Statutes of Ill Repose and Threshold Canons of Construction: a Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States

• Publication year: 2013

Washington Law ReviewVolume 36, No.4, SUMMER 2013

Statutes of Ill Repose and Threshold Canons of Construction: A Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States

Daniel Lee(fn*)

I. INTRODUCTION

Through East-Central Arizona runs a dying river.(fn1) Diversions have reduced the river's flow, and oftentimes, it is completely dry.(fn2) Severe pollution has rendered the remaining water undrinkable, un-swimmable, and unsuitable for growing crops.(fn3) Yet parties bitterly dispute who is entitled to this water.(fn4) Copper companies use the water to operate mines,(fn5) while parties situated upstream of the degradation still use the water for agriculture.(fn6)

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members.(fn7) The river is also sacred to the Tribe and central to the Tribe's culture and spirituality.(fn8) Initially, the federal government had recognized the Tribe's dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation.(fn9) The Winters doctrine provides that the federal government, when creating a reservation, impliedly reserves for the tribe an amount of water sufficient to support the reservation.(fn10) This implied reservation of water rights is based on an assumption that the government "intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless."(fn11)

The Winters doctrine has been described as "the government's promise, implicit in the establishment of reservations, to make them livable and to enable the tribes to become self sustaining."(fn12) If the Winters doctrine is a promise to the tribes, this Note is about a broken promise.(fn13) In the 1920s, in connection with the construction of the Coolidge Dam, the United States initiated proceedings to clarify water rights for users of the Gila River.(fn14) Acting as the Tribe's trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and awarded significant water rights to private parties and other Indian tribes.(fn15)

This decree has been the subject of nearly a century of litigation, including decisions by the Arizona Supreme Court(fn16) and the U.S. Supreme Court.(fn17) In particular, this Note focuses on the Federal Circuit's decision in 2011 that the San Carlos Apache Tribe could not seek damages against the United States for improperly diminishing the Tribe's reserved water rights to the Gila River under the Decree because the court determined that the statute of limitations had run.(fn18) This Note argues that the case was wrongly decided. It then proposes two new analytical devices to overcome the recent trend of courts denying remedies to tribes based on supposedly unambiguous language of treaties, statutes, and decrees.

Following this introduction, Part II provides historical and background information about the San Carlos Apache Tribe and the litigation leading up to the Federal Circuit case, San Carlos Apache Tribe v. United States. Part III tracks the Federal Circuit's reasoning that the statute of limitations had run because the Decree's plain language was unambiguous and put the tribe on notice of its claim. Part IV critiques that reasoning and shows that the U.S. Supreme Court has been willing to find ambiguity in similar language in the context of Indian reserved rights. Part V then argues for three more equitable approaches to ambiguity: first, courts should consider legal ambiguity, not just factual ambiguity, when determining whether legally operative language puts a tribe on notice that its claim has accrued; second, courts should take a unified approach to and treat all-encompassing terms as ambiguous when tribal reserved rights are at issue; and third, courts can apply threshold canons of construction to determine whether ambiguity is present in the first place and whether the traditional Indian canons of construction therefore apply.

II. HISTORY OF THE SAN CARLOS RESERVATION AND WATER RIGHTS LITIGATION

Established in 1872, the San Carlos Apache Reservation is located along the Gila River in Arizona.(fn19) The early years of the reservation were characterized by violence and abysmal health conditions.(fn20) The army, who had forcibly relocated the Apache to the Reservation, referred to it as "Hell's Forty Acres."(fn21) This small amount of land contained several rival Apache bands.(fn22) It was not until the Indian Reorganization Act of 1934 that these bands came together to form a government.(fn23) Today, the San Carlos Apache Reservation remains one of the poorest reservations, with a majority of the residents living under the poverty line.(fn24) Unemployment is extremely high-around 68% as of 2005.(fn25)

When the U.S. Supreme Court articulated the rationale of the Winters doctrine, it almost seemed to have the San Carlos Apache Reservation in mind. The Court explained that without federal reserved water rights, Indian reservation lands "would have been useless."(fn26) Indeed, without water for irrigation, the arid climate of the San Carlos Apache Reservation would have made development of agriculture difficult, if not impossible. When describing the reservation, one army officer commented that "[r]ain is so infrequent that it took on the semblance of a phenomenon when it came at all. Almost continuously dry, hot, dust- and gravel-laden winds swept the plain, denuding it of every vestige of vegetation. In summer a temperature of 110 in the shade was cool weather."(fn27)

In the late 1800s and early 1900s, the United States further exacerbated the impact of these conditions on the tribes located there by destroying and selling the most valuable irrigable lands on the reservation.(fn28) The sales decreased the reservation's size five times, and the settlers who purchased these lands then began to divert water from the Gila River.(fn29) Despite the Tribe's objections,(fn30) the United States then flooded 22,000 acres of the most valuable remaining reservation lands when the United States began construction on the Coolidge Dam on the Gila Riv-er.(fn31) When the dam was complete, the flooding caused a "temporary famine" throughout the Apache nation.(fn32)

A. The Coolidge Dam and the Globe Equity Decree

In connection with the construction of the Coolidge Dam, the government filed a complaint in the U.S. District Court for the District of Arizona in 1925 to obtain a decree regarding water rights to the Gila River.(fn33) The Tribe did not participate in the negotiations and was not a party to the proceeding.(fn34) Instead, the United States used its power to represent the Tribe as its trustee and settle the Tribe's water rights.(fn35) Despite its fiduciary obligations as the Tribe's trustee, the United States ignored the protests of the Superintendent of the San Carlos Agency, who opposed the Decree because of the adverse impact it would have on the Tribe.(fn36) Some federal officials, including the Special Assistant to the Attorney General, even stated that the United States should not support the Tribe's superior priority to the waters of the Gila River.(fn37)

In 1935, the court approved a settlement known as the Globe Equity Decree, which granted merely 6,000 acre-feet of water(fn38) from the Gila River each year to the Apache Tribe for irrigation.(fn39) The court rationalized this low award by stating that "the Apache are and always have been warlike and in no sense agrarian."(fn40) In contrast, the Pima Tribe, located on the nearby Gila Indian Reservation, received over 210,000 acre-feet of water per year because they "are an industrious farming race."(fn41) Non-Indian interests received 350,000 acre-feet of annual irrigation water.(fn42)

Although the reservoir and dam are located on the Apache reserva-tion,(fn43) the Tribe received no water storage rights for the impounded waters, which were instead apportioned to other water users.(fn44) Further, the Decree stated that the parties "concluded and settled all issues" regarding water rights to the Gila River and that "all of the parties . . . are hereby forever enjoined and restrained from asserting or claiming-as against any of the parties herein . . . any right, title or interest in or to the waters of the Gila River . . . except the rights specified, determined and allowed by this decree."(fn45)

B. The U.S. Supreme Court Determines that a State Court Could Decide the Tribe's Rights Despite Tribal Sovereign Immunity

In 1974, private water users petitioned the Arizona state courts to adjudicate the water rights to the Gila River.(fn46) The immense proceeding that followed, the Gila River Water Adjudication, is the largest and longest judicial proceeding in the history of Arizona.(fn47) The goal of the adjudication was to "determine the quantities and relative priorities of all legal rights to the use of water from the Gila River and its tributaries within Arizona."(fn48) Over 849,000 parties received summons by mail, 24,000 of which became parties to the adjudication.(fn49) Although the San Carlos Apache Tribe was not directly served with process, the state courts still sought to bind the Tribe to the adjudication by joining the United States as the Tribe's...