Media Advisory from Felice Pace 28 Maple Road Klamath, Ca. 95548 707-482-0354 unofelice@gmail.com
TO: Media Contacts
RE: “Oregon Recognizes Klamath Tribes Water Rights” - You missed the most significant aspects of this story!
DATE: March 12, 2013
Dear reporters and editors:
All reports that I have seen on the above topic have failed to recognize the most significant aspect of the recent issuance by the State of Oregon of a final proposed final order of determination in the long-running Klamath Adjudication.
Following the approach taken in press releases from the State of Oregon Water Resources Department, the Klamath Tribes and the Klamath Water Users Association (which represents the interests of federal irrigators), media reports have focused on the recognition by Oregon of the Klamath Tribes water rights within the boundaries of their former reservation which was terminated by act of Congress in the 1960s. That was not really news but rather a forgone conclusion given the fact that the Ninth US Circuit and Supreme Court had long ago already affirmed those water rights.
Oregon's only role was to quantify the rights, that is, except for one aspect which most media reports failed to mention: the denial by the State of Oregon of the Klamath Tribes application for water rights outside the boundaries of their former reservation and especially the Tribes' application for water rights in the Klamath River below Klamath Falls.
It is specifically those Klamath River water rights which the Klamath Tribes could use to restore Klamath Salmon to abundance – including restoration to the Upper Klamath River Basin. But judging from their press release, it appears that the Klamath Tribes will not go to court to challenge denial of the water rights necessary to restore the salmon fishing rights which they never relinquished. In fact, they had already given that up by signing the Klamath River Basin Restoration Agreement – the KBRA Water Deal.
Treaty and reserved tribal water rights:
The potential water rights of the Klamath Tribes are different from the potential water rights of tribes in the lower Klamath River Basin including the Yurok Tribe, Hoopa Tribe, Quartz Valley Indian Reservation and Resighini Rancheria. The Klamath Tribes rights are based on a treaty; those other tribal rights are based on the existence of reservations established for those tribes by the federal government (the Karuk Tribe has no reservation or treaty and therefore no water rights).
Those other tribal water rights are “reserved rights” and are governed by one set of law and precedent. The water rights of the Klamath Tribes, however, are based on a treaty and are therefore governed – or should be governed - by treaty law. I say “should be governed” because (unlike the federal courts) state courts have significantly failed to apply treaty law to tribal water rights disputes involving tribes that have treaties with the federal government. You should also be aware that, while the US government negotiated treaties with California tribes and groups of tribes, the treaties were never ratified by Congress.
For a thorough and readable discussion of the potential for treaty rights related to salmon to be used to secure in-stream flows outside the borders of tribal lands see the legal journal article “THE ELUSIVE IMPLIED WATER RIGHT FOR FISH: DO OFF-RESERVATION INSTREAM WATER RIGHTS EXIST TO SUPPORT INDIAN TREATY FISHING RIGHTS? ” at this link: http://www.uidaho.edu/~/media/Files/orgs/Law/law-review/2012-symposium/Bilodeau.ashx
Relationship to the KBRA Water Deal:
Some of you may think that either the Endangered Species Act or the Klamath Basin Restoration Agreement (KBRA) will protect and restore Klamath Salmon and therefore that it is not necessary for the Klamath Tribes (or any of the other tribes with reserved rights to Klamath water) to assert those rights in order to restore Klamath Salmon. That, however, is not true. In fact, the ESA can only secure sufficient flows to keep ESA-listed salmon from going extinct. Bare survival flows are, however, a far cry from the flows needed to recover Klamath Salmon to the level of abundance to which those Klamath River Basin tribes with reservations and the one tribe with treaty rights have a right.
The same is true of the KBRA Water Deal: flows that parties to that agreement seek to lock in through Congressional action are bare minimum survival flows and are not sufficient to recover Klamath Salmon to the level required by treaty and reserved rights. The magnitude of recovery flows have not been determined. However, the National Research Council's second independent Klamath Science Report had as its main recommendation the “basin-wide flow assessment” needed to quantify salmon recovery flows. The recommendation has not been implemented because it is not in line with the disposition of water in the KBRA Water Deal.
What this means is that those tribes which have treaty or reserved rights to Klamath Water and which have also signed the KBRA Water Deal have abandoned recovery of Klamath Salmon in favor of the other considerations – including funding for restoration projects and other tribal government functions – included in the KBRA.
