R. Brady, commissioners on the part of the UnitedStates appointed for the purpose, and the Yuma Indians.

ARTICLE I.

The said Yuma Indians, upon the conditions hereinafter expressed, do herebysurrender and relinquish to the United States all their right, title, claimand interest in and to and over the following described tract of countryin San Diego, Cal., established by executive order of January ninth, eighteenhundred and eighty-four, which describes its boundaries as follows:

"Beginning at a point in the middle of the channel of the ColoradoRiver, due east of the meander corner to sections nineteen and thirty, townshipfifteen south, range twenty-four east, San Barnardino meridian; thence weston the line between sections nineteen and thirty to the range line, betweentownships twenty-three and twenty-four east; thence continuing west on thesection line to a point which, when surveyed, will be the corner to sectionstwenty-two, twenty-three, twenty-six, and twenty-seven, in township fifteensouth, range twenty-one east; thence south on the line between sectionstwenty-six and twenty-seven, in township fifteen south, range twenty-oneeast, and continuing south on the section lines to the intersection of theinternational boundary, being the corner to fractional sections thirty-fourand thirty-five, in township sixteen south, range twenty-one east; thenceeasterly on the international boundary to the middle of the channel of theColorado River; thence up said river, in the middle of the channel thereof,to the place of beginning, be, and the same is hereby, withdrawn from settlementand sale and set apart as a reservation for the Yuma and such other Indiansas the Secretary of the Interior may see fit to settle thereon: Provided,however, That any tract or tracts included within the foregoing-describedboundaries to which valid rights have attached under the laws of the UnitedStates are hereby excluded out of the reservation hereby made.

"It is also hereby ordered that the Fort Yuma military reservationbe, and the same is hereby, transferred to the control of the Departmentof the Interior, to be used for Indian purposes in connection with the Indianreservation established by this order, said military reservation havingbeen abandoned by the War Department for military purposes."

ARTICLE II.

Each and every member of said Yuma Indians shall be entitled to select andlocate upon said reservation and in adjoining sections five acres of land,which shall be allotted to such Indians in severalty. Each member of saidband of Indians over the age of eighteen years shall be entitled to selecthis or her land, and the father, or, if he be dead, the mother, shall selectthe land herein provided for for each of his or her children who may beunder the age of eighteen years; and if both father and mother of the childunder the age of eighteen years shall be dead, then the nearest of kin overthe age of eighteen years shall select and locate his or her land; or ifsuch persons shall be without kindred, as aforesaid, then the Commissionerof Indians Affairs, or some one by him authorized, shall select and locatethe land of such child.

ARTICLE III.

That the allotments provided for in this agreement shall be made, at thecost of the United States, by a special agent appointed by the Secretaryof the Interior for the purpose, under such rules and regulations as theSecretary of the Interior may from time to time prescribe, and within sixtydays after such special agent shall appear upon said reservation and givenotice to the said Indians that he is ready to make such allotments; andif anyone entitled to an allotment hereunder shall fail to make his or herselection within said period of sixty days then such special agent shallproceed at once to make such selection for such person or persons, whichshall have the same effect as if made by the person so entitled; and whenall of said allotments are made and approved, then all of the residue ofsaid reservation which may be subject to irrigation, except as hereinafterstated, shall be disposed of as follows: The Secretary of the Interior shallcause the said lands to be regularly surveyed and to be subdivided intotracts of ten acres each, and shall cause the said lands to be appraisedby a board of three appraisers, composed of an Indian inspector, a specialIndian agent, and the agent in charge of the Yuma Indians, who shall appraisesaid lands, tracts, or subdivisions, and each of them, and report theirproceedings to the Secretary of the Interior for his action thereon; andwhen the appraisement has been approved the Secretary of the Interior shallcause the said lands to be sold at public sale to the highest bidder forcash, at not less than the appraised value thereof, first having given atleast sixty days' public notice of the time, place, and terms of sale, immediatelyprior to such sale, by publication in at least two newspapers of generalcirculation; and any lands or subdivisions remaining unsold may be reofferedfor sale at any subsequent time in the same manner at the discretion ofthe Secretary of the Interior, and if not sold at such second offering forwant of bidders then the Secretary of the Interior may sell the same atprivate sale at not less than the appraised value.

ARTICLE IV.

That the money realized by the sale of the aforesaid lands shall be placedin the Treasury of the United States, to the credit of the said Yuma Indians,and the same, with interest thereof at five per centum per annum, shallbe at all times subject to appropriation by Congress, or to application,by order of the President, for the payment of water rents, building of levees,irrigating ditches, laterals, the erection and repair of buildings, purchaseof tools, farming implements and seeds, and for the education and civilizationof said Yuma Indians.

ARTICLE V.

Upon the approval of the allotments provided for herein by the Secretaryof the Interior he shall cause patents to issue therefor in the name ofthe allottees, which patents shall be of the legal effect and declare thatthe United States does and will hold the land thus allotted for the periodof twenty-five years in trust for the sole use and benefit of the Indianto whom such allotments shall have been made, or in case of his or her decease,to his or her heirs or devisees, according to the laws of California, andthat at the expiration of said period the United States will convey thesame by patent to said Indian or his heirs or devisees, as aforesaid infee, discharged of said trust and free of all incumbrance whatsoever.

And if any conveyance shall be made of the lands set apart and allottedas herein provided, or any contract made touching the same before the expirationof the time above mentioned, such conveyance or contract shall be absolutelynull and void. And during said period of twenty-five years these allotmentsand improvements thereon shall not be subject to taxation for any purpose,nor subject to be seized upon any execution or other legal process, andthe law of descent and partition in force in California shall apply thereto.

ARTICLE VI.

All lands upon said reservation that can not be irrigated are to be opento settlement under the general land laws of the United States.

ARTICLE VII.

There shall be excepted from the operation of this agreement a tract ofland, including the buildings, situate on the hill on the north side ofthe Colorado River, formerly Fort Yuma, now used as an Indian school, solong as the same shall be used for religious, educational, and hospitalpurposes for said Indians, and a further grant of land adjacent to the hillis hereby set aside as a farm for said school; the grant for the schoolsite and the school farm not to exceed in all one-half section, or threehundred and twenty acres.

ARTICLE VIII.

This agreement shall be in force from and after its approval by the Congressof the United States.

In witness whereof we have hereunto set our hands and seals the day andyear first above written.

WASHINGTON J. HOUSTON, [SEAL.]
JOHN A. GORMAN, [SEAL.]
PETER R. BRADY, [SEAL.]
Commissioners on the part of the United States.

BILL MOJAVE, and others.

Therefore,

Be it enacted by the Senate and House of Representatives of the United Statesof America in Congress assembled, That the said agreement be, and the samehereby is, accepted, ratified, and confirmed.

That for the purpose of making the allotments provided for in said agreement,including the payment and expenses of the necessary special agent herebyauthorized to be appointed by the Secretary of the Interior, and for thenecessary resurveys, there be, and hereby is, appropriated, out of any moneyin the Treasury not otherwise appropriated, the sum of two thousand dollars,or so much thereof as may be necessary.

That for the purpose of defraying the expenses of the survey and sale ofthe lands by said agreement relinquished and to be appraised and sold forthe benefit of said Indians, the sum of three thousand dollars, or so muchthereof as may be necessary, be, and the same hereby is, appropriated, outof any money in the Treasury not otherwise appropriated, the same to bereimbursed to the United States out of the proceeds of the sale of saidlands.

That the right of way through the said Yuma Indian Reservation is herebygranted to the Southern Pacific Railroad Company for its line of railroadas at present constructed, of the same width, with the same rights and privileges,and subject to the limitations, restrictions, and conditions as were grantedto the said company by the twenty-third section of the Act approved Marchthird, eighteen hundred and seventy-one, entitled "An Act to incorporatethe Texas Pacific Railroad Company, and to aid in the construction of itsroad, and for other purposes:" Provided, That said company shall, withinninety days from the passage of this Act, file with the Secretary of theInterior a map of said right of way, together with a relinquishment by saidcompany of its right of way through said reservation as shown by maps ofdefinite location approved January thirty-one, eighteen hundred and seventy-eight.

