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<br />r <br /> <br />. <br /> <br />. <br /> <br />be diverted, and storage rights reflect the total volume of water that the <br /> <br /> <br />appropriator is permitted to impound in a stated period of time. <br /> <br /> <br />The question of jurisdiction in matters involving Indian water rights <br /> <br /> <br />was not initially a source of dispute. As trustee for Indian tribes, the <br /> <br /> <br />United States until fairly recently relied on the federal courts to exercise <br /> <br /> <br />original jurisdiction. In Cappaert v. United States, the U.S. Supreme <br /> <br /> <br />Court cited the Commerce Clause and the Property Clause of the <br /> <br /> <br />Constitution as authority for federal preeminence in the matter, holding <br /> <br /> <br />that the doctrine "applies to Indian reservations and other federal enclaves <br /> <br /> <br />encompassing water rights in navigable and nonnavigable streams." <br /> <br /> <br />The enactment of the McCarran Amendment in 1952 provided a legisla- <br /> <br /> <br />tive instrument of consent for the United States to be joined as a defen- <br /> <br /> <br />dant in any suit for the adjudication of rights to the use of water of a <br /> <br /> <br />river system or other source. Moreover, once it has become a party to <br /> <br /> <br />any such suit, the United States, in the words of the Amendment, "shall <br /> <br /> <br />(1) be deemed to have waived any right to plead that the State laws are <br /> <br /> <br />inapplicable or that the United States is not amenable thereto by reason of <br /> <br /> <br />its sovereignty, and (2) shall be subject to the judgments, orders, and <br /> <br /> <br />decrees of the court having jurisdiction." This far-reaching piece of <br /> <br /> <br />legislation had the effect of giving consent to jurisdiction in the state <br /> <br /> <br />courts concurrent with jurisdiction in the federal courts over controversies <br /> <br /> <br />involving federal rights to the use of water. You may ask what difference <br /> <br /> <br />in decisions may be expected in a state court as opposed to those in <br /> <br /> <br />federal court, as far as water rights questions are involved. Actually. <br /> <br /> <br />there should be no difference, since the McCarran Amendment in no way <br /> <br /> <br />removes from a state court its obligation to recognize the fact that tribal <br /> <br /> <br />water rights in non-navigable waters are federally protected "reserved" <br /> <br />. <br /> <br />0166 <br /> <br />7 <br />