In Re the General Adjudication of All Rights to Use Water in the Big Horn River System

GOLDEN, Justice,

dissenting, in which BROWN, Justice (Retired), joins, on the first issue.

In this appeal we review issues relating to enforcement of a portion of the district *291court’s decree adjudicating waters in the Big Horn River system, which we have already reviewed on two prior occasions, though in two entirely different contexts. See In Re Rights to Use Water in the Big Horn River (Big Horn I), 753 P.2d 76 (Wyo.1988), aff'd mem. sub nom. Wyoming v. United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342 (1989); In Re Rights to Use Water in the Big Horn River System (Big Horn II), 803 P.2d 61 (Wyo.1990).

INTRODUCTION •

For ease of reference, the parties are identified:

Appellants: State of Wyoming, the G.A. Brown Testamentary Trust, the LeClair Irrigation District, the Midvale Irrigation District, the Riverton Valley Irrigation District, and a group of individual and business entities who are irrigators affected by the adjudication (hereinafter referred to collectively as appellants or by individual name, as circumstances require).
Appellees: United States, in its role as trustee for the Indian Tribes and as holder of various reserved water rights for national forest lands and other purposes, and the Shoshone and Arapaho Tribes (hereinafter referred to as the United States and the Tribes).
The Wyoming Wildlife Federation and the National Wildlife Federation appeared as amici with the Tribes.

Based upon the original decrees, the Indian Tribes sought to commit a portion of their reserved water rights to an instream flow on three critical stretches of the Big Wind River for the purposes of fishery enhancement, groundwater recharge, benefit to downstream irrigators and other benefits. The Tribes continued to commit their historic water for the agricultural and domestic purposes for which it had been traditionally used. They requested use of future water for instream flow purposes. The Tribes presented their Tribal Permit to the state engineer for enforcement in April of 1990, but the state engineer considered the Tribes’ “right” to commit any portion of their waters to instream flow a “gray” area and, rather than enforcing the permit to the letter, he attempted to balance the rights of the appellants with the request for the instream flow. The state engineer was able to provide all irrigators with sufficient water during the pertinent time period, but was not able to fulfill the Tribes’ instream flow demand. However, at least a portion of the instream flow was achieved at all times and, after the middle of July 1990, it was maintained at approximately the levels requested by the Tribes.

Because the state engineer did not strictly enforce their instream flow permit or recognize their right to commit a portion of their adjudicated water to an instream flow, the Tribes petitioned the district court for enforcement. As we made clear in Big Horn I, the district court is the proper source of their remedy as provided by the decree itself. A special master was appointed to hear all evidence and he reported to the district court. The district court essentially adopted the special master’s report and decreed that the Tribes “may change their reserved water right to in-stream flow without regard to Wyoming state water law.” The Tribes had also requested that the state engineer be replaced as the water master on the reservation and the district court granted that relief by appointing the Tribes’ Water Resources Agency as the administrator of all surface waters on the reservation, both Indian and non-Indian alike. The appellants challenge both rulings.

ISSUES

Appellants offer two issues for this court’s review. Although the phraseology used varies somewhat from appellant to appellant, it suffices to repeat here the statement of issues provided by the State of Wyoming:

I. Whether the Tribes may convert a federal reserved right to divert in the future into a present instream flow.
II. Whether the District Court erred in substituting the Tribal Water Resources Agency for the state engineer as admin*292istrator of all water rights within the reservation.

The Tribes and the United States perceive the issues similarly. The Tribes’ statement of the issues follows:

A. Whether the district court correctly confirmed that the Shoshone and Northern Arapahoe Tribes may use their reserved water right for instream flows to restore and enhance fisheries without first obtaining the state engineer’s approval.
B. Whether the district court’s appointment of the Tribes’ water agency as water master to regulate state-law water rights on the Wind River Indian Reservation was clearly erroneous.

THE TRIBES’ RIGHT TO AN INSTREAM FLOW

The Tribes rely on the language of the district court decrees which manifest that they may use the reserved water rights, whether waters they have used historically or waters which were adjudicated to them for future needs, as they determine best fit their needs:

This court, thus, calculates the Tribes’ 'entitlement to a reserved water right, with a priority date of 1868, based on the purpose of agriculture (which term includes livestock use and domestic use) and denies such reserved water right for other multi-purpose uses as claimed by the Tribes. The Court by such finding does not intend to dictate to the Tribes that they are restricted as to the use of said reserved water only for the purpose of agriculture, inasmuch as it recognizes that it cannot tell the Tribes how they must use the water that comes under a reserved water permit. If the Tribes desire to use so much of their water for other purposes, they may do so.

Judge Joffe, Decree at 20 (May 10, 1983).

The Court states again the premise that the determination of “historic” acreage and “practicable irrigable acreage” is used only as a measuring device to calculate the Tribes’ present and future needs. * * * When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific determinations which are necessary for administration of a water right.

Id., at 36.

The tribes are entitled to make such use of the water covered by their reserved water rights as they deem advisable but the use is confined to the reservation and in no event shall the consumptive use be increased.

