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abhijit_s_2000 · Thu Aug 02, 2007 7:58 pm

Here goes a passage from GMAT SET and two questions that I got wrong. I would appreciate if you can suggest a strategy for these questions:

In Winters vs United States (1908), the Supreme Court held that the right to use waters flowing through or adjacent to the Fort Berthold Indian reservations was reserved to American Indians by the treaty establishing the reservation. Although this treaty did not establish the water rights, the court ruled that the Federal Government, when it created the reservation, intended to deal fairly with the 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for purposes if (1) the land in question lies in an enclave under exclusive federal jurisdiction (2) the land has been withdrawn from federal public lands i.e. withdrawn form stock of federal lands available for private use under federal land use laws - and set aisde or reserved, and (3) the circumstances revealed the government intended to reserve water as well as land when establishing the reservation.
Some American Indian have also established water rights through the courts based on their traditional diversion and use of certain waters prior to acquisition Unites States' acquisition of sovereignty. For example Rio Grande pueblos already existed with the United States acquired sovereignty over New Mexico in 1848.Although they at that time became part of United States, the pueblo lands never formally constituted a part of federal public lands; in any event, no treaty, statue or executive order has withdrawn the pueblos from the public lands as American Indian reservations. This fact has however not barred application of the Winters doctrine. What constitutes a 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 vs California (1963) wherein the Supreme court indicated that the manner in which any type of federal is created does not affect the application to it of the Winters doctrine. Therefore the reserved water rights of pueblo Indians have a priorty over other citizen's water rights as of 1848, the year in which pueblos must be considered to have become reservations

Questions:

Question#1: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 <ST1:COUNTRY-REGIoN w:st="on">United States</ST1:COUNTRY-REGIoN> 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

Question#2: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?

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.

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beatthegmat · Thu Aug 02, 2007 8:41 pm

Moved to RC section. In the future, please post subject-matter queries to the appropriate forums, not the GMAT Strategy forum.

Thanks!

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