753 P.2d 76 (1988)

In re The GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE BIG HORN RIVER SYSTEM and all other sources, State of Wyoming.
The STATE of Wyoming, Appellant,
v.
OWL CREEK IRRIGATION DISTRICT MEMBERS; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees.
OWL CREEK IRRIGATION DISTRICT MEMBERS, Appellants,
v.
The STATE of Wyoming, Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees.
SHOSHONE AND ARAPAHOE TRIBES, Appellants,
v.
The STATE of Wyoming, Owl Creek Irrigation District Members, Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees.
Landis WEBBER and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski, Appellants,
v.
The STATE of Wyoming; Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees.
CITY OF RIVERTON, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellants,
v.
The STATE of Wyoming; Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States, Appellees.
UNITED STATES, Appellant,
v.
The STATE of Wyoming, Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District; Albert Hornecker and Hornecker Livestock Co., Inc., Donald Bath and DHB & Co., and PLB & Co., Bradford Bath, Griffin Brothers, Incorporated, Ralph Floyd Urbigkit, Charles Richardson and Richard and Elsie Martin, all non-Indian parties, Appellees.
Albert HORNECKER and Hornecker Livestock Co., Inc., Donald Bath and DHB & Co., and PLB & Co., Bradford Bath, Griffin Brothers, Incorporated, Ralph Floyd Urbigkit, Charles Richardson and Richard and Elsie Martin, all non-Indian parties, Appellants,
v.
The STATE of Wyoming, Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; United States; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees.
Robert W. HARVEY and Olga J. Harvey, Mary O. Ahlborn, Owen Barnett and Eva M. Barnett, Black Butte Livestock Company, Campbells, Inc., Phyllis L. *77 Crandall and Kenneth Ward Crandall, Billy M. and Barbara J. Daniels, Carl Dockery and Carol Dockery, Clyde R. Fisher and Gloria A. Fisher, Charles Goldben, Gary V. Kellogg and Brenda Joyce Kellogg, Russell E. Long and Irene M. Long, William A. Matthews, Arthur D. McCumber, Marvin W. Meyer and Ernestine S. Meyer, Vern Nelson and Carolyn R. Nelson, Norwest Bank of Omaha N.A., Norris Edwin Odde and F. Louise Odde, William Okie, Kenneth and Iona Outland, Sylvia Paulsen, Jerry D. Redding and Shelia C. Redding, Red Lane Watershed Improvement District, C. Duane Rush and Katherine C. Rush, Brian F. Sanford and Kathleen Sanford, Norman L. Sanford, Newell S. Sessions and Daisy E. Sessions, Barbara Smith, Robert Stewart, Town of East Thermopolis, Ve Bar Livestock Company, Raymond C. and Delores J. Weese, and Ruth Clare Yonkee, Appellants,
v.
The STATE of Wyoming, United States; Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District; Albert Hornecker and Hornecker Livestock Co., Inc., Donald Bath and DHB & Co., and PLB Co., Bradford Bath, Griffin Brothers, Incorporated, Ralph Floyd Urbigkit, Charles Richardson, and Richard and Elsie Martin, all non-Indian parties, Appellees.

Nos. 85-203 to 85-205, 85-217, 85-218, 85-225, 85-226, 85-236.

Supreme Court of Wyoming.

February 24, 1988.^[*]

*82 Joseph B. Meyer, Atty. Gen., S. Jane Caton, Asst. Atty. Gen., Steven F. Freudenthal, Sp. Asst. Atty. Gen., with Freudenthal, Freudenthal, Salzburg, Bonds & Rideout, Cheyenne, Houston G. Williams, Sp. Asst. Atty. Gen., with Williams, Porter, Day & Neville, Casper, Michael D. White and David F. Jankowski, Sp. Asst. Attys. Gen., with White and Jankowski, Denver, Colo., and Randall T. Cox, Sp. Asst. Atty. Gen., with Omohundro and Palmerlee, Buffalo, for State of Wyo. Argument presented by Michael D. White, for Type 1 and 2 Claims, and Randall T. Cox for Type 1, 2 and 3 Claims, also present at counsel table were A.G. McClintock, Wyoming Atty. Gen., and S. Jane Caton, Asst. Atty. General.

Ruth Clare Yonkee, Thermopolis, for Red Lane Watershed Imp. Dist., Town of East Thermopolis.

