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仔细阅读了NN们的贴子,理解了意思,但是我发现自己读来读去有一个误区,希望得到指教。 文章大意是:在Winters Vs. United States案例中,高院认为印地安人应保有水权……其后确立了如果Federal在满足以下三个条件时,可以保留水权:1)、2)、3)。在RG案例中,虽然不符合上述条件,但是可以适用于Winters规定。因为RG虽然没有正规确立为保留地,但实际上一直被作为保留地(符合了条件2)。所以RG有水权。 我的困惑听起来很傻。看了许多大N的解释以及提供的美国西部水权的背景知识,看来联邦政府是与印地安人是同一战线的:当有别的公民要从印地安人那里争水时,联邦政府可以保留水权,即是为印地安人保留水权。 但是我自己的理解是,从一开始那句 Winters Vs. United States起,我就把联邦政府当作与印地安人对立了。我以为第一个案例是高院把水权保留给了印地安人(而不是联邦政府),因为联邦政府在建立保留地时就表明要公平对待印地安人(因此不能联邦政府不能从印地安人那里剥夺水权)。 所以我读到后面全乱了。如果联邦政府与印地安是对立面,后面就变成,在条件1-3)的情况下,联邦政府可以有水权(而印地安人没有)。第二段在RG案例中,RG其实符合条件2),所以RG有水权(而根据我的理解RG就应该没有水权)。 我现在知道我的理解是讲不通的,但能不能有人指点一下,如何一下子就看出来,联邦政府是为印地安人保留水权,而非保留水权不给印地安人。 多谢多谢!
In Winters v. United States (1908), the Supreme Court held that the right to use waters flow- ing through or adjacent to the (5) Fort Berthold Indian Reservation was reserved to American Indians by the treaty establishing the reservation. 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(1) the land in question lies within an enclave under exclusive federal jurisdiction, (2) the land has been formally withdrawn from federal public lands — i.e., withdrawn from (25) the stock of federal lands available for private use under federal land use laws — and set aside or reserved, and (3) the circumstances reveal the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constituted a part of federal public lands; in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from (50) public lands as American Indian reservations.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. |