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<br />. <br /> <br />. <br /> <br />by allowing the change subject to that great body of law affec- <br />tionately known as the "law of the river."13/ <br /> <br />What was not addressed in the Final Settlement Agreement <br />were the substantive and procedural laws which would apply to <br />out-of-state changes in use of Indian reserved water rights under <br />the existing law of the river. The heart of this controversy <br />concerned whether tribes could sell their reserved water rights <br />decreed in the upper Colorado River basin to users in the lower <br />Colorado River basin or whether this sale would violate the law <br />of the river. This issue had never been litigated and neither <br />side was prepared to accept the other's interpretation of how a <br />future court would decide the status of tribes under the existing <br />Colorado River laws, treaties, compacts, contracts, and regula- <br />tions. This controversy raised significant questions of pre- <br />emption which were not capable of resolution by the negotiating <br />parties. <br /> <br />The federal legislation introduced by the participants in <br />the negotiations reflected the tribal change of use and marketing <br />of water compromises. In relevant part, the legislation waived <br />provisions of the Non-Intercourse Act and remained neutral on the <br />issue of the law to be applied if the Tribes attempted to market <br />their Indian reserved water rights into a lower Colorado River <br />Basin state.14 <br /> <br />The silence on the substantive and procedural law to be <br />applied if the tribes moved the Indian reserved water rights out- <br />of-state generated significant controversy and opposition in the <br />lower Colorado River basin states, which took the position that <br />the existing law of the Colorado River did not contemplate or <br />permit the sale of water from the upper Colorado River basin into <br />the lower Colorado River basin. These states were adamant that <br />they did not want the Colorado settlement to generate litigation <br />on this issue and did not want to have federal legislation passed <br />which could be construed to change the way in which the Colorado <br />River had been regulated and the Colorado River compacts under- <br />stood.~ To protect their position, the lower basin states <br />demanded that the tribes be flatly prohibited from applying for <br />any out-of-state changes in place of use. <br /> <br />Western states which did not rely on the use of water from <br />the Colorado River objected to the federal legislation, not for <br />fear of upsetting the law of the river, but rather because these <br />states objected to the alienation of any federal reserved water <br />right from the federal reservation. Their concerns centered on <br />the appropriate contours of the reserved water rights doctrine <br />itself. <br /> <br />-8- <br />