Arizona v. California

New Scholarship on Arizona v. California

Matthew L.M. Fletcher

Amy Cordalis and Daniel Cordalis have published “Indian Water Rights: How Arizona v. California Left an Unwanted Cloud over the Colorado River Basin” in the Arizona Journal of Environmental Law.

The abstract:

The Colorado River is one of the most important rivers in the world. The river’s 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters are allocated through a complex body of laws collectively referred to as the “Law of the River,” which includes an international treaty, two interstate water compacts, numerous federal and state statutes, and more than a dozen Indian water rights settlements. For thousands of years before the Law of the River, however, American Indians lived and irrigated within the Colorado River Basin, making due with its characteristically seasonal rains and difficult growing conditions. Today, in a cruel but all-too common twist for tribes, twelve of the basin’s twenty-eight tribes have not had their water rights completely quantified, leaving many of the basin’s oldest inhabitants without a legally secure source of water. This begs the question of how the Law of the River developed such that the Colorado River is already over-allocated but Indian water rights are to a large extent unaccounted for, and tribes—occupying and using water in the basin since time immemorial—are left struggling for whatever remaining drops they can squeeze out of the basin. And, perhaps more to the point, the question arises how Arizona v. California recognized this exact issue in the Lower Colorado River Basin and could not to fully resolve it. This article finally takes the position that tribes, the states, and the federal government must work together to settle Indian water rights claims to provide certainty to all Colorado River basin water users amidst growing undertainty from polulation growth and climate change.

Arizona Attorney (Ariz. State Bar Journal) Lists Arizona v. California as Most Important Case of State’s History

Matthew L.M. Fletcher

Two Indian tax cases and Williams v. Lee are also included in the top 50.

Here is the article. The list starts on page 18. And the selected pages from the magazine:

Az Atty Top 50 Article

How the Supreme Court Talks about Indian Tribes when They’re Not Looking

Matthew L.M. Fletcher2 Comments

Just read portions of the Supreme Court’s decision in Alabama v. North Carolina, issued Tuesday.

The case involved a challenge to North Carolina’s alleged failure to comply with a compact between states in the southeast over low-level radioactive waste. One issue was whether the states challenging North Carolina could sue through a Commission they had created to enforce, monitor, and administer the compact. The Court held that it was no 11th Amendment sovereign immunity problem for the Commission, technically a nonsovereign, to bootstrap onto the claims of the other states so long as they were the same claims, relying on Arizona v. California (1983).

Justice Scalia for the majority noted that Arizona had not been overruled, and that it was no problem for the Commission to sue on the backs of other states. North Carolina had noted that Oneida County v. Oneida Indian Nation (1985) may have undermined Arizona. In rejecting that argument, Scalia dropped a footnote, noting that “in Oneida, there was no sovereign plaintiff.” That would be the Oneida Indian Nation he was referring to as a “nonsovereign.”

In dissent, Chief Justice Roberts (joined by Justice Thomas) went further, arguing that Arizona‘s holding allowing Indian tribes to piggyback onto the U.S. in claims against states was simply wrong:

Understandably, the Court’s opinion leans heavily on Arizona, which has never been squarely overruled. Ante, at —- – —-. But Arizona itself is built on sand. The relevant portion of that opinion is almost wholly unreasoned. It cites only a footnote in a prior case, the pertinent paragraph of which failed even to discuss the State’s immunity from private suit. See 460 U.S., at 614, 103 S.Ct. 1382(citing Maryland v. Louisiana, 451 U.S. 725, 745, n. 21, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). That paragraph addressed only intervention, not sovereign immunity, and the two issues are distinct. See South Carolina v. North Carolina, 558 U.S. —-, —-, n. 5, 130 S.Ct. 854, 864 N. 5, — L.Ed.2d —- (2010).

Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona‘s already weak foundations. We recognized in Alden v. Maine, 527 U.S. 706, 718, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the States did not “ ‘surrender … this immunity in the plan of the convention.’ ” Id., at 717, 119 S.Ct. 2240 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A.Hamilton)); see also Alden, supra, at 718-722, 755-756, 119 S.Ct. 2240. There is no reason to suppose that the States, at the founding, made an exception for private suits that happen to mimic other plaintiffs’ claims-and neither Arizona nor the Court today suggests otherwise.