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<br />081747 <br /> <br />. <br /> <br />. <br /> <br />subsection 4(b) implements. among other things. those <br />provisions of the Agreement which address off-reservation use <br />of tribal waters. With respect to in-state leasing of tribal <br />waters. subsection 4(b) implements the requirement of article V <br />section B. subsection a. of the Agreement that tribal leasing <br />will be free of any applicable reclamation law restriction <br />which may be imposed on the Tribes' project reserved waters <br />supplied from the two federal reclamation projects. Then. with <br />respect to out-of-state leasing. subsection 4(b) affirms that <br />any restrictions imposed on out-of-state uses by article V. <br />section B. subsection b. of the Agreement shall include only <br />those reclamation law restrictions. if any. which apply to the <br />Tribes' non-project reserved waters. <br /> <br />Subsection 4(b) does not relieve the Tribes of their <br />financial obligations on the Dolores and Animas-La Plata <br />Projects. which obligations remain in effect under reclamation <br />law as modified by section 6 of the bill. In addition. <br />reclamation laws which are required to protect other project <br />users pursuant to article III. section A. subsections 1 and 2. <br />and article III. section B. subsection 1. of the Agreement are <br />not waived. <br /> <br />Proposed Chanqes to Subsections 5(a) and (c) <br /> <br />To understand section 5. one must look to the issue of <br />off-reservation use of water by the Tribes. In order to be <br />able to use water off-reservation. the Tribes must overcome <br />three potential barriers: <br /> <br />(1) The Non-Intercourse Act. 25 U.S.C. S177. <br /> <br />(2) The Winters Doctrine and the inherent characteristics <br />of an Indian reserved water right. and <br /> <br />(3) All applicable state and federal laws (which includes. <br />without limitation. statutes. regulations and rules. <br />and jUdicial decisions). interstate compacts. and <br />international treaties. <br /> <br />To remove the first of these barriers is a condition <br />necessary. but not sufficient. to the Tribes being able to use <br />water off-reservation. For that matter. the barrier of the <br />Non-Intercourse Act has to be removed in order for a Tribe to <br />temporarily dispose of its water on-reservation should it want. <br />for example. to lease water to a mining or industrial venture <br />which operates within the boundaries of the reservation. <br /> <br />Section 5(a). both in the bill as introduced and as it is <br />proposed to be changed. removes the first of these barriers. <br />but it does nothing to remove the second and third of the <br />potential barriers to the off-reservation use of water. <br /> <br />-5- <br /> <br />c <br />