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.
February 25, 2015 (Upper Klamath Basin, Oregon)
Entangled in the heart of an arduous century long battle over water rights in the Upper Klamath Basin, is the struggle of the Klamath, Modoc, Yahooskin Peoples for cultural survivance.
Our elders have always told us that water is life, water is priceless. Our water is so sacred it should never be quantified, compromised or negotiated. But what happens to the future of a culture, whose spiritual foundation is water, when even to tribal negotiators, the priceless becomes a mere commodity?
In a world where some believe everything has its price, many of us as Klamath, Modoc, Yahooskin descendants hold strong to the values of our ancestors.
The values of our ancestors have taught us that water, above all else, is essential to our way of life as Indigenous People.
Our water sustains all our sacred foods and medicines, which have supported us since time immemorial in the Upper Klamath Basin.
Without it, we cease to be a People.
We are the descendants of Kientpoos, Captain Jack, who refused to be tamed by the United States and their destructive colonial agenda to tap our aquifers, irrigate our beautiful homelands and degrade them into barren farm lands.
On October 3, 1873 the US government sentenced Kientpoos (Captain Jack), Schonchin John, Black Jim, and Boston Charley to death by hanging at Fort Klamath. 9 years later in 1882, farmers introduced irrigation to the Klamath area.
In 1905, the Bureau of Reclamation’s massive project, otherwise known as the Klamath Reclamation Project, replumbed the region.
Today, seven dams, 45 pumping stations, 185 miles of canals and 516 miles of irrigation ditches stretch like a watery web over the land. Less than 25 percent of the original wetlands remain. Some 25,000 acres of those wetlands have been leased to farmers while another 200,000 acres have been turned into farmland. Agricultural runoff has altered the chemistry of the lakes and wetlands and waterfowl populations have declined by two-thirds. It is a familiar story in the arid West – water moved from where it was to places where it should not be.
“What we have,” explains former Klamath Tribe Water Attorney Bud Ullman, “is an over-commitment of the water resource and general ecosystem degradation. There have been promises of water initially to Indians in the Treaty…, then there were promises to the farmers in a big irrigation project…, then promises for water to other farms. This all adds up to more water than nature gives us to work with. (Winona Laduke, Klamath Water, Klamath Life 2002)
The irrigable lands of the Klamath Project are in south-central Oregon (62 percent) and north-central California (38 percent). The Project currently provides full service water to approximately 210,000 acres of cropland.
The two main sources that supply water for the project: Upper Klamath Lake and the Klamath River; and Clear Lake Reservoir, Gerber Reservoir, and Lost River, which are located in a closed basin.
An over commitment of water paired with climate change is hastily altering the water cycle in the Klamath Basin. Snow pack levels melted out 2-4 weeks early in 2014. In November 2014, Gerber Reservoir was reported to be 99 percent dry.
In an attempt to resolve conflicts between Indigenous senior water rights holders and junior rights holders, the Klamath Basin Restoration Agreement (KBRA) was introduced in 2009 and the final document was signed on February 18, 2010 in Salem, Oregon.
Since then, two more agreements have been drafted and introduced, the Klamath Basin Hydroelectric Settlement (KHSA) on February 18, 2010 and the Upper Klamath Basin Comprehensive Agreement (UKBCA) on March 4, 2014.
While the Klamath Basin has glorified these agreements as a historical reconciliation, Indian Water Settlement agreements similar to the KBRA have been on the rise, and since 1989 congress has ratified at least 30.
Spring 2014, Klamath Tribal members were notified at a series of community meetings in Portland, Eugene, Chiloquin and Klamath Falls that the UKBCA had been finalized and referendum ballots would be mailed the following week. This left tribal members only 19 days to review over 100 pages of legal and scientific documentation and cast a vote to approve (or deny) and direct the Klamath Tribal chairman, Donald Gentry, to sign the proposed legislation. According to the Klamath Tribes Referendum Official Ballot, “all ballots must be received by the US Post Office in Chiloquin by 9:00 a.m. Wednesday, April 9, 2014. Or they will not be counted.”
