OCTOBER TERM, 1999
Syllabus
ARIZONA
v. CALIFORNIA
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
No.8, Orig. Argued April 25, 2000-Decided June 19, 2000
This litigation began in 1952 when Arizona invoked this Court's
original jurisdiction to settle a dispute with California over the
extent of each State's right to use water from the Colorado River
system. The United States intervened, seeking water rights on
behalf of, among others, five Indian reservations, including the
Fort Yuma (Quechan) Indian Reservation, the Colorado River Indian
Reservation, and the Fort Mojave Indian Reservation. The first
round of the litigation culminated in
Arizona v.
California, 373 U. S. 546 (Arizona
I), in which the Court held that the United States had reserved
water rights for the five reservations,
id., at 565,
599-601; that those rights must be considered present perfected
rights and given priority because they were effective as of the
time each reservation was created,
id., at 600; and that
those rights should be based on the amount of each reservation's
practicably irrigable acreage as determined by the Special Master,
ibid. In its 1964 decree, the Court specified the quantities
and priorities of the water entitlements for the parties and the
Tribes,
Arizona v.
California, 376 U. S. 340, but
held that the water rights for the Fort Mojave and Colorado River
Reservations would be subject to appropriate adjustment by future
agreement or decree in the event the respective reservations'
disputed boundaries were finally determined,
id., at 345.
The Court's 1979 supplemental decree again deferred resolution of
reservation boundary disputes and allied water rights claims.
Arizona v.
California, 439 U. S. 419, 421
(per curiam). In
Arizona v.
California, 460 U.
S. 605
(Arizona II), the Court concluded, among other
things, that various administrative actions taken by the Secretary
of the Interior, including his 1978 order recognizing the
entitlement of the Quechan Tribe (Tribe) to the disputed boundary
lands of the Fort Yuma Reservation did not constitute final
determinations of reservation boundaries for purposes of the 1964
decree.
Id., at 636-638. The Court also held in
Arizona
II that certain lands within undisputed reservation boundaries,
for which the United States had not sought water rights in
Arizona I-the so-called "omitted lands"-were not entitled to
water under res judicata principles. 460 U. S., at 626. The Court's
1984 supplemental decree again declared that water rights for all
five reservations would be subject to appropriate adjustments if
the reservations' boundaries were finally determined.
Arizona v.
California, 466 U. S.
393
144, 145. In 1987, the Ninth Circuit dismissed, on grounds of
the United States' sovereign immunity, a suit by California state
agencies that could have finally determined the reservations'
boundaries. This Court affirmed the Ninth Circuit's judgment by an
equally divided vote.
The present phase of the litigation concerns claims by the Tribe
and the United States on the Tribe's behalf for increased water
rights for the Fort Yuma Reservation. These claims rest on the
contention that the Fort Yuma Reservation encompasses some 25,000
acres of disputed boundary lands not attributed to that reservation
in earlier stages of the litigation. The land in question was
purportedly ceded to the United States under an 1893 Agreement with
the Tribe. In 1936, the Department of the Interior's Solicitor
Margold issued an opinion stating that, under the 1893 Agreement,
the Tribe had unconditionally ceded the lands. The Margold Opinion
remained the Federal Government's position for 42 years. In 1946,
Congress enacted the Indian Claims Commission Act, establishing a
tribunal with power to decide tribes' claims against the
Government. The Tribe brought before the Commission an action,
which has come to be known as Docket No. 320, challenging the 1893
Agreement on two mutually exclusive grounds: (1) that it was void,
in which case the United States owed the Tribe damages essentially
for trespass, and (2) that it constituted an uncompensated taking
of tribal lands. In 1976, the Commission transferred Docket No. 320
to the Court of Claims. In the meantime, the Tribe asked the
Interior Department to reconsider the Margold Opinion. Ultimately,
in a 1978 Secretarial Order, the Department changed its position
and confirmed the Tribe's entitlement to most of the disputed
lands. A few months after this Court decided in
Arizona II
that the 1978 Secretarial Order did not constitute a final
determination of reservation boundaries, the United States and the
Tribe entered into a settlement of Docket No. 320, which the Court
of Claims approved and entered as its final judgment. Under the
settlement, the United States agreed to pay the Tribe $15 million
in full satisfaction of the Tribe's Docket No. 320 claims, and the
Tribe agreed that it would not further assert those claims against
the Government. In 1989, this Court granted the motion of Arizona,
California, and two municipal water districts (State parties) to
reopen the 1964 decree to determine whether the Fort Yuma, Colorado
River, and Fort Mojave Reservations were entitled to claim
additional boundary lands and, if so, additional water rights. The
State parties assert here that the Fort Yuma claims of the Tribe
and the United States are precluded by
Arizona I and by the
Claims Court consent judgment in Docket No. 320. The Special Master
has prepared a report recommending that the Court reject the first
ground for preclusion but accept the second. The State parties have
filed exceptions to the Special Master's
394
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first recommendation, and the United States and the Tribe have
filed exceptions to the second. The Master has also recommended
approval of the parties' proposed settlements of claims for
additional water for the Fort Mojave and Colorado River
Reservations, and has submitted a proposed supplemental decree to
effectuate the parties' accords.
Held:
1. In view of the State parties' failure to raise the preclusion
argument earlier in the litigation, despite ample opportunity and
cause to do so, the claims of the United States and the Tribe to
increased water rights for the disputed boundary lands of the Fort
Yuma Reservation are not foreclosed by
Arizona I. According
to the State parties, those claims are precluded by the finality
rationale this Court employed in dismissing the "omitted lands"
claims in
Arizona II, 460 U. S., at 620621, 626-627, because
the United States could have raised the Fort Yuma Reservation
boundary lands claims in
Arizona I, but deliberately decided
not to do so. In rejecting this argument, the Special Master
pointed out that the Government did not assert such claims in
Arizona I because, at that time, it was bound to follow the
Margold Opinion, under which the Tribe had no claim to the boundary
lands. The Master concluded that the 1978 Secretarial Order, which
overruled the Margold Opinion and recognized the Tribe's beneficial
ownership of the boundary lands, was a circumstance not known in
1964, one that warranted an exception to the application of res
judicata doctrine. In so concluding, the Special Master relied on
an improper ground: The 1978 Secretarial Order does not qualify as
a previously unknown circumstance that can overcome otherwise
applicable preclusion principles. That order did not change the
underlying facts in dispute; it simply embodied one party's changed
view of the import of unchanged facts. However, the Court agrees
with the United States and the Tribe that the State parties'
preclusion defense is inadmissible. The State parties did not raise
the defense in 1978 in response to the United States' motion for a
supplemental decree granting additional water rights for the Fort
Yuma Reservation or in 1982 when
Arizona II was briefed and
argued. Unaccountably, the State parties first raised their res
judicata plea in 1989, when they initiated the current round of
proceedings. While preclusion rules are not strictly applicable in
the context of a single ongoing original action, the principles
upon which they rest should inform the Court's decision.
Arizona
II, 460 U. S., at 619. Those principles rank res judicata an
affirmative defense ordinarily lost if not timely raised. See Fed.
Rule Civ. Proc. 8(c). The Court disapproves the notion that a party
may wake up and effectively raise a defense years after the first
opportunity to raise it so long as the party was (though no fault
of anyone
395
else) in the dark until its late awakening. Nothing in
Arizona II supports the State parties' assertion that the
Court expressly recognized the possibility that future Fort Yuma
boundary lands claims might be precluded. 460 U. S., at 638,
distinguished. Of large significance, this Court's 1979 and 1984
supplemental decrees anticipated that the disputed boundary issues
for all five reservations, including Fort Yuma, would be "finally
determined" in some forum, not by preclusion but on the merits. The
State parties themselves stipulated to the terms of the 1979
supplemental decree and appear to have litigated the
Arizona
II proceedings on the understanding that the boundary disputes
should be resolved on the merits, see,
e. g., id., at
634. Finally, the Court rejects the State parties' argument that
this Court should now raise the preclusion question
sua
sponte. The special circumstances in which such judicial
initiative might be appropriate are not present here. See
United
States v.
Sioux Nation, 448 U. S. 371, 432
(REHNQUIST, J., dissenting). Pp.406-413.