Judge Johnson, Amended Decree at 17, 11 8 (May 15, 1985).

The reserved water right quantified by Judge Joffe does not deny the Tribes the ability to regulate in-stream flows in order to maintain what may be considered necessary water for optimum fish habitat, nor does the opinion limit any such power that may exist on the part of the Tribes. The Tribes may seek to dedicate their stream flows for fish habitat by using water reserved to them by this decision.

Judge Hartman, Order at 7 (March 11, 1991), quoted from June 4, 1984 Order.

The appellants discern a “gray” area based on the interaction of paragraphs 2 and 8 of the conclusions of law in the original decrees. Paragraph 2 describes the reserved water right in terms of a right to divert water. The appellants then go on to reason that, although the right is reserved and may be dedicated to instream flows, the water must first have been diverted to some other use. An instream flow does not require a diversion. I simply cannot accede to such a reading of the decree. At best it is obtuse and insensitive to the Tribes’ property right in the adjudicated water. At worst it is duplicitous. In order to adopt this line of argument, we would be required to hold, as Justice Car-dine postulates, that the Tribes were adjudicated the ownership of the water, but they may not use it unless first diverted to an agricultural use. Nothing in the decree or any subsequent rulings of the district court, or of this court, or of the United *293States Supreme Court1, serves to support such a conjuration.

Whether the Tribes could utilize their water rights, whether historic or future, for other purposes was not raised as an issue in Big Horn I. It is so abundantly clear that if the issue had been raised, this court could only have held that the Tribes may put their water to uses consistent with their needs without regard to the traditional water law of Wyoming and, harsh as it may sound, the needs of other water users who are subordinate to the Tribes. The primary issue in Big Horn I was quantification, and we simply were not presented with the issue of other uses nor did we respond to that issue in the majority opinion.

Justice Macy would now have us believe that Big Horn I “clearly and unequivocally” determined the question of other uses and that “[i]f we had intended to specify what the water could be used for merely as a methodology to determine the amount of water the Tribes could use for any purpose, we would have said so.” Justice Macy, at 5. If the court had intended to hold in Big Horn I that use of water could never be changed to instream flow, the court could have clearly said so, but it did not. Justice Macy places great weight on what he perceives as evidence of prior discussion of “other uses” limitation by relying on the dissents in Big Horn I. But the dissenters do little more than state their disagreement with the majority’s narrow view in affirming agricultural purpose as the sole method of quantification of rights. See Big Horn 1. 753 P.2d at 117 (Thomas, J., dissenting; Hanscum, D.J., dissenting). If there is language from the majority in Big Horn I which purports to resolve the “other uses” issue, it has not been cited in the present opinion and, indeed, from our careful reading of the opinion we can find none. To suggest otherwise is absolute sophistry.2

In addition to the language of the decree itself, there are substantial precedents which mandate recognition that the Tribes may use their water for instream flows. J Waters and Water Rights § 37.02(e) (Robert E. Beck, ed., Miehie 1991).

The Tribes do not appear to be asking for an “unfettered” right to use their water for any purpose they desire. Big Horn I can only be read to hold that the Tribes may use their water in a manner which is consistent with their best interests so long as the “public right” is not extinguished3. *2944 Id. § 31.03. There simply is no question but that an instream flow is a beneficial use, whether studied under the federal law which must govern in this instance, or studied under traditional Wyoming state water law, which may have some application here as persuasive authority. The Tribes may call for their water for any use to which water may be beneficially put, and if the appellants are aggrieved, then they may take action, consistent with due process of law and in recognition of the Tribes’ property rights, to question that use before the district court. The burden of proof in such an instance must be on the appellants, not the Tribes. Thus, if the only injury to other users comes about because the Tribes are actually using their water for instream flow, and that same injury would exist if the water was used to irrigate corn, then there is no injury for which the appellants or the State of Wyoming may seek a remedy. The rights which the Tribes received through Big Horn I are property rights. The Tribes may not be deprived of their rights absent due process of law. Wyo. Const, art. 1, § 6; U.S. Const, amend. V, XIV; 16A Am.Jur.2d Constitutional Law §§ 598, 804-857 (1979). The process that is due the Tribes is, as stated above, that they first receive the water adjudicated to them — nothing more, nothing less. If the water is within the quantity adjudicated and its use will take place on the reservation, then the state engineer is bound to make that water available as requested.

The Tribes’ adjudicated water is not subject to the usual sort of administration by the state engineer as discussed more fully in the second part of this dissent. I would hold that the Tribes may use their water for an instream flow. This is consistent with prior court decisions and the decree as it currently stands affirmed by this court and the Supreme Court of the United States. Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir.1981), cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630; and see ⅛ Waters and Water Rights, supra § 37.02(e).

In Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340, 346 (1908), the United States Supreme Court was clearly of the view that the Indians retained “command of the lands and the waters — command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization.” This broad language does not allow a crabbed interpretation of the proper uses of the reserved water by the Tribes. In Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963), the special master shared this view, as has the Solicitor of the Department of the Interior. This demonstrates the agency’s conviction to support multiple uses of Indian reserved water rights. See Harold A. Ranquist, The Effect of Changes in Place and Nature of Use of Indian Rights to Water Reserved Under the “Winters Doctrine, ” 5 Natural Resources Lawyer 34, 35 n. 3 and 36 (1972) (referring to Simon H. Rifkind, Report of the Special Master in Arizona v. California; Memorandum for the Secretary of the Interior, dated February 1, 1964; and Memorandum to the Regional Solicitor at Los Angeles, dated January 21, 1971). See also Membrino, supra, note 1, at 24 n. 84, which refers to Solicitor’s opinion, February 1, 1964 (Volume II Op.Sol. on Indian Affairs 1930 (U.S.D.1.1979)).

In summary, I would hold the Tribes may use their water, whether it falls into the category of historic water or future water, for any purpose they deem to be to their benefit. In this specific instance, there is no question but that an instream flow is a benefit to the Tribes as well as the public in general. If the appellants, including the State of Wyoming, feel aggrieved by the Tribes’ use of their water, they must go to the district court and prove their case and get an order from that court before the flow of the water may be stopped. It is as simple as that. I would earnestly hope that the district court will always perceive the simplicity of the meaning of the Tribes’ right to their adjudicated water and shun conjurations, as it did here, *295which seek to deny implementation of the adjudication. In some instances, such as the implementation of the Brown4 school desegregation case, “time — and time again — ” may be made available by the courts to provide transition. Considerable time has already elapsed in this case. There will, no doubt, be additional refinements to be made in the decree in the future. But the status of the law is now clear in this matter. The Tribes have a property right in their adjudicated water and the law securing and protecting it, and those charged with its enforcement must give that property right and that law effect now.

ADMINISTRATION OF WATER RIGHTS ON THE RESERVATION

Concerning administration of water rights on the reservation the district court determined:

The Tribal agency which regulates reserved water matters shall have the authority to administer all water rights within the stipulated boundaries of the reservation. Non-Indian rights will be administered according to state water law by the Tribal agency, with appropriate judicial review in state district court pursuant to Title 41 of the Wyoming statutes.

Judge Hartman, Judgment and Decree (March 11, 1991).

Appellants allege error by the district court in substituting the Tribal Water Resources Agency in place of the state engineer to administer all water rights within the reservation. The state claims, inter alia, violations of the Wyoming Constitution and the law of this case and that the United States Constitution and federal law convey no such authority to the Tribes.

It is helpful to review the appellants’ claims on appeal and the district court’s disposition of the several issues:

(1)whether the district court’s decision “removed” the state engineer from his administrative duties under Wyo. Const, art. 8, § 5;
(2) whether removal of the state engineer was an abuse of discretion;
(3) whether the district court’s decision is consistent with this court’s decision in Big Horn I regarding administration;
(4) whether the Tribes may administer state water rights on the reservation in light of recent United States Supreme Court decisions.

A. Removal of the State Engineer; Abuse of Discretion

The duties of the state engineer are prescribed by the Wyoming Constitution, which states in part:

There shall be a state engineer who shall be appointed by the governor * * *. He shall be president of the board of control, and shall have general supervision of the waters of the state * * *.

Wyo. Const, art. 8, § 5 (emphasis added).

The general supervisory powers granted the state engineer under Wyo. Const, art. 8, § 5, were not intended to give unlimited and uncontrolled authority. State By and Through Christopulos v. Husky Oil, 575 P.2d 262, 264 n. 6 (Wyo.1978).

Justice Macy argues that to allow the Tribal Water Resources Agency to administer water useage on the reservation violates the Wyoming Constitution:

The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.

Wyo. Const, art. 8, § 1 (emphasis added). However, in Big Horn I, this court stated:

The decree does not violate state law. The provision in the Amended Judgment and Decree does not purport to give full ownership of the reserved water to the State.

Big Horn I, 753 P.2d at 114 (emphasis added).

Justice Macy cites the following sentence, providing his own emphasis, to lend support to his argument for restriction of the Tribes’ reserved water right in Big Horn I:

*296The government may reserve water from appropriation under state law for use on the lands set aside for an Indian reservation.

Big Horn I, 753 P.2d at 94 (emphasis added by Justice Macy). The Big Horn court, however, provided no such emphasis in this cite which was originally taken from Winters. The Winters’ Court specifically stated:

The power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be.

Winters, 207 U.S. at 577, 28 S.Ct. at 212, 52 L.Ed. at 346-47 (citing United States v. Rio Grande Ditch & Irrigation Co., 174 U.S. 690, 702, 19 S.Ct. 770, 774, 43 L.Ed. 1136, 1141 (1899); United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905)). Justice Macy chooses not only to conveniently ignore the clear intent of the United States Supreme Court in Winters from which these words are taken, but to portend an interpretation from Big Horn I that is clearly in error and did not exist.