C. Edward Webster, II, Cody, for Owl Creek Irr. Dist.

Donald P. White of White & White, Riverton, for City of Riverton, Midvale Irr. Dist. and Riverton Irr. Dist.

Kenneth Guido, Jr., Washington, D.C., for Shoshone Tribe.

W. Richard West, Jr. and Susan M. Williams of Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., and B. Kevin Gover and Susan M. Williams of Gover, Williams & Stetson, Albuquerque, N.M., and Thomas W. Fredericks, Dale T. White, and Robert S. Pelcyger of Fredericks & Pelcyger, Boulder, Colo., and William J. Thomson and W. Perry Dray of Dray, Madison & Thomson, Cheyenne, for Shoshone and Northern Arapahoe Tribes.

Michael S. Messenger of Messenger & Jurovich, Thermopolis, for Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Co.

Bertha Jones and Grace Graboski.

F. Henry Habicht II, Asst. Atty. Gen. and James J. Clear, Dept. of Justice, Washington, D.C., for U.S.

Sky D Phifer of Phifer & Phifer, Lander, for Albert Hornecker and Hornecker Livestock Co., Inc.

Donald Bath and DHB & Co., and PLB & Co., Bradford Bath, Griffin Brothers, Inc., Ralph Floyd Urbigkit, Charles Richardson and Richard and Elsie Martin.

Ross D. Copenhaver of Copenhaver, Kahl & Kath, Powell, for Willwood Irr. Dist. and Deaver Irr. Dist.

Oral argument presented by Robert S. Pelcyger for Arapahoe Tribes, Type 1, 2, and 3 Claims; C. Edward Webster II for Owl Creek Irr. Dist., Type 2 Claims; Donald P. White for private parties City of Riverton, et al., Type 1 Claims; James J. Clear for U.S., Type 1 and 2 Claims; Michael S. Messenger for private parties Type 3 Claims; Sky D Phifer for Hornecker, et al., Type 3 Claims; also present at counsel table were Ruth Clare Yonkee; Dale T. White; Thomas W. Fredericks; David F. Jankowski; and B. Kevin Gover, Arthur Lazarus, Jr., and W. Richard West, Jr., for the Shoshone Tribes.

*83 Before BROWN, C.J., and THOMAS, CARDINE, and MACY, JJ., and HANSCUM, District Judge.

I INTRODUCTION

This appeal is from the district court's order adjudicating rights to use water in the Big Horn River System and all other sources within the State's Water Division No. 3. The district court modified the special master's recommended decree. All parties have appealed from the district court's amended judgment and decree. We affirm in part and reverse in part.

A. Geography and History

We begin by acknowledging the comprehensive reports of both the special master and the district court and our use of these reports in our preparation of this section of this opinion.

Water Division No. 3 is essentially identical with what is known as the Big Horn River drainage basin. (See map appended.) It is located in Fremont, Hot Springs, Washakie, Big Horn and Park counties in northwestern and west central Wyoming and includes parts of Yellowstone National Park. Other federal entities included are the Wind River Indian Reservation, located in the southeastern portion of the region, consisting of approximately 4,000 square miles of land area, the Shoshone and Big Horn National Forests, the East Fork Winter Elk Pasture, the Sheridan County Elk Winter Pasture, the Yellowtail Wildlife Habitat Management Area, the Middle Creek Drainage Area of Yellowstone National Park, the Big Horn Canyon National Recreation Area, and numerous public water reserves, water wells and stock driveways upon federal lands administered by the Bureau of Land Management.

The topography of the area is varied. It includes mountain peaks and valleys, high plateaus, terraced stream valleys and low desert badlands. Elevations range from 3,870 feet near the town of Basin to over 13,000 feet in the Wind River Range. On the reservation the elevation varies from 4,500 feet at the northeastern corner near the Wind River Canyon to 12,500 feet in the Wind River Range.

The primary drainage system in the division is the Wind River-Big Horn River which originates in northern Fremont County and leaves the Division at the Wyoming-Montana border in northern Big Horn County. By statutory definition the division also includes the Clark's Fork of the Yellowstone River, § 41-3-501(a)(iii), W.S. 1977, originating in northwestern Park County, which drains much of the northwestern portion of the region. The Shoshone River, a major tributary of the Big Horn River which originates in northern Park County and joins the Big Horn at the Yellowtail Reservoir, is the other major drainage system in Division 3.

