CHASING THE WIND - WYOMING SUPREME-COURT DECISION IN BIG-HORN-III DENIES BENEFICIAL USE FOR INSTREAM FLOW PROTECTION, BUT EMPOWERS STATE TOADMINISTER FEDERAL INDIAN RESERVED WATER RIGHT AWARDED TO THE WIND-RIVER TRIBES

The June 5, 1992 decision of the Wyoming Supreme Court in Big Horn III reversed a state district court determination that was favorable to t he Wind River Tribes regarding use and administration of their federal Indian reserved water right. First, the state supreme court reversed the state district court determination that the Wind River Tribes coul d change the usage of their federal Indian reserved water right from a future use for irrigation to a present use for instream flow protecti on. The state supreme court also reversed the state district court det ermination that the Tribal Water Board could administer both federal I ndian reserved and state water rights within the Wind River Indian Res ervation. Rather, the state supreme court reestablished the Wyoming St ate Engineer as administrator of federal Indian reserved and state wat er rights within the Wind River Indian Reservation. Analysis of the Bi g Horn III decision leads to the conclusion that the Winters doctrine limits the Wind River Tribes use of their implied federal Indian reser ved water rights to the sole agricultural purpose of the Second Treaty of Fort Bridger as interpreted by the state supreme court in the Big Horn I decision. The disparate rationales employed by the state suprem e court in Big Horn III provide the parties with added incentives to r each a negotiated settlement to the conflict regarding their sovereign interests in water use and administration. The author recommends that the parties negotiate a settlement so that: 1) The Second Treaty of F ort Bridger is amended to express a homeland purpose for the Wind Rive r Indian Reservation; 2) The Wind River Tribes may use their Winters w ater right for the accomplishment of a homeland purpose, 3) Use of the Winters water right will be specified via a compact to provide Wind-B ig Horn River appropiators with certainty regarding water use, 4) Admi nistration of the Winters water right and state water rights is coordi nated between the Tribal Water Board and the state engineer.