I reject the argument that the reserved water is the property of the state and the state engineer thus must have control. The reserved water rights of the Tribes are not within the boundaries of the state but are within the boundaries of the reservation. The characteristics and nature of Indian reserved water rights are different from state water rights. The determination of the priority date of Indian reserved water is not based on actual use by the Indians. Montana ex rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 219 Mont. 76, 712 P.2d 754, 767 (1985). Nor can these rights be abandoned for non-use. Id., 712 P.2d at 768. The right to reserved water by the Tribes vested at the time of creation of the reservation and title to the right is held in trust by the federal government for the benefit of the Indians. Joseph R. Membri-no, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27 Land & Water L.Rev. 1, 2 (1992). Indian ownership of the reserved water rights is supported by the Wyoming Constitution:

Ownership of certain lands disclaimed; restriction on taxation of nonresidents.
The people inhabitating this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands laying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and that said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States * * *.

Wyo. Const, art. 21, § 26 (emphasis added).

These Indian reserved waters are not state property. The state does not claim ownership of the federal reserved waters of Yellowstone which lay within the boundaries of Wyoming, nor can it assert such ownership to the reserved waters of the reservation. Despite Justice Maey’s assertion, this claim is not supported by the Wyoming Constitution:

Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved.

Wyo. Const, art. 1, § 31 (emphasis added).

This section was intended to confer control over those waters in which the state has a role in “providing for its use.” The state does not provide for the use of reserved water rights on the reservation; thus, the application of this constitutional provision to the Indian reserved rights is inapposite.

In Big Horn I, we looked to the state engineer to provide “incidental monitoring” of Indian reserved water rights on the reservation and cautioned against reference to this conduct as constituting “administration.” Big Horn I, 753 P.2d at 115. The clear intent of Big Horn I was to permit the state engineer to monitor the use of water on the reservation, not to administer state law to the use of reserved rights *297by the Indians. Big Horn I, at 115. We stated:

The decree entered in the instant case does not require application of state water law to the Indian reservation. The decree recognizes reserved water rights based on federal law. The role of the state engineer is thus not to apply state law, but to enforce the reserved rights as decreed under principles of federal law.

Big Horn I, 753 P.2d at 115 (emphasis added).

It is unequivocal from this earlier discussion that the state engineer is not to act in his constitutionally appointed role as the “state engineer” but to provide monitoring or oversight of the reserved rights awarded by decree. We stated that

an independent water master might properly be appointed at this time to administer the decree and in light of the state engineer’s limited authority. The Treaty of 1868 prohibits only unauthorized persons from entering the reservation, but the state engineer would be an authorized person upon his appointment to monitor the decree and could properly enter the reservation.

Big Horn I, 753 P.2d at 115 (emphasis added).

The district court appointed the state engineer as an officer of the court to act, in essence, as a “water master” to monitor the reserved rights decree. “The prerogative of the district court to appoint a master is not only established in general law, but is expressly provided by W.R.C.P. 53.” Palm v. Palm, 784 P.2d 1365, 1369 (Wyo.1989) A “master” by definition is “a person very skilled and able in some work, profession, science, etc; expert.” A “master” in the legal context becomes “any of several court officers appointed to assist the judge by hearing evidence, reporting on certain matters, etc.” Webster’s New World Dictionary 873 (2d College ed. 1978).

As water master of the water rights on the reservation, the state engineer is to monitor the reserved rights and “contemplate neither the application of state law nor the authority to deprive the Tribes of water without the assistance of the courts in a suit for the administration of the decree.” Big Horn I, 753 P.2d at 115. The state’s response to the Tribes’ Motion For Order to Show Cause Why Further Relief Should Not Be Granted attached an affidavit of the state engineer which concluded that the Tribes’ instream flow permit could not be recognized for failure of the Tribes to request approval of the state engineer for a change of use. Report and Recommendation of the Special Master, October 4, 1990, at 3. The special master noted in his Conclusions of Law, as did the district court in its Findings of Fact, that the role of the state engineer was to enforce the Tribes’ reserved water rights under principles of federal law. Id. at 20; Judge Hartman, Judgment and Decree at 15 (March 11, 1991). Though finding that the state engineer’s acts were not contemptuous, the district court’s act authorizing the Tribes to administer the water rights on the reservation effectively removed the state engineer from those duties. Judge Hartman, Judgement and Decree at 17 (March 11, 1991).

The district court’s decision to replace the state engineer in his role as water master with the Tribal Water Resources Agency removed him not from his constitutionally protected duties to apply state law as a state engineer, but from his duties as a water master to monitor the decree. The broad discretion granted the district court to appoint a master under Wyo.R.Civ.P. 53 must confer discretion to remove the master if the law is not applied as decreed.

I would hold that the state engineer did not act as instructed by Big Horn I and that removal was appropriate exercise of the district court’s discretion. I find it difficult to fathom how the state engineer could have sufficiently executed the role of impartial water master while acting as the state’s chief negotiator in talks with the Tribes over water issues and at the same time retaining the constitutional duty to protect the waters of the state.