2. The claims of the United States and the Tribe to increased
water rights for the disputed boundary lands of the Fort Yuma
Reservation are not precluded by the consent judgment in Docket No.
320. The Special Master agreed with the State parties' assertion to
the contrary. He concluded that, because the settlement
extinguished the Tribe's claim to title in the disputed lands, the
United States and the Tribe cannot seek additional water rights
based on the Tribe's purported beneficial ownership of those lands.
Under standard preclusion doctrine, the Master's recommendation
cannot be sustained. As between the Tribe and the United States,
the settlement indeed had, and was intended to have,
claim-preclusive effect. But settlements ordinarily lack
issue-preclusive effect. This differentiation is grounded in basic
res judicata doctrine. The general rule is that issue preclusion
attaches only when an issue is actually litigated and determined by
a valid and final judgment. See
United States v.
International Building Co., 345 U. S. 502, 505-506.
The State parties assert that common-law principles of issue
preclusion do not apply in the special context of Indian land
claims. They maintain that the Indian Claims Commission Act created
a special regime of statutory preclusion. This Court need not
decide whether some consent judgments in that distinctive context
might bar a tribe from asserting title even in discrete litigation
against third parties, for the 1983 settlement of Docket No. 320
plainly could not qualify as such a judgment. Not only was the
issue of ownership of the disputed boundary lands not actually
litigated and decided in Docket No. 320, but, most notably, the
Tribe proceeded on alternative and mutually exclusive theories of
recovery, taking and trespass. The consent judgment embraced all of
the Tribe's claims with no election by the Tribe of one
396
Syllabus
theory over the other. The Court need not accept the United
States' invitation to look behind the consent judgment at pre
settlement stipulations and memoranda purportedly demonstrating
that the judgment was grounded on the parties' shared view, after
the 1978 Secretarial Order, that the disputed lands belong to the
Tribe. Because the settlement was ambiguous as between mutually
exclusive theories of recovery, the consent judgment is too opaque
to serve as a foundation for issue preclusion. Pp. 413-418.
3. The Court accepts the Special Master's recommendations and
approves the parties' proposed settlements of the disputes
respecting additional water for the Fort Mojave and Colorado River
Reservations. Pp. 418-419.
Exception of State parties overruled; Exceptions of United
States and Quechan Tribe sustained; Special Master's
recommendations to approve parties' proposed settlements respecting
Fort Mojave and Colorado River Reservations are adopted, and
parties are directed to submit any objections they may have to
Special Master's proposed supplemental decree; Outstanding water
rights claims associated with disputed Fort Yuma Reservation
boundary lands remanded.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined.
REHNQUIST, C. J., filed an opinion concurring in part and
dissenting in part, in which O'CONNOR and THOMAS, JJ., joined,
post, p. 422.
Jeffrey P. Minear argued the cause for the United
States.
With him on the briefs were Solicitor General Waxman, Assistant
Attorney General Schiffer, and Deputy Solicitor General
Kneedler.
Mason D. Morisset argued the cause for defendant Quechan
Indian Tribe. With him on the briefs was
K. Allison
McGaw.
Jerome C.
Muys argued the cause for the State
parties.
With him on the briefs were
Bill Lockyer, Attorney
General of California,
Richard M. Frank, Chief Assistant
Attorney General,
Mary B. Hackenbracht, Assistant Attorney
General,
Douglas B. Noble, Deputy Attorney General,
Michael Pearce, Steven B. Abbott, and
Karen L.
Tachiki. *
* John M. Lindskog filed a brief for the West Bank
Homeowners Association as
amicus curiae.
397
JUSTICE GINSBURG delivered the opinion of the Court.
In the latest chapter of this long-litigated
originaljurisdiction case, the Quechan Tribe (Tribe) and the United
States on the Tribe's behalf assert claims for increased rights to
water from the Colorado River. These claims are based on the
contention that the Fort Yuma (Quechan) Indian Reservation
encompasses some 25,000 acres of disputed boundary lands not
attributed to that reservation in earlier stages of the litigation.
In this decision, we resolve a threshold question regarding these
claims to additional water rights:
Are the claims precluded by this Court's prior decision in
Arizona v.
California, 373 U. S. 546 (1963)
(Arizona I), or by a consent judgment entered by the United
States Claims Court in 19837 The Special Master has prepared a
report recommending that the Court reject the first ground for
preclusion but accept the second. We reject both grounds for
preclusion and remand the case to the Special Master for
consideration of the claims for additional water rights appurtenant
to the disputed boundary lands.
I
This litigation began in 1952 when Arizona invoked our original
jurisdiction to settle a dispute with California over the extent of
each State's right to use water from the Colorado River system.
Nevada intervened, seeking a determination of its water rights, and
Utah and New Mexico were joined as defendants. The United States
intervened and sought water rights on behalf of various federal
establishments, including five Indian reservations: the Chemehuevi
Indian Reservation, the Cocopah Indian Reservation, the Fort Yuma
(Quechan) Indian Reservation, the Colorado River Indian
Reservation, and the Fort Mojave Indian Reservation. The Court
appointed Simon Rifkind as Special Master.
The first round of the litigation culminated in our opinion in
Arizona 1. We agreed with Special Master Rifkind that
398
the apportionment of Colorado River water was governed by the
Boulder Canyon Project Act of 1928, 43 U. S. C. § 617
et
seq., and by contracts entered into by the Secretary of the
Interior pursuant to the Act. We further agreed that the United
States had reserved water rights for the five reservations under
the doctrine of
Winters v.
United States, 207 U. S.
564 (1908). See
Arizona I, 373 U. S., at 565,
599-60l. Because the Tribes' water rights were effective as of the
time each reservation was created, the rights were considered
present perfected rights and given priority under the Act.
Id., at 600. We also agreed with the Master that the
reservations' water rights should be based on the amount of
practicably irrigable acreage on each reservation and sustained his
findings as to the relevant acreage for each reservation.
Ibid. Those findings were incorporated in our decree of
March 9, 1964, which specified the quantities and priorities of the
water entitlements for the States, the United States, and the
Tribes.
Arizona v.
California, 376 U. S. 340. The
Court rejected as premature, however, Master Rifkind's
recommendation to determine the disputed boundaries of the Fort
Mojave and Colorado River Indian Reservations; we ordered, instead,
that water rights for those two reservations "shall be subject to
appropriate adjustment by agreement or decree of this Court in the
event that the boundaries of the respective reservations are
finally determined."
Id., at 345.
In 1978, the United States and the State parties jointly moved
this Court to enter a supplemental decree identifying present
perfected rights to the use of mainstream water in each State and
their priority dates. The Tribes then filed motions to intervene,
and the United States ultimately joined the Tribes in moving for
additional water rights for the five reservations. Again, the Court
deferred resolution of reservation boundary disputes and allied
water rights claims. The supplemental decree we entered in 1979 set
out the water rights and priority dates for the five
reservations
399
under the 1964 decree, but added that the rights for all five
reservations (including the Fort Yuma Indian Reservation at issue
here) "shall continue to be subject to appropriate adjustment by
agreement or decree of this Court in the event that the boundaries
of the respective reservations are finally determined."
Arizona v.
California, 439 U. S. 419, 421
(per curiam). The Court then appointed Senior Circuit Judge
Elbert P. Tuttle as Special Master and referred to him the Tribes'
motions to intervene and other pending matters.
Master Tuttle issued a report recommending that the Tribes be
permitted to intervene, and concluding that various administrative
actions taken by the Secretary of the Interior constituted "final
determinations" of reservation boundaries for purposes of
allocating water rights under the 1964 decree. (Those
administrative actions included a 1978 Secretarial Order, discussed
in greater detail
infra, at 404405, which recognized the
Quechan Tribe's entitlement to the disputed boundary lands of the
Fort Yuma Reservation.) Master Tuttle also concluded that certain
lands within the undisputed reservation boundaries but for which
the United States had not sought water rights in
Arizona
I-the socalled "omitted lands"-had in fact been practicably
irrigable at the time of
Arizona I and were thus entitled to
water. On these grounds, Master Tuttle recommended that the Court
reopen the 1964 decree to award the Tribes additional water
rights.
In
Arizona v.
