gwd 10-25 急！

scorpio0001

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formally withdrawn from federal

public lands — i.e., withdrawn from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or withdrawn the pueblos from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。

[此贴子已经被作者于2005-3-15 15:24:39编辑过]

scorpio0001

我并没有觉得原文对第二段持否定态度。我不知道C如何错，A又如何对。