gwd 10 25-28 就是机经里印第安人用水权的文章,大家讨论一下

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formally withdrawn from federal

public lands — i.e., withdrawn from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or withdrawn the pueblos from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

reservations.

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

Answer: A Why?

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Q26:

The passage suggests that, if the criteria discussed in lines 16 – 32 were the only criteria for establishing a reservation’s water rights, which of the following would be true? 推理

A. The water rights of the inhabitants of the Fort Berthold Indian Reservation would not take precedence over those of other citizens.

B. Reservations established before 1848 would be judged to have no water rights.

C. There would be no legal basis for the water rights of the Rio Grande pueblos.

D. Reservations other than American Indian reservations could not be created with

reserved water rights.

E. Treaties establishing reservations would have to mention water rights explicitly in order to reserve water for a particular purpose.

Answer C, I choose E

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Q27:

According to the passage, which of the following was true of the treaty establishing the Fort Berthold Indian Reservation?

A. It was challenged in the Supreme Court a number of times.

B. It was rescinded by the federal government, an action that gave rise to the Winters case.

C. It cited American Indians’ traditional use of the land’s resources.

D. It failed to mention water rights to be enjoyed by the reservation’s inhabitants.

E. It was modified by the Supreme Court in Arizona v. California.

Answer: D

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Q28:

The primary purpose of the passage is to

A. trace the development of laws establishing American Indian reservations

B. explain the legal bases for the water rights of American Indian tribes

C. question the legal criteria often used to determine the water rights of American

Indian tribes

D. discuss evidence establishing the earliest date at which the federal government recognized the water rights of American Indians

E. point out a legal distinction between different types of American Indian

reservations

Answer D, I choose B

明白了，所以２５题是Ａ．

可是２６题和２８题呢？

我选B，B是对的呀。另外，答案给的不是B吗？

C. There would be no legal basis for the water rights of the Rio Grande pueblos.

E. Treaties establishing reservations would have to mention water rights explicitly in order to reserve water for a particular purpose.

26题应该选C。根据题意，如果这些标准是唯一标准，RG的水权就没有了，文中说考虑到他们在建国前就存在了，所以他们还是有水权；E是明显的干扰项，文中没有说和部落签订的条约要明确水权，或者说如果用其它法律形式规定好了的水权问题，在和部落的协定中其实应该可以不再涉及了。

以下是引用roberta在2004-10-24 17:19:00的发言：
加亮的部分里的withdraw怎么理解呢？是说印第安保留地被正式地从联邦公共陆地收回吗？不太明白保留地和public land到底是什么关系？哪位NN可以翻译一下这句话“(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, ”。
in any event, no treaty, statute, or executive order has ever designated or withdrawn  the pueblos from (50) public lands as American Indian reservations.
不行了。。。偶已经绕不出来了。。。呜呜。。请NN帮忙啊，谢谢谢谢了！！！

把withdrawn 当作 reserved 看，意思就会很清楚了

第1亮:大致说从公共用地抽出来变成印安保留区，后面的set aside/reserved精确的意思可能不尽相同，但主要就是"保留、与联邦公共用地区隔"之类的
第2亮:Rio印安村从来都没有被当作印安保留地。

你可能会觉得，那Rio不就不适用第1段最高法院的标准了??-->是的，作者写第2段，就是要说明另一种给印安用水的作法，51行的howere开始，说明了认定的标准是务实弹性的，并不是完全以法律死板定调的。

了解这就可以回答25/26两题了