California, 460 U. S. 605 (1983)
(Arizona II), the Court permitted the Tribes to intervene,
but otherwise rejected Master Tuttle's recommendations. The
Secretary's determinations did not qualify as "final
determinations" of reservation boundaries, we ruled, because the
States, agencies, and private water users had not had an
opportunity to obtain judicial review of those determinations.
Id., at 636-637. In that regard, we noted that California
state agencies had initiated an action in the United States
District Court for the Southern District of California chal-
400
lenging the Secretary's decisions, and that the United States
had moved to dismiss that action on various grounds, including
sovereign immunity. "There will be time enough," the Court stated,
"if any of these grounds for dismissal are sustained and not
overturned on appellate review, to determine whether the boundary
issues foreclosed by such action are nevertheless open for
litigation in this Court."
Id., at 638. The Court also held
that the United States was barred from seeking water rights for the
lands omitted from presentation in the proceedings leading to
Arizona I; "principles of res judicata," we said, "advise
against reopening the calculation of the amount of practicably
irrigable acreage." 460 U. S., at 626. In 1984, in another
supplemental decree, the Court again declared that water rights for
all five reservations "shall be subject to appropriate adjustments
by agreement or decree of this Court in the event that the
boundaries of the respective reservations are finally determined."
Arizona v.
California, 466 U. S. 144, 145.
The District Court litigation proceeded with the participation
of eight parties: the United States, the States of Arizona and
California, the Metropolitan Water District of Southern California,
the Coachella Valley Water District, and the Quechan, Fort Mojave,
and Colorado River Indian Tribes. The District Court rejected the
United States' sovereign immunity defense; taking up the Fort
Mojave Reservation matter first, the court voided the Secretary's
determination of that reservation's boundaries.
Metropolitan
Water Dist. of S.
Cal. v.
United States, 628 F.
Supp. 1018 (SD Cal. 1986). The Court of Appeals for the Ninth
Circuit, however, accepted the United States' plea of sovereign
immunity, and on that ground reversed and remanded with
instructions to dismiss the entire case. Specifically, the Court of
Appeals held that the Quiet Title Act, 28 U. S. C. § 2409a,
preserved the United States' sovereign immunity from suits
challenging the United States' title "to trust or restricted Indian
lands," § 2409a(a), and therefore blocked recourse to the Dis-
401
trict Court by the States and state agencies.
Metropolitan
Water Dist. of S.
Cal. v.
United States,
830 F.2d
139 (1987). We granted certiorari and affirmed the Ninth
Circuit's judgment by an equally divided Court.
California
v.
United States, 490 U. S. 920 (1989)
(per curiam).
The dismissal of the District Court action dispelled any
expectation that a "final determination" of reservation boundaries
would occur in that forum. The State parties then moved to reopen
the 1964 decree, asking the Court to determine whether the Fort
Yuma Indian Reservation and two other reservations were entitled to
claim additional boundary lands and, if so, additional water
rights. Neither the United States nor the Tribes objected to the
reopening of the decree, and the Court granted the motion.
Arizona v.
California, 493 U. S. 886 (1989). After
the death in 1990 of the third Special Master, Robert McKay, the
Court appointed Frank J. McGarr as Special Master. Special Master
McGarr has now filed a report and recommendation (McGarr Report), a
full understanding of which requires a discussion of issues and
events specific to the Fort Yuma Indian Reservation. We now turn to
those issues and events.
II
The specific dispute before us has its roots in an 1884
Executive Order signed by President Chester A. Arthur, designating
approximately 72 square miles of land along the Colorado River in
California as the Fort Yuma Indian Reservation (Reservation) for
the benefit of the Quechan Tribe. The Tribe, which had
traditionally engaged in farming, offered to cede its rights to a
portion of the Reservation to the United States in exchange for
allotments of irrigated land to individual Indians. In 1893, the
Secretary of the Interior concluded an agreement with the Tribe
(1893 Agreement), which Congress ratified in 1894. The 1893
Agreement provided for the Tribe's cession of a 25,000-acre tract
of boundary lands on the Reservation. Language in the
agreement,
402
however, could be read to condition the cession on the
performance by the United States of certain obligations, including
construction within three years of an irrigation canal, allotment
of irrigated land to individual Indians, sale of certain lands to
raise revenues for canal construction, and opening of certain lands
to the public domain.
Doubts about the validity and effect of the 1893 Agreement arose
as early as 1935. In that year the construction of the All-American
Canal, which prompted the interstate dispute in
Arizona I,
see 373 U. S., at 554-555, also sparked a controversy concerning
the Fort Yuma Reservation. When the Department of the Interior's
Bureau of Reclamation sought to route the canal through the
Reservation, the Department's Indian Office argued that the Bureau
had to pay compensation to the Tribe for the right-of-way. The
Secretary of the Interior submitted the matter to the Department's
Solicitor, Nathan Margold. In 1936, Solicitor Margold issued an
opinion (Margold Opinion) stating that, under the 1893 Agreement,
the Tribe had unconditionally ceded the lands in question to the
United States. 1 Dept. of Interior, Opinions of the Solicitor
Relating to Indian Affairs 596, 600 (No. M-28198, Jan. 8, 1936).
The Margold Opinion remained the position of the Federal Government
for 42 years.
In 1946, Congress enacted the Indian Claims Commission Act, 60
Stat. 1049, 25 U. S. C. § 70
et seq. (1976 ed.),
establishing an Article I tribunal with power to decide claims of
Indian tribes against the United States.1 See generally
1 The Act conferred exclusive jurisdiction on the Commission to
resolve Indian claims solely by the payment of compensation.
Section 2 of the Act gave the Commission jurisdiction over, among
other things, claims alleging that agreements between a tribe and
the United States were vitiated by fraud, duress, or unconscionable
consideration, 25 U. S. C. § 70a(3) (1976 ed.), claims arising from
the unlawful taking of Indian lands by the United States, § 70a(4),
and claims based upon fair and honorable dealings not recognized by
law or equity, § 70a(5). The Commission's "[f]inal determinations,"
§ 70r, were subject to review by the Court of
403
United States v.
Dann, 470 U. S. 39 (1985). The
Tribe filed an action before the Commission in 1951, challenging
the validity and effect of the 1893 Agreement. In that action,
referred to by the parties as Docket No. 320, the Tribe relied
principally on two mutually exclusive grounds for relief. First,
the Tribe alleged that the 1893 Agreement was obtained through
fraud, coercion, and/or inadequate consideration, rendering it
"wholly nugatory." Petition for Loss of Reservation in Docket No.
320 (Ind. Cl. Comm'n), ~~ 15-16, reprinted in Brief for United
States in Support of Exception, pp. lla-27a. At the very least,
contended the Tribe, the United States had failed to perform the
obligations enumerated in the 1893 Agreement, rendering the cession
void.
Id., at ~ 31. In either event, the Tribe claimed
continuing title to the disputed lands and sought damages
essentially for trespass. Alternatively, the Tribe alleged that the
1893 Agreement was contractually valid but constituted an
uncompensated taking of tribal lands, an appropriation of lands for
unconscionable consideration, and/or a violation of standards of
fair and honorable dealing, for which §§ 2(3)-(5) of the Act
authorized recovery.
Id., at ~~ 19, 22, 25. According to
this theory of recovery, the 1893 Agreement had indeed vested in
the United States unconditional title to the dis-
Claims, § 70s (b), and, if upheld, were submitted to Congress
for payment, § 70u. Section 15 authorized the Attorney General to
represent the United States before the Commission and, "with the
approval of the Commission, to compromise any claim presented to
the Commission." 25 U. S. C. § 70n (1976 ed.). The Act provided
that such compromises "shall be submitted by the Commission to the
Congress as a part of its report as provided in section 70t of this
title in the same manner as final determinations of the Commission,
and shall be subject to the provisions of section 70u of this
title."
Ibid. Section 22(a) of the Act provided that "[t]he
payment of any claim, after its determination in accordance with
this chapter, shall be a full discharge of the United States of all
claims and demands touching any of the matters involved in the
controversy." 25 U. S. C. § 70u(a) (1976 ed.). Pursuant to statute,
§ 70v, the Commission ceased its operations in 1978 and transferred
its remaining cases to the Court of Claims.
