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<br />.eo, <br /> <br />0816 <br /> <br />. <br /> <br />. <br /> <br />\ <br /> <br />CONSIDERATIONS AND CONCLUSIONS <br />CONCERNING THE TRANSFERABILITY OF <br />INDIAN WATER RIGHTS <br /> <br />JACK D. PALMA!JO <br /> <br />As a consequence of the decision of the United States Supreme <br />Court in Colorado Ril'er Water COllsCTl'atioll District 1'. United <br />Stat~s.1 the race to the courthouse to adjudicate I\'inters water <br />rights' between the states on one hand and the Unitcd States and/or <br />their Indian wards on the other has intensil!ed. There appears to be a <br />fceling among state and federal officials alike that. once these adjudi- <br />cations run their COUl>e, the uncertainty and acrimony surrounding <br />thc assertion of Indian water rights will disappear. However, as tribcs <br />attempt to reap the economic gains that they perceive should now <br />from the use' of these water rights, there is a second generation of <br />uncertainty, discord, and litigation looming in the future. <br />Courts have applied various standards to aetermine the quantity of <br />water reserved under the Winters doctrine.' Regardless of what test <br />is utilized to quantify these Indian water rights. the tribes will obtain <br />prior and, in most cases, paramount rights to vast quantities of <br />water.' The extent to which the quantification of Indian water rights <br />will lead to harmony or result in discord between states and tribes is <br />,'cry much dependent upon yet undefined legal limits on the extent <br />of Indian water rights. It is the purpose of this article to explore the <br />Icgal parameters of Indian water rights and to suggest some possible <br />constraints which should be placed upon the transferability of water <br />rights to new uses and users, both on and off the reservation.' <br /> <br />.Scnior Assistant Attorney General for the State ofW)'omin~. The \'iews presented herein <br />do not nccessarilr represent the views of the Stale ofWyomin~.- <br />I. 424 U.S. 800 (1976) (oommonl~' referred to and hereinafter cited asAkitl). This case <br />'-llflfmed !.he concurrent jurisdiction of state and federal courts to adjudicate reserved \\'Jtcr <br />n~hIS, including those riglla of Indian tribes. <br />2. The term "h'inters rights" is derived from Winters \'. linited States, 207 U.S. 564 <br />(1908), in which the United States Supreme Court first de~iJ.red that, when the Cnlled <br />Slales set aside l::mds as In'::ian reservatIOns, sufficient unappropriated waler was imp!i:i;!} <br />rt:~T\'ct.l for Indian use to satisfy the purposes for which the lands were reserved. <br />3, In Arizona \', California. 373 U,S. 546, 601 (I 963), for e."(ample. the Supreme COU;i <br />l'Onl"ludcd that "the onlr feasible and fair war by which reserved water for the rescr.3,!\Ol1 <br />C;Jn be mea:;urcd is irrif:able acreage." For an eXlensive trc;lr;:Jen: of Ole Issue of the qU:J.n' <br />li:y of water reserved, see Sondheim & Alexilnder. Federc.l Indian lIoter Rights: A Retrv- <br />,~7l'SSlOfl to QU4si-Riparianism?, 34 S. CAL L. REV. I (960), <br />4. See, e.g., ArIZona v. California, 373 L'.S. al 596.600, m whi.;h (h~ COUll decreed ;, <br />'1.:....'I\ation or abOL.:l 1 million acre-feet for use on approxlmatety ! 35.000 acres of land. <br />5. This urtitle presumes .that quantification of !ndi:m water rights IS both desirable and <br />