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Klamath Agreements Strengthen Tribal Sovereignty

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From time immemorial, salmon, steelhead and other fish runs have sustained the Klamath, Modoc and Yahooskin Paiute members of the Klamath Tribes. It has been more than 100 years, however, since our tribal members have seen salmon and steelhead migrate home to the Upper Klamath Basin, or had an opportunity to exercise our Treaty right to fish for them. Four aging dams have blocked migration of these fish into the homelands of the Klamath Tribes, and severely damaged fish runs relied upon by those whose homelands are downstream of the dams. As horrific as this history has been, the future looks brighter because the Klamath Tribes have been able to work collaboratively with the Karuk Tribe and others for the benefit of future generations.

Demands on the Klamath River system have long outstripped the water it has been able to provide. Dams, diversions and poor management of the land that runs along the basin’s waterways nearly destroyed not only once-plentiful salmon and steelhead runs, but also populations of the c’waam (Lost River suckers) and q’apdo (shortnose suckers), fish that are also essential to our culture and survival.

The Klamath Tribes have fought for decades to return our spiritual, cultural and economic lifeblood—the Klamath River—to a viable state. We have successfully used regulatory tools like the Endangered Species Act and the Federal Power Act, and have had some important victories in court. We have also learned that winning one battle does not end a long-lasting war, and relying on regulatory tools limits the scope of the results. Litigation-only strategies rely on outcomes that are unknowable until the last judge in the last appeals court bangs the gavel. Settlement outcomes are more reliable because we collaboratively build settlements from the ground up, which allows the scope of outcomes to be as broad as the parties are willing to embrace.

It is widely known that the Klamath Tribes and others decided to shift tactics from litigation to negotiation after a devastating salmon kill in 2002. Perhaps less well known, or understood, among our Native brothers and sisters is the degree to which these negotiated Agreements strengthen our power as a sovereign nation.

When the Klamath Tribes first came to the negotiating table, we came with a commitment not to accept any deals that compromised our sovereign rights, the United States’ tribal trust responsibilities, or our senior water and fishing rights.

The Agreements that we negotiated advance these very principles. They reinforce our sovereignty, federal trust obligations and our senior water and fishing rights. These provisions are stated plainly in S. 2379, the Klamath Basin Water Recovery and Economic Restoration Act of 2014, a bill that is currently before Congress.

First and foremost, the Agreements would ensure that four Klamath River dams will be removed by 2020. PacifiCorp, the utility that owns the dams, has agreed to their removal. These dams exterminated the salmon and steelhead runs to the Klamath Tribes’ homelands, and continue to cause serious water quality and habitat problems along much of the Klamath River, threatening the remaining fish runs.

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The Klamath Tribes retain our senior in-stream water rights and the other Klamath River Tribes retain their ability to adjudicate their own water rights. If for some reason the dams are not removed, the water sharing plan established in the Agreements would end. The Agreements also ensure that even after the dams come out the Endangered Species Act and Clean Water Act remain in effect.

The alternative to settlement is litigation. Even if this high risk strategy was to bear fruit, it would take decades—and the fish cannot wait decades.

The Upper Basin Agreement, which was added to the Klamath Agreements earlier this year, provides even more safeguards for river recovery. Ranchers in the Upper Klamath Basin will reduce agricultural water use by 30,000 acre feet per year by permanently retiring water rights on at least18,000 acres of agricultural land. Permanent corridors will be established along at least 223 miles of rivers and stream, healing stream-side vegetation communities. Miles of dikes will be removed or breached, channelized sections will be re-constructed and nutrient inputs into the waterways will be substantially diminished. These actions will make our rivers and streams cleaner and cooler for fish, making it easier for salmon and steelhead to thrive once the dams come out and help the suckers move towards recovery.

By entering into the Agreements, Upper Basin ranchers join Klamath Project farmers in agreeing to stop litigation challenging the Klamath Tribes’ time-immemorial water rights. The Upper Basin Agreement retains the Klamath Tribes’ full water right, using it to enforce compliance with the terms of the agreement. The exercise of our Klamath Tribes sovereignty is even sweeter, having survived more than three decades of the abomination known as Termination.

As Professor Charles Wilkinson, a longtime Tribal advocate, said in a letter to us shortly after the Upper Klamath Basin Comprehensive Agreement was signed:

What the Tribes have done [in this agreement] is the exact opposite of termination. It is full-scale self-determination. The accomplishments at Klamath epitomize what tribes across the country are working toward. Assuming that the Upper Basin Agreement, KBRA, and KHSA are approved by Congress, the Tribes will have installed their priorities as the priorities of several federal and state agencies; taken the lead in restoring a major natural system; established meaningful water rights; established a cutting-edge scientific staff and program for healing the land; brought a large parcel of lost tribal land into tribal ownership; created a substantial fund for tribal economic development; created jobs for tribal members; and acted in full accordance with the Tribes’ traditional cultural values. If that isn’t an example of full-blown modern Indian tribal sovereignty, what is?

We are proud of what we accomplished in negotiating the Klamath Agreements. This is how we have chosen to exercise our tribal sovereignty. We hope that our hard work will assist others in Indian Country who live in resource-constrained areas like the Klamath Basin and wish to secure a productive future for their own communities.

Don Gentry is the Chairman of the Klamath Tribes. He represented the Klamath Tribes in the negotiations that established the terms of the Klamath Agreements. Having been raised by his father as a Klamath tribal hunter and fisherman, he is very knowledgeable of the fish and wildlife resources throughout South-Central Oregon area, where Klamath tribal members continue exercise their Treaty rights and traditional-cultural practices within the former Klamath Indian Reservation.