The Secretary of the Interior is hereby authorized and directed to causeall the lands ceded by said agreement which may be susceptible of irrigation,after said allotments have been made and approved, and said lands have beensurveyed and appraised, and the appraisal approved, to be sold at publicsale, by the officers of the land office in the district wherein said landsare situated, to the highest bidder for cash, at not less than the appraisedvalue thereof, after the first having given at least sixty days' publicnotice of the time, place, and terms of sale immediately prior to such sale,by publication in at least two newspapers of general circulation, and anylands or subdivision remaining unsold may be reoffered for sale at any subsequenttime in the same manner, at the discretion of the Secretary of the Interior,and if not sold at such second offering for want of bidder, then the Secretarymay cause the same to be sold at private sale at not less than the appraisedvalue. The money realized from the sale of said lands, after deducting theexpenses of the sale of said lands, and the other money for which provisionis made for the reimbursement of the United States, shall be placed in theTreasury of the United States to the credit of said Yuma Indians, and shalldraw interest at the rate of five per centum per annum, and said principaland interest shall be subject to appproprtion by Congress, or to applicationby the President of the United States for the payment of water rents, thebuilding of levees, irrigating ditches and laterals, the purchase of tools,farming implements, and seeds, and for the education and civilization ofsaid Indians: Provided, however, That none of said money realized from thesale of said lands, or any of the interest thereon, shall be applied tothe payment of any judgment that has been or may hereafter be rendered onclaims for damages because of depredations committed by said Indians priorto the date of the agreement herein ratified.

That all of the lands ceded by said agreement which are not susceptibleof irrigation shall become a part of the public domain, and shall be openedto settlement and sale by proclamation of the President of the United States,and be subject to disposal under the provisions of the general land laws.

That the Colorado River Irrigating Company, which was granted a right ofway for an irrigating canal through the said Yuma Indian Reservation bythe Act of Congress approved February fifteenth, eighteen hundred and ninety-three,shall be required to begin the construction of said canal through said reservationwithin three years from the date of the passage of this Act, otherwise therights granted by the Act aforesaid shall be forfeited.

That the Secretary of the Interior shall have authority from time to timeto fix the rate of water rents to be paid by the said Indians for all domestic,agricultural, and irrigation purposes, and in addition thereto each maleadult Indian of the Yuma tribe shall be granted water for one acre of theland which shall be allotted to him, if he utilizes the same in growingcrops, free of all rent charges during the period of ten years, to be computedfrom the date when said irrigation company begins the delivery of wateron said reservation.



APPENDIX B

BEFORE THE
Indian Claims Commission
OF THE UNITED STATES

DOCKET NO. 320

THE QUECHAN TRIBE OF THE FORT YUMA
RESERVATION, CALIFORNIA, PETITIONER

vs.

THE UNITED STATES OF AMERICA, DEFENDANT

PETITION FOR LOSS OF RESERVATION


NICHOLAS CONOVER ENGLISH,
Attorney of Record for the Quechan Tribe of the Fort Yuma Reservation, California,
11 COMMERCE STREET,
NEWARK 2, NEW JERSEY

WILLIAMSON, HOGE & CURRY,
417 South Hill Street,
Los Angeles 13, California,
of Counsel.

MCCARTER, ENGLISH & STUDER,
11 Commerce Street,
Newark 2, New Jersey,
of Counsel.


BEFORE THE
Indian Claims Commission
OF THE UNITED STATES

DOCKET NO. 320

THE QUECHAN TRIBE OF THE FORT YUMA
RESERVATION, CALIFORNIA, PETITIONER

vs.

THE UNITED STATES OF AMERICA, DEFENDANT

PETITION FOR LOSS OF RESERVATION

First Cause of Action

Jurisdiction

1. The Quechan Tribe of the Fort Yuma Reservation, California, is and hasbeen since time immemorial a tribe of American Indians residing within thepresent territorial limits of the United States. The Quechan Tribe commonlyis known as the Yuma Tribe or the Yuma Indians, and all references in governmentreports and elsewhere to said Yuma Tribe of Indians in fact apply to thePetitioner. The terms "Petitioner", "members of the Petitioner","Quechans", and "Quechan Indians" are used interchangeablyin this petition.

2. In accordance with a constitution adopted pursuant to the provisionsof the Indian Reorganization Act of June 18, 1934 (49 Stat. 984), and approvedby the Secretary of the Interior on or about December 18, 1936, the Petitionerpossesses a Tribal Council which is recognized by the Secretary of the Interioras the tribal organization having exclusive authority to represent and actfor the Petitioner, and this action is instituted by and under the directionof said Quechan Tribal Council.

3. No group of individuals or tribal organization other than said QuechanTribal Council is recognized by any department, office or other agency ofthe United States Government as having authority to represent, or act inthe name of the Petitioner, and the Petitioner is not a member of any organizationor other identifiable group having authority to act on behalf of the Petitionerin the matters with which this petition deals.

4. Petitioner is represented in this proceeding by its attorneys, Williamson,Hoge & Curry, 417 South Hill Street, Los Angeles, California, and McCarter,English & Studer, 11 Commerce Street, Newark, New Jersey, accordingto the terms of a written contract of employment with McCarter, English& Studer aforesaid, duly executed on behalf of the Petitioner and filedwith and approved by the Commissioner of Indian Affairs on March 15, 1950,under Symbol I-1-Ind. 42263 and recorded in Volume 17 of Miscellaneous Recordsat page 27.

5. Petitioner files the claim asserted herein pursuant to the Act of Congressof August 13, 1946 (60 Stat. 1049), hereinafter referred to as the Act,and in accordance with the General Rules of Procedure promulgated by theIndian Claims Commission.

6. The claim presented herein accrued prior to August 13, 1946, and arisesfrom the expropriation of the greater part of a reservation on the Californiaside of the Colorado River, established for the Petitioner by an ExecutiveOrder dated January 9, 1884, of President Arthur (a true and correct copythereof being annexed hereto and made a part hereof as Exhibit A).

7. No suit is pending in the Court of Claims or the Supreme Court of theUnited States with respect to said claim, nor has said claim been filedin the Court of Claims under legislation existing at, or prior to, the dateof the approval of said Act. No part of said claim has heretofore been adjudicatedor acted upon by Congress, by any department of the United States Government,or by any commission, agency or court of the United States. Petitioner,has filed before the Indian Claims Commission a Petition for a General Accountingand a Land Petition (Docket Nos. 86 and . . . respectively).

8. Petitioner reserves its rights under Section 7(a)(2) and Section 13 ofthe aforementioned General Rules of Procedure to file further petitionsor to amend the instant petition asserting claims under Section 2 of theAct based upon the same facts or upon additional events and circumstances,whether in the alternative or otherwise, and whether or not they may bedeemed consistent with the claim set forth herein.

Subject Matter of this Proceeding

9. By Executive Order dated July 6, 1883, President Chester A. Arthur carvedout for the use and occupancy of the Quechans and other Indians a tractof land on the Arizona side of the Colorado River within the area whichhad been owned by the Petitioner since time immemorial.

10. Pursuant to the aforesaid Executive Order dated January 9, 1884, PresidentArthur restored said territory to the public domain and in lieu thereofset aside a tract of land on the California side of the Colorado River "asa reservation for the Yuma and such other Indians as the Secretary of theInterior may see fit to settle thereon" (herein referred to as the"Reservation"). Said Reservation contained approximately 45,000acres. All of the land therein was then, and since time immemorial had been,owned by the Petitioner, and comprised but a small part of Petitioner'soriginal domain.

11. By the General Allotment Act of February 8, 1887 (24 Stat. 388), asamended by the Act of February 28, 1891 (26 Stat. 794), the Defendant determinedthat Indians, including the members of the Petitioner, were entitled, uponallotment of their reservations, to 80 acres of land for each man, womanand child, or, with respect to lands "only valuable for grazing purposes,"to 160 acres each.

12. The population of the Petitioner in 1893 was reported by the Commissionerof Indian Affairs as not less than 1,084. The greater part of the 45,000acre Reservation was valuable only for grazing purposes. The Reservationthus was inadequate to provide for the statutory allotments to the QuechanIndians if, as and when said area was allotted. Under such circumstances,the aforementioned General Allotment Acts authorized the agents of the Defendantto reduce the allotment of each member of the Petitioner to a figure representingthe proportionate share of each of said 1,084 Quechan Indians in the 45,000acres available for distribution; in the alternative, said Acts authorizedthe agents of the Defendant to allot 80 acre and 160 acre tracts withinsaid Reservation to a fraction of the membership of the Petitioner, andthe remainder of said Indians would then be entitled, without payment ofany fee, to receive allotments in similar amounts, "upon and surveyedor unsurveyed lands of the United States not otherwise appropriated,"including the territory surrounding the Reservation. Under the aforementionedstatutes, the members of the Petitioner also were entitled to receive trustpatents upon allotment and to receive patents in fee "free of all chargeor incumbrance whatsoever" twenty-five years after the date of allotment.

