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130 Edward \\1. Clyde allocation. However, this is not the quantity to be diverted, but is the depletion at Lee Ferry, Utah has negotiated a drait compact with the Ute Indian tribe. which, if finally executed and approved, will allocate to that Indian tribe approximately 480,000 acre-feet of water to be diverted to irrigate Indian land with a net depletion at Lee Ferry oi about 50 percent, The water is on the headwaters of the tributaries to the Green River in Utah, and if used there it would be available for reuse: but the tribe is relatively small, something like 1,800 mem- bets, and they ate not going to be able to ittigate or tend the land that would be tequired for such use, The return flow from any such use would be high, and thus the net depletion at Lee Ferry will not be substantial for a very long time from on-reservation uses, Like other tribes, the Ute Indian tribe desires to market some of this unused water for off-reservation use by non~lndians. The law is not clear as to their ability to do so, Justice Brennan, in the recent (March (983) Arizona v, California decision cited above, said: The Tribes can probably lerlse thelf rights to others with the consent of the United States, but they have not explored this option exrensively, See Cohen 591-593: Meyers 71; cf, 2 Ops. Solicitor of the Dept. of the Interior Relating to Indian Affairs 1917-1974, at 1930 (Feb, \, 1964) , , ,Iemphasis addedl -.jO C") C") N I::) o The statement is dicta and is in a dissenting opinion. If the consent of the United States were given by Congress, it would be clear that such a sale could be made, but I seriously doubt that under existing laws such a sale could be made without the consent "f Congress, There are two cases in which the U, S, Supteme Court has made statements which indicate that the water for the Indians is to be charged to the allocation made to the state in which the Indian use is made. Those cases are Arizona v, California" and United Slates v, California," The statements are probably dicta, Article VII of the Upper Basin compact expressly so provides, Even though under Hinderlider v, laP/ala and Cherry Creek Ditch Co. 4l the power of the states to bind their own citizens with a interstate water compact is affirmed, it is equally clear that the state cannot bind the Indian tribes. The states do not have jurisdiction over Indian water or Indian property except as Congress grants such jurisdiction to them. Further, the compacts expressly state that they do not purport 'i: ., ':'r. .. '" .'i' il.' .~ I, ..:.1 : ~ "r, 'I~ " 11.', "1' i '., Ir, .': :\' .I" I .'. l' " I.", ~'.; l ~:;. .: i:,'}, ,.' .t-i: II.' .~ '1 f(\l,. ". . .' " ): ", ., " I,. I,. r :\~; . :.;. e .. i,,' 1". ,-:. \~ : .:' RESPONSE TO PROI.ONGED DROUGHT 131 to affect the rights of the Indians to receive water. Congress has the power to deal with Indian water rights, although the reserved rights are held in trust and if Congress were to do something to take or to impair those rights for the Mexican treaty, or otherwise, it should be compensable. Congress, of courset did consent to the compacts, but it appears dear under the adjudicated cases that Congress, in giving that consent, does not relinquish any federal interest." Thus, the compacts do not bind the Indian Jribes, but it is prob- able that the Indian use within a state will be charged against that state's allocated share. Insofar as the state's resource base is concerned, it really does not matrer whether we process a ton of coal or grow a bushel of wheat with Indian water, with Bureau of Red am at ion project water, or with water obtained under a state permit, The coal and the wheat become part of our economic resources. Because the Indian reservations were created at such an early date, it is unlikely, under proper river administration, that we will ever curtail uses to such an extent that we will need to reach the issue of curtailment of Indian water use under their priority to meet downstream obligations, If we do, it seems clear to me that the United States, under its treaty~ making power, could curtail Indian uses as it can curtail non.lndian uses to make the required deliveries to Mexicoi but since the Indian rights vested before the Mexican treaty was made, the taking should be compensable. The commitment by the Upper Basin states to deliver 75,000,000 acre-feet of water at Lee Ferry should not be binding on the Indians, and although we have a priority ascribed to the Indian water right, which would control in local administration, the Indians did not agree to the compact and they have no compact obligation at Lee Ferry, I do not think the states can obligate the Indians by an interstate compact, even though consented to by Congress, They were given the land and the water to meet the needs of those lands which were susceptible of irrigation, as of the time the reservation was created. The priority is the date the reservation was created, At that time the states had a common-law right to an equitable share of an interstate stream; and while the extent of that right only becomes quantified by a compact, by a court decision, or by congressional apportionment, the right itself predates the actual quantification, In many cases, how- ever, the Indian reservations even predate statehood. Thus, there is