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 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formally withdrawn from federal

public lands — i.e., withdrawn from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 avail-

able 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 exec-

utive order has ever designated

or withdrawn the pueblos from

 (50)        public lands as American Indian

reservations.  This fact, how-

ever, 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.

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