404
puted lands, and the Tribe sought damages as compensation for
that taking. During the more than quarter-century of litigation in
Docket No. 320, the Tribe vacillated between these two grounds for
relief, sometimes emphasizing one and sometimes the other. See
Quechan Tribe of Fort Yuma Reservation v.
United
States, 26 Ind. Cl. Comm'n 15 (1971), reprinted in Brief for
United States in Support of Exception, at 29a-34a.
The Commission conducted a trial on liability, but stayed
further proceedings in 1970 because legislation had been proposed
in Congress that would have restored the disputed lands to the
Tribe. The legislation was not enacted, and the Commission vacated
the stay. In 1976, the Commission transferred the matter to the
Court of Claims.
In the meantime, the Tribe had asked the Department of the
Interior to reconsider its 1936 Margold Opinion regarding the 1893
Agreement. In 1977, Interior Solicitor Scott Austin concluded, in
accord with the 1936 opinion, that the 1893 Agreement was valid and
that the cession of the disputed lands had been unconditional.
Opinion of the Solicitor, No. M-36886 (Jan. 18, 1977), 84 1. D. 1
(1977) (Austin Opinion). It soon became clear both to the Tribe and
to interested Members of Congress, however, that the Austin Opinion
had provoked controversy within the Department, and, after the
election of President Carter, the Department revisited the issue
and reversed course. In 1978, without notice to the parties,
Solicitor Leo Krulitz issued an opinion concluding that the 1893
Agreement had provided for a conditional cession of the disputed
lands, that the conditions had not been met by the United States,
and that "[t]itle to the subject property is held by the United
States in trust for the Quechan Tribe." Opinion of the Solicitor,
No. M-36908 (Jan. 2, 1979), 86 1. D. 3, 22 (1979) (Krulitz
Opinion). On December 20, 1978, the Secretary of the Interior
issued a Secretarial Order adopting the Krulitz Opinion and
confirming the Tribe's entitlement to the disputed lands, with the
ex-
405
press exception of certain lands that the United States had
acquired pursuant to Act of Congress or had conveyed to third
parties.
The 1978 Secretarial Order caused the United States to change
its position both in Docket No. 320, which was still pending in the
Claims Court, and in the present litigation. Because the
Secretarial Order amounted to an admission that the 1893 Agreement
had been ineffective to transfer title and that the Tribe enjoyed
beneficial ownership of the disputed boundary lands, the United
States no longer opposed the Tribe's claim for trespass in Docket
No. 320. In the present litigation, the Secretarial Order both
prompted the United States to file a water rights claim for the
affected boundary lands and provided the basis for the Tribe's
intervention to assert a similar, albeit larger, water rights
claim. See
Arizona II, 460 U. S., at 632-633. Those water
rights claims are the subject of the current proceedings.
In August 1983, a few months after this Court decided in
Arizona II that the 1978 Secretarial Order did not
constitute a final determination of reservation boundaries, see
supra, at 399-400, the United States and the Tribe entered
into a settlement of Docket No. 320, which the Court of Claims
approved and entered as its final judgment. Under the terms of that
settlement, the United States agreed to pay the Tribe $15 million
in full satisfaction of "all rights, claims, or demands which
plaintiff [i.
e., the Tribe] has asserted or could have
asserted with respect to the claims in Docket 320." Final Judgment,
Docket No. 320 (Aug. 11, 1983). The judgment further provided that
"plaintiff shall be barred thereby from asserting any further
rights, claims, or demands against the defendant and any future
action on the claims encompassed on Docket 320."
Ibid. The
United States and the Tribe also stipulated that the "final
judgment is based on a compromise and settlement and shall not be
construed as an admission by either party for the purposes of
precedent or argument in any other case."
Ibid. Both
406
the Tribe and the United States continue to recognize the
Tribe's entitlement to the disputed boundary lands.
III
Master McGarr has issued a series of orders culminating in the
report and recommendation now before the Court. He has recommended
that the Court reject the claims of the United States and the Tribe
seeking additional water rights for the Fort Yuma Indian
Reservation. The Master rejected the State parties' contention that
this Court's
Arizona I decision precludes the United
States and the Tribe from seeking water rights for the disputed
boundary lands. He concluded, however, that the United States and
the Tribe are precluded from pursuing those claims by operation of
the 1983 Claims Court consent judgment. The State parties have
filed an exception to the first of these preclusion
recommendations, and the United States and the Tribe have filed
exceptions to the second. In Part III-A,
infra, we consider
the exception filed by the State parties, and in Part III-B we
address the exceptions filed by the United States and the Tribe.
The Special Master has also recommended that the Court approve the
parties' proposed settlements respecting the Fort Mojave and
Colorado River Indian Reservations. No party has filed an exception
to those recommendations; we address them in Part III-C,
infra.
A
The States of Arizona and California, the Coachella Valley Water
District, and the Metropolitan Water District of Southern
California (State parties) argued before Special Master McGarr, and
repeat before this Court, that the water rights claims associated
with the disputed boundary lands of the Fort Yuma Reservation are
precluded by the finality rationale this Court employed in
dismissing the "omitted lands" claims in
Arizona II. See
supra, at 399-400. According to the State parties, the
United States could have
407
raised a boundary lands claim for the Fort Yuma Reservation in
the
Arizona I proceedings based on facts known at that time,
just as it did for the Fort Mojave and Colorado River Reservations,
but deliberately decided not to do so, just as it did with respect
to the "omitted lands." In
Arizona II, this Court rejected
the United States' claim for water rights for the "omitted lands,"
emphasizing that "[c]ertainty of rights is particularly important
with respect to water rights in the Western United States" and
noting "the strong interest in finality in this case." 460 U. S.,
at 620. Observing that the 1964 decree determined "the extent of
irrigable acreage within the uncontested boundaries of the
reservations,"
id., at 621, n. 12, the Court refused to
reconsider issues "fully and fairly litigated 20 years ago,"
id., at 621. The Court concomitantly held that the Tribes
were bound by the United States' representation of them in
Arizona 1. 460 U. S., at 626-627.
The Special Master rejected the State parties' preclusion
argument. He brought out first the evident reason why the United
States did not assert water rights claims for the Fort Yuma
Reservation boundary lands in
Arizona 1. At that point in
time, the United States was bound to follow the 1936 Margold
Opinion, see
supra, at 402, which maintained that the Tribe
had no claim to those lands. "[I]t is clear," the Master stated,
"that the later Secretary of the Interior opinion arbitrarily
changing [the Margold] decision was a circumstance not known in
1964, thus constituting an exception to the application of the rule
of
res adjudicata." Special Master McGarr Memorandum Opinion
and Order No.4, pp. 6-7 (Sept. 6, 1991). Characterizing the
question as "close," the Master went on to conclude that "the Tribe
is not precluded from asserting water rights based on boundary land
claims on
[sic] this proceeding, because although the U. S.
on behalf of the Tribe failed to assert such claims in the
proceeding leading to the 1964 decree, a later and then unknown
circum-
408
stance bars the application of the doctrine of
res
judicata to this issue."
Id., at 7.
While the Special Master correctly recognized the relevance of
the Margold Opinion to the litigating stance of the United States,
he ultimately relied on an improper ground in rejecting the State
parties' preclusion argument. The Department of the Interior's 1978
Secretarial Order recognizing the Tribe's beneficial ownership of
the boundary lands, see
supra, at 404-405, does not qualify
as a "later and then unknown circumstance" that can overcome
otherwise applicable preclusion principles. The 1978 Order did not
change the underlying facts in dispute; it simply embodied one
party's changed view of the import of unchanged facts. Moreover,
the Tribe can hardly claim to have been surprised by the
Government's shift in assessment of the boundary lands ownership
question, for the Tribe had been advocating just such a shift for
decades.
The United States and the Tribe, however, urge other grounds on
which to reject the State parties' argument regarding the
preclusive effect of
Arizona 1. The United States and the
Tribe maintain that the preclusion rationale the Court applied to
the "omitted lands" in
Arizona II is not equally applicable
to the disputed boundary lands,2 and that, in any event, the State
parties have forfeited their preclusion defense. We agree that the
State parties' preclusion de-
2 The United States and the Tribe point to the holding in
Arizona I that Special Master Rifkind had erred in
prematurely considering boundary lands claims relating to the Fort
Mojave and Colorado River Reservations, see 373 U. S., at 601; they
contend that consideration of the Fort Yuma Reservation boundaries
would have been equally premature. They further stress that in
Arizona II we held the omitted lands claims precluded
because we resisted "reopen[ing] an adjudication ... to reconsider
whether initial factual determinations were correctly made," 460 U.