The Proper Context:
The proper context for reporting on the latest Oregon water rights filing in the Klamath Adjudication is the era of Indian Water Rights Settlements which we are smack dab in the middle of and have been since the late 1980's. The dominant spin on those agreements (which the media has almost always reflected) is that the settlements are in the interest of the tribes which are making them – as well as other water users.
While the devil is definitely in the details of each agreement, I have argued in High Country News (http://www.hcn.org/greenjustice/blog/water-thieves-or-water-saviors) that historians will look back at these settlements as the second great rip-off of Indigenous Native Peoples located within the US. Professor McCool of Utah State (http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1287&context=jcwre) and most other academics – as well as the Native American Rights Fund - think the settlements are in the interest of the tribes. Here's a link to the standard argument for the “this is best for the Indians and others” arguments: http://uttoncenter.unm.edu/pdfs/American_Indian_Water_Right_Settlements.pdf
Both positions may, in fact, be true: The settlements may be in the interest of tribal governments while not being in the interest of the people (present and future generations) who are members of that tribe. There is a way to get a read on that. I have proposed to members of Congress that a cost benefit analysis be required for all proposed settlements in which tribes give up rights to water. The Present Net Value of all costs and benefits to each party would be calculated by independent economists and would be made available to tribal members voting on whether or not to approve the settlement proposed by their tribal government. I think such analysis would reveal that most tribal governments have negotiated away water rights worth billions for the modern equivalent of a handful of beads.
The KBRA has embedded within it a tribal water settlement. That proposed settlement involves not only the Klamath Tribes but also the reserved rights of other signatory tribes (Yurok Tribe) as well as termination of the federal trust responsibility for protecting the water rights of all 6 Klamath River Basin tribes with respect to the federal Bureau of Reclamation's Klamath Irrigation Project – including the private irrigation interests which use that Project's water.
The KBRA water settlement may be in the interest of the government of the Klamath Tribes and that tribe's members – that is for them to judge, not me. In recent reports on the Oregon Adjudication and in most other reporting on Klamath Water issues, however, promoters of the KBRA - including spokespersons for the Klamath Tribes - claim the KBRA is in the interest of the Klamath River and Klamath Salmon. As explained above, I do not believe the facts support that claim.
Too many in the media assume that what is good for Klamath River Basin tribal governments is also good for the Klamath River and Klamath Salmon. Making that assumption is a mistake. I have worked for several tribal governments; like any government the top priority is the needs of the government apparatus. Ordinarily, that good trumps the good of the people, the good of the River, the good of Klamath Salmon.
In the KBRA, the Klamath Tribes agree to forgo exercising their water rights in a manner that negatively impacts the federal Klamath Irrigation Project. In exchange, the Tribes would receive federal funding to purchase a tree farm from a timber corporation and other considerations including a salmon hatchery. The Klamath Tribes (3 tribal ethnic groups; one tribal government) has a right to do whatever it wants to do with its water rights; I fully support that right. The Klamath Tribes' government, however, should not claim that its preferred way of using those rights – foregoing exercising them in exchange for taxpayer funding to purchase industrial forestlands – is in the interest of the Klamath River or Klamath Salmon.
Based on salmon science, even the salmon hatchery called for in the KBRA is not in the salmon's interest. But that is a separate topic.
If your media outset would like a news analysis article or Op-ed along the lines of what I have written above give me a call at 707-954-6588. But in any case please report on the important issue that has been (so far) overlooked in media reports on Oregon's latest action in the Klamath Adjudication.
Thank you for the Great information Felice.
I would like to state that The Modoc Nation has never agreed to give up any water rights, The Klamath Tribe did a behind closed door signing without any approval. Even since that time they have repeatedly lied to the enrolled members of their group stating that the Modoc's water rights are not given up! This is a horrible injustice that has been going on since the Modoc's were forced on a same reservation of their enemy's. These enemy's have the Modoc's out numbered 10-1 so any vote would never turn out in favor of the Modoc's. This is an ongoing case of forced genocide that was started by the Federal Government and is now continuing to this very day by the Klamath Tribe. They pretty it up by calling themselves the Klamath Tribes, now they are even going as far as saying "Confederated Tribes" another lie. This is why in 2010 we voted and approved our own Constitution and adopted The Unanimous Declaration of The Modoc Nation, which is based on the United Nations Declaration on the Rights of Indigenous Peoples. We then voted in our own Government which stands today!
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