GWD-10-Q25-Q28 N-3-Q20-Q23 N-2-Q23-Q26 G-10-Q25-Q28印第安人水权

In Winters v. United States

(1908), the Supreme Court held

that the right to use waters flow-

Line ing through or adjacent to the

(5) Fort
       Berthold Indian Reservation

was reserved to American Indians

by the treaty establishing the res-

ervation. Although this treaty did

not mention water rights, the Court

(10) ruled that the federal government,

when it created the reservation,

intended to deal fairly with

American Indians by preserving

for them the waters without which

(15) their lands would have been use-

less. Later decisions, citing

Winters, established that courts

can find federal rights to reserve

water for particular purposes if

(20) (1) the land in question lies within

an enclave under exclusive federal

jurisdiction, (2) the land has been

formally withdrawn from federal

public lands — i.e., withdrawn from

(25) the stock of federal lands available

for private use under federal

land use laws — and set aside or

reserved, and (3) the circum-

stances reveal the government

(30) intended to reserve water as well

as land when establishing the

reservation.

Some American Indian tribes

have also established water rights

(35) through the courts based on their

traditional diversion and use of

certain waters prior to the United

States’ acquisition of sovereignty.

For example, the Rio Grande

(40) pueblos already existed when the

United States acquired sovereignty

over New Mexico in 1848. Although

they at that time became part of the

United States, the pueblo lands

(45) never formally constituted a part

of federal public lands; in any

event, no treaty, statute, or executive

order has ever designated

or withdrawn the pueblos from

(50) public lands as American Indian

reservations. This fact, however,

has not barred application

of the Winters doctrine. What

constitutes an American Indian

(55) reservation is a question of

practice, not of legal definition,

and the pueblos have always

been treated as reservations by

the United States. This pragmatic

(60) approach is buttressed by Arizona

v. California
      (1963), wherein the

Supreme Court indicated that the

manner in which any type of federal

reservation is created does not

(65) affect the application to it of the

Winters doctrine. Therefore, the

reserved water rights of Pueblo

Indians have priority over other

citizens’ water rights as of 1848,

(70) the year in which pueblos must

be considered to have become

reservations.

GWD-10-Q28 N-3-Q23 G-10-Q28:

The primary purpose of the passage is to

1. trace the development of laws establishing American Indian reservations

2. explain the legal bases for the water rights of American Indian tribes

3. question the legal criteria often used to determine the water rights of American Indian tribes

4. discuss evidence establishing the earliest date at which the federal government recognized the water rights of American Indians

5. point out a legal distinction between different types of American Indian reservations