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<br />9
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<br />respect to the assertion that Federal and Indian water rights have
<br />identical characteristics; The prevailing view among recognized
<br />legal scholars is that Indian water rights differ significantly from
<br />Federal reserved water rights. These differences include the notion
<br />that Indian water rights are private in nature, which constitute a
<br />compensable property interest.
<br />It is well established that Indian water rights are not SUbject to
<br />tra.ditional concepts of western water law. These rights cannot be
<br />forfeited for nonuse, and are not subject to abandonment, The ex-
<br />press implication of the statement attributed to Senators McClure
<br />and Wallop suggests that the justification for a reserved water
<br />right is defeated once the water is no longer needed. '
<br />The terms of the settlement reached among the parties contem-
<br />plate that the tribes involved in the settlement may elect to lease
<br />water for off-reservation use. Further, the settlement contemplates
<br />that once water ceases to be used off the reservation, and a tribe
<br />applies to resume use of the water on reservation, that the water
<br />will have all of the characteristics of an Indian reserved water
<br />right during its use on the reservation. The quotation of Senators
<br />Wallop and McClure would seem to suggest that the Indian tribes
<br />involved in this settlement would lose their, reservation's reserved
<br />rights to water, upon the tribe's election to lease the water for use
<br />off reservation. The Select Committee expressly rejects the premise
<br />that by action of tribal leasing or other disposition of water, the
<br />reserved nature of the Indian water right is stripped of its charac-
<br />ter, or that such leasing or other disposition implies that the water
<br />is no longer needed to sustain the purposes for which the reserva-
<br />tion~was established,
<br />Moreover, in adopting legislation which implements an agree-
<br />ment amongst parties to settle outstanding legal claims to water,
<br />the Congress does not establish general law, Each agreement, and
<br />the law which implements it, does not create legal precedent for
<br />any other purpose.
<br />The discussion of differing views which is highlighted in the ex-
<br />planations of amendments by each Committee represent an ongo-
<br />ing debate regarding what the law of Federal reserved water rights
<br />and Indian reserved water rights is or should be. These matters
<br />remain unresolved, and are beyond the scope' of the legislation that
<br />confirms the agreement to settle the water', rights of the Colorado
<br />Ute Indians, Thus, neither this legislation or discussions contained
<br />in the Committee report should be construed to be a final disposi-
<br />tion of unresolved matters of law as they relate to the general body
<br />of the Federal reserved water rights law or to the general body of
<br />Indian reserved water rights law.
<br />The explanation of the amendments adopted by the Energy and
<br />Natural Resources Committee follows:
<br />The Committee on Energy and Natural Resources, adopted the
<br />measure with the amendments reported by the Select Committee
<br />as original text for the purpose of further amendments. The Com-
<br />mittee amendments to that text are:
<br />
<br />1. The first amendment would insert a new section 4 in
<br />lieu of the language of the measure as introduced and as
<br />amended by the Select Committee, The amendment deletes
<br />
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