13. Notwithstanding the foregoing, the Defendant, on December 4, 1893, enteredinto an alleged "agreement with the principal men and other male adultsof the Yuma Indians in the State of California," (hereinafter referredto as the "Agreement of 1893," a true and correct copy of whichis annexed hereto as Exhibit B). Upon information and belief, the Defendantnever advised the Petitioner of its rights under the aforementioned GeneralAllotment Acts, or that Petitioner was the owner of all lands in said Reservation,but, on the contrary, agents of the Defendant, taking advantage of the ignoranceof the Quechan Indians, used their positions of guardianship and controlto persuade the Petitioner to surrender, without compensation, the greaterpart of the Reservation to which it was lawfully entitled. In order to accomplishthis purpose, agents of the Defendant threatened the members of the Petitionerthat, unless they agreed to accept 5 acres of irrigable land per personand to relinquish the remainder of the Reservation, they would be entirelydeprived of their lands. The agents of the Defendant carried out this threatby striking from the rolls of the Quechan Tribe numerous individuals whorefused to sign said agreement.

14. The irrigable lands contained within said Reservation were valuableand desirable for agricultural purposes. The non-irrigable lands containedin said Reservation included valuable deposits of sand and gravel, areasimportant for right of way purposes, lands along the riverbank which hadthe prospect of accretion, and were otherwise of value.

15. Said agreement of 1893 was wholly nugatory since (a) no considerationwhatsoever was received by the Petitioner from the Defendant for the surrenderof the greater portion of said Reservation, inasmuch as the amounts of landpromised to the members of the Petitioner upon allotment were substantiallysmaller in size than the tracts to which said Indians would have been entitledunder the General Allotment Acts if they had made no agreement at all, andfor the further reason that all of the land in said Reservation was ownedby Petitioner, and that no conveyance or allotment thereof by the Defendantcould furnish consideration to the Petitioner; and (b) the signatures ofmost of all of the signers of said Agreement were either (1) forged, or(2) coerced by force or the threat of physical violence, including the imprisonmentof one of the principal opponents of the measure, or (3) coerced under thethreat of deprivation of land rights, or (4) secured by misrepresentationas to the effect of the Agreement and also concealment by the agents ofthe Defendant of the fact that without any agreement any allotments madeto the members of the Petitioner would have been in substantially largeramounts than said Agreement provided.

16. Said Agreement of 1893 was further nugatory because, at all times duringthe negotiation and conclusion thereof, the following conditions existed:(a) the agents of the Defendant misled the Quechan Indians into believingthat they would have free water for their lands in perpetuity, and otherwisefailed or refused to inform or misled the Petitioner as to the meaning ofthe provisions of the Agreement; (b) the interpreter for the Indians wasan employee of the agents of the Defendant and was incompetent to explainthe proceedings to the Petitioner; (c) the members of the Petitioner wereignorant of the English language and said Agreement contained words forwhich no comparable term or concept existed in the Quechan tongue; and (d)the members of the Petitioner, although unfamiliar with the economy of thewhite man, were not advised or assisted by counsel in their dealings withthe Defendant, and no legal or other disinterested advice was made availableto them.

17. After negotiating the alleged Agreement of 1893, the Defendant unilaterallyaltered said Agreement in material respects by the Act of August 15, 1894(28 Stat. 286, 332). In said amendments, Congress ordered the expenses ofsurvey and sale of certain lands to be deducted from funds due the Petitioner,and granted a right of way across the Reservation to the Southern PacificRailroad Company in accordance with prior grants under the Acts of July27, 1866 (14 Stat. 292, 299), and March 3, 1871 (16 Stat. 573, 579). Thesechanges were never submitted to the Petitioner for its approval, and nocompensation was paid to the Petitioner therefor.

18. By the Act of April 21, 1904 (33 Stat. 189, 224), as amended by theAct of March 3, 1911 (36 Stat. 1058, 1063), the Defendant again alteredthe Agreement of 1893. In such legislation, the Defendant declared irrigablelands within the Reservation reclaimed by the diversion of the ColoradoRiver to be within the public domain. This legislation also increased theallotments of members of the Petitioner to ten acres of irrigable land,but provided that the cost of irrigation be reimbursed to the Defendantfrom any funds received upon the sale of the surplus lands of the Reservationor from any other fund which might become available for such purpose, andprovided that unpaid costs of the irrigation project be held to constitutea first lien on such allotments upon issuance of a patent in fee. Thesestipulations were enacted without the consent of the Petitioner, withoutcompensation to the Petitioner, and in violation not only of the guaranteeof the aforementioned General Allotment Acts, but also of said Agreementof 1893, pledging that patents in fee "free of al incumbrance whatsoever"wold be issued to the allotees twenty-five years after the date of allotment.

19. The aforementioned conduct of the Defendant constituted a taking oflands belonging to the Petitioner without payment of just compensation,in violation of the Fifth Amendment to the Constitution, for which recoveryis authorized under Section 2(1) and Section 2(4) of the Act.

20. In determining the amount of recovery to which the Petitioner may beentitled hereunder, and by reason of the causes of action herein set forth,the Petitioner should be allowed interest or else there should be giveneffect to the fact that subsequent to the occurrence of the events whichare the subject of this petition, there has been a substantial decreasein the value of the dollar and in its purchasing power, so that the presentdollar is not, as a measure of value, the equivalent of the then dollar,and therefore, an appropriate adjustment increasing the amount of recoveryshould be made in respect thereof.

As and for a Second and AlternativeCause of Action

21. For a second and alternative cause of action, the Petitioner reallegeseach and every allegation contained in Paragraphs 1 through 18 inclusive,and also in Paragraph 20, and makes them a part hereof.

22. The aforementioned conduct of the Defendant constituted an appropriationof lands belonging to the Petitioner for an unconscionable considerationand under conditions of fraud and duress, for which recovery is authorizedunder Section 2(3) of the Act.

As and for a Third and Alternative
Cause of Action

23. For a third and alternative cause of action, the Petitioner reallegeseach and every allegation contained in Paragraphs 1 through 18 inclusive,and also in Paragraph 20, and makes them a part hereof.

24. Under the facts and circumstances so set forth, standards of fair andhonorable dealings required that, in addition to performing other duties,the Defendant (1) protect the Petitioner in the use and possession of itsproperty; (2) advise the Petitioner specifically and promptly of its rightsunder the General Allotment Acts; (3) safeguard the Petitioner from impositionin its dealings with the United States (4) refuse to sacrifice the interestsof the Petitioner for the benefit of the Defendant and non-Indian citizensthereof; (5) refrain from unilaterally altering its obligations to the Petitioner;and (6) account to the Petitioner for the profits realized or the benefitsobtained by the Defendant upon disposition of the lands and other propertyhere involved.

25. The aforementioned acts and omissions of the Defendant were contraryto its moral obligations to protect the Petitioner and in violation of standardsof fair and honorable dealings, for which recovery is authorized under Section2(5) of the Act.

As and for a Fourth and Separate
Cause of Action

26. For a fourth and separate cause of action, the Petitioner reallegeseach and every allegation contained in Paragraphs 1 through 18 inclusive,and also in Paragraph 20, and makes them a part hereof.

27. After the establishment of the 1884 Quechan Reservation, but prior toAugust 15, 1894, the Defendant, without the consent of, or payment of anyconsideration to, the Petitioner, granted rights of way across said Reservationto the Yuma Pumping Irrigation Company by virtue of the Act of January 20,1893 (27 Stat. 420), and to the Colorado River Irrigation Company by virtueof the Act of February 15, 1893 (28 Stat. 456), and otherwise appropriatedlands within said Reservation pursuant to statutes largely unknown to thePetitioner but well-known to the Defendant.

