My name is Bud Uhlman. I’m an attorney. I work for the Klamath Tribes, primarily doing water rights issues. I’ve been doing that for about 15 years. It’s really a privilege to be here, to be invited to this seminar and these presentations that have been really instructive to the extent I’ve seen them. I hope you all are benefiting equally. Environmental justice is certainly worth the best our minds can bring to bear and we’re told in fact that the mind is a wonderful thing.. It starts working literally before we’re born, our minds begin to work, and they work right up to the time that we try to stand up in front of about 50 or 60 of you folks and try to say something intelligent.

So, if you’ll stick with me, I’m going to talk about two things, two matters having to do with land and water issues in the Klamath Basin from the standpoint of the Klamath Tribes and looked at through what I hope is a useful prism for those of you interested in environmental justice.

First of all I want to talk about over-appropriation of the water resource and I’ll get into some of the impacts that it’s had on the basin and on the Indian people in particular. My take-home message is going to be that there are commitments that have been made to Indian people that have been overwhelmed by subsequent commitments to other people and all of them add up to more commitments of water than nature gives us to meet those commitments so we have a system that’s been badly over-appropriated and in many ways the Indian’s resources are taking the brunt of that.

The second thing I want to talk about is the experience in the Klamath Basin with disparaging of resource-related communities, in particular the Indian community, and the really unfortunate precipitation of violence that occurred there a couple years ago. We’ll take a fairly close look at that.

But first I want to touch again at the map, the map that Don showed us. This is the Upper Klamath Basin, you can see the state line. This is the Oregon-California state line right here to orient you. Oregon/Klamath Falls is here. Crater Lake, Willamette Pass is in the area up in here.

In the Treaty of 1864 that Don (Gentry) referred to, the United States, in establishing this reservation, had two objectives: It wanted of course to open this area for settlement, the great Oregon Trail experience. But it also wanted, this is lost in history a lot, to preserve the self-sufficiency of the Indian people in the area. The US had neither the means nor the desire to support the Indians, so it wanted to continue their ability to subsist and to exist like they had for literally thousands of years before the government had made the treaty with them. This included a promise to continued access to Fish and Wildlife resources on which they depended, and a promise of enough water to support those resources.

As Don pointed out, and I want to re-emphasize, these were not grants made by the United States to the Indian people. These were simply reservations made by the Indian people with the ascent and the guarantee of the United States of rights that the Tribal people, the Indian people, had always had.

So the first promise of water in the Klamath Basin was to the native people in the basin: the Klamath Tribes in the Upper Basin and similarly to the Yurok, Hoopa and Karuk Tribes who are the three federally recognized in the Klamath River Basin. Down on the California end of the river. That was done in the middle part and the late part of the 19^th century. And then early in the 20^th century, just after the turn of the last century, as part of the development of the West, congress enacted the Reclamation Act, an Act that promised to non-Indian settlers, the right to or a supply of adequate water for anybody who would do the hard work of homesteading in an arid land. And that’s what a lot of people did.

Unfortunately, those people and the government itself, were not mindful at that time, of reconciling these promised of water that were made to the irrigators who were recruited to the basin, reconciling those promised with the promises that had been made earlier to the Indian people. So, already we see overlapping promises of water from the same river system without any effort to reconcile or add up those promises to see if there’s going to be enough water to meet all of them.

On top of that, the states of Oregon and California undertook their own water use permitting systems in addition to the water use permitting system that the United States had developed in the Klamath Irrigation Project. Oregon and California both have systems that are continuing today to license the use of water from the Klamath Basin and these systems continue also unrecognized either with the earlier commitments of water that had been made to native people or, nor is there a system reconciling the state permitting system with the federal system down in the Klamath Irrigation Project. So we’re starting to pile even more commitments of water on top of one another.

