This previously ran in the Herald and News, and has been re-edited. Posted to KBC 10/24/03

Article about the Klamath Tribes, by Brad Harper

Brad Harper is Executive Director of Water for Life, Inc. a statewide organization defending agricultural water rights. This article is a re-edited version initially published during the Klamath Project Shutdown of 2001. You can contact Water for Life at: P.O. Box 12248, Salem Oregon, 97309, Phone (503) 375-6003, brad.harper@waterforlife.net.

Those of you familiar with Water for Life, Inc., know that we take water very seriously. We cannot abide the injustice of recent events, which threaten to shatter the communities of the Klamath Basin.

In irrigation season of 2001, over 170,000 acres of fertile land cultivated by Klamath Basin family farmers did not receive water. This disastrous action by federal bureaucrats meant more than the ruin of the 2001 growing season. For many farming families the shut off spelled the permanent end to their way of life.

Despite what anti-production extremists suggest, farmers and ranchers are not relics of a bygone age. They are a linchpin to our national security. America’s ability to provide abundant, high quality food has always kept us strong in times of war and peace.

Our message to the federal managers is simple: we will not go quietly. The agricultural community is united in our resolve to shine light on bad faith dealing and reckless disregard for our rural communities.

In exchange for a cash buyout, the Klamath Tribes’ reservation was extinguished by an act of Congress – the Klamath Termination Act of 1954. The terms of the buyout were revisited as part of the decades long Klamath Adjudication of pre-1909 water rights. Specifically, the federal government filed the landmark court case, United States vs. Adair. The federal court deciding the Adair case found the Tribes had relinquished their reservation property rights in exchange for compensation. The court found the Tribes retained certain rights to hunt and fish on their former reservation; primarily lands now managed by the federal government.

Enlarging on these hunting and fishing privileges, the federal Bureau of Indian Affairs [BIA] and the Tribes are attempting to justify massive claims to Basin water with priority dates termed "time immemorial." As part of the adjudication, they have filed identical claims for water on 49 stream reaches and two elevation claims (Klamath Lake and Klamath Marsh), and one claim for multiple seeps and springs. Each claimed stream reach has three additional claims for water, all of which must be met prior to anybody irrigating. Furthermore, they are demanding the claimed amount must be met in the entire reach of the stream. Taken together, these claims amount to more water than actually exists!

These flow numbers get even worse on small tributaries. Before the Tribes sold their reservation, Crooked Creek was wholly diverted at the headwaters for agricultural use. That diversion did not, and could not, exceed the natural flow of about 5 cfs. Yet now BIA and the Tribes are claiming 91 cfs for instream use on Crooked Creek. This is a whopping 18 times the natural flow at the headwaters.

Both BIA and the Tribes jointly filed a lawsuit to reopen Adair, attempting to drag the entire adjudication of their claims out of state court and back into federal court. They did so with full knowledge that, if successful, many basin farmers would no longer receive water.

So far, however, the litigation strategy has failed. The latest ruling by the Ninth Circuit Court of Appeals was a significant setback for the tribes, returning the adjudication process back to the State of Oregon.

Insofar as there are allegations the Basin’s resources have been mismanaged, federal and Tribal land managers are far from innocent. In particular, BIA should be held to account for decades of decisions that likely caused significant declines in fish population and created irreversible damage to the very lands the Tribes were authorized to steward.

When the reservation still existed, BIA authorized the harvest of billions of board feet of timber. In order to mill the lumber ponds were created, damming up entire river systems. Most of these mill ponds were built without fish ladders. These were massive dams blocking fish passage to the entire river system, not just small tributaries.

Considering current attempts to shut down irrigated agriculture, we cannot let pass the irony that BIA (formerly called Indian Services) filed claims in 1919 to irrigate 144,592 acres, plans which included draining what is now the Klamath Marsh National Wildlife Refuge. The Termination Act passed before these plans could be implemented.

As a result of BIA’s acquiescence to building mill ponds and developing irrigated agriculture, at least six dams were built blocking the mainstream of the Sprague River. As a result of these dams, fish habitat has been partially blocked for the past 85 years. The remaining Sprague River dam has been identified as the greatest obstacle to fish passage on the river.

The land management practices exemplified above seem inconsistent with tribal insistence the sucker fish have always been a critical part of their culture. The Tribes are currently very active in their efforts to protect suckers, but we are struck by their seeming indifference when they still held a reservation.

