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if (1)the land in question lies within an enclave under exclusive federal jurisdiction; (2)the land has been formally withdrawn from federal lands available for private use under federal land use laws-and set aside or reserved; and (3)the circumstances reveal the government intended to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a part of federal public lands; in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations.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

 It can be inferred from the passage that the Winters doctrine has been used to establish which of the following

A rule that the government may reserve water only by explicit treaty or agreement

 A legal distinction between federal lands reserved for American Indians and federal lands reserved for other purposes

Criteria governing when the federal government may set land aside for a particular purpose
The special status of American Indian tribe’s rights to reserved land

The federal right to reserve water implicitly as well as explicitly under certain conditions





A选项: 一个规定——政府只能通过明确的条款建立水权:与原文相反,Winters并没有明确提到水权。




在特定情况下联邦可以明确或者不明确的保留土地:与原文一致。Winters的特点就是即使“not mention water right”,也保留了水权。


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