Interestingly enough, in the 1950’s, the state of Oregon asked the question of itself, whether there’s a conflict brewing between the state’s water use permitting system and the federal water use permitting system. It discern, not surprisingly that the answer to that is yes there is, but the question was already, fifty years ago, so thorny, that nobody tried to deal with it. Nobody could think of a way to deal with it, so the two permitting systems just continued in parallel without being reconciled.

On top of that there’s a hydroelectric system on the Klamath River that consists of 6 dams. I’ll look, in just a few seconds, a little more closely at those. These are not big consumers of water, but they do have profound impacts on the quality of the water and the timing of the flows of the water, which, in turn, has an impact on fisheries.

More importantly though, the construction of the dams completely extirpated anadromous fish from the Upper Klamath Basin. In every map I’ve shown you here historically, anadromous fish were found throughout the area up through what’s now the town of Klamath Falls, out through the area where Don lives, on the Sprague River, and to the headwaters to the Sprague and Williamson Rivers. In 1917, with the construction, not of this dam but of Copco Dam, just over the California state line into the state of California, the entire Upper Basin was shut off because there are no fish ladders, no passage facilities on Copco Dam, was shut off to the migration of anadromous fish. This was an enormous loss to the Tribes, and not only Tribes, but to the non-Indian people in the Upper Klamath Basin protested the construction of this dam and promises were made that it would be dealt with, but ultimately, nothing was done. There’s a hatchery built at the base of this dam to try to boost the fish runs below the dam, but of course that’s done nothing for restoration of the fish runs up above the dam.

The picture here that I’m showing you is what’s called Iron Gate dam, which was built more recently in the 1950’s or 60’s, and it is today the downstream barrier to upstream anadromous fish migration. So this is the structure that prevents fish today from getting back up into the Upper Klamath Basin. The good news is, you might see in the news that this dam and the other ones on the Klamath main stem, are all up for re-licensing in the FERC process, in the federal energy regulatory commission now, and the biggest issue that the tribes are fighting for now is the re-introduction of anadromous fish to the Upper Klamath Basin as a condition of re-licensing those dams. It’s an issue on which I would recommend that people get involved if you possibly can, because it may be the last opportunity to protect the fish runs in the Klamath River which used to be the third largest fish runs on the Pacific Coast in the U.S.

But back to looking at the Basin as a whole, and looking at the commitments of water that were made, again, without reconciling them with one another, and also I would note, unlike another currently headlined situation, we have not found any evidence of Indian water rights reconciliation project-related activities in the basin. a phrase that you might remember from Monday evening.

Nobody got that. It’s a paraphrase of President Bush’s effort to find project related activities related to weapons of mass destruction, and-uh, I thought it was pretty funny, but, it was too subtle. LAUGHTER

OK, looking back at the basin as a whole, the next interest I want to point out is commercial fishermen. Again, not a large consumer of water, but another group of people that have been encouraged to arrange their lives around an adequate supply of good quality water to keep these anadromous fisheries going. The deterioration of water quantity and water quality in the basin as the basin’s waters are diverted for other purposes, has had a pronounced impact on these folks too.

And finally, the wildlife refuges. The Klamath Basin hosts about 80% of the birds on the Pacific Flyway in the course of the year. And two of the crown jewel wildlife refuges are found in the Klamath Basin on the east side of the Cascades, Lower Klamath National Wildlife Refuge and Tulelake National Wildlife Refuge. Again, there’s a lot to be said about the refuges, and their beauty and their function in the world, but uh, for my present purpose, the point I want to make again is, here again is another commitment that’s been made to keep these refuges lively as refuges, that’s been un-reconciled with other commitments of water in the basin.

So, the sum total of all this, as I guess you can probably see, is that there are more commitments of water in the basin than nature, even in a good water year, gives us to meet those commitments.

And even though the first commitment of water which, in western water law, is supposed to mean something, because whoever has the oldest water right is supposed to have the first right to the water. Even though the first commitment was made to the native people, subsequent commitments are sometimes given or even greater dignity.