B. Administration of Water Rights Under Big Horn I

The district court granted the Tribal Water Resources Agency the authority to “ad*298minister all water rights within the stipulated boundaries of the reservation” specifying that non-Indian rights were to be administered “according to state water law by the Tribal agency, with appropriate judicial review in state district court pursuant to Title 41 of the Wyoming statutes.” Judge Hartman, Judgement and Decree, March 11, 1991 (emphasis added). This decision implicates two distinct concerns: the issue of administration of water rights under Big Horn I and regulation of the water rights of non-Indians on the reservation in light of recent decisions in this area.

As mentioned above, in Big Horn I we were careful to distinguish “monitoring” of the decree from “administration.” Big Horn I, 753 P.2d at 115. It is not merely a question of semantics to make this distinction. To “administer” is to manage or direct as opposed to “monitor,” which means to watch or check on. Webster’s, supra, at 18. It is no accident that this court meant to affirm only the lesser powers of monitoring to the state engineer in Big Horn I. That authority permitted the state engineer to enforce the reserved rights under federal law principles by turning to the court for enforcement against the Tribes if violations were noted. We said:

The role of the state engineer is thus not to apply state law, but to enforce the reserved rights as decreed under principles of federal law. * * * Should the state engineer find that it is the Tribes who are violating the decree, it is clear that he must then turn to the courts for enforcement of the decree against the United States and the Tribes and that he cannot simply close the headgates.

Big Horn I, 753 P.2d at 115.

Under the decree, the Tribes were required to first seek protection against state water users from the state engineer before pursuing court assistance. We stated:

The decree only requires the United States and the Tribes first to turn to the state engineer to exercise his authority over the state users to protect their reserved water rights before they seek court assistance to enforce their rights; it does not preclude access to the courts.

Big Horn I, 753 P.2d at 115.

In the instant case, the Tribes, following the guidelines of Big Horn I, requested that the state engineer enforce their federal reserved water rights by ensuring that their instream flow dedication was fulfilled. Report and Recommendation of the Special Master, October 4, 1990, at 2. The state engineer failed to apply federal reserved water right principles and insisted on applying state water law to the Tribes’ request. As a result, the Tribes received no relief and no protection from the state engineer in his role as water master. Their relief came only after bringing suit in district court.

The reluctance of the state engineer to enforce the federal reserved water rights has placed an unnecessary burden on the Tribes. I see no reason to continue to insist that the Tribes request relief from the state engineer before pursuing a remedy in district court. The Tribes, in monitoring their reserved rights and all water rights on the reservation, must turn to the court for enforcement against violations by state water users and protection of their federal reserved rights.

C. Monitoring Non-Indian Water Rights on the Reservation

The very earliest case considering jurisdiction on Indian reservations recognized the rights of Indian tribes based on their inherent sovereign authority. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832). Subsequent cases have characterized this inherent sovereignty as so deeply engrained in our jurisprudence as to create a backdrop on which to hang the rights acquired by treaties and against which “vague or ambiguous federal enactments must always be measured.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672 (1980) (citing McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)). “Ambiguities in federal law have been construed generously in order to com*299port with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.” White Mountain, 448 U.S. at 144, 100 S.Ct. at 2578, 65 L.Ed.2d at 673.

The conflict over whether state law could be applied to activities on the reservation has evolved from the initial consideration of infringement on the right of Indians to govern themselves, Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), and progressed to include preemption by federal law by way of a comprehensive federal scheme that would be frustrated by state regulation. Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). “The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law.” White Mountain, 448 U.S. at 143, 100 S.Ct. at 2583, 65 L.Ed.2d at 672 (citing Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976)). “Tribal rights are abrogated only if Congress ‘has clearly expressed its intent to do so,’ keeping in mind that ‘doubtful expressions of intent must be resolved in favor of the Indians.’ ” State of S.D. v. Bourland, 949 F.2d 984, 990 (8th Cir.1991) (quoting Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 827 (8th Cir. 1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 707, 79 L.Ed.2d 171 (1984)).

In White Mountain the Court considered the barriers to assertion of state regulatory powers over an Indian tribe to include the Williams v. Lee infringement test, preemption analysis under Warren and whether the resultant regulation would burden the tribe. The Court recognized the firm federal policy of promoting tribal self-sufficiency and economic development, noting that no express congressional statement is needed to find a particular state law to have been preempted. White Mountain, 448 U.S. at 144, 100 S.Ct. at 2584, 65 L.Ed.2d at 673.

The district court has authorized the Tribal Water Resources Agency to administer all water rights on the reservation, including those of non-Indians holding land in fee with state water permits. “Administration” of water rights does not comport with this court’s previous decision in Big Horn I. However, the question now becomes whether the Tribes may engage in the lesser regulatory activity of “monitoring” the use of water on the entire reservation. Big Horn I did not address the issue of tribal regulation or the regulation of non-Indian water rights on the reservation. We stated only that “[t]his court is also cognizant of the fact that exercise of the reserved water rights are [sic] intimately bound up with the state water rights of off-reservation users.” Big Horn I, 753 P.2d at 115. It is obvious to any observer that exercise of reserved rights must also be intimately bound up with the state water rights of non-Indians on the reservation as well.

