Statement of Allen Foreman for PERC conference June 8, 2004

I appreciate the opportunity to present the Tribes views on the water problems in the Klamath Basin.

The Klamath Basin has been the home of the Klamath, Modoc, and Yahooskin people for more than a dozen millennia.  Throughout this time we have enjoyed the abundance of resources that this land provided us. 

From the mid 1800’s until the middle of the twentieth century we shared those resources with all that came to our homelands.

For the past four decades we have seen those same resources diminished greatly.  So greatly in fact that it has become impossible to provide for the basic needs of our people.  Once rich marshlands that contained thousands of acres of wocus as well as waterfowl which blackened the skies over the Klamath Basin, provided food for our people; both are now nearly gone.

Salmon, which once used the headwaters of the Klamath Basin, no longer are able to return to feed our people.    Other species of fish, which are now on the endangered list can no longer feed our people.   Other wildlife, roots and berries have diminished to the point that they too are no longer available.

All of these things are a commodity to us, not unlike the commodities produced by the agricultural community.  The difference is that our commodities are consumed directly.

When I hear of the problems facing the agricultural community and the loss of your livlihood, I sympathize with you.  Our people can identify with your concerns, we have been there for decades.

It is not the desire of the Klamath Tribes to shut down agriculture nor is it our desire to infringe upon the rights of others.  What we ask is that you recognize that our right to a livlihood is as great as your own.  That our commodities and resources are as valuable as yours.

In order to understand the Klamath Basin water situation appropriately it is important to understand its historical roots.

*In the Treaty of 1864 the Tribes were guaranteed the water needed to support our fisheries and other resources. We gave up twenty million acres of land for this guarantee.

          *In the early 1900’s the government began the Klamath irrigation project which involved the removal of two large lakes, Tule Lake and Lower Klamath Lake and converted that land into farm land.  Later they invited farmers to move into the Basin and suggested that water would be available from the smaller remaining Upper Klamath Lake, the government did not tell the farmers about Tribal water rights.

          *For nearly a century Oregon has been issuing water permits without regard for Tribal water rights or the promises made to the Klamath Project, and until recently without regard for the natural health of the rivers, lakes and marshes.

          *Then the government allowed their agencies, the Forest Service, National Park, and the US Fish and Wildlife to claim the same water, again without regard to the earlier promises.

The Tribes had to go to court several times to reaffirm our rights; the courts have upheld those rights.

There are basically two questions here today.  Who has what rights?  And second, what is the potential for marketing water?

I submit to you that for the Klamath Tribes the problem and or solutions are a bit more complex.

A major goal in any solution must be restoring and sustaining a healthy and functioning system to support multiple uses.

          *We need to repair damaged riparian corridors, so water quality and habitat can improve for fisheries.

          *We need to reduce demand on the system through a program that fairly rewards the agricultural community for retiring land, so the remaining lands can be sustainably farmed.

The Basin will not regain its health by treating symptoms while avoiding the causes of our water problems.

We need to restore nature’s productive capacity in the Klamath Basin.  Otherwise we will be facing problems like this one for years to come.

Not surprisingly the current crises is a predictable result of the federal government making more promises than it can keep.

Those of us who must face the consequences of those empty promises cannot build a future by turning on each other.  The fisheries, the farming communities, the Klamath Tribes culture and economy are all at risk.

We need all parties to work together so that all of us who live in the Klamath Basin can work together on a lasting solution, not an inadequate quick fix.

As to who has what rights.  That eventually will be determined by the legal system, unless we can arrive at a stipulated agreement beforehand.  Through the adjudication process the courts will only decide as to the quanity based on a seniority system.  We will still have a broken system with poor water quality with little means to fix the problem.  This will not relieve the ESA requirements and most certainly will do nothing for tribal trust responsibilities by the government.  Our fisheries must be returned to harvestable levels.

The federal court in United States v. Kagama clearly spoke of a “duty of protection” owed to tribes by the United States that came about from treaties.”

Again I remind you that we have lost the subsistence use of our succor fisheries for nearly two decades.

The pinch of poverty and hunger are non the less severe because the person who has taken your means of subsistence has done so under cover of law and appearance of legal right.

Our fish still represent meaning and relationships so old and tenacious that even while we can no longer fish today, we will fight to preserve our rights in the rivers and streams with which they are traditionally connected.  Our fishing is the heritage of hundreds of years of use and development.  It is a stronghold of who we are as Indians.  The importance of fishing for us today is as real as it was for the treaty signers, and for those before them.

There exists a misconception that the tribes are in an “era of environmental conscience”.  In actuality, there exists a conscience toward the reestablishment of a spiritual covenant with the earth by the tribes.  One other aspect of the moral issue, which even concerned non-Indians tend to ignore, is the spiritual meaning of fishing among Indians today.  This is an integral part of our whole artistic, religious, economic and social life.

In conclusion it is not about dollars and cents to us but about a livlihood, the basic ability to feed and sustain our families.  Subsistence harvest is not only a right but also a way of life with us, no less important than a crop to agriculture.  The United States not only has the duty but the obligation to protect all of our resources. 

Water marketing can be a useful tool in solving the basins water shortfalls, but must be kept in context as part of an overall solution.

I am optimistic that if we work together, we can assemble the tools to make this work for everyone.