The bottom line is then that, the demise of the fisheries and the other treaty resources that Don had described, that are no longer available to the Tribes, has come because what we’ve done is emphasize the production of hydropower and irrigated agriculture over the rights of the Tribes. And we’ve emphasized these other activities, other productive activities, that I don’t mean to criticize in and of themselves, but they’ve come at great expense to the native people.

Let’s look a little closer at a particular example of what I’m talking about. Here’s a turn of the last century map of what the area around Klamath Falls and Chiloquin look like. The state line runs right through here. These are pasted together so the line’s not continuous. This is Klamath Lake. It’s pretty much in the same shape today, the city of Klamath Falls is right here. But this area down here has changed dramatically, as anybody whose familiar with the area knows. These used to be enormous wetland areas with a lot of open water, but primarily great big marsh areas at Lower Klamath Lake and Tulelake. These are areas that have been diked and drained and been turned into uplands, and what's happened is, they've been drained or diked in the way that the map just indicates. And if you compare this former marshland that used to keep the water cool and clean and stored up water, this land has been turned into upland agricultural land that, instead of storing water and cleaning water, demands water in the summer time when we don’t have enough and also contributes a significant amount of pollutants to the water. So it’s this transition from a landscape that supported the Indians and the way that they lived their lives, to a landscape that supports other people and they way they live their lives. That’s been costly in the way that Don described to you.

I’m not meaning to criticize either the production of hydroelectric power or the production of these agricultural crops. I’m trying to simply make the point that, the emphasis of some things have taken place at the expense of others, and those are policy decisions that are driven by whatever the politics are at the time.

Upland management has some of the same difficulties. Don referred to the Sprague River where the Tribes fisheries are in , I guess I’d say, desperate shape. This is a picture of the Sprague River in August 2001. It’s an area where the Tribes have treaty-protected fishing rights. And you can see that there’s very little attention being paid in the management regime here to fisheries. The situation here is simply rather desperate. The primary vegetation form is sagebrush when it should be willows and related more succulent plants. The river itself has completely lost touch with its flood plain, so even in the wet part of the year you don’t get a rejuvenation of anything but sagebrush here. There’s really nothing left for fisheries here, if you imagine yourself being a fish in this scene, it’s hard to find a place to exist, let alone thrive.

Downstream then, the Sprague River runs in to Upper Klamath Lake and the results are predictable. This is a picture of Upper Klamath Lake in the summertime, you can see that the boat wake is so full of algae that it looks like this cottage cheese Jell-O that my grandmother used to make, if we only threw in some julienne carrot strips. It’s just a nasty situation if you’ve been by Klamath Lake in the summertime you know it smells bad as the algae decays, and it presents really significant problems for the fisheries or for the fish themselves to live. And again, this is a place that the tribes were told that their fisheries would be protected.

This is a picture of a one-inch pvc pipe going in to Upper Klamath Lake. You can see that you can’t see into the lake, even one inch. These pictures aren’t taken at a particular place or a particular time to make the point I’m making. This is what Upper Klamath Lake looks like in a typical summertime.

The factors that drive the demise of the fisheries are many. They include these: the ammonia in the water goes up as the algae decay, the pH in the water goes up, and drives temperature spikes and other water quality problems. Dissolved oxygen is actually a interesting phenomenon. You need to have a certain of oxygen in the water of course to support the fish.

When these algae bloom they photosynthesize and they pump oxygen into the water and there’s actually more oxygen in the water than is healthy for fish, but then when the algae die, or the bloom as the biologist’s say crashes, they decompose and they suck oxygen out of the water to the point where there’s no oxygen in Upper Klamath Lake in large portions of Upper Klamath Lake and it’s just lethal to fish in the summertime.

