Friday, April 26, 2013
Meeting on April 18th in Klamath Falls, ruffels Klamath's feathers!
Apparently the Klamath Tribes do not wish the truth to get out about selling off rights that their own constitution said they were to protect. The Modoc people have been controlled in the "Tribes" for so long and any vote is always swung by the majority which is the Klamath people, not the Modoc people. This is another example of what forced Reservations did to many native tribes.
The Government put enemies on the same reservation in hopes they would kill each other off.
It has taken 150 years but the Klamath's have almost accomplished what they were put in place to do.
Another clear case of Genocide!
The BIA also new when they recommended the Government structure to the "Tribes" that a single government that would not fairly represent all Three tribes stuck together would fail. The 1/4 Blood quantum too was imposed by them. They have since stated that the 1/4 Blood Quantum is not up to
them to decide and all native tribes are to be self governed but the Klamath's know they have the upper hand in their compromised government and will never change.
We as Modoc's know the truth and wish all Modoc's to know this too!
Felice Pace has offered a solution and makes it clear that selling off rights is not the way to bring
back our Salmon. Thanks for your efforts Felice, we too are working on saving our rights!
http://klamblog.blogspot.com/2013/04/pace-on-kbra-there-is-better-way.html?spref=fb
Monday, April 15, 2013
For those who are suffering from Cancer!
I'm not saying this is what you should do but I think if you have lost a loved one
from cancer, you will understand why I'm posting this.
If you or someone you know has been diagnosed with cancer you should look
at this website and decide for yourselves if this is something you should try.
I believe that this is a cure and it has been kept from us because of the Greed of
the Drug Company's. www.phoenixtears.ca
Phoenix Tears
Sunday, April 14, 2013
The Klamath Adjudication and the KBRA meeting on 4/18/13
On Thursday evening April 18th KlamBlog editor and long-time Klamath River activists Felice Pace will present “The Klamath Adjudication and the KBRA: Implications for tribal water rights, fish and wildlife” at the Klamath County Museum in Klamath Falls. The presentation – along with follow up q&a and discussion - will take place between 7 and 9 PM. The Klamath County Museum is located at 1451 Main Street in Klamath Falls, Oregon. The public is invited to attend.
This would be a good time for those who oppose the KBRA to attend!
All Modoc's please attend!
This would be a good time for those who oppose the KBRA to attend!
All Modoc's please attend!
Friday, April 12, 2013
KlamBlog: The Final Facilities Removal EIS/EIR and the polit...
KlamBlog: The Final Facilities Removal EIS/EIR and the polit...: With recent distribution of the Klamath Facilities Removal Final Environmental Impact Statement/Environmental Impact Report , the analysis ...
Thursday, April 11, 2013
What others are saying about the KBRA & KHSA deal!
The Information is from the ( KLAMATH
FACILITES REMOVAL FINAL ENVIRONMENTAL IMPACT STATEMENT/ENVIRONMENTAL IMPACT
REPORT) EXECUTIVE SUMMARY, The pages are not numbered,
Table ES-8 Summary of Controversies and Issues raised by Agencies and the Public.
Under issues,
KBRA Effects - The KBRA may not produce enough social and economic benefits from implementation.
KBRA Effects on Environmental Justice and Federal Trust Responsibilities - The KBRA would result in the “Termination” of Tribal fishing and water rights and the Federal Trust Responsibilities for those rights
Table ES-8 Summary of Controversies and Issues raised by Agencies and the Public.
Under issues,
KBRA Effects - The KBRA may not produce enough social and economic benefits from implementation.
KBRA Effects on Environmental Justice and Federal Trust Responsibilities - The KBRA would result in the “Termination” of Tribal fishing and water rights and the Federal Trust Responsibilities for those rights
In KBRA section 15.3.9 the United
States agrees it will not assert tribal or fishing rights in a matter that
would interfere with the diversion of water for the Klamath Irrigation Project
that is authorized by the KBRA that termination of the governments trust
responsibility would become lawful by enacting section 106(f) of the proposed
legislation.
The KBRA would terminate the Federal governments existing trust responsibility to protect the tribes rights!!!
This is the reason the other tribes on the Klamath mainly the Hoopa's didn't enter into the agreement!
Read the attorney Thomas Schlosser:
Dewatering Trust responsibility: the new Klamath River hydroelectric and restoration agreements.
The KBRA would terminate the Federal governments existing trust responsibility to protect the tribes rights!!!
This is the reason the other tribes on the Klamath mainly the Hoopa's didn't enter into the agreement!
Read the attorney Thomas Schlosser:
Dewatering Trust responsibility: the new Klamath River hydroelectric and restoration agreements.
I like how Hoopa's wants to get dams
removed for salmon by the normal FERC PROCESS! Thus no liability for taxpayers!
They've had a profitable run, dam leasers all these many decades! Now these agreements let Pacific Corp off the hook!
I think back when Klamaths had the salmon lawsuit that was undermined in my opinion by individual tribal members that during the litigation process had no business taking trips to Scotland and working with Pacific corps during that time!
