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September 17, 1983

Fred Holly, et ux., et al., Plaintiffs
Watson Totus, et al., Defendants

The opinion of the court was delivered by: QUACKENBUSH

 Justin L. Quackenbush, United States District Judge:


 This action is brought by the State of Washington (State), by the cities of Toppenish and Wapato, by non-Indians, and by corporations allegedly owning land either within or near the Yakima Nation Reservation within the State of Washington. Defendants originally included the Yakima Indian Nation, the Yakima Tribal Council, all members of the Tribal Council individually and in their official capacities, and the Chief Judge of the Tribal Court, individually and in his official capacity.

 Plaintiffs seek to enjoin the application and enforcement of the Yakima Nation Water Code, adopted by the Tribal Council in May, 1977. Soon after the issues were joined, defendants moved to dismiss asserting immunity from suit due to sovereign immunity; asserting the action was not ripe due to failure to exhaust tribal remedies; asserting lack of jurisdiction over defendants; and asserting failure to state a claim. Judge Marshall Neill held that the court had no jurisdiction over the Yakima Indian Nation, over the Yakima Tribal Council, or over the tribal officials in their official capacities. Memorandum and Order, Ct. Rec. 55, at 2. Accord, Snow v. Quinault Indian Nation, 709 F.2d 1319, slip op. at 3283 (1983); California v. Harvier, 700 F.2d 1217, 1218 (9th Cir. 1983). However, the further holding was that since plaintiffs alleged the tribal officials' authority under the Yakima Water Code is void under federal law, the claims for relief against the tribal officials in their individual capacities were not barred by sovereign immunity. Memorandum and Order, Ct. Rec. 55 at 2 and 3. The Chief Judge of the Yakima Tribal Court was also dismissed. Id. at 3.

 In addition, Judge Neill concluded that exhaustion of tribal remedies was not required for the claim that the Tribe lacks jurisdiction over plaintiffs' waters. Id. at 7. Since the court concluded it had jurisdiction over the issue of whether, under federal law, the Tribe could regulate plaintiffs' waters, the court did not find it necessary at that time to determine whether subject matter jurisdiction existed for the remaining claims. Id.

 Presently before this court, is the state's Motion for Summary Judgment which challenges the Tribe's authority to regulate Reservation waters which are beyond the scope of water rights created by the United States for the Tribe.


 At Ct. Rec. 108, all parties to this action stipulated, for the limited purpose of the State's motion, to the following statement of undisputed facts:

 1. The Yakima Indian Reservation was established and reserved by treaty with the United States in 1855 (12 Stat. 951).

 2. The Confederated Tribes and Bands of the Yakima Indian Nation, herein called the "Yakima Indian Nation ", has been recognized as an Indian tribe by the Secretary of the Interior. The Yakima Tribal Council is the governing body of said tribe and is so recognized by the Secretary of the Interior.

 3. The individual defendants are elected and duly qualified and acting members of the Yakima Tribal Council. As members of the Yakima Tribal Council, they collectively prepared, promulgated, and made effective the Yakima Nation Water Code. Resolution No. T-79-77. [A copy is set forth in Exhibit A at Ct. Rec. 108.] This code applies to all areas within the Yakima Indian Reservation. The scope of coverage of the Code as intended by the Yakima Indian Nation includes the Glenwood area.

 4. The Glenwood area is an area of 100,457 acres located in the south-central part of the State of Washington and immediately southeast of Mount Adams. Beginning in the 1880s, it was substantially and predominantly settled by non-Indians. Patents were issued to these settlers by the United States in the late 19th or early 20th century under the federal homestead laws on the assumption that the land in this area was part of the public domain. In 1947 the Yakima Tribe filed a claim with the Indian Claims Commission of the United States demanding compensation for these and other lands on the ground that there had been a taking under the power of eminent domain or a violation of the 5th Amendment to the United States Constitution. Petition filed June 21, 1949. The Yakima Tribe v. U.S., Indian Claims Commission Docket No. 47. It was asserted that these lands were part of the Yakima Indian Reservation, that patents had been issued and the lands otherwise disposed of inadvertently and that the assumption that the lands were part of the public domain was erroneous. Id. The claim was upheld as to a 121,466 acre tract [Tract D]. 16 Ind. C. Cmsn. 426. A 21,009 acre portion of that tract was severed into a separate claim. The remainder of the tract is what is identified here as the Glenwood area. It was agreed by the Tribe and the United States that vacant and unpatented lands in the Glenwood area, containing some 2,548 acres, were to be returned to the tribe. These lands were eliminated from the money portion of the claim. The claim for money judgment was agreed to apply to the remaining 97,909 acres which had been patented. 20 ICC 76, 77, 78, 79. The United States was found liable on the claim for the patented acres. The Yakima Tribe received a judgment for this and other claims in a consolidated judgment. 20 ICC 90, 95, 96. None of the plaintiffs ...

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