小女子真心跪求大牛 解析OG12th P382 阅读第十二篇 难难难

九天仙女

这篇文章CD中很多人都不懂，但是也没有详细的解析，后面的OG解释的也云里雾里的，对我的GMAT阅读产生了巨大的打击。跪求大牛们能解析下~拜托了。

也就57 和61 能勉强理解下，剩下的逻辑都很乱。文章看懂了，OG 解释看懂了，题目也看懂了，就是做不对的dilemma。


In Winters v. United States (1908), the Supreme
Court held that the right to use waters fl owing through
or adjacent to the Fort Belknap 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 fi nd 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withdrawn from federal public lands—i.e., withdrawn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ever designated or withdrawn the pueblos from public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
defi nition, 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.

57. According to the passage, which of the following was
true of the treaty establishing the Fort Belknap 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 modifi ed by the Supreme Court in Arizona
v. California.


58. The passage suggests that, if the criteria discussed in
lines 10–20 were the only criteria for establishing a
reservation’s water rights, which of the following would
be true?
(A) The water rights of the inhabitants of the Fort
Belknap 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.

59. Which of the following most accurately summarizes
the relationship between Arizona v. California in lines
38–42, and the criteria citing the Winters doctrine in
lines 10–20?
(A) Arizona v. California abolishes these criteria and
establishes a competing set of criteria for
applying the Winters doctrine.
(B) Arizona v. California establishes that the Winters
doctrine applies to a broader range of situations
than those defi ned by these criteria.
(C) Arizona v. California represents the sole example
of an exception to the criteria as they were set
forth in the Winters doctrine.
(D) Arizona v. California does not refer to the Winters
doctrine to justify water rights, whereas these
criteria do rely on the Winters doctrine.
(E) Arizona v. California applies the criteria derived
from the Winters doctrine only to federal lands
other than American Indian reservations.


60. The “pragmatic approach” mentioned in lines 37–38
of the passage is best defi ned 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

61. 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


62. 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


63. The passage suggests that the legal rights of citizens
other than American Indians to the use of water
fl owing into the Rio Grande pueblos are
(A) guaranteed by the precedent set in Arizona v.
California
(B) abolished by the Winters doctrine
(C) deferred to the Pueblo Indians whenever treaties
explicitly require this
(D) guaranteed by federal land-use laws
(E) limited by the prior claims of the Pueblo Indians

多有感谢~大牛们造化无量啊

jcking

同问～～这篇我也没看懂～～GWD上也出现了好几次的

yidiyuehan

这个题目之前讨论很多次的,LZ 可以搜索下, 当时我也是错的稀里糊涂的.

这里就顺便温习下来和LZ 一起学习拉:
文章逻辑:
p1: Winters case let the supreme court reserve the water rights to American Indians although the previous treaty didn't mention about water rights. Three rules were then derived to judge when to reserve water rights.

P2: An example is given to reserve water right based on traditional diversion but not previous three rules as it doesn't meet above three rules. However this case doesn't object Winter's case as it's a question of practice, not of just legal definition. Hence the water right of Pueblo Indians started from 1848.

题目:
57. Which was true about Fort Belknap Indian Reserv?
A:  a number of times is never mentioned
B: It was never avoided by government.
C: No traditional land resource usage is mentioned except a treaty.
D: Back up Line 6, The treaty didn't mention anything about the water right.
E: It was never modified by Arizona case, instead its application was extended.

58. If 10 -20 were the only rules, which would be true?
A: These three rules are according to Winter's case, hence it won't object itself.
B: no rules against specific time of 1848.
C: Right, as RGP doesn't fullfill these three rules according to P2
D: No rules targeted specifically at American Indians.
E: Not necessary as Winter's case didn't mention explicitly yet it still meet the criteria.

59. the relationship between winter's case and Arizona's case?
Here we need to back to Line 34 & 39, and we understand these two cases are not contrary, Instead Arizona case extended the application of Winter's case as the judgement is a matter of practice, not of only legal practice.

