mSKR wrote:
Quote:
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 The author cites the fact that the Rio Grande pueblos were never formally withdrawn from public lands primarily in order to do which of the following?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 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
Hi
AndrewN sir
This is one of the toughest passage. I hope you are not busy today
. I am just worried as this is RC query which you usually don't prefer over CR and SC . Kindly don't take it as burdensome.
Please reply at your convenience time. No hurry:)
Relevant passage text
In Winters v. United States (1908), the Supreme Court held that the right to use waters flowing 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the land in question lies [s]within an enclave [/s]under exclusive federal jurisdiction, (2) the land has been formally withdrawn from federal public lands — i.e., withdrawn from the stock of federal lands available for private use under federal land use laws — and set aside or reserved, and (3) the circumstances reveal the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.//
When I pre-thought this question, I thought that reference to Rio Grande (RG) is to mention that even federal rights were not explicity applicable but it meant to be applicable because of the intention/purpose.
We can get the meaning from the sentence:
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.It seems even RG was not directly under federal jurisdiction but the water rights seemed to apply to them .
I shortlisted:
Quote:
(A) Suggest why it might have been argued that the Winters doctrine ought not to apply to pueblo lands
I rejected A because later it is mentioned that
pueblos have always been treated as reservations by the United States.. It seems winters doctrine SHOULD APPLY
Quote:
(C) Argue that the pueblo lands ought still to be considered part of federal public lands
Winters doctrine can be applied if it is considered as part of federal public lands.
I read the explanations above. I understood all options and no confusion in passage but don't know why I still chose C and rejected A.
I took a long time to understand this passage and was able to get correct 2nd to 8th but missed on 1st.
Your inputs would be fruitful.
Thanks
AndrewN sir
Hello,
mSKR. Congratulations on getting almost all the questions right from this tough passage. I kid you not, I was just discussing it with a client yesterday, illustrating, by way of the end of the first paragraph, why focusing on the details rather than big-picture ideas (authorial presence, the
why behind the
what) can work against you in RC. Your timing, then, could not be better.
Speaking to the question at hand, we need to focus on
the author to answer it correctly.
Why does the author mention the content of the question? And the answer lies in stitching together two lines you have drawn attention to yourself, one part in
bold, the other in
blue.
Quote:
[T]he [Rio Grande] pueblo lands never formally constituted a part of federal public lands... This fact, however, has not barred application of the Winters doctrine.
I talk sometimes in my posts on RC questions about the importance of following transitions, or what I call the "transition trail" of a passage. The
however really cues us in on the relationship that
the author means to convey between the two lines here, which is to say that
even though the lands never actually belonged to the US government, the Winters doctrine would still apply. The only reason to add the second line is to clarify a matter that a reader might assume would be the opposite—i.e. if the US government had never actually designated the land a reservation, then how could it apply the Winters doctrine to the case? If we look at (A), we find all the hallmarks of a correct answer:
Quote:
(A) Suggest why it might have been argued that the Winters doctrine ought not to apply to pueblo lands
First, the content is a perfect match to what I just discussed above, the relationship I outlined between the two lines from the passage. Moreover, notice the soft language:
suggest,
might have been. We cannot argue that the language itself is overreaching, adopting a definitive stance when a more moderate one is called for. Look at (C) by comparison:
Quote:
Argue that the pueblo lands ought still to be considered part of federal public lands
Is the author making such an argument? It seems to me that the author is hoping to allow the reader to appreciate instead that the Winters doctrine is still applicable. If we break down that crucial paragraph one step at a time, the picture should be clear.
Quote:
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.
- The first sentence presents a fact.
- The second sentence provides an example that builds from the previous line.
- The third line presents another fact, the one we have discussed above about pueblo lands, and the part of the sentence after the semicolon tells us that the pueblos are still technically public lands.
- The fourth sentence comments on the previous one, and the however is crucial to understanding the way the sentences play off each other.
- The fifth and last line explains why application of the Winters doctrine should not be barred.
In short, (C) is arguing the wrong point, not one that the author of the passage seeks to make. The author wants to explain why the Winters doctrine would apply in the case at hand with the pueblos, not why the pueblos are designated one way (as public lands) instead of another (as reservations).
I hope that helps clarify the matter. Thank you for thinking to ask.
- Andrew
_________________
Please use
official questions from the Official Guide or Verbal Review to practice for the Verbal section.
03 Dec 2020, 21:40
close