The Tribes are “unique aggregations possessing attributes of sovereignty over both their members and their territory” and as such have the authority to monitor reserved water rights on the reservation. United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706, 716 (1975). Recognizing this inherent authority, I turn now to the issue of Indians regulating use by non-Indians on the reservation.

In Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Supreme Court considered whether the Crow Tribe could regulate hunting and fishing by non-Indians on fee owned land within the reservation. The Court held that inherent tribal sovereignty was not in itself enough to support regulation in this instance and the exercise of tribal power beyond that necessary to protect tribal self-government or control internal affairs needed congressional delegation to survive. However, the Court also stated that

a tribe may * * * retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the *300political integrity, the economic security, or the health or welfare of the tribe.

Montana v. United States, 450 U.S. at 565-66, 101 S.Ct. at 1258, 67 L.Ed.2d at 511.

In Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989), the Court considered a conflict between the Yakima tribe and the county over which entity had the power to regulate zoning on two distinct types of lands within the reservation: areas closed to non-Indians and areas open to the general public. The open area included fee owned lands held by non-Indians as a result of the' General Allotment Act of 1887. Though the Court discussed the tribe’s power to exclude non-Indians from the reservation, it concluded that the Allotment Act took away the exclusive power to exclude those with fee title, leaving a lesser power to regulate. However, the Court was reluctant to find that the tribe had retained its inherent sovereignty in this area by refusing to employ the principles of Montana, without a showing by the tribe that the circumstances constituted a “demonstrably serious impact by the challenged uses that imperils tribal political integrity, economic security, or health and welfare.”

Following Brendale, the Court considered tribal jurisdiction over a non-member criminal defendant and acknowledged that

our decisions recognize broader retained tribal powers outside the criminal context. * * 4 As distinct from criminal prosecution, this civil authority typically involves situations arising from property ownership within the reservation or “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana v. United States, [450 U.S.] at 565 [lOlS.Ct. at 1258] 4 4 4 The exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties.

Duro v. Reina, 495 U.S. 676, 688, 110 S.Ct. 2053, 2061, 109 L.Ed.2d 693, 705 (1990).

I would hold, as the court did in Colville Confederated Tribes, that regulation of water on the reservation is critical to the lifestyle of its residents and development of its resources. “The cultural vitality of tribes is tied to the application of tribal values to guide the use of reservation resources.” David H. Getches, Management and Marketing of Indian Water: From Conflict to Pragmatism, 58 Colo.L.Rev. 515, 527 (1988). Water regulation is an important sovereign power. Colville, 647 F.2d at 52. It is hard to imagine a resource more critical to the economic security or health and welfare of the Wind River Reservation Tribes.

In light of the unwillingness of the state engineer to date to protect these important reserved right interests of the Tribes, it is imperative that the Tribes have the authority to do so. By avoiding multiple jurisdiction of water rights on the reservation, I would hope to avert needless duplication, expense and continued conflict. Getches, supra, at 530.

I would hold “monitoring” to be a lesser intrusive oversight and not as restrictive or controlling as the regulation of water rights proposed by the tribe in United States v. Anderson, 736 F.2d 1358 (9th Cir.1984) or the zoning regulations in Bren-dale. (The Anderson court limited the state’s regulatory authority over non-Indian fee owners to the use of excess water.) Competing interests between the state and Tribes over this limited grant of control need not be weighed. Safeguards are in place to ensure that the result of tribal monitoring of non-Indian water rights will not subject non-Indians to the jurisdiction of the Tribal Water Resources Agency but will be referred to district court for resolution.

A GUIDE TO THE COURT’S PRESENT OPINION

If one looks closely at the fragmented opinions of my four brethren, it is not unlikely that bewilderment will ensue. It is unfortunate that clarity of vision and *301voice have eluded the court in this most important opinion. The Tribes’ application of future waters to instream flow is denied, though no clear majority opinion exists to determine why. Justices Macy and Thomas conclude that state law precludes this dedication, and Justice Cardine views the Treaty as preventing it, though also concluding that state law does not govern its use.

At least three Justices (Macy, Thomas and Brown) conclude that the state engineer should regulate the water on the entire reservation, but the law that should be applied is federal, not state law, according to Justices Cardine, Golden, and Brown.

The result of the court is fragmented, providing no clear guidance to the parties. Pragmatically, it is difficult to imagine how this opinion can be implemented. The court has stated that two different types of law apply to two inter-related issues. A coherent opinion would have at least determined a consistent answer to the question of what law applies to Indian water rights on the reservation. All that is really clear from this narrow opinion is that the parties will continue to litigate their conflicts.

