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<br />00[1'735 <br /> <br />Mr. Phil Doe <br />Page 8 <br />June 14, 1998 <br /> <br />should not be assumed that the right to change the use or place of use is an incident of a re- <br />served water right. <br /> <br />Both change of use, and change of place of use, are contemplated under the 1986 Agreement. <br />As already discussed, Arizona v. California, Sl!Iml, provides the rule for reserved water rights: <br />the measure and limit of the right is the "practicably irrigable acreage" of the reservation, in <br />accordance with the stated purposes of the law or executive order which created the reservation. <br />While there are some instances of treaties with Indian tribes in the Northwest, where water <br />additional to (or in lieu of) irrigation has been deemed reserved in order to maintain a fishery, <br />the rule is still that the stated purposes of the reservation determine the amount of water to be <br />reserved. In those cases, the stated purposes of the reservation include fishing. <br /> <br />In the case of the Southern Utes, the purposes of the original reservation in 1868 were to: <br /> <br />. ., insure the civilization of the bands entering into this treaty [by education of] such of <br />them as are or may be engaged in either pastoral, agricultural, or other peaceful pursuit <br />of civilized life on said reservation ... <br /> <br />[Flor the purpose of inducing said Indians to adopt habits of civilized life and become <br />self-sustaining, the sum of forty-five thousand dollars~ for the first year, shall be ex- <br />pended ... in providing each lodge or head of a family in said confederated bands with <br />one gentle American cow ...and five head of sheep; ... <br /> <br />Treaty with the Ute Indians, March 2, 1868 (IT Kappler 990) (emphasis added). The treaty also <br />provided for allotments of 160 acres for a head of household, and 80 acres for a person over 18, <br />as they should elect, of land "for purposes of cultivation." !d. <br /> <br />The purpose of the Southern Ute reservation, as was the case with the Fort Belknap Indian <br />Reservation dealt with in Winters, was thus expressly to provide the means for agriculture, and <br />teach the Indians pastoral ways. In contrast, no language in the treaty with the Southern Utes <br />expresses any purpose of the reservation to provide the means for real estate development, to <br />teach the Indians how to profit by selling their water for municipal and industrial uses off the <br />reservation. Also, while state water law may and does, in a vacuum, provide that the use of a <br />water right may be changed, state water law is not dispositive of the question here. This is a <br />federal reservation. Under the common law, the purposes of a reservation may not be changed <br />or expanded on, especially where the reservation (or, as here, a necessary incident of a reser- <br />vation) has been implied. ~ 26 C.J.S. "Deeds," ~140(1), (5), (8), and (9) (1956), at 1009 et <br />seq. Probably most important, the reserved water right is appurtenant to the land. Thus, it is <br /> <br />8 <br />