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In Winters v. United States (1908)， the SupremeCourt held that the right to use waters flowing through through or adjacent to the 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 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 their lands would have been useless. Later decisions， citing Winters， established that courts can find federal rights to reserve water for particular purposes if (1) the land in question lies within an enclave under exclusive federal jurisdiction， (2) the land has been formally withdrawn from federal public lands - i.e.， withdrawn from the stock of federal lands available for private use under federal land use laws - and set aside or reserved， and (3) the circumstances reveal the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 intended to reserve water as well as land when establishing the reservation.

Some American Indian tribes have also established water rights 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 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 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constituted a part of federal public lands；in any event， no treaty， statute， or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations. This fact， however， has not barred application of the Winters doctrine. What constitutes an American Indian 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 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 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， the year in which pueblos must be considered to have become reservations.

背景剖析

1、英美法系：

又稱普通法法系或者海洋法系。它首先產(chǎn)生于英國，后擴大到曾經(jīng)是英國殖民地、附屬國的許多國家和地區(qū)，包括美國、加拿大以及非洲的個別國家和地區(qū)。 英美法系的主要特點是注重法典的延續(xù)性，以判例法(簡單解釋判例法就是以前怎么判，現(xiàn)在還是怎么判)為主要形式。

2、飛地：

一種特殊的人文地理現(xiàn)象，指隸屬于某一行政區(qū)管轄但不與本區(qū)毗連的土地。通俗地講，如果某一行政主體擁有一塊飛地，那么它無法取道自己的行政區(qū)域到達該地，只能"飛"過其他行政主體的屬地，才能到達自己的飛地。

① 外飛地(Exclave): 某國家擁有一塊與該國分離開來的領土，該領土被其他國家隔開，則該領土稱為某國的外飛地。

② 內飛地(Enclave):某國家國境之內有塊地區(qū)的主權屬于別的國家，則該地區(qū)是這國家的內飛地，也同時是握有主權國家的外飛地。

③ 印第安保留地（Indian reservation）：印第安保留地是由土著北美部落管理的地區(qū)，由美國內政部印第安事務局負責。因為土著北美部落有有限的國家主權，保留地內的法律不同于周圍地區(qū)。

④ 水權（water rights）：水權對于美國印第安人尤其重要。

文章邏輯結構

In Winters v. United States (1908), the Supreme 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, the Court ruled that the federal government, when it created the reservation, intended to deal fairly with American Indians by reserving for them the waters without which their lands would have been useless. （1.本文主題：印度安人使用水權問題；觀點：最高法院認為，如果沒有水權，印第安人的土地也無法發(fā)揮很大作用，因此水權歸屬于保留地印第安人—根據(jù)winters案件）

♦Later decisions, citing Winters, established that courts can find federal rights to reserve water for particular purposes if (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 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 intended to reserve water as well as land when establishing the reservation.♦（特殊情況可使待裁決地區(qū)保留水權：a.待裁決地區(qū)位于聯(lián)邦獨家管轄區(qū)域的飛地 b.待裁決地區(qū)曾被聯(lián)邦公共用地中分離—比如為了合法的私人用途，從聯(lián)邦地區(qū)分離 c.政府建立保留地時特地保留水權和土地權）

Some American Indian tribes have also established water rights through the courts based on their traditional diversion and use of certain waters prior to the United States` acquisition of sovereignty. （2.由于歷史原因，印第安部落在美國建國之前就開始使用一些水域，因此他們如今可獲得此水權。）

For example, the Rio Grande 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 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 public lands as American Indian reservations. （a.舉RG的例子支持2.的闡述：RG地區(qū)在美國建立之前就存在，因此從來不是聯(lián)邦公共用地。）This fact, however, has not barred application of the Winters doctrine. What constitutes an American Indian reservation is a question of practice, not of legal definition, and the pueblos have always been treated as reservations by the United States. （b.美國印第安屬地的問題更多考量的是實際情況，而不是法律問題。）This pragmatic 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 affect the application to it of the Winters doctrine. （c.另一Arizona案件也是支持上述說法。）Therefore, the reserved water rights of Pueblo Indians have priority over other citizens` water rights as of 1848, the year in which pueblos must be considered to have become reservations.（總結：因此，印第安部落水權優(yōu)先于公民水權。）

題目探討

1. According to the passage, which of the following was true of the treaty establishing the Fort Belknap Indian Reservation?

（A）.It was challenged in the Supreme Court a number of times.

（B）It was rescinded by the federal government, an action that gave rise to the Winters case.

