dissenting:

I dissent from the Court’s holding that the disclaimer clauses in the Montana Statehood Act and in the State Constitution deprive the state courts of jurisdiction to establish and adjudicate reserved water rights of the United States held by it in trust for the Indians. On this issue I agree with Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995 , 100 S.Ct. 530 , 62 L.Ed.2d 426 (1979).

The disclaimer clauses disclaim all right and title to Indian lands. But no one here lays any claim to Indian lands or water rights. The Statehood Act disclaimer provides that Indian lands “shall be and remain subject to the disposition of the United States, and * * * shall remain under the *1091 absolute jurisdiction and control of the Congress of the United States.” 25 Stat. 676 (1889). But no one here disputes that Congress has always had jurisdiction and control over land owned by the United States and held by it in trust for Indians and that such lands always remained subject to disposition by Congress. Indeed, in enacting the McCarran Amendment, 43 U.S.C. § 666 , Congress exercised its plenary control over Indian lands to authorize the states to adjudicate, as part of general stream adjudications, the federal reserved water rights of Indians. See Colorado River Water Conservation District v. United States, 424 U.S. 800 , 96 S.Ct. 1236 , 47 L.Ed.2d 483 (1976) (“Akin”). The sole question then, as I see it, is whether the language “absolute jurisdiction and control of the Congress” is to be construed to mean exclusive jurisdiction of the federal courts in all suits involving Indian lands or property rights. In holding that that is not the meaning to be attributed to the language, Jicarilla followed Organized Village of Kake v. Egan, 369 U.S. 60 , 82 S.Ct. 562 , 7 L.Ed.2d 573 (1962), where the Supreme Court held to that effect.

In that case, under the Alaska Statehood Act, the United States retained “absolute jurisdiction and control” over Indian property. The property in question was Indian fishing rights and the issue was the right of Alaska to regulate the Indian use of salmon traps. Speaking for the Court, Justice Frankfurter concluded from the Court’s decisions in Williams v. Lee, 358 U.S. 217, 220 , 79 S.Ct. 269, 270 , 3 L.Ed.2d 251 (1946), and Draper v. United States, 164 U.S. 240 , 17 S.Ct. 107 , 41 L.Ed. 419 (1896), that “ ‘absolute’ federal jurisdiction is not invariably exclusive jurisdiction.” 369 U.S. at 68 , 82 S.Ct. at 567 . “[A]n examination of past . . . decisions makes clear,” he wrote, “that the words ‘absolute jurisdiction and control’ are not intended to oust the State completely from regulation of Indian ‘property (including fishing rights).’ ” Id. at 71 , 82 S.Ct. at 568 . He concluded, “These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law.” Id. at 75 , 82 S.Ct. at 570 .

To the same effect is this Court’s recent decision in White Mountain Apache Tribe v. Arizona, 649 F.2d 1274 (9th Cir. 1981). We there cited the Organized Village of Kake and Jicarilla decisions for the proposition that the “Enabling Acts themselves forced states to disclaim only their proprietary interest in’Indian land, not the states’ governmental or regulatory authority over that land.” 649 F.2d at 1280.

If the disclaimers are no bar to state regulation of Indian property rights where those rights confront legitimate state interests, the McCarran Amendment, as discussed in Akin, makes it clear that state courts are vested with jurisdiction in the adjudication of Indian water rights.

McClanahan v. Arizona State Tax Commission, 411 U.S. 164 , 93 S.Ct. 1257 , 36 L.Ed.2d 129 (1973), is not to the contrary. There, in holding that Arizona was without jurisdiction to impose on reservation Indians a tax on income derived from reservation sources, the Supreme Court described the tribal interest at issue as “totally within the sphere which the relevant treaty and statute leave for the Federal Government and for the Indians themselves.” Id. at 179-180 , 93 S.Ct. at 1266 . Here, in stark contrast, the McCarran Amendment actually authorizes the states to adjudicate as part of comprehensive stream adjudications the federal reserved water rights of Indians. “The consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights.... ” Akin, supra, 424 U.S. at 819 , 96 S.Ct. at 1247 .

Further I dissent from the Court’s holding that wise judicial administration, as that term is used in Akin, does not call for dismissal of the federal suits. The district court dealt at length with the special circumstances presented by this case, taking *1092 note of Montana’s detailed water use legislation. See 484 F.Supp. at 35-36. Pursuant to that legislation, the Montana Supreme Court has filed an order requiring all persons claiming a water right within the state to file a statement of that claim with the State Department of Natural Resources and Conservation. These claims will be referred to water judges appointed in each of the state’s four water divisions who shall enter a preliminary, and after an opportunity for hearing, a final comprehensive water decree.

The district court concluded:

484 F.Supp. at 36. Accordingly, “on the basis of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation,” the court ordered the cases dismissed. Id.

I agree with the district court. Water adjudication is essentially a local concern, and in every western state water scarcity poses a problem not just to Indians but to everyone. In my view, it is highly important that each state be accorded room for an effort to solve its water scarcity problem in the manner it regards as most appropriate. Here so long as Montana gives recognition to Indian water rights and their establishment pursuant to federal law, I see no good reason why Indians should not be joined with all other water users in the state in order to achieve a comprehensive state adjudication.

I would affirm.'