The history of the Big Horn Basin for purposes of this case begins in the early 1800's when explorers, trappers and traders began traveling into northwestern Wyoming, part of the vast hunting grounds of the peripatetic Shoshone Indians. Neither group encroached on the other and relations were friendly. Nonetheless, in 1865, the United States, hoping to preserve the peace and stability, reached an agreement delineating the area within which the Eastern Shoshone roamed, a 44,672,000 acre region comprising parts of Wyoming, Colorado and Utah. Following the Civil War, as the westward movement gained momentum, the United States government realized the size of the region set aside for Indians only was unrealistic, and on July 3, 1868, executed the Second Treaty of Fort Bridger with the Shoshone and Bannock Indians, establishing the Wind River Indian Reservation.

During their first years on the reservation, the Shoshone Indians were still dependent on the buffalo as the mainstay of their life, but as the supply rapidly decreased, they began to rely upon an agricultural economy. During the 1870's the Shoshone Indians increased their efforts in both farming and ranching. The Shoshone ceded lands beyond the Popo Agie back to the United States in the 1872 Brunot Agreement. The Arapahoe moved to the reservation in 1878. By the 1880's it was *84 evident that the agricultural economy of the Indians was failing, and by 1895, the Indians on the Wind River Indian Reservation were totally dependent on the government for food, clothing and shelter. These economic misfortunes compelled them to sell more of their land to the United States. The First McLaughlin Agreement, or Thermopolis Purchase, was concluded in 1897; the Big Horn Hot Springs was the main feature of the lands ceded to the United States for cash payment. An additional 1,480,000 acres of reservation land were ceded to the Government in the Second McLaughlin Agreement in 1904-1905. The revenue derived helped to develop the remaining reservation lands (which came to be known as the "diminished reservation"). The United States Government offered the ceded lands for sale to others, under the provisions of the homestead, townsite, coal and mineral land laws, and reimbursed the Tribes or expended for the benefit of the Tribes the money raised by the sales.

The earliest non-Indian settlements in northwestern and north central Wyoming were near the gold and silver fields in the South Pass area of the Wind River Range. These mining camps soon expanded into permanent farming and ranching communities which relied primarily on cattle ranching and dryland or easily-irrigated farming for sustenance. By the mid-1800's, many small communities had been established by settlers who had obtained their land under the Congressional land disposal acts. By the early 1900's most of the best land in the region was occupied by ranches or irrigated farms. Yet the settlers continued to arrive, forcing gradual expansion onto the dry basin floors and prompting the development of many irrigation projects, often sponsored jointly by private citizens and the United States. The arrival of the homesteaders in the Wind River Basin significantly altered the Indian's economic base. As the number of settlers and their farms increased, the number of Indians working their own farms and ranches decreased, and they began to rent and eventually to sell their land while hiring themselves out as laborers.

In 1934, all remaining lands which had been ceded to the United States by the 1904 agreement were reserved from non-Indian settlement. In 1940, the Secretary of Interior began a series of restorations of certain undisposed lands to tribal ownership. These lands again became part of the existing Wind River Reservation. In addition, the United States later reacquired, in trust for the Tribes, additional ceded land and certain lands within the diminished reservation which previously had passed into private ownership. Since 1953, the size of the reservation has remained fairly stable.

B. Procedural History of the Instant Litigation

On January 22, 1977, Wyoming enacted § 1-1054.1, W.S. 1957 (now § 1-37-106, W.S. 1977), authorizing the State to commence system-wide adjudications of water rights. The State of Wyoming filed the complaint commencing this litigation and naming the United States as a defendant on January 24, 1977, in the District Court of the Fifth Judicial District of Wyoming.

The United States removed the case to the United States District Court for the District of Wyoming in Cheyenne, Wyoming, claiming the state court was without jurisdiction in this suit against the United States. The federal district court granted the State's motion to remand the case to state court on June 1, 1977, finding that the McCarran Amendment and § 1-37-106, W.S. 1977, provided for jurisdiction in the state court.

On August 21, 1977, the United States moved to dismiss in state court, again alleging that the state court was without jurisdiction and that the Tribes were an indispensable party. The court granted the Tribes' motion for leave to file an amicus curiae brief on the dismissal motion. The Shoshone and Arapahoe Indian Tribes also moved to intervene, alleging that the United States would not adequately represent their interests. The court granted intervention on November 21, 1977, and the Tribes entered their appearance. On December 20, 1977, Judge Joffe denied the United States' motion to dismiss and granted *85 the State of Wyoming partial summary judgment on the United States' jurisdictional defenses.