28. The foregoing acts of the Defendant constituted a taking of the Petitioner'slands for public use without payment of just compensation agreed to by thePetitioner, in violation of the Fifth Amendment to the Constitution, byreason whereof the Petitioner is entitled to recovery under Section 2(1)and Section 2(4) of the Act.

Prayer

WHEREFORE, The Petitioner prays:

A. For a determination that the Defendant be required to make a full andtrue discovery and disclosure of all land and other property within the1884 Reservation owned by the Petitioner and taken by the Defendant forpublic use, and for a determination that said land and property was wrongfullytaken by the Defendant;

B. For a determination that the Defendant be required to make a full andtrue discovery and disclosure of all land and other property within the1884 Reservation owned by the Petitioner and otherwise acquired by the Defendant,and for a determination that said land and property was wrongfully acquiredby the Defendant;

C. For a determination that the Defendant is obligated to compensate thePetitioner for the land and other property wrongfully appropriated as aforesaid;

D. For a determination of the just compensation therefor;

E. That judgment be entered in favor of the Petitioner for the amount sodetermined, with appropriate adjustments for the decline in the value ofthe dollar and for the reasonable use value of the land from the time ofits loss, with interest to the date of the payment of the judgment;

F. That the Petitioner have such other and further relief as to this Commissionmay appear just and equitable.

Respectfully submitted,

NICHOLAS CONOVER ENGLISH,
Attorney of Record for the Quechan Tribe of the Fort Yuma Reservation, California,
11 COMMERCE STREET,
NEWARK 2, NEW JERSEY

WILLIAMSON, HOGE & CURRY,
417 South Hill Street,
Los Angeles 13, California,
of Counsel.

MCCARTER, ENGLISH & STUDER,
11 Commerce Street,
Newark 2, New Jersey,
of Counsel.



APPENDIX C

BEFORE THE INDIAN CLAIMS COMMISSION

Docket No. 320

THE QUECHAN TRIBE OF THE
FORT YUMA RESERVATION, CALIFORNIA, PETITIONER

v.

THE UNITED STATES OF AMERICA, DEFENDANT

[Filed: June 24, 1958]

AMENDMENT TO PETITION FOR LOSS OF RESERVATION

Pursuant to order of the Commission dated April 24, 1958, the Petitionerfiles this amendment to its original petition, supplementing said petitionby adding certain new, causes of action thereto as follows:

FIFTH, SEPARATE, AND ALTERNATIVE CAUSE OF ACTION

29. For a fifth, separate, and alternative cause of action the Petitionerrealleges the allegations contained in Paragraphs 1 to 3, inclusive, andin Paragraphs 5 and 7, of its original petition on file herein and makesthem a part hereof.

30. On or about December 4, 1893, the Defendant entered into an agreementwith the Yuma Indians that is to say, the Quechan Indians, represented bythe Petitioner herein, which agreement was ratified by the Act of Congressof August 15, 1894 (28 Stat. 286, 332). Said agreement is sometimes hereinafterreferred to as the "1893 Agreement". A true and correct copy ofthe 1893 Agreement is attached to the original petition on file herein andmarked Exhibit B.

31. Petitioner is informed and believes, and upon that ground, alleges thatthe Defendant has defaulted in its obligations under the 1893 Agreementin the following regards:

(a) Defendant has failed: (1) to make allotments to such Quechan Indiansas selected tracts of land at the cost of the United States; (2) to makeallotments for such Quechan Indians as failed to make a selection within60 days; and (3) to survey, sub-divide and appraise all irrigable landscontained in the Reservation established by Executive Order dated January9, 1884 and not thus allotted, and to sell such lands at public or privatesale; all as provided by Article III of the 1893 Agreement.

(b) Defendant has failed to realize an adequate sale price for the aforesaidirrigable lands, and to credit Petitioner with the adequate sale price ofsuch lands as Defendant undertook to do by Article IV of the 1893 Agreement.

(c) Defendant has failed to hold the aforementioned allotments in trustfor 25 years for the benefit of the individual members of Petitioner, towhom such allotments had been made, and to convey a patent in fee to therespective members of Petitioner, discharged o such trust and free of allencumbrances whatever, as Defendant undertook to do by Article V of the1893 Agreement.

32. The details of such breaches of contract are not known to the Petitionerbut are well known to the Defendant.

WHEREFORE, the Petitioner prays that, in addition to the relief prayed forin the original petition on file herein, the Defendant be required to makea full and true discovery and disclosure of all its transactions in carryingout the obligations which Defendant undertook by Articles III, IV and Vof the 1893 Agreement; and that, if the Commission determines that the 1893Agreement is a valid and binding agreement, the peti-tioner be allowed suchdamages for any breach or breaches thereof by the Defendant as the Commissionmay find to have occurred.

Respectfully submitted,

FULTON W. HOGE,
Attorney of Record for the
Quechan Tribe of the Fort Yuma
Reservation, California
4648 Melbourne Avenue
Los Angeles 27, California

HOGE, PERRY & PATTERSON
4648 Melbourne Avenue
Los Angeles 27, California
Of Counsel

LOUIS L. ROCHMES, ESQ.
711 Fourteenth Street, N. W.
Washington, 5, D. C.
Of Counsel

AFFIDAVIT OF SERVICE
STATE OF CALIFORNIA )
)ss.
COUNTY OF LOS ANGELES )
Louise Rousseau, being first duly sworn, deposes and says:

That affiant is a citizen of the United States and a resident of the Countyof Los Angeles; that affiant is over the age of eighteen years; and thataffiant's address is: 4042 Denny Avenue, North Hollywood, California; thaton the 20th day of June, 1958, affiant served the above and foregoing Amendmentto Petition For Loss of Reservation by mailing four (4) copies of the same,postage prepaid, to:

The Attorney General
Attention: Ralph A. Barney, Esq.
United States Department of Justice
Washington, 25, D. C.
________________________
Subscribed and sworn to before
me this _____ day of June, 1958.
________________________________
Notary Public in and for said
County and State



APPENDIX D

BEFORE THE INDIAN CLAIMS COMMISSION

Docket No. 320

THE QUECHAN TRIBE OF THE
FORT YUMA RESERVATION, CALIFORNIA, PLAINTIFF

v.

THE UNITED STATES OF AMERICA, DEFENDANT

[Decided: July 21, 1971]

OPINION ON MOTION TO REOPEN THE RECORD AND TO VACATE ORDER STAYING FURTHERPROCEEDINGS

Kuykendall, Chairman, delivered the opinion of the Commission.

On April 29, 1963, the Commission issued an order closing the record inthis case on proof of title. On November 25, 1970, the Commission issuedan Order staying further proceedings pending the outcome of legislationthen before Congress.1 The proposed legislation was never enacted and hasnot been reintroduced.

On April 21, 1971, the plaintiff filed a motion to reopen the record onliability and to vacate the order staying further proceedings. It appearsthat plaintiff's counsel at the time of the 1962 title hearing has sincedied. The plaintiff, through its present attorney, operating under an attorneycontract dated February 10, 1971, and approved by the Secretary of the Interior,alleges in support of the motion to reopen that the original petition filedin 1951 charged that on December 4, 1893, the defendant and the plaintiffentered into an agreement whereby the plaintiff Indians agreed to acceptallotments of their Executive order reservation lands in the amount of fiveacres of irrigable land per person and to relinquish the remainder of thereservation to the defendant. The petition further alleges that the 1893Agreement was wholly nugatory, having been exacted without consideration,and under misrepresentation, duress and concealment of facts by the defendant;that the agreement presented to Congress was a forgery; and that the defendantfurther unilaterally and materially altered the 1893 Agreement by the Actsof August 15, 1894 (28 Stat. 286, 332), and April 21, 1904 (33 Stat. 189,224), as amended by the Act of March 3, 1911 (36 Stat. 1058, 1063).

Pursuant to a Commission order of April 24, 1958, that certain causes ofaction in Docket No. 86 be stricken therefrom and included in Docket No.320, the plaintiff's then attorney amended the petition in Docket No. 320on June 24, 1958 to add a fifth cause of action premised on the 1893 Agreementbeing valid-alleging that it was ratified by the 1894 Act-and seeking damagesfor non-performance by the defendant. Plaintiff states that during the 1962liability hearing the bulk of the evidence demonstrating the invalidityof the 1893 Agreement was not presented, and that during the oral argumentplaintiff's former attorney abandoned the invalidity argument in favor orarguing for damages flowing from defendant's breaches of the 1893 Agreement.