Many tribal members, primarily those who live out of area, either did not receive their ballots or received their ballots after the deadline for submission. 564 Tribal members voted yes, in favor of the Agreement, and 419 voted no. Less than one third of eligible voters cast a vote.
Lack in ethical leadership has affected business at home and many have not been given the opportunity to exercise their right to vote. Administration is not updating addresses for tribal members to tribal departments. Members who live out of area have also had their ballots rejected because addresses didn’t match elections. There were two tribal newsletters in 2014 which some still have not received. This has left countless tribal members disenfranchised.
Numerous tribal members have now been questioning the motives of their own tribal government and the tribal negotiators of these water agreements.
As of last week, Fidelity National Financial Ventures announced it had sold the assets of Cascade Timberlands, LLC to Whitefish Cascade Forest Resources, LLC, based in Singapore. The sale included the Mazama Tree Farm, which is a key component in the Klamath Tribes negotiations regarding the KBRA. This may now give the Klamath Tribes a special circumstance to file for withdrawal from the agreements as outlined in section 33.2.2. in the KBRA. This option is not currently being shared or discussed with Tribal members. And the actions of Klamath Tribal negotiators regarding this issue are yet to be determined.
Within this last year we have watched the UKBCA, turn into Senate Bill 2379 and witnessed it die in Senate at the end of 2014.
Every time a new document is drafted, new language is introduced.On January 8th 2015 Senator Ron Wyden of Oregon reintroduced the agreements as Senate Bill 133.
Direct quote from SB 133:
“Prohibits water allocations for fish and wildlife and National Wildlife Refuge purposes from adversely affecting water allocations for irrigation purposes..”
There were originally 80,000 acres of seasonal marshes in the Lower Klamath National Wildlife Refuge. On average the Refuge served about 10 million birds and had a large winter population of threatened Bald Eagles. At the current status, the Refuge will essentially be a cracked lake-bed.
Now a year after the signing of the UKBCA, for us as Tribal People whose primary interest is to protect all sacred things that are outlined in the 1864 Treaty that pertain to our survivance as a culturally distinct People, more is coming to light in regards to these documents along with various reasons to not support them. These “agreements” do not secure that which is necessary to protect what is promised under the Treaty. These agreements do not protect that which is crucial to our spirituality and way of life.
“The adverse effects of KBRA on water needed for fish became much clearer during the dam removal EIS stage than they were earlier. Buried in the klamathrestoration.gov list of engineering studies is a definitive report showing that KBRA means less water during many key times than is currently required by the BiOps protecting Coho Salmon., e.g., during dry year months. The irrigators like this outcome but no one who wants Salmon to thrive should be satisfied.” Tom Schlosser, legal counsel for Hoopa Valley Tribe.
Signatory tribes, such as the Klamath, Yurok, and Karuk Tribes have hailed the agreements as a path toward dam removal and fisheries restoration. Through the KBRA and Upper Basin agreement those Basin Tribes with water rights, or which have advocated for Salmon, have been promised funding for restoration and economic development in exchange for not pressing for increased flows in the Klamath River.
Klamath Tribal Members have been told the agreements do not relinquish any rights, however, the agreements irrefutably contain language that limits the federal trust responsibility. Both the Affiliated Tribes of Northwest Indians (ATNI) and the National Congress of American Indians (NCAI) have resolutions opposing any action that limits or abolishes the federal trust responsibility. Nevertheless, signatory tribes have chosen to proceed into the agreements.
The Hoopa Valley, Quartz Valley and Resighini tribes did not sign. They argued the agreement subordinates priority tribal water rights and the Endangered Species Act. They argued the lack of water effects Chinook and Coho Salmon health and future salmon runs in the Klamath Basin. They argued that the inexpensive, direct path to dam removal is restarting the Federal Energy Regulatory Commission process for these facilities. The Klamath agreement has blocked this process for years.