I submit the following outline as a road map to the court’s splintered offering to demonstrate point by point the position of each justice and to illustrate the confused interpretations and misapplication of prior precedent in this case:

I.INSTREAM FLOW

A. Scope of Discussion

1. Limits discussion to future project waters — Justice Macy; Justice Thomas generally agrees
2. Distinguishes between future project waters which have never been applied to irrigation and waters historically applied to irrigation — Justice Cardine
3. Discusses both future and historic waters or does not distinguish between them — Justices Golden and Brown

B. Interpretation of Big Horn I

1.Big Horn I gave right to use water only for agricultural purposes, not for an instream flow — Justice Macy; Justice Thomas generally agrees
2. Sees real issue now as sovereignty though this was not addressed in Big Horn / — Justice Thomas
3. Big Horn I never discussed change of use or other uses — Justices Golden and Brown

C. What Law Applies to Change of Use

1. Tribes must seek change of use for future project waters under state law— Justices Macy and Thomas
2. Change of use is not subject to state law; Federal or Tribal law applies; but also states that federal policy of deference to state water law must be respected — Justice Cardine
3. State law does not apply to change of use and not supported by Big Horn I; federal law applies; following Big Horn /, state acknowledged various water uses permitted by Tribes and should now be estopped from changing its position— Justices Golden and Brown

D. Diversion

1. Diversion not necessary — Justice Macy; Justice Thomas generally agrees; Justices Golden and Brown also agree
2. Future water must first be applied to land before change of use allowed under federal or tribal law — Justice Cardine

E. Beneficial Use

1. Beneficial use is key and is seen as an evolving concept — Justice Macy; Justice Thomas generally agrees
2. Future “paper right” must be applied to beneficial use before allowed to interfere with state appropriators and beneficial use is defined only as irrigation; but determines that beneficial use should be broadly applied to the federal reserved right and therefore allow for instream flow development; disagrees with Justice Macy that “change of use must be hamstrung by compliance with Wyoming statutes defining acceptable uses”; states that when Indian rights are not in use they may be taken by junior appropriators — Justice Cardine
*3023. Earlier district court decisions in this case by Judges Joffe and Johnson held that Tribes may use water in any manner they deem advisable or to their benefit; this was not reversed by Big Horn I and is now the law of the case; — Justices Golden and Brown

F. Inconsistencies in opinions

Justice Thomas — Though he states that instream flow must be accomplished under state law, he intimates that an in-stream flow right may not be foreclosed to the Tribes. This seems inconsistent with Justice Macy’s opinion with which he generally agrees. Justice Macy states that only the state of Wyoming shall own an instream flow right; consequently, the Tribes would not be able to have a dedication even if they went through the state application process. Justice Cardine — Reads Justice Macy’s opinion as precluding dedication of existing irrigation rights to instream flow by virtue of the application of Wyo.Stat. § 41-3-1002(e) (1977), though Justice Macy explicitly states that that discussion is left for another day.
Justice Cardine defines beneficial use in this context as only meaning irrigation and goes so far as to intimate that in-stream flow may be wasting water. He takes issue with Justice Macy’s conclusion that Wyoming statutes must define acceptable (beneficial) uses and procedures for change of use and states that beneficial use concept must be more broadly construed when applied to federal reserved water rights. However, he creates a condition on any change of use of future rights by concluding they must first be diverted, which is more restrictive than state law and has no support under federal reserved rights law. Justice Macy notes that beneficial use does not require a diversion but is an evolving concept that can be expanded to “reflect changes in society’s recognition of the value of new uses of our resources.” Though Justice Cardine states that change of use is not subject to state law, he also contends that federal deference to state law must be respected, contrary to Colville Confederated Tribes v. Walton, recognizing that congress did not intend for the states to have this power on federal reservations.
Justice Cardine’s opinion is apparently based on what he feels ought to be done at this time and advocates the “sensitivity doctrine,” which was rejected in Big Horn I, believing it unfair to appropriated to stand by and watch the Tribes “waste” water. He notes that Indian rights not in use may be taken by others with junior rights. The authority cited for this proposition is taken from a treatise published in 1977. However, absent any authority by the authors themselves, this premise appears to be conjecture or speculation.

II. ADMINISTRATION OF WATER RIGHTS

A. Who Owns the Water

1. All water within the boundaries of the state belongs to the state — Justice Macy
2. Indian reserved water rights are merely property rights; concedes that Tribes have sovereignty over the diminished portion of the reservation, but unclear whether this also means ownership of the water — Justice Thomas
3. Indian reserved water right is not state water — Justices Cardine, Golden and Brown

B. Who Should Manage Water Rights

1. State engineer should administer all water rights on the reservation, turning to the courts for enforcement authority — Justices Macy and Brown; Justice Thomas generally agrees
2. Joint administration between the state and the Tribes, turning to the courts for resolution of disputes — Justice Cardine
3. Tribes should monitor both Tribal rights and non-Indian rights on the reservation, turning to the courts for resolution of disputes — Justice Golden

