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 reserving 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 purpose if (1)the land in question lies within an enclave under exclusive federal jurisdiction; (2)the land has been formally withdrawn from federal lands available for private use under federal land use laws-and set aside or reserved; and (3)the circumstances reveal the government intended to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constituted a part of federal public lands; in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations.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.

The “pragmatic approach” mentioned in the highlighted text of the passage is best defined as one that

grants recognition to reservations that were never formally established but that have traditionally been treated as such

determines the water rights of all citizens in a particular region by examining the actual history of water usage in that region

give 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

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

dictates that courts ignore precedents set by such cases as Winters v. United States in deciding what water rights belong to reserved land


文章推断题:高亮的“pragmatic approach(重实效的方法)”可以被定义为?

原文中,这个重实效的方法指“保留地的定义不是基于legal definition,而是基于实际情况”。



B选项:通过研究历史上这一地区水的实际使用情况来判决这个地区的所有居民的水权:这个方法针对的是印第安人,而不是“all citizens”。





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