Sunday, January 24, 2010

The Water Deal - What do the tribes get?

Here’s a comment KlamBlog received recently:

Could you please post on why you believe the tribes to be such vocal advocates of this deal? It's unclear to me (from skimming the KBRA)exactly what the tribes get from this deal...and, given their history of (understandably) distrusting the government, I wonder what they're getting that we don't know about that's making them (Yurok and Karuk mostly) so pro-KBRA.

Here’s KlamBlog’s response:

First, it is important to understand that all Klamath River Basin tribal governments do not support the proposed Klamath Basin Restoration Agreement/KBRA (the Water Deal). The Yurok, Karuk and Klamath Tribes (based in Oregon and composed of Klamath, Modoc and Yahooskin Peoples) have indicated that they will sign the document in February. The Hoopa Tribe indicates that it will not sign unless issues involving tribal sovereignty and the Trinity River are first resolved.

The agreement requires signing tribes to waive certain rights and agree not to take future actions – including actions which would seek water from the so-called On Project Irrigators – the group KlamBlog calls the Irrigation Elite because of their wealth, political influence and the fact that they have traditionally received many advantages at the expense of taxpayers.

There are other federally recognized tribes in the Klamath River Basin. The Quartz Valley Indian Reservation (QVIR) located in the Scott River Sub-basin and the Resighini Rancheria located near the mouth of the Klamath River. These two tribes have not been involved in the negotiations and have not been asked to sign the KBRA.

There are also tribal organizations in the Basin that are not recognized by the federal government including the Shasta Nation and the Nor-Rel-Muk (a Wintun group based in Hayfork). The Siskiyou County based Shasta Nation has competing leadership groups; it is vociferously against the KBRA and dam removal.

It is also important to recognize that the governments of federally recognized tribes are just that – governments. The tribes are not the People; like all governments, a core motivation of tribal governments is building and maintaining their bureaucracies which provide jobs and services. Within each of these tribes there is both strong opposition and strong support for the KBRA. Many tribal members, however, indicate that they do not fully understand the complex agreement and its implication.

Only the Klamath Tribes has had a membership vote on whether or not to approve the KBRA.

The Hoopa Tribe told its membership about the KBRA at a general membership meeting in November. It recently mailed information on the Dam and Water Deals to all members. The Hoopa Tribe will also hold a forum on both the Water and Dam Deals in Hoopa on the evening of January 26th. Other tribes have held meetings to inform members about the Deals but – except for the Hoopa Tribe - none so far have invited environmental and other stakeholders to present to their memberships. It is not know whether other tribes will hold membership votes or simply rely on a vote of their respective tribal councils on whether or not to approve the Deals.

Now that we have given the outline of what is going on with “tribes” concerning the Dam and Water Deals we can turn to the question: What do tribes which support and will likely sign the KBRA get in return?

The first thing KlamBlog must answer is that the best way to find out what the tribes think they are getting (or not getting) is to ask them. These tribes all have web pages which provide current tribal government’s perspectives and positions on the Dam and Water Deals. In addition most Klamath Basin Tribes have media contact people who can be called on the phone. KlamBlog also invites any and all Klamath River Basin Tribes to publish here a statement of their positions on the Dam and Water Deals.

That said, some of these tribes have become media savvy; as a result, like other media savvy organizations, what we often get in their PR is spin. KlamBlog’s principle writer has worked for two of these tribes and with most of them for many years. The KlamBlog “answers” are based on that experience and on studying tribal positions on the Deals.

