Many western river systems were appropriated without concern for potential future tribal claims. This reflects powerful notions of who should be entitled to utilize a scarce resource, and to what ends. Utilization of tribal reserved water rights may, as a matter of law, justify gallon-for-gallon reductions in certain water systems. The political and legal dynamics of western water rights adjudication, however, make a future of tribal water use commensurate with non-tribal use difficult to predict. Likely due in part to political pressure and the comfort of familiar state law, many advocates and jurists share the intuition that tribal water rights should follow state law. This is not mandated by federal common law. But in several outlier cases, and increasingly through negotiated settlement, tribal rights are subject to state law administration. One challenging question arises when a reserved right is shifted from one end use to another, with injury to other water users in the system. In these circumstances, courts should be reluctant to find injury to a state water right where a remainder of a tribal reserved right remains unutilized.
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