On April 20, 1978, the State moved the court to certify this case to the Board of Control pursuant to § 1-37-106(a)(i)(A)(I), W.S. 1977. Judge Joffe entered a First Order of Certification and Referral to the Wyoming State Board of Control on August 22, 1978. The United States and the Tribes objected to the certification and moved for the appointment of a special master. After receiving suggestions, selecting a master and allowing time for objections, Judge Joffe appointed the special master on May 4, 1979. The First Order of Certification and Referral to a special master, entered on May 29, 1979, charged the special master with the duty to:

"1. Determine the status of those rights which are evidenced by previous Court decrees, as set out in Appendix B to the Complaint herein, as well as those rights evidenced by certificates heretofore issued by the Board of Control, as set out in Appendix C to the Complaint herein, which Appendices may be revised to more accurately reflect the records of the State Engineer and State Board of Control.

"2. Determine the status of all uncancelled permits to acquire the right to use of water as set out in Appendix D and Appendix E to the Complaint herein, which Appendices may be revised to more accurately reflect the records of the State Engineer and State Board of Control.

"3. Adjudicate any interest in or right to use the water of the Big Horn River System and all other sources within Water Division No. 3, State of Wyoming, arising under the permits described in paragraph 2, above.

"4. Determine the extent and priority date of the adjudicate [sic] any other interest in or right to use the water of the Big Horn River System within Water Division No. 3, State of Wyoming, not otherwise represented by the aforedescribed decrees, certificates, or permits, including, but not limited to, any appropriate or reserved rights of the Arapahoe Tribe, Shoshone Tribe, or of the United States in either its proprietary or fiduciary capacity, which may be hereafter identified by said Tribes or the United States and which are not subject to the decrees, permits and/or certificates described in paragraphs 1 and 2 above."

The United States filed its initial statement of claims on March 6, 1980, and supplemental claims on May 29, 1980. The Tribes filed an additional claim on April 4, 1980.

The case was divided into three phases: Phase I, Indian reserved water rights (appeal decided here); Phase II, non-Indian federal reserved water rights (completed); and Phase III, state water rights evidenced by a permit or certificate (pending).

The master approved stipulations allowing provisional confirmation of adjudicated rights and settling boundaries and dates. He also dismissed the off-reservation hunting and fishing claims and denied summary judgment on instream flow claims made by the Bureau of Land Management. The trial began January 26, 1981, and concluded December 1981.

The special master signed his 451-page Report Concerning Reserved Water Right Claims by and on Behalf of the Tribes in the Wind River Reservation on December 15, 1982, covering four years of conferences and hearings, involving more than 100 attorneys, transcripts of more than 15,000 pages and over 2,300 exhibits.

The report recognized a reserved water right for the Wind River Indian Reservation and determined that the purpose for which the reservation had been established was a permanent homeland for the Indians. A reserved water right for irrigation, stock watering, fisheries, wildlife and aesthetics, mineral and industrial, and domestic, commercial, and municipal uses was quantified and awarded.

A final judgment adjudicating the non-Indian federal reserved water rights (Phase II), pursuant to stipulation, was entered February 9, 1983.

The State of Wyoming, the United States, the Shoshone and Arapahoe Tribes, and numerous private parties presented objections *86 to the master's report, and on May 10, 1983, Judge Joffe entered his Findings of Fact, Conclusions of Law and Judgment approving that portion of the master's report awarding reserved water rights for practicably irrigable acreage within the Wind River Indian Reservation and refusing to accept that portion of the master's report recommending an award of reserved water rights for other than agricultural purposes.

On May 13, 1983, this case was assigned to State District Judge Alan B. Johnson. The United States, the State of Wyoming and the Tribes then moved to alter or amend Judge Joffe's decree. On May 24, 1985, pursuant to Rule 54(b), W.R.C.P., the Amended Judgment and Decree from which this appeal is taken was entered.

