GWD-10-Q25 to GWD-10-Q28:
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 useless.
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formally withdrawn from federal
public lands — i.e., withdrawn from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.很清楚提出三種狀況下,政府可以出面:管轄之外、獨立於聯邦土地之外、以及保護水及土地的時候
本以為紅字很重要,結果沒考
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. (在美國政府宣稱有主權之前使用,原住民也可以訴求水權,暗示沒有 law也行)
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or withdrawn the pueblos from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.(提醒這裡是第一段三條件的例外) This fact, however(再次轉折,
明顯是轉回第一段的語氣),
has not barred (記得我第一次錯就是沒有體會到bar的正確用法,這是指不受winter學說的影響)application
of the Winters doctrine. 簡單來說,就是指除了第一段的三大條件外,
有些特例也是行的通的,而且這些特例,即使沒有立法,10-25有題
也不影印弟安人的水權 What
constitutes an American Indian
(55) reservation is a question of
practice, not of legal definition,
and the pueblos have always (重點10-26有題)
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. (進一步講這個例外不牴觸winter的學說)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.