（C）It cited American Indians` traditional use of the land`s resources.

（D）It failed to mention water rights to be enjoyed by the reservation`s inhabitants.

（E）It was modified by the Supreme Court in Arizonav. California.

 原文定位： “Although this treaty did not mention water rights ”因此D選項符合描述

2. The passage suggests that, if the criteria discussed in lines 10–20 [Later decisions, citing Winters, established that courts can find federal rights to reserve water for particular purposes if (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 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 intended to reserve water as well as land when establishing the reservation.] were the only criteria for establishing a reservation’s water rights, which of the following would be true?

(A) The water rights of the inhabitants of the Fort Belknap Indian Reservation would not take precedence over those of other citizens.

(B) Reservations established before 1848 would be judged to have no water rights.

(C) There would be no legal basis for the water rights of the Rio Grande pueblos.

(D) Reservations other than American Indian reservations could not be created with reserved water rights.

(E) Treaties establishing reservations would have to mention water rights explicitly in order to reserve water for a particular purpose.

裁決水權均是通過實踐考量，而并未通過法律程序。因此C選項符合描述。

3.Which of the following most accurately summarizes the relationship between Arizona v. California in text 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 affect the application to it of the Winters doctrine. , and the criteria citing the Winters doctrine in the last sentence of first paragraph?

（A）Arizona v. California abolishes these criteria and establishes a competing set of criteria for applying the Winters doctrine.

（B）Arizona v. California establishes that the Winters doctrine applies to a broader range of situations than those defined by these criteria.

（C）Arizona v. California represents the sole example of an exception to the criteria as they were set forth in the Winters doctrine.

（D）Arizona v. California does not refer to the Winters doctrine to justify water rights, whereas these criteria do rely on the Winters doctrine.

（E）Arizona v. California applies the criteria derived from the Winters doctrine only to federal lands other than American Indian reservations.

Arizona將winter的試用范圍擴展了。因此B選項符合描述。

4.The author cites the fact that the Rio Grande pueblos were never formally withdrawn from public lands primarily in order to do which of the following?

(A) Suggest why it might have been argued that the Winters doctrine ought not to apply to pueblo lands

(B) Imply that the United States never really acquired sovereignty over pueblo lands

(C) Argue that the pueblo lands ought still to be considered part of federal public lands

(D) Support the argument that the water rights of citizens other than American Indians are limited by the Winters doctrine

(E) Suggest that federal courts cannot claim jurisdiction over cases disputing the traditional diversion and use of water by Pueblo Indians

原文定位“Although this treaty did not mention water rights”因此A選項符合描述

5. The primary purpose of the passage is to

(A) trace the development of laws establishing American Indian reservations

(B) explain the legal basis for the water rights of American Indian tribes

(C) question the legal criteria often used to determine the water rights of American Indian tribes

(D) discuss evidence establishing the earliest date at which the federal government recognized the water rights of American Indians

(E) point out a legal distinction between different types of American Indian reservations

A選項僅僅闡述了文章關于印第安保留區(qū)的建立，以偏概全

B選項符合全文描述，主要闡述水權對于印第安人的法律基礎

CDE選項均屬于無中生有，文章并未談到。

6. The passage suggests that the legal rights of citizens other than American Indians to the use of water flowing into the Rio Grande pueblos are

(A) guaranteed by the precedent set in Arizona v. California

(B) abolished by the Winters doctrine

(C) deferred to the Pueblo Indians whenever treaties explicitly require this

(D) guaranteed by federal land-use laws

(E) limited by the prior claims of the Pueblo Indians

原文定位“Therefore, the reserved water rights of Pueblo Indians have priority over other citizens’ water rights as of 1848, the year in which pueblos must be considered to have become reservations. ”因此E為正確選項。

7. The "pragmatic approach" mentioned in  text of the passage is best defined as one that
(A) grants recognition to reservations that were never formally established but that have traditionally been treated as such
(B) determines the water rights of all citizens in a particular region by examining the actual history of water usage in that region
(C) gives federal courts the right to reserve water along with land even when it is clear that the government originally intended to reserve only the land
(D) bases the decision to recognize the legal rights of a group on the practical effect such a recognition is likely to have on other citizens
(E) dictates that courts ignore precedents set by such cases as Winters v. United States in deciding what water rights belong to reserved land

原文定位：“What constitutes an American Indian reservation is a question of practice, not of legal definition, and the pueblos have always been treated as reservations by the United States. ”A 是本句的同義改寫。