Plaintiff now seeks to return to its original position, and contends thatwithout a full presentation of evidence that the 1893 Agreement is invalid,plaintiff is left in the vulnerable position of having its assertions tothe contrary sustained, resulting in the loss of its land "as the resultof a wholly invalid agreement."

Plaintiff urges that this Commission declare the 1893 Agreement to be invalidand that plaintiff has retained title to its land. Plaintiff argues thatauthority for such action is contained in Section 2, Clause (3) of the IndianClaims Commission Act (25 U.S.C. §70a). We disagree. Section 2, Clause(3) of the Indian Claims Commission Act grants jurisdiction to the Commissionto hear and determine "claims which would result if the treaties, contracts,and agreements between the claimant and the United States were revised onthe ground of fraud, duress, unconscionable consideration, mutual or unilateralmistake, whether of law or fact, or any other ground cognizable by a courtof equity." The Commission and the courts have disclaimed jurisdictionover the validity of treaties between Indian tribes and the United States.In Sac and Fox Tribe v. United States2 the Commission held that the validityof a properly executed treaty is not open for ordinary judicial inquiryunder any law or statute, or as regards the Commission under the IndianClaims Commission Act, that ratification imparts legality to a treaty, andthat Congress alone has authority to abrogate or invalidate a treaty inwhole or in part. The case is in line with earlier precedents. See UnitedStates v. Minnesota, 270 U.S. 181, 201 (1926); Lone Wolf v. Hitchcock, 187U.S. 553, 567-568 (1903); Fellows v. Blacksmith, 19 How. 366, 372 (1856).The rationale applies equally to the ratified 1893 Agreement. It followsthat the Commission is without authority to determine that the 1893 Agreementis invalid, and at most can determine monetary damages for fraud, duress,unconscionable consideration, etc. It is clear that under the circumstancethe declaratory relief which the plaintiff seeks through presenting additionalevidence of the invalidity of the 1893 Agreement cannot be achieve in thisforum.3 However, although it would thus be futile to allow the plaintiffto produce additional evidence for the purpose sought in its pending motion,it is possible that the evidence would have some bearing on the amount ofmonetary damages, if any, recoverable.

In seeking to reopen the record it is incumbent upon the plaintiff not onlyto set out the evidence that it seeks to introduce, in order that the Commissionmay judge the sufficiency thereof, but to demonstrate that the evidenceis material to the issue, is not merely cumulative, and that it is reasonablyprobable that a different result will be reached if the evidence is admitted.Combs v. Peters, 23 Wis. 2d 629, 127 N.W. 2d 750, 754 (1964); Re Eanelli'sEstate, 260 Wis. 192, 68 N.W. 2d 791, 802, 803 (1955); Crouse v. McVickar,207 N.Y. 213, 100 N.E. 697, 698 (1912). The plaintiff has not yet met itsburden in this respect, but will be given an opportunity to describe theevidence it seeks to introduce, and to show its materiality, if any, inrespect to monetary damages.

The defendant argues that the provisions of 25 U.S.C. § 70v, as amendedon April 10, 1967, by §70v-1, specifying that the Commission calendarall claims for trial prior to December 31, 1970, leaves the Commission withoutjurisdiction to hear any case not calendared prior to that date. The contentionis without merit. The Commission has fully complied with 25 U.S.C. §70v,as amended. It is within the discretion of the Commission to reopen therecord of pending cases as warranted by the facts, in order that the purposesof the Indian Claims Commission Act, in equitably settling cases, not bethwarted.

The defendant further argues that the plaintiff's motion should be deniedbecause the plaintiff has had ample opportunity to present all relevantevidence, and the parties' proposed findings explore in depth the circumstancessurrounding the execution of the 1893 Agreement. Because of the peculiarcircumstances of this case, including the alleged differences of languageand culture between the parties allegedly resulting in lack of communicationand understanding, and due to the death and replacement of plaintiff's counsel,it is our opinion that the plaintiff should be offered an opportunity to present fullyits case. An appropriate order will be issued.

Concurring: s JEROME K. KUYKENDALL
JEROME K. KUYKENDALL,
Chairman
s JOHN T. VANCE
JOHN T. VANCE, Commissioner
s RICHARD W. YARBOROUGH
RICHARD W. YARBOROUGH, Commissioner
s MARGARET H. PIERCE
MARGARET H. PIERCE, Commissioner
s BRANTLEY BLUE
BRANTLEY BLUE, Commissioner

1 The proposed legislation sought the return of the property in issue inthis case, to the Quechan Indians.

2 Docket No. 83, 7 Ind. Cl. Comm. 675, 710-712 (1959), aff'd on other grounds,161 Ct. Cl. 189, 198, cert. denied, 375 U.S. 921 (1963).

3 See United States v. King, 395 U.S. 1. (1969), rev'g King v. United States,182 Ct. Cl. 831, 390 F.2d 894 (1968).



APPENDIX E

UNITED STATES CLAIMS COURT
TRIAL DIVISION

Docket No. 320

QUECHAN TRIBE OF THE FORT YUMA
RESERVATION, CALIFORNIA, PLAINTIFF

v.

UNITED STATES OF AMERICA, DEFENDANT

JOINT MEMORANDUM RE STIPULATIONS

PART I

The parties stipulate to the following facts:

1. Plaintiff (hereinafter "Quechan" or "Quechan Tribe")is a duly recognized Indian tribe functioning under the Indian ReorganizationAct of 1934.

2. By executive order of President Chester A. Arthur on January 9, 1884,a tract of land in the State of California "beginning at a point inthe middle of the channel of the Colorado River due east of the meandercorner to sections 19 and 30, township 15 south, range 24 east, San Bernardinomeridian; thence west on the line between sections 19 and 30 to the rangeline between townships 23 and 24 east; thence continuing west on the sectionline to a point which when surveyed, will be the corner to sections 22,23, 26, and 27, in township 15 south, range 21 east; thence south on theline between sections 26 and 27, in township 15 south, range 21 east, andcontinuing south on the section lines to the intersection of the internationalboundary, being the corner to fractional sections 34 and 35, in township16 south, range 21 east; thence easterly on the international boundary tothe middle of the channel of the Colorado River; thence up said river, inthe middle of the channel thereof, to the place of beginning," wasset apart as a reservation for the Quechan. Tracts within the reservationto which valid rights had previously attached were excluded from the reservation.

3. There was excluded from the foregoing description so much of the landas was embraced within the Fort Yuma Military Reservation, but that reservationwas by the same order transferred to the control of the Department of theInterior to be used for Indian purposes in connection with the reservation.Thereafter at all times the Fort Yuma Military Reservation, both in Californiaand Arizona, was and is a part of the Quechan Reservation.

4. According to the order of the Secretary of the Interior, dated December20, 1978, and by Supplemental Determination and Directives of the Secretaryof the Interior, dated January 30, 1981, the 1884 executive order boundaryof the Fort Yuma Indian Reservation, as modified by the executive orderof December 19, 1900, which revoked the portion of the reservation lyingsouth of the Colorado River in the then territory of Arizona, still remainsthe reservation boundary.

5. According to the secretarial order the exterior boundaries of the QuechanReservation today are the boundaries set forth in paragraph 1, establishedby the 1884 executive order, as modified by the executive order of December19, 1900, and those lands which have accreted to the 1884 boundaries.

6. The secretarial order of December 20, 1978, has attached to it a mapentitled "Fort Yuma Indian Reservation 1884-1974, Revised September1974 SDT," depicting the general location of the reservation boundary.The order provides that the exact location of the boundary "shall bedetermined hereafter by survey in accordance with the boundaries recognizedby this Order." The parties have been unable to locate a map settingforth the exact location of the boundary by survey pursuant to the 1978order, but both parties will continue to search for that map. In the eventthat a more accurate map cannot be located, the parties will stipulate tothe highway system map prepared by the Fort Yuma Indian Agency, California,as setting forth the 1884 boundaries and the accreted lands.

7. The reservation as established in 1884 consisted of 48,608 acres. Asa result of subsequent changes in the channel of the Colorado River, approximately5,000 acres were added to the reservation by accretion. After the 1893 agreement,the reservation was thought to comprise approximately 8,100 acres.

