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<br />04-03-98 03:07PM FROM MSAJ WA. TO 17022938042 <br />'0'0'0632 <br /> <br />P004/006 <br /> <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />1 <br />I <br />I <br />I <br />I <br />r <br />I <br />I <br />I <br />t <br />r <br /> <br />Bureau of Reclamation <br />April 3, 1998 <br />Page 3 <br /> <br />determinatioD of the "bouudary lands" of the Fort Yuma Indian Reservation in the lower courts.' <br />The case was ultimately dismissed for lack of jurisdiction since the United StatC6 had not waived <br />sovcreign immllllity.' <br /> <br />In 1989. following the dismissal of Ml!/n)politon WDler District v, UnuM StIJtu, a motion <br />was Illed to reopen the Decree to determine disputed "boundary land." elaim6. The ClI8C was <br />assigned to Special Master Frank McGarr. In the most recent proceedings. Special Master <br />McGarr held that the Tn'be was precluded from further boundary claims as to the Fort Yuma <br />Reservation, on the basis of the 1983 settlement of Docket #320 of the Tnne's claims before the <br />Indian Caims Commis&ion and the money received by the Qued1an Tribe as the result of that <br />scUlemenL The Tn1le vigorously disputes this finding and plans to contlnuc to litigate this <br />matter before the Supreme Court. <br /> <br />The Quechan Tn'be, as weD as the other tribes of the Colorado River Tnpal Partnership, <br />have always taken the position that water developed under their entitlements may be nuirketed <br />without regard to state and reservation bolllldaries. <br /> <br />In the past. the Bureau of RocIamation ("BOR") has taken a position that tnbal water <br />rights could be leased off-reservation. In proposed marketing regulations, the BOR set forth its <br />legal analysis on this point interpreting a number of statute&, the opinion in Arizoruz v. (AU/amiD <br />and 1979 Supplemental Decree, and a 1983 Solicitor Opinion and correctly concluded: <br /> <br />In sUID!IIlIJ)', it is the Department's preliminaxy conclUBion that it is appropriate to <br />include Indian reserved water rights in the direct leasing and banking-marketing <br />provisions of the proposed regulations. . . that most of the legal commentators <br />who have considered the subject of Indian water marketing have agreed that <br />Indian reserved rights are tranSferable property rights. . . .' <br /> <br />'The prcamble to the proposed rule spr.r:lfil'Jllly notes that "this proposal docs not addre&&, <br />and is not intended to govern the exercise of, whatever authority the Secretary of the Interior has <br />to consider and implement, in appropriate situatiolUl, tribal stofllge and water transfers activities." <br />62 Fed.R, at 68494. Although the Secretary acknowledges his respolL'I1"bility to the Indian Tnbes <br />in the Lower Division and c:xprCll!iC8 an interellt in helping Lhe Tn1les more fully benefit from <br />their watcr rights, the Secretary merely lays out an "expectation" that State-authorized entities <br />will provide the Tn'bes with an opportunity te participate and "encouragcs" the Lower Division <br /> <br />, MellopoUJtm WateT Dinricl v. United Stalu, 628 F. Supp. 1018 (8,D. Ca!. 1986); Melropo1ium <br />Water DistricJ v. United Slates, 830 F.2d 139 (9th ar. 1987), <br /> <br />, CalifomiD Vo United StDleS, 490 U.S, 92D (1989). <br /> <br />7 BOR proposed regulations (1994), as cited in Colollldo River Basm Study: Report to the <br />Westem Water Policy Review Advisory Commission, Dale Pontius (August 1997). <br />