Now this individual has helped master mind the KBRA agreement that will cost the tribes millions to establish an infrastructure for low wage jobs on Mazama tree farm and I'm sure with government funding if legislation passes, low wage jobs for habitat restoration which is speculatively doubtful can bring back the resources of fish, game and gathering to support natives as the treaty had provided! And it will cost millions to taxpayers who have nothing to do with this agreement!
It's shameful that this agreement helps agriculture to get water to a few beneficiaries who in the event their crops or business fail subsidies and tax write offs are available!
The damned Indians, who are not able to have a decent standard of living left in the reservation boundaries that are left from their treaty, hunting fishing rights, get welfare cheese and commodities to supplement in the event a member is not self supporting!
During forced termination the boundaries were minimized,
Compensation was not going to carry any member into financial stability without knowledge or help as was experienced!
Shouldn't this agreement guarantee to its members adequate native subsistence of the resources found in the treaty! Just as water is guaranteed for agriculture and businesses?
Instead it's easy to predict the outcome of who have and will benefit in the Klamath tribes from this agreement! Shameful and another page of history!
Oh yes the tribe has a casino, but as any business is subject to failure and should not be considered the path to financial self sufficiency! Members of the tribe can help change business situation but a change of the people who dont have the will or experience to make it better with those that can need to be a part of it.
This tribe does deserve what treaty rights allow, just as the sovereign nation of the U.S would expect what their treaties allow.
They've had a profitable run, dam leasers all these many decades! Now these agreements let Pacific Corp off the hook!
I think back when Klamaths had the salmon lawsuit that was undermined in my opinion by individual tribal members that during the litigation process had no business taking trips to Scotland and working with Pacific corps during that time!
Now this individual has helped master mind the KBRA agreement that will cost the tribes millions to establish an infrastructure for low wage jobs on Mazama tree farm and I'm sure with government funding if legislation passes, low wage jobs for habitat restoration which is speculatively doubtful can bring back the resources of fish, game and gathering to support natives as the treaty had provided! And it will cost millions to taxpayers who have nothing to do with this agreement!
It's shameful that this agreement helps agriculture to get water to a few beneficiaries who in the event their crops or business fail subsidies and tax write offs are available!
The damned Indians, who are not able to have a decent standard of living left in the reservation boundaries that are left from their treaty, hunting fishing rights, get welfare cheese and commodities to supplement in the event a member is not self supporting!
During forced termination the boundaries were minimized,
Compensation was not going to carry any member into financial stability without knowledge or help as was experienced!
Shouldn't this agreement guarantee to its members adequate native subsistence of the resources found in the treaty! Just as water is guaranteed for agriculture and businesses?
Instead it's easy to predict the outcome of who have and will benefit in the Klamath tribes from this agreement! Shameful and another page of history!
Oh yes the tribe has a casino, but as any business is subject to failure and should not be considered the path to financial self sufficiency! Members of the tribe can help change business situation but a change of the people who dont have the will or experience to make it better with those that can need to be a part of it.
This tribe does deserve what treaty rights allow, just as the sovereign nation of the U.S would expect what their treaties allow.
Wednesday, April 10, 2013
The Hoopa Tribe has it right!
Ismail Serageldin, former vice president of the World Bank in 1999 said, "The wars of the next century will be about water." In Indian Country, many of the battles of the last century have been over water, as tribes battle to retain fish populations for sustenance and to retain their cultures. Now, as population growth and global warming threaten the nations water supplies, states like California and Oregon are ramping up the pressure to overturn laws protecting fisheries and rivers so that they can divert more water to thirsty desert cities and farms. But conservation could serve the same purpose.
Battles over the peripheral tunnels, which plan to ship more water south, and Klamath River rage on even as reports are released showing current water supplies cannot keep up with consumption and species are on the edge of extinction. In the mist of this bleak news many of the tribal water battles of the past are being resolved. In case after case it is being established that tribes are the senior water rights holders in many of the rivers in the west. One of the most important developments is that instream flows for tribal trust species’ habitat, such as habitat for Chinook salmon, green sturgeon and pacific lamprey, can be protected using tribal rights; the rights are not to water alone. These decisions are creating real possibilities for large-scale river restoration where tribes still hold water and fishing rights. Therefore tribal rights benefit all those fighting for fish.
This is why we have fought to retain and use our water and fishing rights. Tribal water rights coupled with fisheries science has been a successful combination in restoring salmon on the Trinity River, the Klamath River’s largest tributary. The same combination could work on the Klamath too.
We urge all of those who care about salmon to look at tribal rights, not as a bargaining tool, but as a way to restore salmon populations and justice to our communities. Recent arguments that exercising rights can provoke violence and takes too long, and should therefore be sacrificed in settlement, could apply to every historic struggle for social justice.
Those who care about fisheries and social justice should reject the current Klamath Basin Restoration Agreement (KBRA). Under existing law, the U.S. ensures that irrigation does not interfere with tribes’ senior water rights. Legislation is required to change water rights, but not to remove dams. KBRA Section 15.3.9 asserts tribal water rights will not interfere with the Klamath Project even though therefore any attempt by a tribe to assert its rights against the river’s dewatering would be trumped by the KBRA, even for Tribes that did not sign the agreement. Couple this with the fact that the KBRA allows flows that are much lower then current ESA mandated flows, and that the KBRA lasts for fifty years and it is apparent the agreement gives up too much.
