文/  北京新东方学校 北美部GMAT项目组 李昊 周帆

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　　(Line) In Winters v. United States (1908), the Supreme

　　Court 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

　　(5) 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

　　(10) 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

　　(15) withdrawn from federal public lands — i.e., withdrawn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

　　(20) 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

　　(25) 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

　　(30) 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　　ever designated or withdrawn the pueblos from public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

　　(35) 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

　　(40) 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

　　(45) considered to have become reservations.