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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withdrawn from federal public lands—i.e., withdrawn 15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ever designated or withdrawn the pueblos from public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
58.The passage suggests that, if the criteria discussed in lines 10-20 were the only criteria for establishing a reservation's water rights,which of the following would be true?
A The water rights of the inhabitants of the Fort Belknap Indian Reservation would not take precedence over those of other citizens.
B Reservations established before 1848 would be juged to have no water rights.
C There would be nolegal basis for the water rights of the Rio Grande pueblos.
D Reservations other than American Indian reservations could not be created with reserved water rights.
E Treaties establishing reservations would have to mention water rights explicitly in order to reserve water for a particular purpose.
答案:C 请NN帮忙解释另外4个为啥错了 望能详细点 还有C答案 好多前辈的帖子中指出 C不符合W法案后来补充的3个条件 2,3确实不符合 1为啥就不符合了 再说了C答案明确的指出是后面35行（not of legal definition）跟这三个条件无关啊 为啥能选C 望NN解答 目前已入坑 爬不上来了~~~ |
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发表于 2012-9-7 15:56:01
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