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<br />0015J3 <br /> <br />924 <br /> <br />ECOLOGY lA W QUARTERLY <br /> <br />[Vol. 28:903 <br /> <br />! <br />I <br />w <br /> <br />of project-authorizing legislation, the various water delivery <br />contracts between BOR, irrigation districts, and individual water <br />users, as well as district charters, bylaws, and regulations of <br />districts under state lawp3 At the very least, many of these <br />instruments give the Secretary of the Interior a vast, <br />discretionary veto power over water transfers. 124 <br />The transferability of Indian reserved rights, which represent <br />another major portion. of Colorado River water, remains <br />unresolved.125 The Non-Intercourse Act clearly limits the ability <br />of non-Indians to obtain rights to Indian water without <br />congressional approval,126 ahd neither Supreme Court decisions <br />nor federal laws have recognized a general tribal authority to <br />convey water off-reservation. 127 While many water. rights <br />settlements have included provisions that authorize the sale or <br />lease of water for off-reservation use,128 even limited marketing of <br />tribal water is politically controversial. The most strenuous <br />opposition occurs over proposals that would allow tribes to <br />market unexercised Colorado River rights because tribes would <br />be selling water that other users currently get for free. 129 <br />Regardless, Indian water rights are subject to the Law of the <br />River; as a result, even if water can be transferred for use off- <br />reservation, it is subject to the same limitations as water from <br />any other source in the Basin states. 130 <br />Another source . of controversy regarding transferability of <br />water rights involves the interpretation of the U.S. Supreme <br /> <br />I: <br /> <br />123. See PETER W. CULP. FEASlBlUTY OF PuRCHASE AND TRANSFER OF WATER FOR <br />INSTREAM FLow IN THE COLORADO RIvER DELTA, MExICO, 3 (2001). <br />124. See generaUy Robert Roos-Collins, Voluntary Conveyance of the Right to <br />Receive a Water Supply from the United States Bureau of Reclamation. 13 EcOLOGY <br />L.g. 773 (1987). <br />125. See Wyoming v. United States, Justice O'Connor unpublished majority <br />opinion, at 12 [No. 88-309J; NATIONAL REsEARCH COUNCIL, supra note 70, at 95. See <br />also Andrew Mergen & Silva Liu, A Misplaced Sensitivity: The Draft Opinions in <br />Wyomingv. United States, 68 U. Colo. L. Rev. 683 (1997). <br />126. See SAX ET AL., supra note 63, at 846. <br />127. See DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAw <br />853 (4th ed. 1998). Many commentators, however, argue that the Non-Intercourse Act <br />would operate to prohibit a lease of water off-reservation. Id <br />128. Deborah Moore & Zach Willey, Water in the American West; Institutional <br />Evolution and Environmental Restoration in the 21st Century, 62 U. COLO. L. REv. 775, <br />791-792 (1991). <br />129. SeeGETCHES. supra note 127. at 802. <br />130. While some tribes have argued that they are not subject to the Law of the <br />River. see Abbott. supra note 68, at 1429, the argument for this position is unlikely <br />to succeed. The United States has a long-recognized ability to bind the Indian tribes <br />by virtue of its status as a trustee of Indian interests; as a result, the Supreme Court <br />decisions, federal laws, and regulations that control the river are binding on the <br />Indian tribes as completely as they are on the United States. See id. at 1430. <br /> <br />I <br />