The "pragmatic approach" mentioned in hightlight text of the passage is best defined as what?

Question

The "pragmatic approach" mentioned in hightlight 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
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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if (1) the land in question lies within an enclave under exclusive federal jurisdiction, (2) the land has been formally withdrawn from federal public lands — i.e., withdrawn from the stock of federal lands available for private use under federal land use laws — and set aside or reserved, and (3) the circumstances reveal the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.

Answer 1

The correct answer is A.

The passage states that what constitutes an American Indian reservation is a matter of practice and not a matter of legal definition. The pueblos were not legally created reservations; however, they were always treated as reservations by the federal government. Later the passage says that the manner in which a type of federal reservation does not matter. The reservations could have been created by law or by established by practice, both valid. The pragmatic approach is the one that grants recognition to reservations that were never formally established but had always been treated as such.

 

B is incorrect.

Determining the water rights of all the citizens in a region based on the actual history of water use is not the pragmatic approach. The pragmatic approach is concerned with what constitutes a reservation, and that it is so if it had been treated as one by the federal government. It is not a requirement that a reservation must have been established legally.

 

C. The pragmatic approach is not what gives the federal courts the right reserve water along with land even when it is clear that the federal government intended to reserve only the land. It is related to the approach that a pueblo may be considered a reservation even when it is not legally established. It is enough if the pueblo had been treated as a reservation. 

 

D. A decision about the legal rights of a group based on the the practical effects of recognizing those rights is not the pragmatic approach. The view that what constitutes an American Indian reservation is not a matter of legal definition but a question of practice is the practical approach.

 

E. The practical approach doesn't dictate that the courts ignore such precedents as the Winters case. It considers any land an Indian reservation even though not set aside by law, if the land or pueblo or village had been treated as a reservation by the federal government.