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,,' 8 CO '. ..... ....'. Winters Doctrine rights, are to be satisfied out of such states' allo- cation. The Indian tribes toOk the opposite position. They asserted before the Committee that any prohibitions in the Law of the River on interstate marketing of water are not applicable to Indian water rights. However, the ,amendment in the, nature of a substitute adopted by the Committee, which was supported by the Southern Ute and Ute Mountain tribes, dropped the section 5 language specif- ically authorizing the tribes to market their water. In the substitute, section 5 now provides that the prohibition on the conveyance or lease of tribal lands or interests in lands con- tained in the Indian Intercourse Act (25U.S.C. 117) shall not be ap- plicable to water rights confirmed in the Agreement. However, the section makes clear that this waiver shall not be construed in any way'as affecting the Law of the River. Secondly, the substitute includes, in section 11, rules of construc- tion which provide that any inconsistency between, the Agreement and the Act are to be resolved by the telWs of the Act. More impor- tantly, it provides that nothing in the Agreement or in the Act is' to constitute authority for the tribes tQmarket water off-reserva- tion out of the State of Colorado nor to be deemed a congressional determination that the tribes have or do not have a right to market water off-reservation. ' The provisions of section 5 and 11 of the substitute were intended to establish the neutrality of the Agreement and the Act on the question of whether or not the two tribes have a right under exist- ing law, including the Law of the River, ,to market water off-reser- vation and in interstate commerce. The Lower Basin states did not find this neutrality language acceptable. An amendment was offered in the Committee to specifically pro- hibit the tribes from marketing their water in interstate com- merce, notwithstanding the provisions of existing law. The amend- ment was rejected on a tie vote of 18-18. In general, the water rights of Indian tribes are secured under the so-called Winters Doctrine, first articulated by the United States Supreme Court in the case of Winters v. United States, 207 U.S. 564 (1908). This doctrine holds that, in the various treaties, statutes, and executive orders recognizing or creating reservations for Indian tribes, there were reserved by the tribes, directly or by implication, such water for present or future use as may be neces- sary to fulfill the purposes of the reservation. ' The contours of the Winters Doctrine have been more fully de- fined, over the years since 1908 by subsequent Federal court deci- sions. The courts have held that the right arises as of the date of the establishment of the reservation and, therefore, is prior and paramount to all other uses arising thereafter. Other elements of the doctrine, including water quantification, management, uses, etc., have also been addressed and, to some extent, clarified by the court. However, there is no Federal or State court decision which touches upon the question of whether or not Indian tribes holding Winters Doctrine water rights have or do not, have a right to market such water off-reservation in intra-state of inter-state com- merce. I'. ,". .~," e" , "