The government is frequently conflicted in their obligation to protect Tribes but often chooses to protect irrigators that have created a large economy based on Tribal resources. The crux of the dispute is the United States government has been involved by providing assets and paying for resources to advance the cases (sell-out our rights), when they have a fiduciary duty as trustee to protect Tribes.
Clearly, the Bureau of Reclamation is also pulling levers behind the scenes with the Pacificorp power company. In 2014, salmon were sick and dying in the Klamath River and BOR prompted Pacificorp to provide water, with the promise to pay back that water the following year. Though residents complain about the toxic river conditions, Pacificorp continues to operate outside the guidelines of the clean water act.
The Klamath Basin long term plan for 2015 provides no water for the environment.
In Sec. 2.5.1 footnote 8 and 4.3.1 n. 14 of the KBRA indicate that Upper Klamath water will not be used to address lower Klamath fish health; the Upper Klamath will be managed by the KID BiOp.
As it stands now, the most senior water right goes to support agriculture and to the flooding of fields to prove usage, for increased farm subsidies in the Upper Basin.
The KBRA and associated agreements are not at all an exercise in self-determination but advocating for a blood oath from Tribes. Although, we are faced with drought, contamination and over-consumption, the Klamath Tribal council and Klamath Tribes Negotiation Team continue to support an agreement that permits destructive acts against our culture, environment, and our future as Klamath, Modoc, Yahooskin Peoples.
Honor The Treaty of 1864 is a group of like minded individuals who want to honor our ancestors and our 7th generation by protecting our resources and our rights. While these ideas are not new and many people before us stood for the same things we do, our group was officially formed in 2014. We welcome all people who support our cause.
Press contact:
Willa Powless: (307)-757-7970
Kayla Godowa: (541)-735-1793
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
Sacred Water, Klamath People and the Struggle for Cultural Survival
FOR IMMEDIATE RELEASE: Sacred Water, Klamath People and the Struggle for Cultural Survival
Entangled in the heart of an arduous century long battle over water rights in the Upper Klamath Basin, is the struggle of the Klamath, Modoc, Yahooskin Peoples for cultural survivance.
Our elders have always told us that water is life, water is priceless. Our water is so sacred it should never be quantified, compromised or negotiated. But what happens to the future of a culture, whose spiritual foundation is water, when even to tribal negotiators, the priceless becomes a mere commodity?
In a world where some believe everything has its price, many of us as Klamath, Modoc, Yahooskin descendants hold strong to the values of our ancestors.
The values of our ancestors have taught us that water, above all else, is essential to our way of life as Indigenous People.
Our water sustains all our sacred foods and medicines, which have supported us since time immemorial in the Upper Klamath Basin.
Without it, we cease to be a People.
We are the descendants of Kientpoos, Captain Jack, who refused to be tamed by the United States and their destructive colonial agenda to tap our aquifers, irrigate our beautiful homelands and degrade them into barren farm lands.
On October 3, 1873 the US government sentenced Kientpoos (Captain Jack), Schonchin John, Black Jim, and Boston Charley to death by hanging at Fort Klamath. 9 years later in 1882, farmers introduced irrigation to the Klamath area.
In 1905, the Bureau of Reclamation’s massive project, otherwise known as the Klamath Reclamation Project, replumbed the region.
Today, seven dams, 45 pumping stations, 185 miles of canals and 516 miles of irrigation ditches stretch like a watery web over the land. Less than 25 percent of the original wetlands remain. Some 25,000 acres of those wetlands have been leased to farmers while another 200,000 acres have been turned into farmland. Agricultural runoff has altered the chemistry of the lakes and wetlands and waterfowl populations have declined by two-thirds. It is a familiar story in the arid West – water moved from where it was to places where it should not be.
