gwd 10-25 急！

另有讨论链接，我发在18楼，因为位置太靠后， 所以我在这里再发一下。

http://forum.chasedream.com/dispbbs.asp?boardid=25&star=2&replyid=672547&id=68499&skin=0&page=1

In Winters v. United States

(1908), the Supreme Court held

that the right to use waters flow-

ing through or adjacent to the

(5) 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

(10) 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

(15) their lands would have been use

less. Later decisions, citing

Winters, established that courts

can find federal rights to reserve

water for particular purposes if

(20) (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formally withdrawn from federal

public lands — i.e., withdrawn from

(25) 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

(30) intended to reserve water as well

as land when establishing the

reservation.

Some American Indian tribes

have also established water rights

(35) 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

(40) 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

(45) 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or withdrawn the pueblos from

(50) public lands as American Indian

reservations. This fact, however,

has not barred application

of the Winters doctrine. What

constitutes an American Indian

(55) 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

(60) 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

(65) 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,

(70) the year in which pueblos must

be considered to have become

Q25:

The author cites the fact that the Rio Grande pueblos were never formally withdrawn from public lands primarily in order to do which of the following?

A. Suggest why it might have been argued that the Winters doctrine ought not to

apply to pueblo lands

B. Imply that the United States never really acquired sovereignty over pueblo lands

C. Argue that the pueblo lands ought still to be considered part of federal public

lands

D. Support the argument that the water rights of citizens other than American Indians are limited by the Winters doctrine

E. Suggest that federal courts cannot claim jurisdiction over cases disputing the

traditional diversion and use of water by Pueblo Indians

我认为此题应该选C，正确答案是A。 我并不认同3楼的观点，引用如下：

我想，做这篇文章的关键是要看到作者对第二段开头的那个观点（印地安人在美国政府建立之前就在那片土地上生活，所以，最高法院的那些原则不适用于印地安人）持否定态度。

我认为第2段是对第1段所提的3点适用范围的以外适用情况的解释，所以应选C。

另外，请注意如下高亮部分：　

reservations. This fact, however,

has not barred application

of the Winters doctrine. What

constitutes an American Indian

(55) reservation is a question of

practice, not of legal definition,

and the pueblos have always

been treated as reservations by

the United States.

另附我认同的１１楼的段落大意：　

第一段：1908年，在某个例案中，高级法院根据一项关于建立印第安人保留区的treaty,规定联邦政府必须保证保留区内印第安人的水权。之后，又作出了详细的规定，规定在以下三种情况下联邦政府可行使该项权利：1、...2、...3、...

第二段：RG这样一个印第安地区，虽然不符合以上1、2两种情况（情况3没有讨论），但事实上也遵循了winter doctrine. 因为，尽管没有正式的文件，但RG一直都被联邦政府视为保留区....最后，还有一个1963年的法律规定联邦政府设立保留区的方式并不影响到这种保留区遵循winter doctrine，因此，最终确定了RG的水权。

I vote the answer A. Something below is what I think:

in the first sentence, the author tells us that "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. " In the second paragragh, the author tells us that 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. Then the author cites the fact suggest why it might have been auged that Winters doctrine ought not to apply to pueblo lands, as answer A states.

Furthermore, the author began to describe, however, this fact has not barred application of the Winters doctrine.

For example, the Rio Grande
(40) 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
(45) 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
(50) public lands as American Indian
reservations. This fact, however,
has not barred application
of the Winters doctrine.

蓝色的部分以及前面的铺垫说：以前没有把RG作为federal public lands的一部分，也（注意那个分号！！！），没有任何法规把RG withdraw from federal public lands。

黄色highlight部分说：但是这个事实不能阻止Winters条例的应用。（也就是说，这些事实可以反对，但是还不够，作者后面有强大的理由来反对。）

然后后面继续解释：

What constitutes an American Indian
(55) reservation is a question of
practice, not of legal definition,
and the pueblos have always
been treated as reservations by
the United States.

因此选A，和全文主旨一致。

C不是作者叙述的重点。也不是其想表达的内容。

I vote A. The first sentence of P2 states that Some American Indian tribes have also established water rights (35) through the courts based on their traditional diversion and use of certain waters prior to the United States’ acquisition of sovereignty. The legal base is different from the 3 criteria mentioned in the first paragraph. So it suggests that even there are some criteria can not be met then some tribes still can reserve water rights.  Then P2 provides example of Rio Grande to illustrate this point. Explaining that Rio Grande doesn't meet the first and second criteria, the author asserts that This fact, however,  has not barred application of the Winters doctrine because it is a problem of practice and pragmatic use but not of legal definition.

so The author cites the fact that the Rio Grande pueblos were never formally withdrawn from public lands primarily in order to . Suggest why it might have been argued that the Winters doctrine ought not to apply to pueblo lands because it does not meet the second criteria.

If as C says that the pueblo lands ought still to be considered part of federal public lands, then it contracdict with the paragraph: Although they at that time became part of the United States, the pueblo lands (45) never formally constituted a part of federal public lands.

that's the reason I chose A. Open to discuss.

I chose A. The first sentence of the second paragraph states that Some American Indian tribes have also established water rights (35) through the courts based on their traditional diversion and use of certain waters prior to the United States’ acquisition of sovereignty.  The legal base is different from any of the 3 criteria mentioned in the first paragraph. So it suggests that even none of the criteria is met then some indian tribes can reserve the water right. Then the author provides the example of Rio Grande tribe to illustrate this point. Explaining that Rio Grande tribe case does't meet the first and second criteria, the author then asserts that This fact, however, has not barred application of the Winters doctrine because the water rights is a problem of practice and pragmatic use but not of legal definition.

So The author cites the fact that the Rio Grande pueblos were never formally withdrawn from public lands primarily in order to Suggest why it might have been argued that the Winters doctrine ought not to apply to pueblo lands because it does not meet the second criteria

If as C said that Argue that the pueblo lands ought still to be considered part of federal public lands, then it contradicts the passage:  Although they at that time became part of the United States, the pueblo lands (45) never formally constituted a part of federal public lands.

嗯，应该是A了。