*303C. Why They Should Manage

1. State engineer has constitutional mandate to administer the waters of the state; removal by district court is violation of separation of powers and state engineer’s constitutional duty — Justice Macy; Justice Thomas generally agrees
2. Right of state engineer to regulate water rights is vested as the law of the case — Justice Thomas
3. Joint administration seen as way to adopt new spirit of cooperation between the parties — Justice Cardine
4. Dual administration would create more problems than it would solve — Justice Brown
5. State engineer, in his role as water master under Big Horn I, did not protect Indian reserved rights; removal by district court was not removal in his constitutional capacity as state engineer but as water master — Justice Golden

D. Level of Management

1. Discusses “administration” by state engineer and then cites “monitoring” language from Big Horn I and concludes that current opinion is consistent with Big Horn 7 — Justice Macy; Justice Thomas generally agrees
2. Discusses in terms of regulation and management — Justice Thomas
3. Discusses joint administration — Justice Cardine
4. Discusses in terms of management— Justice Brown
5. Specifically distinguishes between administration and monitoring; Tribes should monitor water rights in similar fashion as the right to monitor given to the state engineer in Big Horn 7 — Justice Golden

E. What Law Applies

1.Relies on the application of state law to determine the instream flow issue and concludes the present decision is consistent with the duties and limitations imposed in Big Horn I, though Big Horn I did not authorize application of state law — Justice Macy
2. Reserved water right is property right subject to state regulation — Justice Thomas
3. Federal law applies — Justices Car-dine, Golden and Brown

F. What Should Be Administered

1. Entire reservation by state engineer — Justices Macy and Brown
2. Distinguishes between ceded and diminished portions of reservation; state engineer must regulate on ceded portion as it was disestablished as reservation; pragmatic to have state engineer regulate on diminished portion as well, though he recognizes Tribal sovereignty on diminished portion — Justice Thomas
3. Entire reservation through joint administration — Justice Cardine
4. Distinguishes between Indian and non-Indian water rights on the reservation but concludes that monitoring is a lesser infringement than administration and should be conducted by the Tribes on the entire reservation — Justice Golden

G. Inconsistencies in opinions

Justice Macy — Discusses the opinion in terms of “administration” but concludes that present opinion is consistent with Big Horn I; discusses instream flow in terms of state law application but concludes that current decision on administration is consistent with the duties and limitations imposed by Big Horn I which did not recognize application of state law to monitoring by the State Engineer.
Justice Thomas — Concedes that Tribal sovereignty exists over the diminished portion of the reservation, but concludes that pragmatic solution is for state engineer to regulate over this area, too.
CONCLUSION
If one may mark the turn of the 20th century by the massive expropriation of Indian lands, then the turn of the 21st century is the era when the Indian tribes *304risk the same fate for their water resources.

Membrino, supra, at 14.

Today some members of the court sound a warning to the Tribes that they are determined to complete the agenda initiated over one hundred years ago and are willing to pervert prior decisions to advance that aim. I cannot be a party to deliberate and transparent efforts to eliminate the political and economic base of the Indian peoples under the distorted guise of state water law superiority.

.Following the Wyoming Supreme Court’s decision, the State of Wyoming sought review on a petition for a writ of certiorari in the United States Supreme Court. The state asked that Court to review three aspects of the controversy: (1) whether reserved rights existed in light of the 1905 second McLaughlin Agreement; (2) if they did, then whether the practicably irrigable acreage standard should be used to measure these reserved rights; and (3) what priority date should attach to ceded lands restored to the reservation. See Joseph R. Membrino, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27 Land & Water L.Rev. 1, 8 (1992); and Walter Rusinek, A Preview of Coming Attractions? Wyoming v. United States and the Reserved Rights Doctrine, 17 Ecology L.Q. 355, 393-94 (1990). The Tribes filed a cross-petition in which they raised six additional issues. See Rusinek, supra at 394. Other non-Indian litigants also filed a cross-petition raising yet additional issues. Id.

"Of all the questions raised in petitions and cross-petitions for review by the parties, the United States Supreme Court accepted only Wyoming’s challenge to the use of that Court’s own measure of practicably irrigable acreage.” Membrino, supra, at 8; see also, Rusinek, supra, at 394. On the sole issue reviewed, the Court split four-four, thus affirming the Wyoming Supreme Court’s use of the practicably irrigable acreage standard to measure the Indians’ reserved rights. Membrino, supra at 9. The Court wrote no opinion. Id.

. Seeing something that is not there reminds me of an incident involving Alice:

"I see nobody on the road," said Alice.
“I only wish I had such eyes,” the king remarked in a fretful tone. "To be able to see Nobody! And at that distance too! Why, it’s as much as I can do to see real people in this light!”

Lewis Carroll, Through the Looking Glass and What Alice Found There, at 136 (1872).

. As described in the cited material, the "public right” is something like the commonweal. That is, if the change in use is injurious to the commonweal, as opposed to injury to certain individuals such as some irrigators, there may be an issue to be resolved. The thrust of the cited article is not much different from what the United States has argued here, i.e., if the injury would occur if the Indians put their water to use, that is not enough; the injury must be *294because of something beyond the mere use of the adjudicated water.

. Brown v. Bd. of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).