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<br />001748 <br /> <br />. <br /> <br />. <br /> <br />Furthermore. section 5(c) in the bill as introduced. or as <br />folded into section 5(a) as it is proposed to be amended. <br />insures that the mere removal of the barrier presented by the <br />Non-Intercourse Act does not remove. or in any way affect. any <br />of the other obstacles which may exist to the off-reservation <br />use of water. Put another way. section 5(a) does not. in and <br />of itself. authorize or enable the off-reservation use of water. <br /> <br />The Agreement clearly does permit the Tribes. as have <br />congressionally legislated settlements. to use water <br />off-reservation within the State of Colorado under the terms <br />and conditions set forth in the Agreement. These terms and <br />conditions require the Tribes to comply with all laws with <br />which non-federal. non-Indian entities must comply. However. <br />in stating that the Tribes may use water off-reservation "... <br />outside the State to the extent permitted by any: (1) State <br />law. (ii) Federal law. (iii) interstate compact; or (iv) <br />international treaty." the Agreement confers no authority on <br />the Tribes to use water outside of the State of Colorado (the <br />terms "State law" and "Federal law" include. without <br />limitation. statutes. rules and regulations. and jUdicial <br />decisions. including the Winters Doctrine). In fact. the issue <br />remains to be settled by future litigation and is not <br />addressed. with the exception of removing the barrier of the <br />Non-Intercourse Act. by either the legislation or the <br />Agreement. <br /> <br />I would submit to you that the out-of-state provision of <br />the Agreement (Article V. B. b) and sections 5(a) and (c) of <br />the bill as introduced. Qr the new proposed section 5(a). lead <br />to no different result than the silence which is found in <br />Indian settlement legislation previously passed by Congress <br />concerning the off-reservation. out-of-state use of water. One <br />can construe from the silence of those acts no more or no less <br />than what section 5 results in. Furthermore. one cannot look <br />to the Agreement as having established the legal right of the <br />Tribes to use water off-reservation. outside of the State of <br />Colorado. as I noted above. <br /> <br />Proposed Chanqes to Section 9 <br /> <br />The proposed re-wording of section 9 merely tracks the <br />wording called for by the Agreement (Article VI.A.l.g. at p.66). <br /> <br />Summary <br /> <br />In conclusion. we urge y~ur favorable action on this bill. <br />subject to the proposed amendments attached hereto. <br /> <br />gl <br /> <br />-6- <br />