And finally, the phosphorus load is coming in in part from those cows you see on the stream provides plenty of nutrients for this algae bloom. The algae of course are just filamental plants, and they got phosphorus coming in from the tributaries to the lake, they’ve got nitrogen they can fix out of the air, they’ve got plenty of air, because Upper Klamath Lake is very large; it’s about 70,000 acres and its nice and warm because it’s only about 6 feet deep. So if you’ve got phosphorus, nitrogen, sunlight, and warmth and water, what more do algae need in order to live and to thrive? It is a trick question, the answer is ‘nothing’. And we have these nuisance algae blooms in the lake that make Upper Klamath Lake lethal to fish in the summertime.

Having looked at the problem of over-appropriation, it’s important to note that the result of all this is that the Tribes closed in 1986, nearly 20 years ago, their fishery for these fish that, that as Don described to you, are an essential part of, not only their physical well being and their nutrition, but also their spiritual well being. These fish are bound up in the Tribe’s view of man’s relationship to the world and to the creator and so on in ways that I won’t try to describe. But the loss of these fish has been just devastating to the Tribes.

Then the fish were listed by the United States Fish and Wildlife Service in 1988 and put on the endangered species list which accords them a certain amount of protection., including protecting the water supply that they need to avoid extinction. And having looked at that as having an additional commitment of water, and looked earlier at the over-appropriation of the resource, let’s turn to one of the uglier products of this situation.

This is the topic that just covered the over-appropriation. Now I want to look at the was these fish came to be perceived at a threat to the agricultural water supply. And so the fish themselves were disparaged! And it’s a short jump from disparaging the fish to disparaging the community that depends on the fish, and the situation got pretty ugly in 2001.

Inevitably a crisis arose over the problem of over-appropriation, it wasn’t going to go away, nobody was doing anything about it. The fact that the water supply was far too small to meet all the commitments was bound to catch up with us sooner or later, and inevitably a crisis arose around that. For over a century, water had been managed in the basin with elaborate water management structures to protect irrigated agriculture and hydropower development from the effects of drought, water was pooled up and saved to keep those industries in business, at great expense to all the other resources in the basin, and my example is primarily fisheries. That system became no longer sustainable because, among other things, it was driving three species of fish, these two and the coho salmon down below the dams to the brink of extinction, and these species came to be protected by the endangered species act, which, through its legal processes, mandated that more water be saved for fishery purposes and less water be dedicated to agricultural and hydropower purposes. So this system finally broke under its own weight and its own over-commitments as the need to protect fisheries from absolute extinction became too much to bear, and finally, irrigated agriculture was for the first time asked to pay a price. Agricultural water supplies, which had been given the highest priority of water use to the exclusion of everything else in the basin for nearly a century, in 2001 were finally cut because of the combined effects of drought, the endangered species act, tribal tr, ..uh the driving of fish to near extinction, the requirement that fish be protected for tribal treaty purposes, and for other reasons.

This headline overstates that there was not no water for most farmers, but the point is correct that water management in the basin took a real sharp turn in 2001 away from the way it had been managed for a century before that.

The response in the community was not one of recognizing or acknowledging the underlying problems in the basin. It was one of simple defiance. This change was said to be so abrupt and so disruptive of people’s livelihoods that it proved to be simply impossible for the community in the first instance but to react with anything but denial and defiance.

It got terrific media coverage, probably most people in this room heard something about it back two and a half years ago in the spring or almost 3 years ago in the spring of 2001. You can see from this picture on the front of the Herald and News, the Klamath Falls local newspaper, that it got terrific media coverage, there are cameras there, there are a number of public officials there encouraging the defiance, and the situation got pretty ugly.

From the point of view of the Tribes and the fish that they depend on, this was coupled with an effort to demean the fish, because the fish, as I said at the opening of my talk, were now seeing the fish themselves as a threat to the agricultural water supply and the way of life and the livelihood of quite a number of people in the basin. So instead of acknowledging the two problems that really drove the situation, the over-appropriation of water that I have spoken about at some length and the ecosystem damage that I’ve alluded to with the picture of the cows and the stream and so on. Instead of addressing those things, the community tried to reduce the value of the fish so it would no longer make any sense to protect fish at the expense of irrigated agriculture.

