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<br />, <br /> <br />~~17 <br /> <br />. <br /> <br />. <br /> <br />92 <br /> <br />,vA TL'IlAL RESOURCES JOUR.VAL <br /> <br />[\'01. 20 <br /> <br />LIMITS UPON THE TRANSFERABILITY OF INDIAN WATER RIGHTS <br />FOROFF.RESERVATlON USES <br /> <br />In tltis n~w era of "tribal nationalism,'" the Winters doctrine has <br />Jeen fashioned into an economic doctrine. designed to assist the <br />tribes in acJtieving greater financial. and hence political. autonomy as <br />sovereign nations.' Basic to the concept of the Winters doctrine as an <br />economic doctrine is the assumption that the tribes can market their <br />water rights to non-Indians for a variety of uses. both on :md off the <br />reservation.' A careful reading of Winters>: Vnited States. and its <br />progeny is necessary to determine whether in fact this view is firmly <br />based in the law of Indian water rights. ~ <br />The question before the United States Supreme Court in the <br />Winters case was whether diver>ions of water from the Milk River by <br />non-Indian appropriators located upstream from the Ft. Belknap <br />Indian Reservation in Montana should be enjoined. The appropri- <br />ators claimed a priority date of 1898. which theY.3Sserted was prior <br />to use of th~ river by either the tribes or the United States. On the <br />other hand. the United States contended that if the tribes "are de- <br />prived of til~ waters their lands cannot be successfully culti\'ated. and <br />they will b~come useless and homes cannot be maintained there- <br />on."! 0 <br />In deciding the case, the Court looked to the intent of the 1898 <br />treaty bet\\'e~n the United States and the tribes, noting that: <br /> <br />The reservation was a part of a very much larger tract which the <br />Indians had the right to occupy and use. and which was adequate for <br />the habits and wants of a nomadic and uncivilized people. It was the <br />policy oi the Government. it was the desire of the Indians, to change <br />those habits and to become a pastoral and civilized people. If they <br />should become such, the original tract was too extensive; but a <br />smaller tract would be inadequate without a change in conditions. <br /> <br />neccss.1JY, a pI::;umption which is not shared b~' all of my colleagues on cimer the slat~. <br />fedeIal, or trlt'l.I side of this issue; see Palma, Indian Willer Rights: A State Perspectiw: After <br />Akin. 57 NEB. L. REV. 295 (1978). <br /> <br />6. Set!, e.g.. Israel, The Reemergence of Tribal Nationalism o.nd Irs Impact 01/ Resem:' <br />lion ReSOllrce Dc;eJopmcr.c. 47 U. COLO. L. RLV. 617 (1976). <br />7. See, e.g.. Dellwo. Indi~1I h'ocer Rights-nIl' h'inlers Doctrine Updated. 6 GO:-';l.:. 1.- <br />REV. 215 (}9il); PeIcHe'f, Mnlers Doc/rine and the Greening of the Resf!f'\'ollO,'S. 4 J. <br />CONTD1P. L. 19 (1977); Vceder, Water RighH in the Coal Fie/ds ollhe Yellowstorle NIl'a <br />Basin. ~Q lAW &. CON'IE~\P. PROB. 71 (1976). <br />8. The pOler.:i.:lI wealth avaLlablc b)' marketing water rights is eVidenced tl}" the fact thJI <br />mdu~lriJl ",J~ej u!.ers \l.l.hin lhe mine-Tal-rich Yello.....stone River Basin h~\"e e.xpres~J J <br />willingness 10 py up to Sl 00 per consumptive acre foot of water. <br />9. 207 U.S. ;6~ (t 908). <br />10. Id. " 561. <br /> <br />I, <br />I <br />I <br />I <br />! <br />I <br />I <br />II <br />