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2016 OG RC 59-65

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Crystal W Master | Next Rank: 500 Posts Default Avatar
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2016 OG RC 59-65

Post Mon Jun 20, 2016 7:09 pm
Elapsed Time: 00:00
  • Lap #[LAPCOUNT] ([LAPTIME])
    In Winters v. United States (1908), the Supreme Court held that the right to use waters flowing 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if (1) the land in question lies within an enclave under exclusive federal jurisdiction, (2) the land has been formally withdrawn from federal public lands - i.e., withdrawn from the stock of federal lands available for private use under federal land use laws - and set aside or reserved, and (3) the circumstances reveal the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constituted a part of federal public lands; in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations.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.

    I have two questions about this article. First, can someone explain the function of that author list that three particular purposes? Winters claims that reservation residents have water rights, and Later decisions, citing Winters, established that courts can find federal rights to reserve water for particular purposes if said the government gets water rights. But why it says "citing Winters"? I guess the government gets water rights and then grant to Indian Reservation. Am I correct? But where the government get the water right, public or private or somewhere else? I am really confused about this.
    Second, in the second paragraph, I underline two sentences. Do they mean this Rio Grande pueblos is neither public land nor Indian Reservation in definition, but it is treated as an Indian Reservation in practice?
    Thanks in advance?

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    Crystal W Master | Next Rank: 500 Posts Default Avatar
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    Post Mon Jun 20, 2016 7:24 pm
    Also, I have another question. I believe the first sentence of the second paragraph is not the main sentence of the second paragraph. I believe the example and details discussion after For Example is only about use of certain waters prior to the United States' acquisition of sovereignty. Am I correct?
    Thanks in advance!

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