The state is making up its own water rules
and News Letter to the Editor Feb. 21, 2019, by Jerry Jones,
documents show Oregon Department of Water Resources (ODWR)
has engaged in water theft from the historical ranches of
the Upper Klamath Basin.
In 1906, over
622,000 acres in the Upper Sprague and Sycan areas was
removed from the Klamath Indian Reservation in a boundary
settlement with the tribes. At the same, 87,000 acres was
removed in a land exchange agreement with a private company
for 111,000 patented acres the company owned within the
reservation. Each agreement was approved by the tribal
elders and in each case the tribes were paid twice by the
government to make sure they received fair market value. In
exchange for the first payments, government required the
tribes to "execute a release of any claims and demands of
every kind against the United States for the land involved."
OWRD has erred
in mixing of traditional western water law (first in use,
first in right) with treaty rights which define Indian
rights. In the treaty of 1864, the Indians ceded 22 million
acres of traditional hunting and fishing area for safety and
guaranteed rights within a reservation. This too was
approved by the tribal council.
In 1985, the
U.S. Supreme Court in ODFW v. Klamath Tribes ruled that the
tribes hunting and fishing treaty rights were limited to the
former 1954 reservation boundaries and did not extend to the
lands ceded out of the reservation.
The only time
immemorial rights the tribes have are hunting, fishing and
gathering rights with water to support these activities. The
water rights cannot be separated from these other
activities. The Adair decisions which gave the tribes
in-stream water rights only referred to activities within
The ranches in
the adjudication had water rights before the state started
granting rights in 1910. The state in the adjudication
process has made up its own rules.
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