S., at 623-624; in contrast, they maintain, the present claims turn
on the validity of the 1893 Agreement and the 1978 Secretarial
Order, questions of law not addressed in prior proceedings.
409
fense is inadmissible at this late date, and therefore we do not
reach the merits of that plea. The State parties could have raised
the defense in 1979 in response to the United States' motion for a
supplemental decree granting additional water rights for the Fort
Yuma Reservation. The State parties did not do so then, nor did
they raise the objection in 1982 when
Arizona II was briefed
and argued.3 Unaccountably, they raised the preclusion argument for
the first time in 1989, when they initiated the current round of
proceedings. See Exception and Brief for State Parties 16; Motion
of State Parties to Reopen Decree in
Arizona v.
California, O. T. 1989, No.8 Orig., p. 6, n. 2. The State
parties had every opportunity, and every incentive, to press their
current preclusion argument at earlier stages in the litigation,
yet failed to do SO.4
3 Noting that in
Arizona II we "encouraged the parties to
assert their legal claims and defenses in another forum," THE CHIEF
JUSTICE concludes that the Court probably would have declined to
resolve the preclusion issue at that stage of the case even had the
State parties raised it then.
Post, at 423 (opinion
concurring in part and dissenting in part). One can only wonder why
this should be so. If this Court had held in
Arizona II that
the United States and the Tribe were precluded from litigating
their boundary lands claims, it would have been pointless for the
Court to encourage pursuit of those claims "in another forum";
further assertion of the claims in any forum would have been
barred. In any event, a party generally forfeits an affirmative
defense by failing to raise it even if the relevant proceeding is
ultimately resolved on other grounds.
4 The dissent's observation that "the only 'pleadings' in this
case were filed in the 1950's,"
post, at 422, is beside the
point. The State parties could have properly raised the preclusion
defense as early as February 1979, in their response to the United
States' motion for modification of the decree, yet did not do so.
See Response of the States of Arizona, California, and Nevada and
the Other California Defendants to the Motion of the United States
for Modification of Decree, O. T. 1978, No.8 Orig. Alternatively,
it was open to the State parties to seek leave to file a
supplemental pleading "setting forth ... occurrences or events
which have happened since the date of the pleading sought to be
amended." Fed. Rule Civ. Proc. 15(d). In such a supplemental
pleading, and in compliance with Rule
410
"[W]hile the technical rules of preclusion are not strictly
applicable [in the context of a single ongoing original action],
the principles upon which these rules are founded should inform our
decision."
Arizona II, 460 U. S., at 619. Those principles
rank res judicata an affirmative defense ordinarily lost if not
timely raised. See Fed. Rule Civ. Proc. 8(c). Counsel for the State
parties conceded at oral argument that "no preclusion argument was
made with respect to boundary lands" in the proceedings leading up
to
Arizona II, and that "after this Court's decision in
Arizona II and after the Court's later decision in
[Nevada v.
United States, 463 U. S. 110 (1983)],
the light finally dawned on the State parties that there was a
valid preclusion-or
res judicata argument here with respect
to Fort Yuma." Tr. of Oral Arg. 46-47. We disapprove the notion
that a party may wake up because a "light finally dawned," years
after the first opportunity to raise a defense, and effectively
raise it so long as the party was (though no fault of anyone else)
in the dark until its late awakening.
The State parties assert that our prior pronouncements in this
case have expressly recognized the possibility that future boundary
lands claims for the Fort Yuma Reservation might be precluded. If
anything, the contrary is true. Nothing in the
Arizona II
decision hints that the Court believed the boundary lands issue
might ultimately be held precluded. Rather, the Court expressly
found it
"necessary to decide whether any or all of these
boundary disputes have been 'finally determined' within the meaning
of Article
8(c), the preclusion defense could have been raised. No such
supplemental pleading was ever presented, and by 1989 a reasonable
time to do so had surely expired.
The State parties' tardiness in raising their preclusion defense
is hard to account for, while the United States' decision not to
assert claims for the disputed boundary lands until 1978 can at
least be explained by the continued vitality of the Margold
Opinion, see
supra, at 402. It is puzzling that the dissent
should go to such lengths to excuse the former delay while
relentlessly condemning the latter.
411
II(D)(5) .... " 460 U. S., at 631 (emphasis added). That
Arizona II contains no discussion of preclusion with respect
to the disputed lands is hardly surprising, given that the State
parties neglected to raise that issue until six years later.
The Court did note in
Arizona II that in the District
Court proceedings the United States had asserted defenses based on
"lack of standing, the absence of indispensable parties, sovereign
immunity, and the applicable statute of limitations," and added
that "[t]here will be time enough, if any of
these grounds for
dismissal are sustained and not overturned on appellate review,
to determine whether the boundary issues foreclosed by such [lower
court] action are
nevertheless open for litigation in this
Court." 460 U. S., at 638 (emphasis added). This passage, however,
is most sensibly read to convey that the defenses just
mentioned-standing, indispensable parties, sovereign immunity, and
the statute of limitations-would not necessarily affect renewed
litigation in this Court. The passage contains no acknowledgment,
express or implied, of a lurking preclusion issue stemming from our
Arizona I disposition.
Moreover, and of large significance, the 1979 and 1984
supplemental decrees anticipated that the disputed boundary issues
for all five reservations, including the Fort Yuma Reservation,
would be "finally determined" in some forum, not by preclusion but
on the merits. See 1984 Supplemental Decree, Art. II(D)(5),
Arizona v.
California, 466 U. S., at 145 (Water
rights for all five reservations "shall be subject to appropriate
adjustments by agreement or decree of this Court in the event that
the boundaries of the respective reservations are finally
determined."); 1979 Supplemental Decree, Art. II(D)(5),
Arizona v.
California, 439 U. S., at 421 (same).
The State parties themselves stipulated to the terms of the
supplemental decree we entered in 1979. They also appear to have
litigated the
Arizona II proceedings on the un-
412
derstanding that the boundary disputes should be resolved on the
merits. See 460 U. S., at 634 ("[The State parties] argued ... that
the boundary controversies were ripe for judicial review, and they
urged the Special Master to receive evidence, hear legal arguments,
and resolve each of the boundary disputes, but only for the limited
purpose of establishing additional Indian water rights, if any.");
Report of Special Master Tuttle, O. T. 1981, No.8 Orig., p. 57
(describing the State parties' contention "that the boundaries [of
all five reservations] have not been finally determined and that I
should make a de novo determination of the boundaries for
recommendation to the Court"). As late as 1988, the State parties
asked the Court to appoint a new Special Master and direct him "to
conclude his review of the boundary issues as expeditiously as
possible and to submit a recommended decision to the Court." Brief
for Petitioners in
California
Finally, the State parties argue that even if they earlier
failed to raise the preclusion defense, this Court should raise it
now
sua sponte. Judicial initiative of this sort might be
appropriate in special circumstances. Most notably, "if a court is
on notice that it has previously decided the issue presented, the
court may dismiss the action
sua sponte, even though the
defense has not been raised. This result is fully consistent with
the policies underlying res judicata: it is not based solely on the
defendant's interest in avoiding the burdens of twice defending a
suit, but is also based on the avoidance of unnecessary judicial
waste."
United States v.
Sioux Nation, 448 U. S. 371, 432 (1980)
(REHNQUIST, J., dissenting) (citations omitted). That special
circumstance is not present here: While the State parties contend
that the Fort Yuma boundary dispute could have been decided in
Arizona I, this Court plainly has not "previously
decided the issue presented." Therefore we do not face the prospect
of redoing a matter once decided. Where no judicial resources have
been spent on the resolution of a question, trial courts must
413
be cautious about raising a preclusion bar
sua sponte,
thereby eroding the principle of party presentation so basic to our
system of adjudication.
In view of the State parties' failure to raise the preclusion
argument earlier in the litigation, despite ample opportunity and
cause to do so, we hold that the claims of the United States and
the Tribe to increased water rights for the disputed boundary lands
of the Fort Yuma Reservation are not foreclosed by our decision in
Arizona 1.