A 95-page Supplemental Report was filed June 1, 1984, recommending that those individuals who succeeded to the interests of an Indian allottee and individuals owning land which had once been part of the reservation but was obtained under public land acts and not directly from an allottee be awarded state permit priority dates. As to the remaining state water rights, the master recommended future proceedings. On May 24, 1985, Judge Johnson entered an order deferring acceptance of the June 1, 1984 Supplemental and Final Report of the Master, providing:

"Reservation reserved rights are rights created by the courts solely for the protection and enjoyment of Indian tribes so that they can make their reservations their homelands. These rights do not pass to successors in interest to Indian lands. Therefore, this Court will not award to non-Indian parties an 1868 priority date for their water rights." (Citations omitted.)

The court held that non-Indian successors were entitled to water rights with priority dates established by permits and/or certificates issued by the State of Wyoming, or by evidence of appropriation of water for beneficial use and deferred decision on these claims.

On July 5, 1985, the United States moved for reimbursement of one-half the special master's fees and expenses (Phase I costs) on grounds that the McCarran Amendment prohibits assessment of costs against the United States. The motion was denied.

II JURISDICTION

Early in the litigation, the Tribes challenged the jurisdiction created by § 1-37-106, W.S. 1977, on grounds that Article 21, § 26 of the Wyoming Constitution, the so-called disclaimer provision, barred any state court adjudications of Indian water rights. On appeal the Tribes concede that there is no federal law preventing state courts from adjudicating Indian reserved water rights but maintain that the disclaimer provision of the Wyoming Constitution barred the district court, as a matter of state law, from asserting jurisdiction over their water rights. Because the Tribes' claim involves construction of the Wyoming Constitution, not a federal question, our decision on this issue is final. Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 561, 103 S.Ct. 3201, 3210, 77 L.Ed.2d 837 (1983).

Article 21, § 26 of the Wyoming Constitution states:

"The people inhabiting 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 lying 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 * * *." (Emphasis added.)

This disclaimer is almost identical to those found in the constitutions and enabling acts under which Congress admitted most western states into the Union. See Enabling Act of Feb. 22, 1889, § 4, 25 Stat. 676, 677 (North Dakota, South Dakota, Montana, and Washington); Enabling Act of July 16, 1894, § 3, 28 Stat. 107, 108 (Utah); Enabling Act of June 16, 1906, § 3, *87 34 Stat. 267, 270 (Oklahoma); Enabling Act of June 20, 1910, § 2, § 20, 36 Stat. 557, 558-559, 569 (New Mexico and Arizona); Enabling Act of July 7, 1958, § 4, 72 Stat. 339, as amended by Act of June 25, 1959, § 2(a), 73 Stat. 141 (Alaska). See also Ariz. Const., Art. 20, ¶ 4; Idaho Const., Art. 21, § 19; Mont. Const., Ordinance No. 1; N.M. Const., Art. 21, § 2; Utah Const., Art. 3. The disclaimers and enabling acts did not establish new bars to state jurisdiction over Indians. They were simply intended to make clear that the new states entered the Union subject to the same jurisdictional limitations first imposed upon the other states by the landmark case of Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). See Arizona v. San Carlos Apache Tribes, supra 463 U.S. at 561-563, 103 S.Ct. at 3210-12; Comment, State Disclaimers of Jurisdiction Over Indians: A Bar to the McCarran Amendment, 18 Land & Water L.Rev. 175, 180 (1983) (discussing Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed.2d 419 (1896)).

The argument that the state disclaimer should be interpreted to be more protective of the Tribes than the controlling federal law, the McCarran Amendment, has been presented to the Tenth Circuit Court of Appeals and the Supreme Courts of Arizona and New Mexico. Each of these courts has rejected the argument. Jicarilla Apache Tribe v. United States, 601 F.2d 1116, 1130, (10th Cir.1979), cert. denied 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); United States v. Superior Court In and For Maricopa County, 144 Ariz. 265, 697 P.2d 658, 669 (1985); State ex rel. Reynolds v. Lewis, 88 N.M. 636, 545 P.2d 1014, 1015 (1976). The persuasive logic of these courts was well stated by the Arizona Supreme Court:

