The United Nations Declaration on the Rights of Indigenous Peoples states that before the rights of an Indigenous People can be terminated, the individuals whose rights are affected must provide their free, prior informed consent to the termination. The US Government says it abides by the Declaration. When it comes to water rights deals like the KBRA or the more recent Upper Klamath Basin Comprehensive Agreement (UKBA), however, the feds don't require that tribal governments honor the Declaration.
Of course, free, prior and informed consent is up for interpretation: How much information must a tribe provide its members and how much time must that tribe allow its members to study and debate the proposed deal trading away water rights or the ability to exercise those rights in order to comply with the UN Declaration?
KlamBlog's editor and chief writer, Felice Pace, has suggested that, within the context of a deal in which a tribe gives up water rights or agrees not to exercise those rights or relinquishes the right to have the federal government trustee protect those rights, "informed consent" requires that a cost-benefit analysis to determine the Net Present Value (NPV) of both the benefits a tribe would receive in a water deal and the cost of what that tribe would give up in the deal must be calculated.
Felice further asserts that the cost-benefit accounting must be provided to tribal members well before any vote on the deal is conducted. Others have suggested that a cultural cost-benefit analysis should be completed by a tribe and provided to its members if and when the tribe is considering relinquishing water rights or the ability to exercise those rights.
Felice has also suggested that, when it comes to water deals in the American West, the feds have not honored their duty as trustee for the tribes but rather have worked during negotiations to keep the water with (mostly white) irrigators and especially with federal irrigation interests. That, in his view, is a fundamental abrogation of the federal government's duty as trustee to look out for and advance the interest of federal tribes. If that interpretation of the federal trustee duty is correct, tribes may have recourse in the future to reverse some of the western water deals in the federal Court of Claims.
Over 30 western water deals involving tribes have already been approved by Congress and many more, including the KBRA and UKBA, are in the pipeline. Several tribes, including the Nez Perce and Klamath Tribes have approved water deals which trade away or agree not to exercise in-stream water rights which have been granted to sustain salmon fisheries. To date, however, few have questioned the morality of trading the water salmon need for funding and other benefits tribal governments want for their people and their reservations. Should federal tribes have the legal right to trade away water the salmon need? Even if they have that legal right, is a tribal government trading away the water fish need morally correct? As far as KlamBlog can see, these questions have not been raised, much less debated, by the leaders and members of the West's salmon tribes.
There appear to be a number of members of the Klamath Tribes who agree with Felice's analysis of the Klamath Water Deals. Those members have banded together in the group "Honor The Treaty of 1864" which recently published a press release appearing on the Last Real Indians website. You can read the press release at this link. The Honor the Treaty of 1864 group's press release is also reprinted in full below.
Of course, free, prior and informed consent is up for interpretation: How much information must a tribe provide its members and how much time must that tribe allow its members to study and debate the proposed deal trading away water rights or the ability to exercise those rights in order to comply with the UN Declaration?
KlamBlog's editor and chief writer, Felice Pace, has suggested that, within the context of a deal in which a tribe gives up water rights or agrees not to exercise those rights or relinquishes the right to have the federal government trustee protect those rights, "informed consent" requires that a cost-benefit analysis to determine the Net Present Value (NPV) of both the benefits a tribe would receive in a water deal and the cost of what that tribe would give up in the deal must be calculated.
Felice further asserts that the cost-benefit accounting must be provided to tribal members well before any vote on the deal is conducted. Others have suggested that a cultural cost-benefit analysis should be completed by a tribe and provided to its members if and when the tribe is considering relinquishing water rights or the ability to exercise those rights.
Felice has also suggested that, when it comes to water deals in the American West, the feds have not honored their duty as trustee for the tribes but rather have worked during negotiations to keep the water with (mostly white) irrigators and especially with federal irrigation interests. That, in his view, is a fundamental abrogation of the federal government's duty as trustee to look out for and advance the interest of federal tribes. If that interpretation of the federal trustee duty is correct, tribes may have recourse in the future to reverse some of the western water deals in the federal Court of Claims.
Over 30 western water deals involving tribes have already been approved by Congress and many more, including the KBRA and UKBA, are in the pipeline. Several tribes, including the Nez Perce and Klamath Tribes have approved water deals which trade away or agree not to exercise in-stream water rights which have been granted to sustain salmon fisheries. To date, however, few have questioned the morality of trading the water salmon need for funding and other benefits tribal governments want for their people and their reservations. Should federal tribes have the legal right to trade away water the salmon need? Even if they have that legal right, is a tribal government trading away the water fish need morally correct? As far as KlamBlog can see, these questions have not been raised, much less debated, by the leaders and members of the West's salmon tribes.
There appear to be a number of members of the Klamath Tribes who agree with Felice's analysis of the Klamath Water Deals. Those members have banded together in the group "Honor The Treaty of 1864" which recently published a press release appearing on the Last Real Indians website. You can read the press release at this link. The Honor the Treaty of 1864 group's press release is also reprinted in full below.
Kientpoos Prayer Pole, Captain Jack's Stronghold, Lava Beds National Monument
