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'_:1' '. . . .', .. OB~2 JolouaF'" 19801 TRA',SFERABILlTY OF INDIAN WA TER RIGHTS 9:- \\'ater reserved to thJt necessary for the purpose of the reservation". \\'hik allowing the use of the water to shift to mcct present-day n,.cds on the reservation. This approach would providc thc certJinty soueht by non-Indians regarding the quantity of water reserved under ~he -II'inters right and further would provide for the ever-changing r<quirement, for ,':ater on the reservation.' 7 Since most of the water claimed under the Winters doctrine has not yet becn put to beneficial use, there is a question about thc quantity of water which could be transferred to a new use. ~Iany scholars suggcst the "no injury" rule as a basis for limiting the Jmount of water right that can be transferred' 8 However, reliance on thJt principle would be ill placed, since it would severely restrict the flexibility of lI'illlers rights' 9 A similar but more reasonable approach would be to calculate the veneficial consumptive use attributable to the initi5J purpose of the reservation and thcn to allow that amounl"to shift to other uses' 0 TIlis process is no more difficult than the chore faced in quantiiying reserved rights in the fil'St instance where littlc or no actual use of water has occurred on the res.,rvation. The principal advantage of allowing the change in use of Indian w1ter rights is that it eliminates the need for tribes to make repeated claims for additional water as new uses arise. 111is view, of course. also assumes that there is a limit to the quantity of water reserved for the reservation. a view whi':!l is opposed by advocates of open-ended lI'inlers rights'! 36. The bulk of thi: decisions respecting Indi3n water rights ha\"e related the rc~en;:lllO:1 of water to agricultural purposes. See. e.g., Arizona v. C3.lifornia. 373 C.S. 546 fl963): lniled Statc~ \. Po\\ers. 305 U.S. 527 fI939): \\'inlers v, United St:ltes. 207 u.S. 56~ C i90S): United States \'. Walker River hr. Dist.. 104 F2d 334 (9th Cir. 1939"1; Skce:-n \". tni:cd States, 273 L 93 (9th Cu. 1921); United States v. Hibner. 27 r.ld 909 CD, Idilio 1915): Anderson \'. Spear-~forgan Lh'estock Co., 107 Mont. IS. 79 P.2d 667 lJ9:':J; ~l',:rrill ". Hi<hop. 69 Wyo. 4S. 237 P.2d 186 (\ 9SI). 37. Such an approach also squ31es with the holding in Unitt!d States 1'. Sew Mexico, -l3!:l LS. f9611978J. in \\hich the (OUf! refused to recognize reserved right claims of the l'nilcd S:.J.ICS ior "!.cclmdarr us~s" bc}'ond the purposes for which the Gila l'\alional rores~ had bt'~n created. H.y <!.nalogr. no waler can be claimed for modcrn-dJ.r use:i of water which \~ere ~Irtuailr non-existent at the time of crealion of mo~t Indian reservations and. there;o;e. ~~:nd Ihl: ~eope of the unpiled re!.Cr\'alion of wjJler. ~e. Set' nolc 22 s!/pra. 39. Smce the !\'j"ICrs doctrine is dcsi~ncd to take th~ tribes out of competition with 4;tpropm,tors in order 10 secure lheir Ii~ht 10 lhe u~e of \\'::I.tcr on the reservation, a l..!miw.' :I~n Co':'! the tran\ferauih:r oi h'lIllt'rs ri~ts based upon lhe amounl of waler hisIOr1eJ.!l~ put :c, UH,' ....ould run counter to one oi the principal objectives and benefih of the doelnnc:. 4{1. 11m apprOJch has been suggcsted br The state", of ArizonJ.. CJ.litorniJ. and :\e\~,J:l1JI ~onnc.;i.IOIl with thcir joira motion to lhe l...:nilcd States Suprema Court for delcrr.;I:1:::IOr. '-'I rn:~nt perfccted Ti~(s and the emr)' of a supplemenlal decree under the terrr.~ OJ- Anlcl.~ \'1 of the Court's- decree In Arizona I'. Cali[omia, 373 U.S. 546 (1963J. ..I. Sf!c: notl; 35 rupra and accompan)'i=t~ le.\ t.