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深度解析GMAT阅读经典难题-【印第安水权】

作者:锦鲤哥     2021-03-24 17:33:57     60浏览
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阅读原文


In Winters v. United States (1908), the SupremeCourt held that the right to use waters flowing through 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if (1) the land in question lies within an enclave under exclusive federal jurisdiction, (2) the land has been formally withdrawn from federal public lands - i.e., withdrawn from the stock of federal lands available for private use under federal land use laws - and set aside or reserved, and (3) the circumstances reveal the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constituted a part of federal public lands;in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos from public lands as American Indian reservations.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.


背景剖析



1、英美法系:

又称普通法法系或者海洋法系。它首先产生于英国,后扩大到曾经是英国殖民地、附属国的许多国家和地区,包括美国、加拿大以及非洲的个别国家和地区。 英美法系的主要特点是注重法典的延续性,以判例法(简单解释判例法就是以前怎么判,现在还是怎么判)为主要形式。


2、飞地:

一种特殊的人文地理现象,指隶属于某一行政区管辖但不与本区毗连的土地。通俗地讲,如果某一行政主体拥有一块飞地,那么它无法取道自己的行政区域到达该地,只能"飞"过其他行政主体的属地,才能到达自己的飞地。


① 外飞地(Exclave): 某国家拥有一块与该国分离开来的领土,该领土被其他国家隔开,则该领土称为某国的外飞地。


② 内飞地(Enclave):某国家国境之内有块地区的主权属于别的国家,则该地区是这国家的内飞地,也同时是握有主权国家的外飞地。


③ 印第安保留地(Indian reservation):印第安保留地是由土著北美部落管理的地区,由美国内政部印第安事务局负责。因为土著北美部落有有限的国家主权,保留地内的法律不同于周围地区。


④ 水权(water rights):水权对于美国印第安人尤其重要。



文章逻辑结构



In Winters v. United States (1908), the Supreme Court held that the right to use waters flowing 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.

(1.本文主题:印度安人使用水权问题;观点:最高法院认为,如果没有水权,印第安人的土地也无法发挥很大作用,因此水权归属于保留地印第安人—根据winters案件)


♦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.♦(特殊情况可使待裁决地区保留水权:a.待裁决地区位于联邦独家管辖区域的飞地 b.待裁决地区曾被联邦公共用地中分离—比如为了合法的私人用途,从联邦地区分离 c.政府建立保留地时特地保留水权和土地权)


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. (2.由于历史原因,印第安部落在美国建国之前就开始使用一些水域,因此他们如今可获得此水权。)


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. (a.举RG的例子支持2.的阐述:RG地区在美国建立之前就存在,因此从来不是联邦公共用地。)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. (b.美国印第安属地的问题更多考量的是实际情况,而不是法律问题。)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. (c.另一Arizona案件也是支持上述说法。)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.(总结:因此,印第安部

落水权优先于公民水权。)


题目探讨



1. 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 modified by the Supreme Court in Arizonav. California.

 原文定位: “Although this treaty did not mention water rights ”因此D选项符合描述


2. The passage suggests that, if the criteria discussed in lines 10–20 [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.]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.

裁决水权均是通过实践考量,而并未通过法律程序。因此C选项符合描述。


3.Which of the following most accurately summarizes the relationship between Arizona v. California in textbuttressed 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. , and the criteria citing the Winters doctrine in the last sentence of first paragraph?

(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 defined 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.

Arizona将winter的试用范围扩展了。因此B选项符合描述。


4.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

原文定位“Although this treaty did not mention water rights”因此A选项符合描述

 



5. The primary purpose of the passage is to

(A) trace the development of laws establishing American Indian reservations

(B) explain the legal basis 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

A选项仅仅阐述了文章关于印第安保留区的建立,以偏概全

B选项符合全文描述,主要阐述水权对于印第安人的法律基础

CDE选项均属于无中生有,文章并未谈到。

 



6. The passage suggests that the legal rights of citizens other than American Indians to the use of water flowing 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

原文定位“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. ”因此E为正确选项。

 



7. The "pragmatic approach" mentioned in  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


原文定位:“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. ”A 是本句的同义改写。





 






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