The KBRA process formed important alliances and water sharing discussions that can continue into the future. However, it does not have congressional momentum and even the most ardent supporters of the KBRA have recently admitted dam removal can move forward through simple FERC agreements and the KBRA’s main purpose is to create a soft landing for farmers when tribal rights and other laws take effect in the Klamath.
We cannot sacrifice the very rights tribes have fought for generations to preserve and give up the best tool for restoring the Klamath River and salmon can’t wait 50 year for water. Science, not politics and back room agreements, need to mandate Klamath River flows. It is time for justice and science to rule on the Klamath River.
Hayley Hutt is a councilwoman for the Hoopa Valley Tribe.
Battles over the peripheral tunnels, which plan to ship more water south, and Klamath River rage on even as reports are released showing current water supplies cannot keep up with consumption and species are on the edge of extinction. In the mist of this bleak news many of the tribal water battles of the past are being resolved. In case after case it is being established that tribes are the senior water rights holders in many of the rivers in the west. One of the most important developments is that instream flows for tribal trust species’ habitat, such as habitat for Chinook salmon, green sturgeon and pacific lamprey, can be protected using tribal rights; the rights are not to water alone. These decisions are creating real possibilities for large-scale river restoration where tribes still hold water and fishing rights. Therefore tribal rights benefit all those fighting for fish.
This is why we have fought to retain and use our water and fishing rights. Tribal water rights coupled with fisheries science has been a successful combination in restoring salmon on the Trinity River, the Klamath River’s largest tributary. The same combination could work on the Klamath too.
We urge all of those who care about salmon to look at tribal rights, not as a bargaining tool, but as a way to restore salmon populations and justice to our communities. Recent arguments that exercising rights can provoke violence and takes too long, and should therefore be sacrificed in settlement, could apply to every historic struggle for social justice.
Those who care about fisheries and social justice should reject the current Klamath Basin Restoration Agreement (KBRA). Under existing law, the U.S. ensures that irrigation does not interfere with tribes’ senior water rights. Legislation is required to change water rights, but not to remove dams. KBRA Section 15.3.9 asserts tribal water rights will not interfere with the Klamath Project even though therefore any attempt by a tribe to assert its rights against the river’s dewatering would be trumped by the KBRA, even for Tribes that did not sign the agreement. Couple this with the fact that the KBRA allows flows that are much lower then current ESA mandated flows, and that the KBRA lasts for fifty years and it is apparent the agreement gives up too much.
The KBRA process formed important alliances and water sharing discussions that can continue into the future. However, it does not have congressional momentum and even the most ardent supporters of the KBRA have recently admitted dam removal can move forward through simple FERC agreements and the KBRA’s main purpose is to create a soft landing for farmers when tribal rights and other laws take effect in the Klamath.
We cannot sacrifice the very rights tribes have fought for generations to preserve and give up the best tool for restoring the Klamath River and salmon can’t wait 50 year for water. Science, not politics and back room agreements, need to mandate Klamath River flows. It is time for justice and science to rule on the Klamath River.
Hayley Hutt is a councilwoman for the Hoopa Valley Tribe.
Read more at http://indiancountrytodaymedianetwork.com/opinion/tribal-water-rights-save-rivers-and-communities-148506
In the mountain of pages to the agreement the Klamath tribe swears that it does not take away the Modoc tribes water rights but what I read says otherwise.
The Klamath Tribes Constitution states that they are to defend the rights of all three tribes, apparently only when it is convenient to their best interest (Klamath). I noticed that the Klamath's made sure to make it clear that their homeland water rights would not be effected only the Modoc's Ancestral Lands.
I am going to state this over and over again "The Modoc Nation did not and will not sign any agreement where our water rights are taken away". The Klamath's did this behind closed doors and later with a vote that does not count. In any election in the Klamath tribe(s) the Klamath's out number the Modoc's 10-1 so how could there ever be a fair election.
This is another form of Genocide the BIA sold to the 3 tribes to make them form a government where the Klamath's again always comes out on top. It's the same old story from the beginning, exterminate the Modoc's at any cost. (I know this was true in other reservations too, the trick to shove enemy's together in hopes they would kill each other off).
Any person out there please see the injustice of this act, I ask Congress to see the truth behind this deal.
PacifiCorp is a big company with deep pockets and what's good for them trumps anything, any tribe, environmental group, and the public could ever say.
Saturday, April 6, 2013
Media Adivsory from Felice Pace dated March 12th
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!
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!
Wednesday, April 3, 2013
The Importance of Water Rights!
I will be starting a series on why The Modoc Nation has not and will not ever give up
our water rights. Although the Klamath tribes has done an illegal act and signed an agreement
with the KBRA & KHSA we have not signed any agreement and do not recognize their authority to do such an act.
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