8. If the December 20, 1978, secretarial order is upheld, there are no remainingissues as to the liability of the United States for the acquisition of portionsof the Quechan Reservation. The issues remaining in the case relate to thedetermination of the damages sustained by the Quechan.

9. If the December 20, 1978, secretarial order is upheld, the proper measureof damages for the portions of the reservation which were permanently acquiredfrom the Quechan is the fair market value of those portions of the reservationon the effective dates of the permanent acquisitions. No stipulation isentered into as to the measure of damages for the temporary deprivationof those lands which were reaffirmed by the executive order of December20, 1978, or of those lands which, after a period of temporary deprivation,were permanently acquired.

10. The secretarial order of December 20, 1978, excluded from the recognitionof the trust status of the lands within the 1884 exterior boundaries thoselands as to which valid rights were acquired by third parties before orafter 1884 and reclamation work projects constructed on the reservationpursuant to statutes after 1884. Those exceptions are described in detailin the secretarial Determination and Directives signed by Secretary Watton January 30, 1981, and published in 46 Federal Register at page 11,372,et seq.

11. Both the United States and the Quechan Tribe were and are parties tothe case of Arizona v. California, No. 8 Original, and participated in hearingsbefore Elbert P. Tuttle, Special Master, appointed by the Supreme Court,in 1980 and 1981. The parties waive foundation for the introduction intoevidence in this case of any portions of the transcript of the hearingsbefore Special Master Tuttle and any exhibits which were introduced intoevidence at the hearings before Special Master Tuttle, reserving their objectionsas to relevancy and materiality.

12. Plaintiff has furnished to defendant's attorney and defendant has furnishedto plaintiff's attorney a copy of the exhibits relied upon and cited bythe plaintiff's witness, Robert G. Hill, and defendant's witnesses, JohnT. Daubert and James G. Sawyers. Both parties waive foundations for theintroduction into evidence of all those exhibits relied upon and cited bythe named witnesses. Both parties reserve all objections as to relevancyand materiality.

13. All of the lands of the Quechan Reservation which lie below the AllAmerican Canal (the southern lands) were and are practicably irrigable,and for the purpose of determining damages in this action they shall bevalued as irrigated lands.

PART II

14. In addition to the foregoing stipulations, the Quechan Tribe offersto stipulate that of the approximately 25,000 acres of reservation landlying north and west of the All American Canal (the northern lands), 6,199acres were found to be practicably irrigable by Special Master Tuttle, andfor the purpose of these hearings those 6,199 acres were and are practicablyirrigable and shall be valued for damages as irrigated lands.

The United States refuses to stipulate as to these 6,199 acres of northernlands because the evidence appears to establish that the land could notbe profitably irrigated.

15. The Quechan Tribe also offers to stipulate that as a result of the December20, 1978, secretarial order there are no remaining issues as to the liabilityof the United States for the taking of portions of the Quechan Reservation.The issues remaining in the case relate to the determination of the damagessustained by the Quechan.

The United States is unable to so stipulate because of the Supreme Courtopinion in Arizona v. California that there must be a judicial determinationof the Quechan boundary.

16. The Quechan Tribe also offers to stipulate that the proper measure ofdamages for the portions of the reservation which were permanently takenfrom the Quechan is the fair market value of those portions of the reservationon the effective dates of the permanent acquisitions. The measure of damagesfor the temporary deprivation of those lands which were reaffirmed by theexecutive order of December 20, 1978, and of those lands which, after aperiod of temporary deprivation, were permanently acquired, is their fairrental value.

The United States is unable to so stipulate for the reason set forth inparagraph 15 and also because, in any event, the United States contendsthat the measure of damages for a temporary deprivation is the rents actuallyreceived by the United States.

DATED: May 26, 1983,

Respectfully submitted,

RAYMOND C. SIMPSON and
KILPATRICK, CLAYTON, MEYER
& MADDEN, a professional corporation
By: s B.J. KILPATRICK
B.J. KILPATRICK
Attorneys for plaintiff
CAROL E. DINKINS
ASSISTANT ATTORNEY GENERAL
RICHARD L. BEAL, ATTORNEY
Attorneys for the defendant
By: s RICHARD L. BEAL
Attorney


APPENDIX F

IN THE UNITED STATES CLAIMS COURT

Docket No. 320

QUECHAN TRIBE OF THE FORT YUMA RESERVATION, CALIFORNIA, PLAINTIFF

v.

UNITED STATES OF AMERICA, DEFENDANT

[Filed: Aug. 5, 1983]

STIPULATION FOR SETTLEMENT
AND ENTRY OF FINAL JUDGMENT

The parties, by counsel, hereby stipulate that the above-entitled claimshould be settled, compromised, and finally disposed of by entry of finaljudgment as follows:

1. There shall be entered in the action a net judgment, without offsets,for plaintiff in the amount of Fifteen Million Dollars ($15,000,000.00).Entry of final judgment shall finally dispose of all rights, claims, ordemands which plaintiff has asserted or could have asserted with respectto the claims in Docket 320, and plaintiff shall be barred thereby fromasserting any further rights, claims, or demands against the defendant andany future action on the claim encompassed on Docket 320, and shall finallydispose of all rights, claims, demands, payments on the claim, counterclaims,or offsets which defendant has asserted or could have asserted against plaintiffin Docket 320 and defendant shall be barred thereby from asserting againstplaintiff in any future action any such rights, demands, payments on theclaim, counterclaims, or offsets.

2. The final judgment entered pursuant to this stipulation shall be construedto be a compromise and settlement and shall not be construed as an admissionby either party for the purposes of precedent or argument in any other case.

3. The final judgment of the United States Claims Court, pursuant to thisstipulation, shall constitute a final determination by the court of theabove-captioned case and shall become final on the day it is entered, allparties hereto waiving any and all rights to appeal from or otherwise seekreview of such final determination.

4. Attached to this stipulation and incorporated by reference are: a resolutionapproving the settlement adopted by the Quechan Tribal Council, plaintiff'sgoverning body, on June 16, 1983; a resolution adopted at a meeting of theadult members of the Quechan Tribe of Indians held at Yuma, Arizona, onJuly 8, 1983, and a further resolution ratifying the action of the membersand reaffirming the approval of the settlement by the Quechan Tribal Counciladopted July 8, 1983; all of said resolutions authorizing counsel for plaintiffto enter into this stipulation, as set forth herein; and a copy of the letterapproving the settlement of this litigation by the Department of the Interior or its authorized representative. (Exhibits 1-4).

DATED: July 12, 1983.

RAYMOND C. SIMPSON and
KILPATRICK, CLAYTON, MEYER
& MADDEN
By: s RAYMOND C. SIMPSON
RAYMOND C. SIMPSON
Attorneys of Record for
Plaintiff
DATED: July 29, 1983.
F. HENRY HABICHT, II
RICHARD L. BEAL
By: s RICHARD L. BEAL
RICHARD L. BEAL
Attorney for Defendant



EXHIBIT 1

[seal omitted]
QUECHAN INDIAN TRIBE
Fort Yuma Indian Reservation
P.O. Box 1352
YUMA, ARIZONA 85364
Phone (619) 572-0213

R E S O L U T I O N
R-33-83

A Resolution of the Quechan Tribe authorizing Attorney Raymond C. Simpsonto finalize a settlement of Quechan vs. United States Docket #320.

WHEREAS: The Quechan Tribal Council acknowledges an offer by the U.S. Attorneyto settle Docket #320, and

WHEREAS: The Quechan Tribal Council realizes that the U.S. Attorney's firstoffer of $13,500,000.00 was not in the best interest of the tribe, and

WHEREAS: The Quechan Tribal Council has determined that the U.S. Attorney'sfinal offer of $15,000,000.00 is a fair and reasonable amount for settlement,and

WHEREAS: The Quechan Tribal Council realizes that a previous action throughCouncil Resolution R-24-83 authorized Attorney Raymond C. Simpson to negotiatesettlement between $15,000,000.00 to $20,000,000.00.

SO THEREFORE BE IT RESOLVED: That the Quechan Tribal Council does herebyrescind Resolution R-24-83 and authorize final settlement of Docket #320in the amount of $15,000,000.00, and

BE IT FINALLY RESOLVED: That the Quechan Tribal Council authorizes AttorneyRaymond C. Simpson to finalize said settlement on behalf on the QuechanTribe.