Anser is B.
A: NO competing
C: Arizona is only one of the examples raised to illustrate, ont sole.
D: Arizona's case is an extention of Winter's case.
E: Not only to federal lands, but also water rights.

60. Pragmatic approach in line 37?
Pragmatic approach is referred to Line 34 again: it's a question of practice, not of legal definition. In another words, it's quite flexible to judge from case to case.

A: correct as the definition is just a summary of P2 example.
B: not water rights of all citizens, just for a special groups, besides it is not necessariles refer to water right as it can be any other civil rights.
C: Not relevant and rule 3 mentioned water right reservation should be intended even though not mentioned explicitly.
D: not relevant, never mentioned.
E: not relevant as it's not an approach, besides the courts didn't ignore winter's case.

61: The purpose of the fact"it was never formally withdrawn from public lands"?
P2 is an example which doesn't meet above 3 rules yet still reserves water right, and a few examples were given to explain how RGP doesn't meet above rules. "The fact........"is one of them.

Answer is A
B, C, & D was not the the purpose of this fact.
E conflicts with the meaning of P2 as the courts did claim the water right of RGP.

62. Main idea?
A: no law development was traced, only water right history was explained.
B: correct.
C: no question implied.
D: not the main idea
E: not the main idea.
63, water of citizens other than RGP,
as RGP has the water right over other citizens.
A: other citizens cannot be guaranteed.
B: not abolished, as they still can use the water.
C: may not be deferred, it's possible for them to enjoy the water concurrently with RGP, but RGP may take a larger percentage.
D: no guarantee.
E: true, it's limited, but not abolished, or guaranteed, or totally deferred.

九天仙女

感谢ing，非常感谢。

看了您的解析，是能明白，不过，是建立在您对文章的理解程度上的，我的理解还达不到您的程度。您能具体解释下 是文章中的哪个词让您有这样的理解吗？因为我觉得很多理解都是看作者或者是文章的某个或某些个特定的词，一下子就到位了。多谢

另外，从哪里可以找到讨论帖呢？这个论坛吗？就这个阅读板块吗？

PS：1. 58题，到底是要干什么啊，问如果10-20是条件，怎样怎样的，10-20本来就是条件啊~这有什么意思。理解不到。

      2.59题，60题。从哪里看出 Arizona 和 winters doctrine的关系的。Arizona不是还说 not legal defination嘛~ 就是没关系啊。

    3.62题，正确选项B和错误选项C 之间的区别是， explian-question; leagl bases-legal criter。Arizona 说的not legal defination 不就是 legal criter吗？

多谢解释，如果再回答上面的问题，正的是太棒了。。我现在对这篇文章已经有免疫了，一看就头疼，一看就发昏，昏昏欲睡的。。

yidiyuehan

我也是读了很多遍之后再看别人的讨论才慢慢理解这篇文章的, 我觉得考试的时候如果遇到那就只能说太"走运"拉.  因为这个是法律文章, 又比较长. 不过马后炮之后来想想其实就两段文章,两个例子, 首先就是要明白这两个例子的关系. 通过第二个例子的后半部分可以知道第二个是和第一个例子的条件不一样,但是结果一样,最终都确定了 water right, 当然还可能有其他的情况的条件也可能确定 water rights.

确切的说Line 33 之后的几句话要明白: This fact, however, has not barred  (V: 阻止,防碍) application of the winter's case. What constitutes an american Indian reservation is a question of practice, not of legal definition.
从这里我们就知道作者的观点其实例2 和例1 并不违背.

要是还不明白我建议也学学NN的方法,自己做几次逻辑总结, 之后就应该差不多拉.