B
The State parties also assert that the instant water rights
claims are precluded by the 1983 consent judgment in the Claims
Court proceeding, Docket No. 320. Special Master McGarr agreed,
noting the consent judgment's declaration that the Tribe would "be
barred thereby from asserting any further rights, claims or demands
against the defendant and any future action encompassed on docket
no. 320." See Special Master McGarr Memorandum Opinion and Order
No.4, at 9-10. On reconsideration, the Special Master provided a
fuller account of his recommendation. The settlement, he concluded,
had extinguished the Tribe's claim to title in the disputed
boundary lands, vesting that title in the United States against all
the world: "The only viable basis for a damage or trespass claim
[in Docket No. 320] was that the 1893 taking was illegal and that
title therefore remained with the Tribe. When the Tribe accepted
money in settlement of this claim, it relinquished its claim to
title."
Id., No.7, at 5 (May 5, 1992). See also
id.,
No. 13, at 3 (Apr. 13, 1993) ("[T]he relinquishment of all future
claims regarding the subject matter of Docket No. 320 in exchange
for a sum of money extinguished the Tribe's title in the subject
lands .... "). Because the settlement extinguished the Tribe's
title to the disputed boundary lands, the Master reasoned, the
United States and the Tribe cannot now seek addi-
414
tional water rights based on the Tribe's purported beneficial
ownership of those lands.
Under standard preclusion doctrine, the Master's recommendation
cannot be sustained. As already noted, the express terms of the
consent judgment in Docket No. 320 barred the Tribe and the United
States from asserting against each other any claim or defense they
raised or could have raised in that action. See
supra, at
405. As between the parties to Docket No. 320, then, the settlement
indeed had, and was intended to have,
claim-preclusive
effect-a matter the United States and the Tribe readily concede.
Exception and Brief for United States 36; Exception and Brief for
Quechan Indian Tribe 20. But settlements ordinarily occasion no
issue preclusion (sometimes called collateral estoppel),
unless it is clear, as it is not here, that the parties intend
their agreement to have such an effect. "In most circumstances, it
is recognized that consent agreements ordinarily are intended to
preclude any further litigation on the claim presented but are not
intended to preclude further litigation on any of the issues
presented. Thus consent judgments ordinarily support claim
preclusion but not issue preclusion." 18 C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure § 4443, pp. 384-385
(1981). This differentiation is grounded in basic res judicata
doctrine. It is the general rule that issue preclusion attaches
only "[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is
essential to the judgment." Restatement (Second) of Judgments § 27,
p. 250 (1982). "In the case of a judgment entered by confession,
consent, or default, none of the issues is actually litigated.
Therefore, the rule of this Section [describing issue preclusion's
domain] does not apply with respect to any issue in a subsequent
action."
Id., comment
e, at 257.
This Court's decision in
United States v.
International Building Co., 345 U. S. 502 (1953), is
illustrative. In 1942, the Commissioner of Internal Revenue
assessed deficiencies
415
against a taxpayer for the taxable years 1933, 1938, and 1939,
alleging that the taxpayer had claimed an excessive basis for
depreciation.
Id., at 503. After the taxpayer filed for
bankruptcy, however, the Commissioner and the taxpayer filed
stipulations in the pending Tax Court proceedings stating that
there was no deficiency for the taxable years in question, and the
Tax Court entered a formal decision to that effect.
Id., at
503-504. In 1948, the Commissioner assessed deficiencies for the
years 1943, 1944, and 1945, and the taxpayer defended on the ground
that the earlier Tax Court decision was preclusive on the issue of
the correct basis for depreciation. We disagreed, holding that the
Tax Court decision, entered pursuant to the parties' stipulations,
did not accomplish an "estoppel by judgment," i.
e., it had
no issuepreclusive effect:
"We conclude that the decisions entered by the Tax Court for the
years 1933, 1938, and 1939 were only a pro forma acceptance
by the Tax Court of an agreement between the parties to settle
their controversy for reasons undisclosed .... Perhaps, as the
Court of Appeals inferred, the parties did agree on the basis for
depreciation. Perhaps the settlement was made for a different
reason, for some exigency arising out of the bankruptcy proceeding.
As the case reaches us, we are unable to tell whether the agreement
of the parties was based on the merits or on some collateral
consideration. Certainly the judgments entered are res
judicata of the tax claims for the years 1933, 1938, and 1939,
whether or not the basis of the agreements on which they rest
reached the merits .... Estoppel by judgment includes matters in a
second proceeding which were actually presented and determined in
an earlier suit. A judgment entered with the consent of the parties
may involve a determination of questions of fact and law by the
court. But unless a showing is made that that was the case, the
judgment has no greater dignity, so far as collateral estoppel
416
is concerned, than any judgment entered only as a compromise of
the parties." Id., at 505-506 (citations omitted).
The State parties, perhaps recognizing the infirmity of their
argument as a matter of standard preclusion doctrine, assert that
common-law principles of issue preclusion do not apply in the
special context of Indian land claims. Instead, they argue, § 22 of
the Indian Claims Commission Act created a special regime of
"statutory preclusion."5 According to the State parties, the
payment of a Commission judgment for claims to aboriginal or trust
lands automatically and universally extinguishes title to the
Indian lands upon which the claim is based and creates a statutory
bar to further assertion of claims against either the United States
or third parties based on the extinguished title. The State parties
point to several decisions of the Ninth Circuit in support of this
contention. See Reply Brief for State Parties 17 (citing
United
States v.
Pend Oreille Pub. Util. Dist. No.1, 926 F.2d
1502 (CA9 1991)); Reply Brief for State Parties 15 (citing
United States v.
Dann, 873 F.2d
1189 (CA9 1989)); Reply Brief for State Parties 11
(citing
United States v.
Gemmill, 535 F.2d
1145 (CA9 1976)).
We need not decide whether, in the distinctive context of the
Indian Claims Commission Act, some consent judgments
5 Section 22 provided:
"(a) When the report of the Commission determining any claimant
to be entitled to recover has been filed with Congress, such report
shall have the effect of a final judgment of the Court of Claims,
and there is authorized to be appropriated such sums as are
necessary to pay the final determination of the Commission.
"The payment of any claim, after its determination in accordance
with this chapter, shall be a full discharge of the United States
of all claims and demands touching any of the matters involved in
the controversy.
"(b) A final determination against a claimant made and reported
in accordance with this chapter shall forever bar any further claim
or demand against the United States arising out of the matter
involved in the controversy." 25 U. S. C. § 70u (1976 ed.).
417
might bar a tribe from asserting title even in discrete
litigation against third parties, for the 1983 settlement of Docket
No. 320 plainly could not qualify as such a judgment. Not only was
the issue of ownership of the disputed boundary lands not actually
litigated and decided in Docket No. 320, but, most notably, the
Tribe proceeded on alternative and mutually exclusive theories of
recovery. Had the case proceeded to final judgment upon trial, the
Tribe might have won damages for a taking, indicating that title
was in the United States. Alternatively, however, the Tribe might
have obtained damages for trespass, indicating that title remained
in the Tribe. The consent judgment embraced all of the Tribe's
claims. There was no election by the Tribe of one theory over the
other, nor was any such election required to gain approval for the
consent judgment. The Special Master's assumption that the
settlement necessarily and universally relinquished the Tribe's
claim to title was thus unwarranted. Certainly, if the $15 million
payment constituted a discharge of the Tribe's trespass claim, it
would make scant sense to say that the acceptance of the payment
extinguished the Tribe's title. In contrast, the Ninth Circuit
cases cited by the State parties (the correctness of which we do
not address) all involved Indian Claims Commission Act petitions in
which tribes claimed no continuing title, choosing instead to seek
compensation from the United States for the taking of their lands.
See,
e. g., Pend Oreille, 926 F. 2d, at
1507-1508; Dann, 873 F. 2d, at 1192, 1194;
Gemmill,
535 F. 2d, at 1149, and n. 6.
The United States invites us to look behind the consent judgment
in Docket No. 320 at pre settlement stipulations and memoranda
purportedly demonstrating that the judgment was grounded on the
parties' shared view, after the 1978 Secretarial Order, that the
disputed lands belong to the Tribe. We need not accept the
Government's invitation. On the matter of issue preclusion, it
suffices to observe that the settlement was ambiguous as between
mutually exclu-
418
sive theories of recovery. Like the Tax Court settlement in
International Building Co., then, the consent judgment in
the Tribe's Claims Court action is too opaque to serve as a
foundation for issue preclusion. Accordingly, we hold that the
claims of the United States and the Tribe to increased water rights
for the disputed boundary lands of the Fort Yuma Reservation are
not precluded by the consent judgment in Docket No. 320.
