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<br />00329~ <br /> <br />After conducting a hearing on these preliminary issues, <br />I entered a memorandum and report on August 28, <br />1979, granting the Indian Tribes leave to intervene in <br />the subsequent hearings on the merits.'7 <br />In granting the Tribes leave to intervene, I followed <br />the guidance of Rule 24 of the Federal Rules of Civil <br />Procedure. I concluded that the Indian Tribes should <br />be permitted to intervene because the Tribes' direct <br />pecuniary interests will be determined by this litiga- <br />tion and because the asserted claims of the govern- <br />ment's conflict of interest created the possibility that <br />the government's representation of the Tribes' interest <br /> <br />"may be" inadequate. See, e.g., Trbovich v. United <br />Mine Workers, 404 U.S. 528 (1972). <br />I further concluded that the States' Eleventh <br />Amendment immunity was not implicated by the <br />Tribes' motion to intervene. Becaus~ the intervenors' <br />claims are ancillary to a case or contd>versy already <br />within the Supreme Court's jurisdiction, see, e.g., Ald- <br />inger v. Howard, 427 U.S. I, 6-14 (1976); Freeman v. <br />Howe, 24 U.S. (24 How.) 450 (l861), they are within <br />the scope of the State's constitutional surrender of im- <br />mUnity. See, e.g., Principality of Morwco v. ,Missis- <br />sippi, 292 U.S. 313 (1934). In its 1964 Decree, the <br />Court retained its exclusive jurisdiction over the distri- <br />bution of the waters of the lower Colorado River and <br />thus the present case provides the sole vehicle by <br />which the Indian Tribes can assert their claims. 376 <br />U.S. at 341-46, 353. In the alternative, I concluded <br />that 28 U.S.C. S 1362" is a congressional abrogation of <br />the State's immunity. Moe v. Confederate Salish & <br />Kootenai Tribes of the Flathead Reservation, 425 U.S. <br />463 (1976). My decision permitting the Indian Tribes <br />to intervene obviated the need to consider alternatives <br />to intervention. <br />I also concluded that the facts regardin,g irrigability <br />of both the boundary and omitted lands should be <br />presented. For the purpose of the determination of <br />Reservation water rights in this litigation, I found the <br /> <br />the parties and the movants for intervention three <br />questions to be briefed and argued orally: <br /> <br />(l) Have "the boundaries of the respective <br />[Indian] reservations. . . [been] finally de- <br />termined" within the meaning of Art. <br />11(0)(5) of the March 9, 1964 Decree, 376 <br />U.S. 340? <br /> <br />(2) Does the Eleventh Amendment bar inter- <br />vention in this suit by the Indian Tribes <br />without the c~nsent of the State Parties? <br /> <br />(3) Is there a procedure whereby the Indian <br />Tribes may appear and participate as if <br />they were parties pending a ruling on their <br />motions to intervene? -' <br /> <br />fomi. urban agencies adopted CalifOrnia'l view of the 11th Amendment <br />and the intervention islUes. They also ltated that the boundari.. were <br />not }'et finally determined and that I should now adjudicate title to ell <br />such oreae with all interested pereone joined 81 parties. In the alternative <br />they ..ked that the United States bring euit to quiet title to the land and <br />water rights in federal district court. Memorandum of the Urban Agen- <br />cies re Indian Reservation Boundary Que.tion (Apr. 1979). <br />57. Memorandum and Report on Preliminary Issues (Aug. 28, 1979). <br />Each of these issues is discussed in more detail in my 1979 Report. <br /> <br />58. This .tatute provides: <br />The dietrict coUltl eha11 have orisiDal juriediction of ell civil <br />actioDB, brought by any Indian tribe. . . ..berein tha mattar In <br />controversy ariaea under the Conetitution. Ia.. or treaties of the . <br />United States. <br />28 U.S.C. I 1362 (1976). It ie cleer thet I 1362 d_ not withdraw the <br />Supreme Court'e juriediction over Indian cJaima In c:aees In ..hich a otate <br />is a party, but merely confiD.. federal question cJaima by Indian Tribee <br />to federal courts in general 439 U.s. 419, 436-37 (1979). <br /> <br />26 <br /> <br />27 <br />