W. H. Slattery, a reservation engineer, made the following observations while investigating potential repairs to the Chiloquin Dam in 1940. Please note that suckers are also referred to as "mullets":

Bray’s Dam; Another long forgotten reservation dam, since removed or washed away. This dam also lacked a fish ladder.

"It is my observation that the fishing activities of the Indians near the dam could render serious injury to a great number of fish. In attempting to "gaff" trout, which seem to be more desirable than mullets, the fishermen often "gaff" mullets, which they immediately return to the stream after serious mutilation by the removal of the gaff hook. In fishing along the stream for trout immediately below the dam with rod and tackle the fishermen often snag mullets, the hooks entering their body which necessitates the bringing the fish to shore for removal of the hook by cutting it out with a pocket knife, or by allowing the fish to tear itself free from the hook while being brought into shore. The trout fishermen do not enjoy these difficulties since it results in the loss of much time and effort besides the lost of valuable tackles.

Chiloquin Dam; The Chiloquin dam built in 1914, in order to develop irrigation for Native American Farmers in the Modoc Point area; historical development plans called for irrigation of 12,803 acres.

During the run of fish I have observed as high as twenty-five fishermen both with tackle and gaff hooks, below the dam and I feel that these fishermen would mutilate a great number of fish in the above manner."

"As to the fish which have died in their attempt to pass the dam on their migration upstream, referred to in office letter July 24 1939, Mr. Blocklinger claims that the only dead fish he has seen in the vicinity of the dam are those which have been removed from the stream by fishermen and left upon the dam to rot. Also, he states that these fish are called ‘suckers’ and are not preferred for food." (Slattery 1939)

We suspect that most Basin residents agree with this assessment of the suckers suitability as a food source.

Past BIA action also lead directly to the current depletion of Bull trout populations: According to internal documents, the cause of declining Bull trout populations is the result of competition from hybridized Brook trout: "Perhaps the most significant threat to the remaining Bull trout populations in the Klamath Basin is hybridization with introduced Brook trout. Where the two species reside together, Bull trout abundance is alarmingly low, and hybrids are common,…" (U.S. Fish and Wildlife Service, Federal Register June 13, 1997).

Who is responsible for this Brook trout hybridization? At the time of the reservation, thousands of Brook trout were being planted on the Reservation: "There are several very good trout streams on the reservation. Rainbow and Brook trout are planted in them each year (250,000) by the State in exchange for use at the hatchery of water from the spring on tribal land." (C. C. Presnall, 1941).

Federal agencies disburse millions of tax dollars each year to finance Tribal biologists, who in turn develop data that supports their hypotheses. Many of these studies are biased from the outset by the Tribes desire to obtain all the water.

Family farmers do not have similar access to federal funding to dispute these studies. Yet our questions persist: Why do federal biologists claim the suckers need high lake levels despite increased mortality during high lake levels and lower die offs during low lake levels? Why do these scientists recommend releasing millions of gallons of warm, low oxygen water out of Klamath Lake, into the Klamath River when we know Coho salmon die when they encounter that warm, oxygen-depleted water?

In 1887 Congress passed the General Allotment Act. Prior to the Act the Tribes held the reservation land in communal ownership. Pursuant to the terms of the Allotment Act, however, ownership of certain tribal lands were granted to individual members, roughly 25 percent of the reservation was transferred in this manner. Adjudication irrigation shutdowns will include these Tribal irrigators (allottees) who hold family parcels of land. These allottees have held these lands for generations only to see their own Tribes try to shut off their water.

At the many public meetings throughout the basin we hear how individual Native Americans are also victims of the water shutdown and we are genuinely sympathetic. Individual Native Americans are our friends, neighbors and coworkers. We know that many Tribal members would rather have available funds spent on healthcare, housing, and education. Instead it is being spent on efforts to destabilize our shared agricultural economy.

Klamath project irrigators have installed a multimillion dollar fish screens as part of an aggressive program to install screens and ladders wherever necessary. We all are proud of this because Water for Life was a leader in getting state cost share programs for fish screening.

These are win-win situations allowing irrigators to remain economically self-sufficient while meeting the community’s obligation to protect wildlife. Credit is also due for the many miles of riparian fencing and other private environmental restoration activities implemented by responsible landowners.

BIA and Tribal animosity towards Basin farmers and ranchers is counterproductive at best. Precious money and time has to be expended protecting producers’ livelihoods instead of going toward additional restoration activities – where those resources would do much more good.