C
The Special Master has recommended that the Court approve the
parties' proposed settlement of the dispute respecting the Fort
Mojave Reservation. The claim to additional water for the Fort
Mojave Reservation arises out of a dispute over the accuracy of a
survey of the so-called Hay and Wood Reserve portion of the
Reservation. See
Arizona II, 460 U. S., at 631-632. The
parties agreed to resolve the matter through an accord that (1)
specifies the location of the disputed boundary; (2) preserves the
claims of the parties regarding title to and jurisdiction over the
bed of the last natural course of the Colorado River within the
agreed-upon boundary; (3) awards the Tribe the lesser of an
additional 3,022 acre-feet of water or enough water to supply the
needs of 468 acres; (4) precludes the United States and the Tribe
from claiming additional water rights from the Colorado River for
lands within the Hay and Wood Reserve; and (5) disclaims any intent
to affect any private claims to title to or jurisdiction over any
lands. See McGarr Report 8-9 (July 28, 1999). We accept the
Master's uncontested recommendation and approve the proposed
settlement.
The Master has also recommended that the Court approve the
parties' proposed settlement of the dispute respecting the Colorado
River Indian Reservation. The claim to additional water for that
reservation stems principally from a dispute over whether the
reservation boundary is the ambulatory west bank of the Colorado
River or a fixed line repre-
419
senting a past location of the River. See
Arizona II, 460
U. S., at 631. The parties agreed to resolve the matter through an
accord that (1) awards the Tribes the lesser of an additional 2,100
acre-feet of water or enough water to irrigate 315 acres; (2)
precludes the United States or the Tribe from seeking additional
reserved water rights from the Colorado River for lands in
California; (3) embodies the parties' intent not to adjudicate in
these proceedings the correct location of the disputed boundary;
(4) preserves the competing claims of the parties to title to or
jurisdiction over the bed of the Colorado River within the
reservation; and (5) provides that the agreement will become
effective only if the Master and the Court approve the settlement.
See McGarr Report 9-10. The Master expressed concern that the
settlement does not resolve the location of the disputed boundary,
but recognized that it did achieve the ultimate aim of determining
water rights associated with the disputed boundary lands.
Id., at 10-12, 13-14. We again accept the Master's
recommendation and approve the proposed settlement.6
***
For the foregoing reasons, we remand the outstanding water
rights claims associated with the disputed boundary
6 A group called the West Bank Homeowners Association has filed
a brief
amicus curiae objecting to the proposed settlement
of water rights claims respecting the Colorado River Indian
Reservation. The Association represents some 650 families who lease
property from the United States within the current boundaries of
the Reservation. The Court and the Special Master have each denied
the Association's request to intervene in these proceedings. See
Arizona v.
California, 514 U. S. 1081 (1995); Special
Master McGarr Memorandum Opinion and Order No. 17 (Mar. 29, 1995).
The Master observed that the Association's members do "not own land
in the disputed area and [the Association] makes no claim to title
or water rights,"
id., at 2, thus their interests will "not
be impeded or impaired by the outcome of this litigation,"
id., at 6. Accordingly, we do not further consider the
Association's objections.
420
Appendix to opinion of the Court
lands of the Fort Yuma Indian Reservation to the Special Master
for determination on the merits. Those claims are the only ones
that remain to be decided in
Arizona v.
California;
their resolution will enable the Court to enter a final
consolidated decree and bring this case to a close.
With respect to the Fort Mojave and Colorado River Reservations,
the Special Master has submitted a proposed supplemental decree to
carry the parties' accords into effect. That decree is reproduced
as the Appendix to this opinion,
infra this page and
421-422. The parties are directed to submit to the Clerk of this
Court, before August 22, 2000, any objections to the proposed
supplemental decree.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Proposed Supplemental Decree
It is ORDERED, ADJUDGED, AND DECREED:
A. Paragraph (4) of Article II(D) of the Decree in this case
entered on March 9, 1964 (
376 U. S. 340, 344-345)
is hereby amended to read as follows:
(4) The Colorado River Indian Reservation in annual quantities
not to exceed (i) 719,248 acre-feet of diversions from the
mainstream or (ii) the quantity of mainstream water necessary to
supply the consumptive use required for irrigation of 107,903 acres
and for the satisfaction of related uses, whichever of (i) or (ii)
is less, with priority dates of March 3, 1865, for lands reserved
by the Act of March 3, 1865 (13 Stat. 541, 559); November 22, 1873,
for lands reserved by the Executive Order of said date; November
16, 1874, for lands reserved by the Executive Order of said date,
except as later modified; May 15, 1876, for lands reserved by the
Executive Order of said date; November 22, 1915, for lands reserved
by the Executive Order of said date.
421
B. Paragraph (5) of Article II(D) of the Decree in this case
entered on March 9, 1964 (
376 U. S. 340, 345) and
supplemented on April 16, 1984 (
466 U. S. 144, 145) is
hereby amended to read as follows:
(5) The Fort Mojave Indian Reservation in annual quantities not
to exceed (i) 132,789 acre-feet of diversions from the mainstream
or (ii) the quantity of mainstream water necessary to supply the
consumptive use required for irrigation of 20,544 acres and for the
satisfaction of related uses, whichever of (i) or (ii) is less,
with priority dates of September 19, 1890, for lands transferred by
the Executive Order of said date; February 2, 1911, for lands
reserved by the Executive Order of said date.
C. Paragraph (5) of the introductory conditions to the
Supplemental Decree in this case entered on January 9, 1979
(
439 U. S. 419,
421-423) is hereby amended by adding the following exception at the
end of the concluding proviso in the first sentence of that
paragraph: "except for the western boundaries of the Fort Mojave
and Colorado River Indian Reservations in California."
D. Paragraph II(A)(24) of the Decree of January 9, 1979
(
439 U. S. 419,
428) is hereby amended to read as follows:
24)
Colorado River Indian Reservation
10,745 40,241 5,860
1,612 6,037 879
Nov. 22, 1873 Nov. 16, 1874 May 15, 1876
E. Paragraph II(A)(25) of the Decree of January 9,1979 (
439 U. S. 419, 428) is
hereby amended to read as follows:
25)
F. Except as otherwise provided herein, the Decree entered on
March 9, 1964, and the Supplemental Decrees entered on January 9,
1979, and April 16, 1984, shall remain in full force and
effect.
422
Opinion of REHNQUIST, C. J.
G. The Court shall retain jurisdiction herein to order such
further proceedings and enter such supplemental decree as may be
deemed appropriate.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR and JUSTICE
THOMAS join, concurring in part and dissenting in part.
I believe that the United States' and the Quechan Tribe's claim
for additional water rights is barred by the principles of res
judicata, and therefore I dissent. The Special Master concluded
that an exception to the general preclusion rule applied and that,
therefore, the United States' claim was not barred. The Court
rejects the Special Master's reasoning but concludes that the State
parties' res judicata defense is not properly before the Court.
While I agree that the Special Master erred in finding the 1978
order of the Secretary of the Interior a "new fact" justifying an
exception to the application of preclusion, I disagree with the
Court's refusal to reach the merits of the State parties'
defense.
The Court first concludes that the State parties lost the
defense because they failed to assert it in a timely manner. While
the State parties concede that they did not raise their claim of
res judicata until 1989, it does not automatically follow that the
defense is lost. Federal Rule of Civil Procedure 8(c) provides that
res judicata shall be pleaded as an affirmative defense. But the
only "pleadings" in this case were filed in the 1950's, at which
time no claim of res judicata could have been made. The motions
filed by the State parties in 1977 and 1979 were not in any sense
comprehensive pleadings, purporting to set forth all of the claims
and defenses of the parties. More importantly, neither Special
Master Tuttle nor this Court focused on the merits of the boundary
dispute during the proceedings in
Arizona v.
