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<br />33 <br /> <br />locate in the basin and use that water. But rights to that water, under New Mexico <br /> <br /> <br />law, would have junior priorities. In many years, the Navajo prior claim to NIIP water <br /> <br /> <br />would cut into deliveries to junior users; in some years, full delivery to NIIP would <br /> <br /> <br />preclude any delivery to junior users. Uncertainty such as this was an effective <br /> <br /> <br />deterrent to industry locating in the basin, so the tribe believed it necessary to give <br /> <br /> <br />up its prior claim to NllP water and to agree to share shortages ratably in the basin. <br /> <br /> <br />The implication for quantification of this rationale for sharing shortages is this: for the <br /> <br /> <br />112,000 acre-feet to have a junior claim, it could not, by definition, be Indian water <br /> <br /> <br />with a Winters priority. Thus the Navajo must have assumed that the M&I water was <br /> <br /> <br />not theirs. Section 12(a) limits all Indian claims to New Mexico's allocation, and there <br /> <br />was no reference to other water within the allocation that the tribe might use in the <br /> <br /> <br />future.87 Thus by the logic of the rationale for it, the tribe's agreement to share <br /> <br />shortages limited its claim to the NIIP allocation. <br /> <br />But this is not a satisfactory conclusion, for several reasons. For the shortage-sharing <br /> <br />provision to amount to quantification, it is necessary to refer widely to state law and <br /> <br /> <br />external facts about water allocation and supply in New Mexico. But going so far <br /> <br />overoptimistic, making estimates of future uses, industrial or otherwise, fantasy. But at <br />the time that NllP was under discussion, few people had admitted that the flow of the <br />Colorado was lower than expected in 1922. <br /> <br />87The only water discussed for potential Navajo benefit, other than NIIP water, was <br />this M&I water. The 1958 Senate Report spoke of "mineral and industrial developments <br />on Navajo land," Sen. Re.p. No. 2198. ~ note 77 at 86, and Paul Jones spoke of <br />solving the Navajo unemployment problem permanently with large-scale industrial <br />development in New Mexico. Senate Hearin~ 1958..mm note 17 at 99. Other uses were <br />earmarked by New Mexico for non-Indian uses. & l:Iouse Hearine 1960..mm note 41 <br />at 78 and Senate Hearini 1961..swml note 17 at 49. <br />