So the fish that are known to the Tribes as t’wam and cup’to and to the non-Indian community as ‘suckers’ became known as ‘trash fish’, even though they’ve supported native people for a millennia, and they supported non-Indian people when they first moved to the basin when they needed food too.

A highly–placed official, an elected official came to the Klamath Basin and told a very large group of very angry farmers who had just been told they weren’t going to get water in 2001, that the government had, in the past, tried to exterminate these fish, and so it made no sense now to try to protect the fish, especially if protection would come at the cost of irrigated agriculture. Of course the audience was more that happy to hear that, and that became one of the battle cries, that these fish were trash fish. The official’s statement was soon to be revealed incorrect, and the official’s staff couldn’t say where the information had come from, but the tone had been set. The ‘trash fish cry echoed even to the New York Times which described the fish as barely-edible, bottom-eating sucker fish.

Implicit in the demeaning of the fish that way was the demeaning of the communities that are dependant on the fish. And throughout the summer of 2001, Indian people in the Klamath Basin received either no service or pointedly-slow service at a lot of restaurants and stores in Klamath Falls.

In December of 2001 then, the conflict took on violent proportions and got really ugly. 3 non-Indian men from the predominately non-Indian agricultural town of Bonanza in the southern Klamath Basin came up to Chiloquin armed with shotguns and rifles. Apparently they had intended to go hunting but the weather had been uncooperative and so they turned their attention instead to harassing the people in the predominately Indian town of Chiloquin. They drove through Chiloquin shooting their guns, racing their engine, making as much noise as possible. They confronted Indian kids in the kids own front yards and harassed them calling them names and menacing them. They shouted things like, "sucker lovers come out and fight." It was quite clearly a set of behaviors that stemmed from the water crisis of that summer. The resulting mix of fear and anger has subsequently shaken the Indian community to its core.

These guys encountered a school bus outside of Clyde’s Market on a Saturday morning, a school bus with a junior varsity boys basketball team from the mostly Indian high school had stopped here at Clyde’s Market. You could find it in any town in Oregon. It’s the general store in Chiloquin. And the kids, the players on the team were going in the store to get supplies to take on the bus on this road trip to an away game, and these three guys, frustrated hunters, sorted through the kids as the kids wee getting in and out of the bus, and out of the store, and singled out the Indian kids for harassment and let the non-Indian kids get on the bus.

As I say, the resulting mix of fear and anger, with shots being fired and people’s lives actually being threatened really did shake the community to it’s core. This most odious behavior was not really condemned by anyone in the Klamath Basin community except of course the Indian people, with the important exception of the sheriff and the district attorney, I’ll get to that in a minute. But in the local newspaper, in the Herald and News, the debate was primarily over whether there wasn’t too much of political correctness in acknowledging the racial underpinnings of these issues in sort of a ‘boys-will-be-boys’ treatment. Other than that…

But the good news is that the law enforcement community did that the issue seriously. The district attorney worked fairly closely with the Tribes in prosecuting the case. The Tribes were insistent that the strongest position possible be taken by the law enforcement community and the sheriff and the DA teamed up to get a conviction.

The guys who did this were charged under the Oregon hate crime statute and ultimately were forced to plead guilty under the hate crime statute, and it left it quite clear in the community that, ad the Herald and News reported it, racism was a motive. These gentlemen plead guilty to various counts under the Oregon hate crime statute.

So the racial underpinnings of the episode were eventually revealed. The men were sentenced under that statue and the Tribes were generally satisfied, as satisfied as one could ask them to be with the outcome of the situation, at least with the prosecution of it.

So everyone now hopes that this incident is behind us, but the water problem is unchanged from what I’ve described to you. The land problem that Don described is unchanged. And the fish, game and other resources have not bounced back The basin issues around resources, water in particular remain unresolved albeit progress has been made in some of the talks. But the community’s inability to avoid instances like this one is quite likely to be tested again, especially this year because the water forecasts are once again grim.