concurring specially.
I agree with the decision reflected in the opinion of the Court. I would invoke a different rationale for reaching the same result. The essence of that rationale is set forth in the dissenting opinion that I filed in In Re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo.1988), cert. granted 488 U.S. 1040, 109 S.Ct. 863, 102 L.Ed.2d 987 (1989), aff'd sub nom. Wyoming v. United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342, reh’g denied 492 U.S. 938,110 S.Ct. 28,106 L.Ed.2d 639 (1989) (by an equally divided court) (Big Horn I). I am persuaded that the real battle in this case is now over sovereignty, not over water.
If the issue to be addressed is sovereignty, I am satisfied that the thrust of the opinions of this court in State v. Moss, 471 P.2d 333 (Wyo.1970), appeal after remand 492 P.2d 1329 (1972), and Blackburn v. State, 357 P.2d 174, reh’g denied 357 P.2d 1111 (Wyo.1960), is that the part of the Wind River Indian Reservation, which was included in the Act of March 3, 1905, was disestablished as an Indian reservation. Even though the title to the land was in major part returned to the Indian tribes, the return of title only did not have the effect of again establishing the reservation. According to our decision in Big Horn I, there was no effect upon the reserved water rights, but that result is attributable to the stipulation of the parties with respect to the geographic area and the legal concept that property right was created at an earlier time when the Wind River Indian Reservation was created initially. We did *284not consider the doctrine of sovereignty in Big Horn I.
The paramount issue, as I view this case, is the question of who is to regulate water rights on the Wind River Indian Reservation. In my earlier dissent in Big Horn I, I set forth the reasons for concluding that the ceded portion of the Wind River Indian Reservation was disestablished as a reservation and that the efficacy of the constitution and law of the State of Wyoming within the ceded portion must be recognized. On the basis of that conclusion, I am satisfied that only the State Engineer can regulate on the ceded portion of the reservation. While it is possible to debate the significance of the language used, I hold the view that it is the law of this case that the right to regulate the use of the recognized water rights is vested in the State Engineer. In the absence of any sovereign rights in the Tribes in the ceded portion of the reservation, he must regulate the use of water there. Since the State Engineer is the exclusive regulatory authority for the use of water on the ceded portion of the Wind River Indian Reservation, he should also regulate on the diminished portion. Pragmatically, it does not make sense to have two regulatory authorities.
Even if I concede the authority of the trial court to nominate a different regulatory authority during the pendency of the litigation, I still must agree to reverse the appointment of the Tribal Water Board. If the manager is not to be the State Engineer, it must not be one of the antagonists in this litigation. I am of the view, however, that, even though there remain to be adjudicated the non-Indian rights, those rights now are represented by either permits or adjudicated rights under the law of the State of Wyoming. I am not certain that the pending litigation can interfere with the duty of the State Engineer to regulate the use of water under such rights or permits until they are adjusted by court decree in this litigation.
The water issue with respect to the reserved rights of the Indian peoples and individuals already has been resolved. Reserved water in favor of federal reservations, however, is a matter of property law. It has nothing to do with sovereignty. I find nothing set forth in the case of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), to suggest that it addresses anything beyond a concept of property law. As federal courts have recognized, such a property right is subject to state regulation. E.g., United States v. Adair, 723 F.2d 1394 (9th Cir.1983), cert. denied sub nom. Oregon v. United States, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). This must be particularly true when the geographical area in which the rights attach is not subject to the sovereignty of the Indian tribe.
I have to concede that logic would demand that the sovereignty of the Indian tribes be recognized as to the diminished portion of the reservation. My compromise with that logic is limited to the resolution of this case. In this instance, however, pragmatism must control over logic. In the long view, it would make little sense to divide the regulatory function because of the clear interrelationship of the water courses and systems on the ceded and diminished portions of the Wind River Indian Reservation. I am satisfied that, after the conclusion of this litigation, the Shoshone and Northern Arapaho tribes could not constitutionally regulate the waters on the ceded portion and, consequently, the appropriate order for the court to enter with respect to administration of the water in the context of continuity over the long range is to order the State Engineer to assume that function.
When I reach the conclusion that the water in the Big Horn River must be subject to the administration of the State Engineer, that resolves the question of instream flow. The State Engineer has no authority to manage the waters of the state other than in consonance with the constitution and law of the State of Wyoming. Consequently, while instream flow might not be foreclosed, it must be recognized as a permissible utilization of the water in accordance with Wyoming law, if it is to be accomplished at all. Certainly, any effort on the part of the Shoshone and Northern Arapaho tribes to create a right to an in-*285stream flow use out of what is now only paper water, as a matter of self help, must be a nullity.
I would reverse the order of the district court with instructions to appoint the State Engineer to manage the use of water on the Wind River Indian Reservation, both the rights subject to adjudication and other rights and permits. I would then require that state law be invoked with respect to any change of use or the implementation of any right to instream flow.