9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

was written by Charles Meyers, who was a distinguished law professor
at Stanford and at the time was a clerk helping the Supreme Court
Special Master in the decision. I want to ask your indulgence in
letting me read to you what he said concerning the topics that we are
discussing today, as he is probably less biased than I am. What he
said in 1966 following the decision of the Supreme Court, was this:

The Master also sought so far as he might to facilitate the
best economic use of Indian water. He noted that his
quantification of the Indian water on the basis of
irrigable acreage, was not intended to limit the use of
water to agriculture. While he did not decide the question
of change of use as it was not before him, he at least
struck off one shackle that might impede economic
maximization. He also suggested that nothing in his
proposed decree, forbade the transfer of land and water
together, were of the water right alone. By thus inviting
attention to two essential characteristics of a marketable
property right, freedom of transfer, and freedom of use,
and by establishing a third in the recommended decree
quantification, the Master opened the door to creation of
a market in Indian water rights, if the Indians and
Congress so desire.

Looking back, that seems quite insightful because certainly that is
not the common perspective concerning the effect of Arizona versus
California. His perspective has not been the common approach until
very recently, in terms of addressing the issue of Indian water
rights.
Turning for just a moment to the question of the Upper Basin, the
tribes in the Upper Basin have proceeded in a different fashion than
the massive litigation of Arizona vs. California. Each of the tribes
in the Upper Basin has had to confront the issue of water rights, how
to protect those water rights, and how to put those water rights to
use in a different way. In Colorado, as many of you know, there has
been a comprehensive settlement of the water rights of the two Ute
tribes. The Northern Ute tribe in Utah is currently trying to reach
a settlement. There is a pending settlement for the Jicarrilla Apache
tribe. I will leave it to George to talk about the Navajo water
rights because it is a subject in and of itself, but again they are
struggling with the question of both how to protect their rights, and
how to take advantage of their rights. I think it is fair to say that
the tribes in the Upper Basin probably have claims and control over
one million acre-feet of water. This is very similar to the
quantities in the Lower Basin; and is a very substantial amount of
water.
The question, of course, that we have today is how do these
rights fit within the Law of Colorado River, and the two major
compacts on the River, i.e. the 1922 Colorado River Compact and the
1948 Upper Basin Compact. My answer to that is quite simple, they do
not fit within it, and they are not a part of it. It is true that the
decree in Arizona versus California talks about charging tribal uses
against the state in which it is used. There is a similar sort of
provision within the Upper Basin Compact, but the minutes of the 1922

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