这个应该是GWD 的一个题,不好意思我忘记题号了所以搜索不出来, 这里贴出来之前一个大N 的中文/ 英文分析, 相信之后你应该就了然于胸拉.:

1908年高院裁定FortBerthold保留地的印第安人的对于流经或其附近水源的用水权，而其依据试当初建立保留的的treaty。虽然这个treaty上没有清楚地写明用水权，高院认定当初政府在设立保留地的时候就有意保障印第安人的用水权，否则保留地将因为无水可用而变得荒芜。后来的决定，引用了W这个法案的判定，设定了政府为一些特定的目的留出一些水资源的条件：（1）这些地不在政府的直接管辖范围之内（保留地的同义词）；（2）这些土地从政府的公共用地中单列出来用以其他的特殊目的；（3）政府在设立保留地时也有意保留用水权的意图。

一些印第安部落通过法院的判决享用了用水权，而他们的依据是历史遗留及在美国成立之前他们就享有用水权。RG部落就是这样的一个例子，在1848年新墨西哥成为美国的一部分之前，RG部落就生活在这里。尽管那个时候新墨西哥成为美国的一部分，但是RG的这片土地却从来没有成为过联邦政府的公共用地（暗示不符合上述三种情况的第一种），也没有任何treaty, executive order使得将RG的这片土地设立为保留地。然而这些事实并不影响W条例在RG上的适用性。事实上什么组成保留地只是一个实际操作问题，而不是法律定义的问题，因为RG的这片土地一向被政府视作保留地。这个方式在1963年Arizona VS California的案例中得以印证，在该案例中高院表示保留地是通过何种方式建立起来的并不影响W对它的适用性。因此，从1848年起，即RG被认为是保留地的那一年开始，RG部落的人都享有优先用水权。
简化:
1908年的一个case引发了之后关于什么样的条件下保留地拥有优先用水权的判定。

但是呢，有一些印第安人部落的情况却不符合这样几个标准（至少文章只提了不符合1，2两种），但是他们一样享有优先用水权，因为他们从一开始就被等同于保留地看待，而这样的一种认识在1963年的一个case中又得以印证。
==================================================
1 winter acknowledged the water rights of indian, not officially expressed, but holding it should be an attached right with the treaty.

2 federal gov can establish the water rights for indian in 3 situation

a. land with water is in a special enclaveing area.(like Shenzhen in China).

b. land with water had been reserved, which can not be bought in the market.(like National park).

3 Rio established its water rights not by treaty, by enclaving area, nor by reserved land. These 3 situations that have been talked above, as I listed. So, it should have no water rights. However, it have, because traditional use of Indian.

4 Arizona law finnaly acknowledged the traditional use of Indian should be another condition in which Indian tribes can established the water rights. The right has been actually established before 1848,the Rio.

yidiyuehan

同时下面是对于之前疑问的探讨, 一起讨论才能更清晰:-)
PS：1. 58题，到底是要干什么啊，问如果10-20是条件，怎样怎样的，10-20本来就是条件啊~这有什么意思。理解不到。

这道题目意思就是如果10-20 是确立水权的唯一条件的话,下面哪个才是对的.  (the only criteria). 而文中给出的第一个例子是根据这三个条件成立的, 但是第二个例子并不符合这三个条件. 显而易见答案就是说第二个例子的结论不成立.
 
2.59题，60题。从哪里看出 Arizona 和 winters doctrine的关系的。Arizona不是还说 not legal defination嘛~ 就是没关系啊。
这个在上面已经解释拉, 这个题目关键是要明白第1段和第二段的关系, 为什么作者给了两个例子.

   3.62题，正确选项B和错误选项C 之间的区别是， explian-question; leagl bases-legal criter。Arizona 说的not legal defination 不就是 legal criter吗？

这里要注意动词, C 是说 question ( 置疑), 二而作者只是阐述之前的两个事实,并没有置疑任何东西.

rainyhower

妈的, 看了4遍后,才大概看懂, 做了下题,对下和yidiyuehan的答案, 还是错了2个,

这种文章在考试中见到, 就4翘翘了.

rainyhower

yidiyuehan 翻译的真不错, 看了后,我了解更透彻

九天仙女

嘿嘿~多谢 多谢

看完中国果真了解很多了。原来看完英文懂的和中文懂的还是不一样呢~

厉害~

我会努力的~

kayx0226

这一题确实是难啊。。。感觉是GMAT最难的阅读。。。