“What we have,” explains former Klamath Tribe Water Attorney Bud Ullman, “is an over-commitment of the water resource and general ecosystem degradation. There have been promises of water initially to Indians in the Treaty…, then there were promises to the farmers in a big irrigation project…, then promises for water to other farms. This all adds up to more water than nature gives us to work with. (Winona Laduke, Klamath Water, Klamath Life 2002)
The irrigable lands of the Klamath Project are in south-central Oregon (62 percent) and north-central California (38 percent). The Project currently provides full service water to approximately 210,000 acres of cropland.
The two main sources that supply water for the project: Upper Klamath Lake and the Klamath River; and Clear Lake Reservoir, Gerber Reservoir, and Lost River, which are located in a closed basin.
An over commitment of water paired with climate change is hastily altering the water cycle in the Klamath Basin. Snow pack levels melted out 2-4 weeks early in 2014. In November 2014, Gerber Reservoir was reported to be 99 percent dry.
In an attempt to resolve conflicts between Indigenous senior water rights holders and junior rights holders, the Klamath Basin Restoration Agreement (KBRA) was introduced in 2009 and the final document was signed on February 18, 2010 in Salem, Oregon.
Since then, two more agreements have been drafted and introduced, the Klamath Basin Hydroelectric Settlement (KHSA) on February 18, 2010 and the Upper Klamath Basin Comprehensive Agreement (UKBCA) on March 4, 2014.
While the Klamath Basin has glorified these agreements as a historical reconciliation, Indian Water Settlement agreements similar to the KBRA have been on the rise, and since 1989 congress has ratified at least 30.
Spring 2014, Klamath Tribal members were notified at a series of community meetings in Portland, Eugene, Chiloquin and Klamath Falls that the UKBCA had been finalized and referendum ballots would be mailed the following week. This left tribal members only 19 days to review over 100 pages of legal and scientific documentation and cast a vote to approve (or deny) and direct the Klamath Tribal chairman, Donald Gentry, to sign the proposed legislation. According to the Klamath Tribes Referendum Official Ballot, “all ballots must be received by the US Post Office in Chiloquin by 9:00 a.m. Wednesday, April 9, 2014. Or they will not be counted.”
Many tribal members, primarily those who live out of area, either did not receive their ballots or received their ballots after the deadline for submission. 564 Tribal members voted yes, in favor of the Agreement, and 419 voted no. Less than one third of eligible voters cast a vote.
Lack in ethical leadership has affected business at home and many have not been given the opportunity to exercise their right to vote. Administration is not updating addresses for tribal members to tribal departments. Members who live out of area have also had their ballots rejected because addresses didn’t match elections. There were two tribal newsletters in 2014 which some still have not received. This has left countless tribal members disenfranchised.
Numerous tribal members have now been questioning the motives of their own tribal government and the tribal negotiators of these water agreements.
As of last week, Fidelity National Financial Ventures announced it had sold the assets of Cascade Timberlands, LLC to Whitefish Cascade Forest Resources, LLC, based in Singapore. The sale included the Mazama Tree Farm, which is a key component in the Klamath Tribes negotiations regarding the KBRA. This may now give the Klamath Tribes a special circumstance to file for withdrawal from the agreements as outlined in section 33.2.2. in the KBRA. This option is not currently being shared or discussed with Tribal members. And the actions of Klamath Tribal negotiators regarding this issue are yet to be determined.
Within this last year we have watched the UKBCA, turn into Senate Bill 2379 and witnessed it die in Senate at the end of 2014.
Every time a new document is drafted, new language is introduced.On January 8th 2015 Senator Ron Wyden of Oregon reintroduced the agreements as Senate Bill 133.
Direct quote from SB 133:
“Prohibits water allocations for fish and wildlife and National Wildlife Refuge purposes from adversely affecting water allocations for irrigation purposes..”