"If one thing is clear on this issue, it is that the Enabling Act and the provisions which it required to be inserted in the state constitution were intended to ensure supremacy of federal policy and federal law with regard to Indian land. The federal policy, asserted in the McCarran Amendment, is that the United States is `... to represent, as guardian, * * * the Indian tribes in any state court general water rights adjudication proceeding ...' Jicarilla, supra, 601 F.2d at 1130. There is no clear necessity to read the disclaimer provisions of article 20, ¶ 4 of the state constitution as a cession of exclusive jurisdiction. We prefer, if possible, the interpretation which best serves the purposes and objectives of federal law and federal policy, which we acknowledge as supreme in this area. One of those objectives is that Indian claims to surface waters ordinarily be adjudicated in state court as part of a general water rights adjudication, with the United States representing Indian interests. [Arizona v.] San Carlos, 463 U.S. [545] at [564], 103 S.Ct. [3201] at 3212 [77 L.Ed.2d 837 (1983)]. Unless compelled by unambiguous language, we refuse to interpret the provisions of the Arizona Constitution so restrictively as to defeat federal policy when supremacy of that policy was the very objective Congress sought to accomplish by requiring article 20, ¶ 4 to be part of the organic law of this state." United States v. Superior Court In and For Maricopa County, supra, [144 Az. 265] 697 P.2d [658] at 669. See also Arizona v. San Carlos Apache Tribe, supra, 463 U.S. [545] at 562-563, 103 S.Ct. [3201] at 3211 [77 L.Ed.2d 837 (1983)]; and Comment, supra, 18 Land & Water L.Rev. at 198-199.

Just one court, the Ninth Circuit Court of Appeals, has held a state constitutional disclaimer to be an independent bar to state jurisdiction over Indian water rights. Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit, 668 F.2d 1080 (9th Cir.1982). But this case was reversed by the United States Supreme Court in Arizona v. San Carlos Apache Tribe of Arizona, supra 463 U.S. 545, 103 S.Ct. 3201, holding that it was not the business of the Ninth Circuit to interpret Montana's disclaimer as a bar to state jurisdiction after the Montana court had decided to exercise jurisdiction:

"[T]o the extent that a claimed bar to state jurisdiction in these cases is premised on the respective State Constitutions, that is a question of state law over which the state courts have binding authority. Because, in each of these cases, *88 the state courts have taken jurisdiction over the Indian water rights at issue here, we must assume, until informed otherwise, that — at least insofar as state law is concerned — such jurisdiction exists." Id., 463 U.S. at 561, 103 S.Ct. at 3210.

We have never had occasion to consider the effect of the Wyoming disclaimer provision upon a water case, although it was considered in a civil case involving a collision between a motor vehicle and a horse on the Wind River Indian Reservation. State ex rel. Peterson v. District Court of the Ninth Judicial District, Wyo., 617 P.2d 1056 (1980). There we agreed that the disclaimer provision should be interpreted to be consistent with federal law, stating:

"McClanahan [v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)] thus suggests that interpretation of Article 21, Section 26, of the Wyoming Constitution is largely a question of federal law." Id., 617 P.2d at 1067.

We hold that Article 21, § 26 of the Wyoming Constitution only bars state jurisdiction over Indian water rights when federal law also bars that jurisdiction. Congress's policy under the McCarran Amendment is to allow state courts to adjudicate Indian water rights as part of general stream adjudications. Arizona v. San Carlos Apache Tribe of Arizona, supra 463 U.S. at 564-565, 103 S.Ct. at 3212; Cappaert v. United States, 426 U.S. 128, 145-146, 96 S.Ct. 2062, 2073, 48 L.Ed.2d 523 (1976). Because of the McCarran Amendment, there is no federal law which prevents the State from adjudicating the Indian water rights on the Big Horn River System. The district court correctly assumed jurisdiction in this case.

III IS THERE A RESERVED WATER RIGHT FOR THE WIND RIVER INDIAN RESERVATION?

A. Preliminary Matters

1. Preservation of Objections for Review and Standard of Review in General

Rule 53(e)(2), W.R.C.P., provides:

"(2) In Non-Jury Actions. — In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court, after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions."

Whether objections to the master's report must be made in the district court to preserve an issue for appeal has not previously been before this court. But, federal courts construing the similar federal rule, F.R.C.P. 53(e), generally hold it unnecessary to make objections to a special master's report. Henry Hanger and Display Fixture Corporation of America v. Sel-O-Rak Corporation, 270 F.2d 635 (5th Cir.1959); Shima v. Brown, 133 F.2d 48, 49, (D.C. Cir.), cert. denied 318 U.S. 787, 63 S.Ct. 982, 87 L.Ed. 1154 (1943). In Mitchell v. All-States Business Products Corporation, 250 F. Supp. 403, 409 (E.D.N.Y. 1965), the court stated:

