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<br />0&19 <br /> <br />. <br /> <br />. <br /> <br />-1 <br /> <br />94 <br /> <br />NA TUR.'L RESOURCESjOL"RNAL <br /> <br />(\'01. 20 <br /> <br />tribes found sustenance from agriculture, irrigation water was <br />reserved;'. where fishing was important. fishing rights formed the <br />basis of the Winters right.'. It is arguable that an Indian rescrvation <br />in a \'.ater-abundant region could be limitcd to stock and domestic <br />water. <br />Indian reserved water rights were never intended to serve any func- <br />tion other than adding to the producth'itr of the reservation. Crops, <br />wildlife. and the inhabitants of the resetvation needed water to sur. <br />vive on the desolate and God-forsaken land upon which the govern- <br />ment confined our Native Americans, TIlere is no indication in <br />trcaties. executive orJcrs. legislative histo~y, or the holdings of Our <br />highest Court that the United States intended to reserve excessive <br />amounts of water so that tribes could market all that was not needed <br />for their own use on the reservation. In fact, surplus water is beyond <br />the scope and e~tent of the reserved right, which is limited to that <br />minimulIl quantity o( water necessary to satisfy the purposes for <br />which the reservation was created:' 0 any water in ihe stream beyond <br />the needs of the tribe should be available for other water users.2 I <br />Some commentators suggest that there is no logic or equity to <br />such limitations upon the transferability of Indian water rights-that <br />Wimers rights should be limited only by the "no injury rule" appli- <br />cable to appropriative rights under western water law," I submit <br />tha t this broad view is, in fact, illogical. Indian water rights share <br />virtually none of the important attributes of appropriative rights. <br />aside from the fact that both forms of water rights enjoy a priori ty <br />date which determines the priority of right to the use of water. As a <br />consequence, it appears inconsistent to argue that Winters rights <br />must possess a transferability equal to that permitted under the prior <br />appropriation doctrine of water law. <br />A more appropriate comparison exists between the Winters doc- <br />trine and the riparian system of water law. Unlike the rights of <br />western appropriators which arc based upon ac~"al di\'ersion and LIse <br /> <br />18. Aruona v. Caliform3, 373 ES. 546 (1963); l'nited States v. Po\\ers. 305 U.S. 517 <br />(1939); Winters \". United St:lICS, 307 U.S. 564 (190li). <br />19. United SIJtcs v. Winans. 198 U.S. 371 (1905); Alaska Pac. Fish'::i1es v. Vnilcd S'.ll~~. <br />248 U.S. 78 (1918). <br />20. CJppJert v. Unitoo States. 426 U.S. 128. 141 (1976). <br />11. Lnllt"d SlateS v. Hit'lncr, 27 F.2d 909 (D. Idaho 1928). <br />12. Veeder. I~'aler kiduf ii, (he Coal Fields of Ih~ YeJ!OlVstone Rln'r Basill. 40 L.-\\\ <br />r\SO CO:\TlJoIP. PROB.-n. 89 (976). Under the app;cprbtion doctrine a water right OIJ} <br />be tran~icrred to :1 new use \\here it can be sho\\n lh:H there \l,iJl b~ no injur}' to ~Jth,'; <br />\'~~il:d \\atcr ri.::hb. See, e.g., Green ~'. Chaffee Dirch Co., 371 P.2d 775. 783 (Colo. 196~' <br />Ho\~e\"':j. th~ "no inJury" rule- presupposes th:l.1 mere has been ben~!klJ.1 ..:onsumpUH' U.... <br />l'f thl.: wJTl'r n,,:ht sou!!hl 10 be lramierred. Since mOH h'illleTS' rit!.ha h'.1\": nol been hhlU1' <br />Ically ~'erl'i~.:d, the lnbes would appear un\\ise to puce reli:lOce upon the "no injury" Jul.:. <br />