GWD-10-Q25-Q28 N-3-Q20-Q23N-2-Q23-Q26 G-10-Q25-Q28

In Winters v. United States(1908), the Supreme Court held that the right to use waters flowing through oradjacent to the Fort Berthold Indian Reservation was reserved to AmericanIndians by the treaty establishing the reservation. Although this treaty didnot mention water rights, the Court ruled that the federal government, when itcreated the reservation, intended to deal fairly with American Indians bypreserving for them the waters without which their lands would have beenuseless. Later decisions, citing Winters, established that courts can find federalrights to reserve water for particular purposes if (1) the land in questionlies within an enclave under exclusive federal jurisdiction, (2) the land hasbeen formally withdrawn from federal public lands — i.e., withdrawn from thestock of federal lands available for private use under federal land use laws —and set aside or reserved, and (3) the circumstances reveal the governmentintended to reserve water as well as land when establishing the reservation.

Some American Indian tribes havealso established water rights through the courts based on theirtraditional diversion and use of certain waters prior to the United States’acquisition of sovereignty. For example, the Rio Grande pueblos already existedwhen the United States acquired sovereignty over New Mexico in 1848. Althoughthey at that time became part of the United States, the pueblo lands neverformally constituted a part of federal public lands; in any event, no treaty,statute, or executive order has ever designated or withdrawn the pueblos frompublic lands as American Indian reservations. This fact, however, has not barredapplication of the Winters doctrine. What constitutes an American Indian reservation is a question ofpractice, not of legal definition, and the pueblos have always been treated asreservations by the United States. This pragmatic approach is buttressed byArizona v. California (1963), wherein the Supreme Court indicated that themanner in which any type of federal reservation is created does not affect theapplication to it of the Winters doctrine. Therefore, the reserved water rightsof Pueblo Indians have priority over other citizens’ water rights as of 1848,the year in which pueblos must be considered to have become reservations.

逻辑简图：

1P: (1908)in Winters, supremecourt held that the right was reserved by treaty…

Later decisions find …1), 2),3)….

2P: some Indian tribes alsoestablished water rights… For example, RGP…. However, has not barredapplication of Winters. This pragmatic approach is buttressed by AVC….Therefore, rights of P have priority over other citizen’s rights….

第一段：1908 年，在某个例案中，高级法院根据一项关于建立印第安人保留区的treaty, 规定联邦政府必须保证保留区内印第安人的水权。之后，又作出了详细的规定，规定在以下 三种情况下联邦政府可行使该项权利：1、...2、...3、...

第二段：RG 这样一个印第安地区，虽然不符合以上1、2 两种情况(情况3 没有讨论)，但事实上也遵循了winter doctrine. 因为，尽管没有正式的文件，但RG 一直都被联邦政府 视为保留区....最后，还有一个1963 年的法律规定联邦政府设立保留区的方式并不影响到这种保留区遵循winter doctrine，因此，最终确定了RG 的水权。

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GWD-10-Q25 N-3-Q20 G-10-Q25:

The author cites the fact thatthe Rio Grande pueblos were never formally

withdrawn from public landsprimarily in order to do which of the following?

Suggest why it might have beenargued that the Winters doctrine ought not to apply to pueblo lands

Imply that the United Statesnever really acquired sovereignty over pueblo lands

Argue that the pueblo lands oughtstill to be considered part of federal public lands

Support the argument that thewater rights of citizens other than American Indians are limited by the Wintersdoctrine

Suggest that federal courtscannot claim jurisdiction over cases disputing the traditional diversion anduse of water by Pueblo Indians

GWD-10-Q26 N-3-Q21 G-10-Q26:

The passage suggests that, if thecriteria discussed in lines 16 – 32 were the only criteria for establishing areservation’s water rights, which of the following would be true?

The water rights of theinhabitants of the Fort Berthold Indian Reservation would not take precedenceover those of other citizens.

Reservations established before1848 would be judged to have no water rights.

There would be no legal basis forthe water rights of the Rio Grande pueblos.

Reservations other than AmericanIndian reservations could not be created with reserved water rights.

Treaties establishingreservations would have to mention water rights explicitly in order to reservewater for a particular purpose.

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GWD-10-Q27 N-3-Q22 G-10-Q27:

According to the passage, whichof the following was true of the treaty establishing the Fort Berthold IndianReservation?

It was challenged in the SupremeCourt a number of times.

It was rescinded by the federalgovernment, an action that gave rise to the Winters case.

It cited American Indians’traditional use of the land’s resources.

It failed to mention water rightsto be enjoyed by the reservation’s inhabitants.

It was modified by the SupremeCourt in Arizona v. California.

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N-3-Q23 G-10-Q28:

The primary purpose of thepassage is to trace the development of laws establishing American Indianreservations explain the legal bases for the water rights of American Indiantribes question the legal criteria often used to determine the water rights ofAmerican Indian tribes discuss evidence establishing the earliest date at whichthe federal government

recognized the water rights ofAmerican Indians point out a legal distinction between different types ofAmerican Indian reservations