"The Rule provides that `any party may serve written objections,' but it is not necessary to make objections to the Master's findings as permitted therein. Henry Hanger & Display Fixture Corp. of America v. Sel-O-Rak Corp., 270 F.2d 635 (5th Cir. 1959). The Rule clearly gives the court the power to modify the Master's report upon a motion for action upon the report and the failure of the Secretary to timely serve objections does not limit this power. 5 Moore, Federal Practice ¶ 53.12[1]. Cf., Bingham Pump Co. v. Edwards, 118 F.2d 338 (9th Cir.), cert. denied, 314 U.S. 656, 62 S.Ct. 107, 86 L.Ed. 525 (1941); United States v. 1,674.34 Acres of Land, More or Less, in Benton County, Arkansas, 220 F. Supp. 893 (W.D.Ark. 1963)."

*89 We consider the federal courts' construction of Rule 53(e), see Centric Corp. v. Drake Bldg. Corp., Wyo., 726 P.2d 1047 (1986); B-T Ltd. v. Blakeman, Wyo., 705 P.2d 307 (1985); and State ex rel. Hopkinson v. District Court, Teton County, Wyo., 696 P.2d 54 (1985), and hold that the district court, absent objection, could review the special master's report. Rule 52(b), W.R.C.P. It is appropriate that this court also review the master's report and actions of the district court. Objections are unnecessary to preserve an issue for appeal.

The bulk of objections made involve the sufficiency of the evidence to support the awards or deletions from claims. When addressing a sufficiency of the evidence question, this court looks only at the evidence most favorable to the prevailing party, giving to it every favorable inference, and leaving out of consideration entirely evidence in conflict therewith. Allstar Video, Inc. v. Baeder, Wyo., 730 P.2d 796, 798 (1986); Wangler v. Federer, Wyo., 714 P.2d 1209, 1216-1217 (1986); Tremblay v. Reid, Wyo., 700 P.2d 391, 392 (1985); City of Rock Springs v. Police Protective Association, Wyo., 610 P.2d 975, 980 (1980).

2. Collateral Estoppel

The doctrine of collateral estoppel prevents relitigation of "issues which were involved actually and necessarily in the prior action between the same parties." Delgue v. Curutchet, Wyo., 677 P.2d 208, 214 (1984). The State of Wyoming is not estopped from litigating the question of intent to reserve water by United States v. Hampleman, No. 753, June 26, 1916 (D.Wyo.), because the court there decided only that the water rights of the Indian allottees were within the exclusive jurisdiction of the United States. The State was not a party to United States v. Parkins, 18 F.2d 642 (D.Wyo. 1926), which indicated water had been reserved for the Indians. The case of Merrill v. Bishop, 74 Wyo. 298, 287 P.2d 620 (1955), does not collaterally estop Wyoming from raising the question of intent to reserve water because the basis of that decision is that the plaintiffs failed to make their case for injunctive relief on the facts; the question of intent to reserve water was, therefore, not involved. It is clear that these cases do not collaterally estop the State of Wyoming from litigating the question of intent to reserve water.

3. Equitable Estoppel

It is claimed that the United States should be equitably estopped from asserting Indian water rights for the reservation because the United States induced settlers to relocate on the ceded reservation lands and other lands in the Division and acquire water rights under state law.

The practice of the United States of obtaining state water permits did not mislead the individual appropriators to believe that the United States would not seek future water rights with an 1868 priority date. The United States should not be estopped from claiming a water right priority date for the future projects which would defeat the rights of other water users. A finding of affirmative misconduct is a prerequisite to invoking the doctrine of equitable estoppel.

This court recognized the element of affirmative misconduct in DeWitt v. Balben, Wyo., 718 P.2d 854, 861-862 (1986) wherein we cited the following:

"Equitable estoppel or estoppel by misrepresentation is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct; and it arises where a person, by his acts, representations, or admissions, or even by his silence when it is his duty to speak, intentionally or through culpable negligence induces another to believe that certain facts exist, and the other person rightfully relies and acts on such belief, and will be prejudiced if the former is permitted to deny the existence of such facts." (Emphasis added.) 31 C.J.S. Estoppel § 59, p. 367 (1964). See also Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (reasonable *90 reliance on definite misrepresentation to one's detriment required).

It is clear that in order to invoke the doctrine of equitable estoppel against a government or public agency functioning in its official capacity there must be a showing of affirmative misconduct. Greub v. Frith, Wyo.,