Gal
i
fornia, 460
U. S. 605 (1983)
(Arizona II). Rather, the Master only
decided whether the Secretary's order was a final boundary
determination, and, similarly, this Court simply de-
423
termined that the Secretary's order was subject to challenge and
encouraged the parties to assert their legal claims and defenses in
another forum. Consequently, it is likely that the State parties'
res judicata claim would not have been resolved in
Arizona
II even if it had been raised.
The State parties did expressly raise the defense of res
judicata in their 1989 motion, and neither the United States nor
the Tribe objected to its consideration. The Tribe contested the
merits of the State parties' res judicata claim and argued that its
water rights' claim was not precluded. In so doing, the Tribe
asserted that the State parties had not argued res judicata during
the
Arizona II proceedings. But neither the Tribe nor the
United States contended, in response to the State parties' motion,
that the Court could not decide the res judicata issue because it
was not timely raised. We granted the motion, and Special Master
McGarr considered the claim on the merits. Under these
circumstances, I believe that the State parties did not lose their
res judicata defense by failing to assert it in the earlier
proceedings.
The Court also concludes that this Court's 1979 and 1984
supplemental decrees "anticipated" that the boundary dispute would
be finally resolved in some forum. See
ante, at 411. To
reach this conclusion, the Court reads too much into the simple
language of the supplemental decrees and ignores language in our
Arizona II opinion. The supplemental decrees stated that
water rights for the five reservations "shall be subject to
appropriate adjustments by agreement or decree of this Court in the
event that the boundaries of the respective reservations are
finally determined." 1984 Supplemental Decree, Art. II(D)(5),
Arizona v.
California, 466 U. S. 144, 145
(1984); 1979 Supplemental Decree, Art. II(D)(5),
Arizona v.
California, 439 U. S. 419, 421 (1979)
(per curiam). These decrees can best be interpreted as
merely providing that the reservation's water quantity can be
adjusted
if the boundary changes, without deciding
whether
424
Opinion of REHNQUIST, C. J.
the boundary relied on in the 1964 decree could be properly
challenged, and without indicating that the boundary necessarily
would be "finally determined" at some future point. This reading is
supported by language in
Arizona II. In discussing the
pending District Court action, we explained:
"We note that the United States has moved to dismiss the action
filed by the agencies based on lack of standing, the absence of
indispensable parties, sovereign immunity, and the applicable
statute of limitations.
There will be time enough, if any of
these grounds for dismissal are sustained and not overturned on
appellate review, to determine whether the boundary issues
foreclosed by such action are nevertheless open for litigation in
this Court." 460 U. S., at 638 (emphasis added; footnote
omitted). As is evident from this language, we did not "anticipate"
that the dispute would be finally resolved. Instead, we explicitly
left open the question whether the dispute could be litigated in
this Court.
The Court disregards this language in
Arizona II because
it does not mention a potential preclusion defense. However, the
point is not that this Court anticipated the State parties'
preclusion defense. Rather, it is that this Court recognized the
possibility that the boundary issue would not be judicially
resolved at all, and left open the question whether there was some
defense precluding this Court's review. What that defense might be
was not before the Court.
Now that the question is squarely before us, I would hold that
the United States' claim for additional water rights is barred by
the principles of res judicata. Res judicata not only bars
relitigation of claims previously litigated, but also precludes
claims that could have been brought in earlier proceedings. Under
the doctrine of res judicata, "when a final judgment has been
entered on the merits of a case, '[i]t is a finality as to the
claim or demand in controversy, concluding parties and those in
privity with them, not only as to every matter which was offered
and received to sustain or defeat
425
the claim or demand, but as to any other admissible matter which
might have been offered for that purpose."
Nevada v.
United States, 463 U. S. 110, 129-130
(1983) (quoting
Cromwell v.
County of Sac, 94 U. S. 351, 352
(1877)).
In
Arizona II, we recognized that the general principles
of res judicata apply to our 1964 decree even though the decree
expressly provided for modification in appropriate circumstances.
In so doing, we noted the importance of the certainty of water
rights in the Western United States. "A major purpose of this
litigation, from its inception to the present day, has been to
provide the necessary assurance to States of the Southwest and to
various private interests, of the amount of water they can
anticipate to receive from the Colorado River system .... If there
is no surplus of water in the Colorado River, an increase in
federal reserved water rights will require a 'gallon-for-gallon
reduction in the amount of water available for water-needy state
and private appropriators.'" 460 U. S., at 620-621 (quoting
United States v.
New Mexico, 438 U. S. 696, 699
(1978)). Thus, we concluded that allowing recalculation of the
amount of practicably irrigable acreage "runs directly counter to
the strong interest in finality in this case." 460 U. S., at 620.
We also noted that treating the 1964 calculation as final comported
with the clearly expressed intention of the parties and was
consistent with our previous treatment of original actions,
allowing modifications after a change in the relevant
circumstances.
This reasoning is equally applicable to the United States' and
the Tribe's claim for additional water for the disputed boundary
lands. Even though the exact claim was not actually litigated in
Arizona v.
California, 373 U. S. 546 (1963)
(Arizona I), the United States could have raised the
boundary claim and failed to do so. Indeed, in the proceedings
before Special Master Rifkind, the counsel for the United States
affirmatively represented that "[t]he testimony ... as reflected by
these maps and by the other testimony will de-
426
Opinion of REHNQUIST, C. J.
fine the maximum claim which the United States is asserting in
this case." Earlier in the proceedings, the Master explicitly
warned the United States about the preclusive effect of failing to
assert potential claims: "In an action or a decree quieting title,
you cut out all claims not asserted .... I just want you to be
aware of the fact that the mere fact that it has not been asserted
does not mean that you may not lose it .... " Exception by State
Parties to Report of Special Master and Supporting Brief 8-9
(colloquy between counsel for the United States and the Special
Master). Thus, under the general principles of res judicata, the
United States would clearly be barred from now asserting the claim
for additional water rights.
Special Master McGarr concluded that the United States' claim
was not precluded because it fell within an exception to the bar of
res judicata. Wisely abandoning the Master's reasoning, the United
States instead defends the Master's ruling on the ground that these
claims "are not precluded, under basic principles of res judicata,
because [they] were not decided, and could not have been decided,
in the prior proceedings." Reply Brief for United States in
Response to Exception of State Parties 21. But this argument fares
no better.
The issue before the Master in
Arizona I was the amount
of water from the Colorado River to which the Quechan Tribe was
entitled. The Master made an allotment to the reservation based on
the evidence then before him as to the amount of irrigable acreage
within the reservation boundary, which was undisputed at the time.
Only years after that decree was confirmed by this Court in
Arizona I did the United States assert a larger claim to
water for the reservation based on a claim for a larger amount of
irrigable acreage-not because of a miscalculation as to the
irrigability of acreage already claimed, but because of a claimed
extension of the boundaries of the reservation. But, at the time of
Arizona I, the United States had in its possession
all of
427
the facts that it later asserted in 1979 in
Arizona II,
and it could have litigated the larger claim before Special Master
Rifkind.
The United States offers no support for its contention that the
boundary dispute could not have been decided in
Arizona I
except for the fact that this Court rejected the Master's
resolution of the Fort Mojave Reservation and Colorado River
Reservation boundary disputes. However, those boundary disputes are
different. While we did not explain in
Arizona I why we
believed it was improper to decide the boundary disputes,
California's objection was based on the fact that necessary parties
were not participating in the proceedings. Specifically, California
argued that it lacked the authority to represent private
individuals claiming title to the disputed lands and maintained
that "it would be unfair to prejudice any of the parties in future
litigation over land titles or political jurisdiction by approving
findings on a tangential issue never pleaded by the United States."
Arizona II, supra, at 629. The Fort Yuma Reservation
boundary dispute, on the other hand, is solely between the United
States and the Quechan Tribe-there are no private parties claiming
title to the land. Thus, the United States could have raised this
claim in
Arizona I, and the Master could have decided
it.
Because I believe that the State parties' res judicata defense
is properly before the Court and that the United States' claim for
additional water rights is precluded, I see no need to remand for
further proceedings. I agree with the Court that we should approve
the proposed settlements of the remaining claims in this case and
direct the parties to submit any objections to the proposed
supplemental decree.
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