求问OG上p382的一篇

evelyn205205

OG上p382的一篇关于american indian reservation 的water rights 问题，看不懂，看了两遍，不知道它在讲什么，题目也做不对，有哪位大侠愿意帮我讲讲大意，麻烦啦~

evelyn205205

在此先谢谢各位

evelyn205205

期待各路牛牛中，感谢各路大侠的热情帮助，先谢谢各位啦

wenzibenz

文章逻辑:
p1: Winters case let the supreme court reserve the water rights to American Indians although the previous treaty didn't mention about water rights. Three rules were then derived to judge when to reserve water rights.

P2: An example is given to reserve water right based on traditional diversion but not previous three rules as it doesn't meet above three rules. However this case doesn't object Winter's case as it's a question of practice, not of just legal definition. Hence the water right of Pueblo Indians started from 1848.
题目:
57. Which was true about Fort Belknap Indian Reserv?
A:  a number of times is never mentioned
B: It was never avoided by government.
C: No traditional land resource usage is mentioned except a treaty.
D: Back up Line 6, The treaty didn't mention anything about the water right.
E: It was never modified by Arizona case, instead its application was extended.

58. If 10 -20 were the only rules, which would be true?
A: These three rules are according to Winter's case, hence it won't object itself.
B: no rules against specific time of 1848.
C: Right, as RGP doesn't fullfill these three rules according to P2
D: No rules targeted specifically at American Indians.
E: Not necessary as Winter's case didn't mention explicitly yet it still meet the criteria.

59. the relationship between winter's case and Arizona's case?
Here we need to back to Line 34 & 39, and we understand these two cases are not contrary, Instead Arizona case extended the application of Winter's case as the judgement is a matter of practice, not of only legal practice.

Anser is B.
A: NO competing
C: Arizona is only one of the examples raised to illustrate, ont sole.
D: Arizona's case is an extention of Winter's case.
E: Not only to federal lands, but also water rights.

60. Pragmatic approach in line 37?
Pragmatic approach is referred to Line 34 again: it's a question of practice, not of legal definition. In another words, it's quite flexible to judge from case to case.

A: correct as the definition is just a summary of P2 example.
B: not water rights of all citizens, just for a special groups, besides it is not necessariles refer to water right as it can be any other civil rights.
C: Not relevant and rule 3 mentioned water right reservation should be intended even though not mentioned explicitly.
D: not relevant, never mentioned.
E: not relevant as it's not an approach, besides the courts didn't ignore winter's case.

61: The purpose of the fact"it was never formally withdrawn from public lands"?
P2 is an example which doesn't meet above 3 rules yet still reserves water right, and a few examples were given to explain how RGP doesn't meet above rules. "The fact........"is one of them.

Answer is A
B, C, & D was not the the purpose of this fact.
E conflicts with the meaning of P2 as the courts did claim the water right of RGP.

62. Main idea?
A: no law development was traced, only water right history was explained.
B: correct.
C: no question implied.
D: not the main idea
E: not the main idea.
63, water of citizens other than RGP,
as RGP has the water right over other citizens.
A: other citizens cannot be guaranteed.
B: not abolished, as they still can use the water.
C: may not be deferred, it's possible for them to enjoy the water concurrently with RGP, but RGP may take a larger percentage.
D: no guarantee.
E: true, it's limited, but not abolished, or guaranteed, or totally deferred.



Court held that the right to use waters flowing through
or adjacent to the Fort Belknap Indian Reservation
was reserved to American Indians by the treaty
establishing the reservation. Although this treaty did
not mention water rights

这里enjoyed by the reservation's inhabitants

inhabitants-----American Indians

by-----by

reservation------reservation

对应的关系
确切的说Line 33 之后的几句话要明白: This fact, however, has not barred  (V: 阻止,防碍) application of the winter's case. What constitutes an american Indian reservation is a question of practice, not of legal definition.
从这里我们就知道作者的观点其实例2 和例1 并不违背.
1908年高院裁定FortBerthold保留地的印第安人的对于流经或其附近水源的用水权，而其依据试当初建立保留的的treaty。虽然这个treaty上没有清楚地写明用水权，高院认定当初政府在设立保留地的时候就有意保障印第安人的用水权，否则保留地将因为无水可用而变得荒芜。后来的决定，引用了W这个法案的判定，设定了政府为一些特定的目的留出一些水资源的条件：（1）这些地不在政府的直接管辖范围之内（保留地的同义词）；（2）这些土地从政府的公共用地中单列出来用以其他的特殊目的；（3）政府在设立保留地时也有意保留用水权的意图。

一些印第安部落通过法院的判决享用了用水权，而他们的依据是历史遗留及在美国成立之前他们就享有用水权。RG部落就是这样的一个例子，在1848年新墨西哥成为美国的一部分之前，RG部落就生活在这里。尽管那个时候新墨西哥成为美国的一部分，但是RG的这片土地却从来没有成为过联邦政府的公共用地（暗示不符合上述三种情况的第一种），也没有任何treaty, executive order使得将RG的这片土地设立为保留地。然而这些事实并不影响W条例在RG上的适用性。事实上什么组成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RG的这片土地一向被政府视作保留地。这个方式在1963年Arizona VS California的案例中得以印证，在该案例中高院表示保留地是通过何种方式建立起来的并不影响W对它的适用性。因此，从1848年起，即RG被认为是保留地的那一年开始，RG部落的人都享有优先用水权。
简化:
1908年的一个case引发了之后关于什么样的条件下保留地拥有优先用水权的判定。

但是呢，有一些印第安人部落的情况却不符合这样几个标准（至少文章只提了不符合1，2两种），但是他们一样享有优先用水权，因为他们从一开始就被等同于保留地看待，而这样的一种认识在1963年的一个case中又得以印证。
==================================================
1 winter acknowledged the water rights of indian, not officially expressed, but holding it should be an attached right with the treaty.

2 federal gov can establish the water rights for indian in 3 situation

a. land with water is in a special enclaveing area.(like Shenzhen in China).

b. land with water had been reserved, which can not be bought in the market.(like National park).

3 Rio established its water rights not by treaty, by enclaving area, nor by reserved land. These 3 situations that have been talked above, as I listed. So, it should have no water rights. However, it have, because traditional use of Indian.

4 Arizona law finnaly acknowledged the traditional use of Indian should be another condition in which Indian tribes can established the water rights. The right has been actually established before 1848,the Rio.





我也是找的~呵呵~共同学习~

evelyn205205

啊，很详细啊，谢谢哦