基于美国独立之前就在使用的原有分水渠，一些美国印第安人也通过法院确立了用水权。例如，1984年美国获得对新墨西哥州统治权之前，Rio Grande普韦布洛印第安人就聚居在那里。虽然，普韦布洛在1984年成为了美国的一部分，但是他们的土地从来未正式成为联邦公用地的一部分；没有任何活动、协约、法令或行政命令指明普韦布洛脱离联邦政府作为保留地。然而，这些事实并不影响Winters法案的适用性。事实上建立保留地只是一个实际操作问题，而不是法律定义的问题，因为普韦布洛一向被政府认为是保留地。这种实际操作在1963年Arizona V. California法案中得到支持，在该法案中最高法院表示保留地是通过何种方式建立起来的并不影响Winters法案对对它的适用性。因此，从1848年起，即普韦布洛被认定为保留地的那一年开始，普韦布洛部落的人就享有优先用水权。
Below is from OG12-RC-chadrer的小安总结, share with you guys, and hope this could help:
Line In Winters v. United States (1908), the Supreme Court held that the right to use waters ?owing through or adjacent to the Fort Belknap Indian Reservation was reserved to American Indians by the treaty (5) establishing the reservation . Although this treaty did 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 (10) lands would have been useless. Later decisions, citing Winters, established that courts can ?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the land in question lies within an enclave under exclusive federal jurisdiction, (2) the land has been formally (15) withdrawn from federal public lands —i.e., withdrawn from the stock of federal lands available for private use under federal land use laws—and set aside or reserved, and (3) the circumstances reveal the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 (20) when establishing the reservation. 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 (25) example, the Rio Grande 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 never formally constituted a part of federal public lands; in (30) any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations.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 (35) reservation is a question of practice, not of legal de?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 (40) in which any type of federal reservation is created 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 (45)considered to have become reservations.
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发表于 2012-8-11 08:01:50
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