C E R T I F I C A T I O N

The foregoing resolution was presented at a Regular Council meeting whichconvened on June 16, 1983, duly approved by a vote of 5 for, and 0 against,by the Tribal Council of the QUECHAN INDIAN TRIBE, pursuant to authorityvested in it by Section 16 of the Indian Reorganization Act of June 15,1934 (49 Stat. 378), and Article IV, Section 1(b), Section 15, and ArticleVIII, Section 1, of the Quechan Tribe Constitution and Bylaws. This resolutionis effective as of the date of its approval.

QUECHAN INDIAN TRIBE

By:
/s/ VINCENT HARVIER
VINCENT HARVIER, President
/s/ PATRICIA E. QUAHLUPE
PATRICIA E. QUAHLUPE,
Secretary
APPROVED:

Superintendent



Exhibit 2

[seal omitted]
QUECHAN INDIAN TRIBE
Fort Yuma Indian Reservation
P.O. Box 1352
YUMA, ARIZONA 85364
Phone (619) 572-0213
R E S O L U T I O N
R-34-83

WHEREAS: The Quechan Tribe of Indians has been prosecuting a claim beforethe United States Claims Court entitled Quechan Tribe of Indians v. UnitedStates of America, Docket 320, and

WHEREAS: The above-entitled action was set for trial before the United StatesClaims Court on June 20, 1983, in San Diego, California, and

WHEREAS: A pre-trial in the action was held in Washington, D.C., on June8, 1983, at which, among other things, the status of settlement negotiationswas discussed, and

WHEREAS: With the approval of the Quechan Tribal Council settlement negotiationshad been conducted for several months prior to June 8, 1983, between theattorneys for the Tribe and the attorneys representing the United States,and

WHEREAS: On April 20, 1983, the Quechan Tribal Council adopted resolutionR-24-83 authorizing a settlement of the action for not less than FifteenMillion Dollars ($15,000,000.00), and

WHEREAS: On June 15, 1983, the attorneys forthe Quechan Tribe and the attorneysrepresenting the United States agreed to a settlement of the claims in Docket320 for a net amount of $15,000,000.00, and

WHEREAS: The Tribal Council of the Quechan Tribe of Indians fully debatedand considered the proposed offer of settlement and approved the settlementby resolution adopted June 16, 1983, and

WHEREAS: Considerable time will be taken to hear and determine the issuesin the case if litigated and appealed, and there will be considerable additionalexpense and further delays before a final judgment could be entered, and

WHEREAS: The Quechan Tribe of Indians held a general membership meetingof the Tribe on July 8, 1983, for the purpose of considering the terms ofsuch settlement, and Raymond C. Simpson, Attorney, appeared before the generalmembership meeting and fully explained and evaluated the proposed compromiseand settlement and answered questions of members of the Tribe, and, in addition,members of the Tribal Council explained the settlement, and

WHEREAS: Representatives of the Department of Interior, Bureau of IndianAffairs, were present during the meeting and observed proceedings, and

WHEREAS: The adult members of the Quechan Tribe of Indians are fully informedand advised about the proposed settlement.

NOW, THEREFORE, BE IT RESOLVED, by the adult members of the Quechan Tribeof Indians assembled that the proposed settlement of the claims of the Tribein Docket 320 for the net sum of $15,000,000.00, without offsets, be andhereby is approved, it being understood that this approval authorizes theattorneys to execute the proposed stipulation for entry of final judgment,and

BE IT FURTHER RESOLVED, that the President and Secretary of this meetingare authorized to execute the proposed stipulation and that the membersof the Tribal Council are authorized to appear and testify before the UnitedStates Claim Court about the proposed settlement and the action taken bythe adult members of the Quechan Tribe of Indians, and

BE IT FURTHER RESOLVED, that the Secretary of the Interior and the UnitedStates Claims Court are hereby requested to approve the proposed settlementand stipulation for entry of final judgment.

/s/ VINCENT HARVIER
VINCENT HARVIER,
President

ATTEST:
/s/ PATRICIA QUAHLUPE
PATRICIA QUAHLUPE
Secretary

C E R T I F I C A T I O N

I hereby certify that at a duly called meeting of the adult members of theQuechan Tribe of Indians held July 8, 1983, notice of which was mailed toeach member of the Tribe and published, the foregoing resolution was adoptedby a vote of 53 for a 2 opposed, with 4 abstentions.

DATED: July 8, 1983.

/s/ VINCENT HARVIER
VINCENT HARVIER
President
ATTEST:
/s/ PATRICIA QUAHLUPE
PATRICIA QUAHLUPE
Secretary
I hereby certify that VINCENT HARVIER and PATRICIA QUAHLUPE, personallyknown to me, subscribed their names to the foregoing resolution in my presenceand that the resolution was adopted by a vote of 53 for and 2 opposed and4 abstained.

DATED: July 8, 1983.

/s/ signature illegible
Supt.
Representative, Bureau of
Indian
Affairs, U.S. Department of
the Interior



Exhibit 3

QUECHAN TRIBE OF INDIANS
RESOLUTION OF THE TRIBAL COUNCIL

RESOLUTION NO. R-35-83

WHEREAS, on June 16, 1983, the Quechan Tribal Council authorized attorneysfor the Tribe to propose to the Attorney General of the United States thatthe Tribe accept the sum of Fifteen Million Dollars ($15,000,000.00) withoutoffsets in full settlement of the claims of the Tribe, in Docket 320 beforethe United States Claims Court, subject to tribal approval and to the customaryconditions of the United States for settlement of claim cases, and

WHEREAS, on July 8, 1983, the Attorney General of the United States approvedthe settlement under customary conditions, and

WHEREAS, on July 8, 1983, the Quechan Tribe of Indians had a general membershipmeeting pursuant to proper notice, for the purpose of considering and votingon the terms of the settlement, which was fully discussed by the membersof the Tribe and by the attorneys representing the Tribe before the UnitedStates Claims Court, and

WHEREAS, the adult members of the Quechan Tribe of Indians were fully informedand advised about the proposed settlement and were fully advised as to theproposed stipulation for entry of final judgment, and

WHEREAS, the adult members of the Quechan Tribe of Indian adopted a resolutionapproving the compromise and settlement by a vote of 53 for and 2 opposed,with 4 abstentions, and

NOW, THEREFORE, BE IT RESOLVED by the Tribal Council of the Quechan Tribeof Indians that the proposed compromise and settlement of the claims ofthe Tribe in Docket 320 by and hereby is affirmed, approved, and ratifiedand the proposed stipulation for final entry of judgment by and hereby isapproved.

BE IT FURTHER RESOLVED: The following individuals be and hereby are authorizedto testify before the United States Claims Court regarding the proposedsettlement and the action taken by the adult members of the Quechan Tribeof Indians:

Vincent Harvier, President
Vernon Smith, Vice President
Joe Jackson
George Bryant
John Norton

BE IT FURTHER RESOLVED That the attorneys for the Tribe are authorized toexecute the proposed stipulation for entry of final judgment and to takewhatever steps are necessary to effectuate the compromise and settlement.

/s/ VINCENT HARVIER
VINCENT HARVIER,
President
ATTEST:
/s/ PATRICIA QUAHLUPE
PATRICIA QUAHLUPE
Secretary
The foregoing resolution was adopted by the Tribal Council of the QuechanTribe of Indians on the 8th day of July, 1983, by a vote of 4 for and noneopposed at a duly called meeting at which a quorum of the Tribal Councilmembers were present.

/s/ VINCENT HARVIER
VINCENT HARVIER,
President
ATTEST:
/s/ PATRICIA QUAHLUPE
PATRICIA QUAHLUPE
Secretary



Exhibit 4

[seal omitted]

United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
WASHINGTON, D.C. 20245
IN REPLY REFER TO:
Tribal Government Services (AD)

[Filed: JULY 27 1983]

Raymond C. Simpson, Esquire
2032 Via Visalia
Palos Verdes Estates, California 90274

Dear Mr. Simpson:

By letter dated July 11 you requested consideration and approval of a proposalcompromise to settle the claims of the Quechan Tribe of Indians in DocketNo. 320 for a net final judgment of $15,000,000. This case involves claimsof the Quechan Tribe for damages for the taking of parts of their reservationafter 1893 and the loss of use of other parts of the reservation from 1893to 1978.