Federal tribes are governments and their motivations are many. Looking a little more closely at the proposed Klamath Basin Restoration Agreement we see substantial tribal government benefits if the Deal is enshrined in federal legislation:
  • Certain federal tribes will get $65,250,000 over ten years courtesy of federal taxpayers. These funds will support the Yurok, Karuk and Klamaths Natural Resources Departments and fund economic development – including purchase of the Mazama Tree Farm for the Klamath Tribes.
  • The federal tribes will get to participate in day-to-day decisions about water management. Along with the Bureau of Reclamation (BOR) and those irrigators who get water from the BOR (the so-called On Project Irrigators) tribal fisheries managers believe they will be able to manage future “environmental water” for the benefit of salmon and other tribal trust resources.
  • Some of the tribes argue that the KBRA (Water Deal) is necessary to secure the support of On-Project Irrigators for dam removal and that without that support the dams would not come down. Many others (including KlamBlog) believe that deal – offered to the tribes by the Bush Administration – is not necessary to get the dams down. Furthermore, KlamBlog believes implementing the Water Deal contains provisions which will make it impossible to restore robust runs of Klamath Salmon.
  • The KBRA calls for $53,159,000 over ten years for active restoration of salmon above the dams. The tribes favor active versus passive restoration once the dams are down. In passive restoration salmon, steelhead and lamprey will recolonize the Upper Basin on their own. But the tribes want to establish restoration hatcheries, raise and move salmon around and otherwise manage Chinook Salmon in order to restore them. The nub is that ESA-listed fish which reinhabit the Upper Basin on their own will have the full protection of the ESA; fish which are actively reintroduced are considered “experimental populations.” Federal managers can remove experimental populations at their discretion and these fish are not protected from “take”.
  • The Klamath Tribes get an “interim fishing site” below Iron Gate Dam where they will be able to catch salmon until such time as they are restored to the tribe’s territory in the Upper Basin. The Shasta Nation says this is their ancestral territory; they oppose a fishing site for the Klamath Tribes in that location.
  • The KBRA asks Congress to provide $322,495,000 over twenty years for fisheries restoration. Because they have chosen to use their regular BIA funding for other purposes, the Yurok and Karuk Fisheries Departments are dependent on competitive grants and contracts. With the end of the 20-year Klamath Fisheries Restoration Program a few years back these tribes became very dependent on grants from the Bureau of Reclamation and California Department of Fish & Game for funding to keep operating. KlamBlog believes that regular BIA funding for tribal governments should be used to support the base operations of tribal natural resource departments in order to insulate these important functions from dependence on grant funding and politics.
Deals which exchange or subsume tribal water rights in exchange for tribal government and restoration funding are becoming commonplace in the West. Whether we have a Republican or a Democrat in the White House, the dominant society has recognized for some time that if western tribal water rights were realized, the tribes would be in control of a substantial portion of the West’s water resources.

So much power in the hands of tribes is not acceptable to western and national elites. Therefore they have been working quietly and diligently to negotiate settlement of those claims. Most of those settlements involve tribes giving up their rights to water – or the right to assert water claims which amounts to the same thing – in exchange for money. The Western Governors Association, Western Regional Council and the Native American Rights Fund are among the powerful interests which support this approach.

Each water deal must be analyzed in depth in order to reach a judgment as to whether it is fair, appropriate and in the interest of the Indigenous Peoples whose rights are on the line. Future generations should also be considered.

In the Klamath instance, it appears to KlamBlog that the Klamath Tribes have negotiated a good and fair settlement whereas the Yurok Tribe has not. Pursuant to western water law, the Karuk Tribe does not have a water right. However, KlamBlog can not understand why the Karuk Tribe has not insisted on obtaining a subsistence fishing right as a result of this deal. The Karuk Tribe is unlikely to ever again posses the leverage it now has to obtain such a right which has been the objective of the Karuk People for many years.

KlamBlog supports the right and the moral duty of tribal governments to do what they believe is right when it comes to the water rights of their people. We have observed, however, that tribal leaders and tribal members often do not understand what is at stake in these deals. In our opinion, white men (typically white male lawyers) are too often advising tribal governments to make deals which are not in the best long-term interest of the people. Some traditional leaders believe that water is sacred and therefore that it should not be bought and sold.

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