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Native American Water Rights, Interstate Compacts & Water Marketing Scott McElroy Attorney, Green, Meyer & McElroy I appreciate the opportunity to speak today. As Fred mentioned, I come to this conference with the perspective of an attorney who represents Indian tribes. Obviously, I cannot give you the tribal perspective. That task will fall on George Arthur and Jerald Peabody. What I hope to do today is set the backdrop to the current controversies that are ongoing on the Colorado River as they affect Indian tribes. Much of the discussion at the end of the day yesterday helps to frame what I want to say about the rights of Indian tribes on the Colorado River. Yesterday, there was a discussion, perhaps a debate, or perhaps even an argument, concerning how Colorado might choose to use its allocation of the waters of the Colorado River. On the one hand, we heard strong advocacy for the idea of leaving Colorado's unused portion of water in the stream. There were many benefits that could be achieved from that. On the other hand, we heard people who contend that development is the way to go, whether for irrigated agriculture or municipal uses. The point that needs to be understood, with regard to the si tuation for Indian tribes, is that decisions concerning Indian water, or Indian water rights, need to be made by the tribes themselves. This is where the situation is today. The tribes are the ones who should be controlling how their water is use -- not the state and not the United States. The idea of tribes as sovereigns and as governmental bodies with regulatory authority is something that is very well-founded in the jurisprudence of our country. In the earliest days of the country, during the time of Chief Justice Marshall on the Supreme Court, there is record of tribes being recognized as sovereigns; "dependent domestic nations" is the word that he used. That theme has continued with some ebbs and flows, but continued nevertheless, up to the modern day. The way that it is described most frequently by the Court nowadays is that tribes are sovereigns with control over both their members and their territories. However, the courts today, sometimes stumble and cannot quite get it right; particularly, when dealing with issues affecting regulation of non-Indians on the reservation. When it comes to control over tribal resources, however, the court is quite clear that tribal resources are to be controlled by the tribes. How does that relate to the question of reserved water rights? In the earliest cases involving Indian water rights, the question of tribal governmental authority was a central issue. The first Supreme Court case that announced the Reserved Rights Doctrine was Winters versus the United States, which was decided in 1908. It involved the Ft. Belnap reservation in Montana and the waters of the Milk River. The Court decided that the tribes were not subject to state water law. According to the court, at the time that the reservation was created, sufficient water was reserved for the tribes 43