There were originally 80,000 acres of seasonal marshes in the Lower Klamath National Wildlife Refuge. On average the Refuge served about 10 million birds and had a large winter population of threatened Bald Eagles. At the current status, the Refuge will essentially be a cracked lake-bed.
Now a year after the signing of the UKBCA, for us as Tribal People whose primary interest is to protect all sacred things that are outlined in the 1864 Treaty that pertain to our survivance as a culturally distinct People, more is coming to light in regards to these documents along with various reasons to not support them. These “agreements” do not secure that which is necessary to protect what is promised under the Treaty. These agreements do not protect that which is crucial to our spirituality and way of life.
“The adverse effects of KBRA on water needed for fish became much clearer during the dam removal EIS stage than they were earlier. Buried in the klamathrestoration.gov list of engineering studies is a definitive report showing that KBRA means less water during many key times than is currently required by the BiOps protecting Coho Salmon., e.g., during dry year months. The irrigators like this outcome but no one who wants Salmon to thrive should be satisfied.” Tom Schlosser, legal counsel for Hoopa Valley Tribe.
Signatory tribes, such as the Klamath, Yurok, and Karuk Tribes have hailed the agreements as a path toward dam removal and fisheries restoration. Through the KBRA and Upper Basin agreement those Basin Tribes with water rights, or which have advocated for Salmon, have been promised funding for restoration and economic development in exchange for not pressing for increased flows in the Klamath River.
Klamath Tribal Members have been told the agreements do not relinquish any rights, however, the agreements irrefutably contain language that limits the federal trust responsibility. Both the Affiliated Tribes of Northwest Indians (ATNI) and the National Congress of American Indians (NCAI) have resolutions opposing any action that limits or abolishes the federal trust responsibility. Nevertheless, signatory tribes have chosen to proceed into the agreements.
The Hoopa Valley, Quartz Valley and Resighini tribes did not sign. They argued the agreement subordinates priority tribal water rights and the Endangered Species Act. They argued the lack of water effects Chinook and Coho Salmon health and future salmon runs in the Klamath Basin. They argued that the inexpensive, direct path to dam removal is restarting the Federal Energy Regulatory Commission process for these facilities. The Klamath agreement has blocked this process for years.
The government is frequently conflicted in their obligation to protect Tribes but often chooses to protect irrigators that have created a large economy based on Tribal resources. The crux of the dispute is the United States government has been involved by providing assets and paying for resources to advance the cases (sell-out our rights), when they have a fiduciary duty as trustee to protect Tribes.
Clearly, the Bureau of Reclamation is also pulling levers behind the scenes with the Pacificorp power company. In 2014, salmon were sick and dying in the Klamath River and BOR prompted Pacificorp to provide water, with the promise to pay back that water the following year. Though residents complain about the toxic river conditions, Pacificorp continues to operate outside the guidelines of the clean water act.
The Klamath Basin long term plan for 2015 provides no water for the environment.
In Sec. 2.5.1 footnote 8 and 4.3.1 n. 14 of the KBRA indicate that Upper Klamath water will not be used to address lower Klamath fish health; the Upper Klamath will be managed by the KID BiOp.
As it stands now, the most senior water right goes to support agriculture and to the flooding of fields to prove usage, for increased farm subsidies in the Upper Basin.
The KBRA and associated agreements are not at all an exercise in self-determination but advocating for a blood oath from Tribes. Although, we are faced with drought, contamination and over-consumption, the Klamath Tribal council and Klamath Tribes Negotiation Team continue to support an agreement that permits destructive acts against our culture, environment, and our future as Klamath, Modoc, Yahooskin Peoples.
Honor The Treaty of 1864 is a group of like minded individuals who want to honor our ancestors and our 7th generation by protecting our resources and our rights. While these ideas are not new and many people before us stood for the same things we do, our group was officially formed in 2014. We welcome all people who support our cause.
Press contact:
Willa Powless: (307)-757-7970
Kayla Godowa: (541)-735-1793
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