The claims in Docket No. 320 are being prosecuted by you under contractNo. H50C14207367. This contract was made on February 10, 1971, and dulyapproved by the Phoenix Area Director. The term of the contract is effectivethrough April 10, 1985.

Pursuant to authority granted to you by the Quechan Tribal Council, yousubmitted a letter to the Department of Justice offering to settle the claimsin Docket No. 320 for $15,000,000. Your offer was accepted by the ActingAssistant Attorney General by letter dated July 8, 1983, with conditions.Among the conditions were that the proposed settlement be approved by appropriateresolutions of the governing body and the general membership of the tribe.In addition, approval of the settlement as well as the resolutions of thetribe must be secured from the Secretary of the Interior or his authorizedrepresentative.

Entry of judgment in this case shall finally dispose of all claims whichthe tribe has asserted or which the tribe could have asserted against thedefendant under the Indian Claims Commission Act in Docket No. 320.

For purposes of obtaining consideration and approval of the settlement fromthe general membership of the tribe, a claims settlement meeting was scheduledand held on July 8, 1983, at the Quechan Tribal Office. Prior to the meeting,notices were posted throughout the reservation and mailed to the tribalmembers.

QUECHAN GENERAL MEMBERSHIP MEETING

On July 8, 1983, the general membership claims settlement meeting was convenedat 2:15 p.m. by Vincent Harvier, President, Quechan Tribal Council. Approximately70 people were in attendance. President Harvier explained to the tribalmembers the extensive involvement the tribal council has had in the settlementnegotiations and his observations of what transpired at a hearing on theseclaims held the previous month before the United States Claims Court. Aftersome discussion and comments by the tribal council members, you were askedto give your presentation. You gave a thorough and concise description ofthe history of the claims and explained the terms of the proposed settlement.Afterwards, Mr. George Bryant, a tribal member, translated the written summaryof your explanation into the Quechan language. Those present were then givenan opportunity to comment on and ask any questions they may have concerningthe settlement. The Bureau observers report that those present at the meetingappeared to understand the nature of the claims and the terms of the proposedsettlement.

After some discussion of the settlement, President Harvier read the proposedgeneral membership resolution accepting the terms of the settlement. A motionwas made and seconded to adopt the resolution. Quechen General MembershipResolution No. R-34-83 was adopted by a vote of 53 for and 2 opposed, with4 abstentions.

We are satisfied that appropriate steps were taken to publicize the Quechangeneral meeting held on July 8, 1983, so as to afford the tribal membersan opportunity to attend the meeting and to consider and vote on the proposedsettlement. The general meeting was properly conducted and the votes ofthe tribal members were fairly taken and reflected the views of the personswho voted. Quechan General Membership Resolution No. R-34-83 is hereby approved.

QUECHAN TRIBAL COUNCIL MEETING

After the general membership meeting, a duly called tribal council meetingwas held for the purpose of considering and voting on the proposed settlement.A quorum of the council was present. The Quechan Tribal Council adoptedResolution No. R-35-83 approving the proposed settlement by a vote of 4for and none opposed.

The Quechan Tribe is organized under a constitution and bylaws adopted pursuantto the Indian Reorganization Act. The constitution provides that the QuechanTribal Council shall represent the Quechan Tribe in all affairs and shallhave the power to present and prosecute any claims or demands of the tribe.

Resolution No. R-35-83, enacted on July 8, 1983, by the Quechan Tribal Councilconstitutes the action of the governing body of the tribe and is herebyapproved.

The information furnished to us by you, our field officers, and informationfrom other sources has satisfied us that the proposed settlement of theclaims in Docket No. 320 is fair and just. The proposed settlement is herebyapproved.

Sincerely,

/s/ signature illegible

Acting Deputy Assistant Secretary -
Indian Affairs (Operations)


APPENDIX G

IN THE UNITED STATES CLAIMS COURT
TRIAL DIVISION

DOCKET 320
QUECHAN TRIBE OF THE
FORT YUMA RESERVATION, CALIFORNIA, PLAINTIFF

v.

UNITED STATES OF AMERICA, DEFENDANT

JOINT MOTION FOR APPROVAL OF SETTLEMENT AND ENTRY OF FINAL JUDGMENT

The parties, by counsel, hereby jointly move the court for an order approvinga compromise and settlement of the above-entitled action and entering afinal judgment in the sum of $15 million. The terms of the settlement areset forth in a stipulation entered into by the parties, which is filed herewithand which sets forth the terms of the settlement as follows:

1. There shall be entered in the action a net judgment, without offsets,for plaintiff in the amount of $15 million. Entry of final judgment shallfinally dispose of all rights, claims, or demands which plaintiff has assertedor could have asserted with respect to the claims in docket 320, and plaintiffshall be barred thereby from asserting any further rights, claims, or demandsagainst the defendant and future action on the claims encompassed in docket320, and shall finally dispose of all rights, claims, demands, paymentson the claim, counterclaims, or offsets which defendant has asserted orcould have asserted against plaintiff in docket 320, and defendant shallbe barred thereby from asserting against plaintiff in any future actionany such rights, demands, payments on the claim, counterclaims, or offsets.

2. The final judgment shall be construed to be a compromise and settlementand shall not be construed as an admission by either party for the purposeof precedent or argument in any other case.

3. The final judgment shall constitute a final determination of the action,to become final on the date it is entered, all parties waiving any and allrights to appeal from or otherwise seek review of the judgment.

4. Attached to the stipulation and incorporated herein by reference are:a resolution approving the settlement adopted by the Quechan Tribal Council,plaintiff's governing body, on June 16, 1983; a resolution adopted at ameeting of the adult members of the Quechan Tribe of Indians held at Yuma,Arizona, on July 8, 1983; and a further resolution ratifying the actionof the members and reaffirming the approval of the settlement by the QuechanTribal Council adopted July 8, 1983; all of said resolutions authorizingcounsel for plaintiff to enter into the stipulation, and a copy of the letterapproving the settlement of the litigation by the Department of the Interioror its authorized representative.

DATED: July 27, 1983.

RAYMOND C. SIMPSON and
KILPATRICK, CLAYTON, MEYER
& MADDEN, a profession corporation
By: s RAYMOND C. SIMPSON
RAYMOND C. SIMPSON
Attorneys for plaintiff
F. HENRY HABICHT II
Assistant Attorney General
RICHARD L. BEAL, Attorney
By: s RICHARD L. BEAL
RICHARD L. BEAL
Attorneys for defendant
By: F. HENRY HABICHT, II
Acting Assistant Attorney
General
Land and Nautrual
Resources Division


APPENDIX H

IN THE UNITED STATES CLAIMS COURT
TRIAL DIVISION

DOCKET 320

QUECHAN TRIBE OF THE
FORT YUMA RESERVATION, CALIFORNIA, PLAINTIFF

v.

UNITED STATES OF AMERICA, DEFENDANT

FINAL JUDGMENT

A joint motion having been filed herein by the parties for approval of compromisesettlement and entry of final judgment, pursuant to a written stipulationtherefor filed with the motion, the court, being fully advised, concludesas a matter of law that the proposed settlement of plaintiff's claim isequitable and just to both parties and that final judgment should be enteredin accordance with the stipulation. The court, therefore, approves thatstipulation and renders judgment as follows:

Judgment is rendered for plaintiff in the amount of $15 million.

Entry of this final judgment shall finally dispose of all rights, claims,or demands which plaintiff has asserted or could have asserted with respectto the claims in Docket 320, and plaintiff shall be barred thereby fromasserting any further rights, claims, or demands against the defendant andany future action on the claims encompassed on Docket 320, and shall finallydispose of all rights, claims, demands, payments on the claim, counterclaims,or offsets which defendant has asserted or could have asserted against plaintiffin Docket 320 and defendant shall be barred thereby from asserting againstplaintiff in any future action any such rights, demands, payments on theclaim, counterclaims, or offsets.

This final judgment is based on a compromise and settlement and shall notbe construed as an admission by either party for the purposes of precedentor argument in any other case.

This final judgment is a final determination by the court of the above-captionedcase and shall become final on the date it is entered, all parties havingwaived in open court any and all rights to appeal from or otherwise seekreview hereof.

DATED: August 11, 1983.

ALEX KOZINSKI
Chief Judge

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