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借用了部分以前的翻译. 一直没有看明白最后一句话.
某保留地通过最高法庭确认了用水权Winters 文案，依据是建立保留地时的treaty。虽然treaty没提用水权，但是从人性角度来说显然应该包括。但是后来，法庭还核准在三种特定情况下联邦可以保留用水权，（2th: 从联邦政府明文退出的地盘）。
某些部落也是通过法庭确认了用水权，依据是联邦建立前部落就在使用这块地所以有使用权。接下来举例: RG pueblo建立的早，它的地从来都不是联邦的地。他也不属于formally 退出过联邦政府(不符合那种特定情况2). 什么构成一个American Indian reservation 不过是一个操作问题, 而不是法律概念问题. (实际重于形式 : 所谓的 pragmatic approach) . Arizona California Supreme court 支持了这种说法, 任何联邦保留地的形成方式不影响Winters 实施. Therefore, pueblo的用水权要优先于一般公民至1848, 在那年pueble已经被视为保留地.
既然联邦政府把P归类为一般保留地, 那为何P部落的用水权就优于other citizen's water rightt? 所以也不太明白Q62
In Winters v. United States (1908), the Supreme
Court held that the right to use waters fl owing through
or adjacent to the Fort Belknap Indian Reservation
was reserved to American Indians by the treaty
establishing the reservation. Although this treaty did 5
not mention water rights, the Court ruled that the
federal government, when it created the reservation,
intended to deal fairly with American Indians by
reserving for them the waters without which their
lands would have been useless. Later decisions, citing 10
Winters, established that courts can fi nd federal rights
to reserve water for particular purposes if (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withdrawn from federal public lands—i.e., withdrawn 15
from the stock of federal lands available for private
use under federal land use laws—and set aside or
reserved, and (3) the circumstances reveal the
government intended to reserve water as well as land
when establishing the reservation. 20
Some American Indian tribes have also established
water rights 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 pueblos already existed when 25
the United States acquired sovereignty over New
Mexico in 1848. Although they at that time became
part of the United States, the pueblo lands never
formally constituted a part of federal public lands; in
any event, no treaty, statute, or executive order has 30
ever designated or withdrawn the pueblos from public
lands as American Indian reservations. This fact,
however, has not barred application of the Winters
doctrine. What constitutes an American Indian
reservation is a question of practice, not of legal 35
defi nition, and the pueblos have always been treated
as reservations by the United States. This pragmatic
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 40
does not 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, the year in which pueblos must be
considered to have become reservations. 45
62. The passage suggests that the legal rights of citizens
other than American Indians to the use of water
fl owing into the Rio Grande pueblos are
(A) guaranteed by the precedent set in Arizona v.
California
(B) abolished by the Winters doctrine
(C) deferred to the Pueblo Indians whenever treaties
explicitly require this
(D) guaranteed by federal land-use laws
(E) limited by the prior claims of the Pueblo Indians
OA:E |
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发表于 2013-9-29 16:09:09
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