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Past, present cloud Tribes' meetings


Shayleen Idrogo, an attorney for the Klamath Tribes, addresses the audience during a meeting at the tribal headquarters in Chiloquin.

Published Nov. 16, 2003

By DYLAN DARLING

During public meetings last week the Klamath Tribes tried to focus on the future and what they would do with forests in a new reservation.

But the past and present kept coming up.

Questions, concerns and opinions about how the Tribes ended up without a reservation in the first place dominated the meeting in Beatty on Monday, and questions about how the Tribes manage what they already own underscored the Chiloquin meeting Wednesday.

After Klamath Tribes Chairman Allen Foreman's introductory presentation at the Beatty meeting, the first question for him came from Judy Criswell, who has a 135-acre horse ranch near Chiloquin.

"Are you or are you not an American?" she said.

Foreman replied:

"I am one of the first Americans."

Jeff Mitchell, a former chairman of the Klamath Tribes, answers questions directed toward him during Wednesday's meeting in Chiloquin.

His answer met with groans and deep sighs from many in the crowd, setting the tone for what would be a raucous night.

Groans and grumbles again rolled through the crowd of about 120 when Foreman mentioned racism and after the Tribes explained their take on the past.

Many at the Beatty meeting asked the tribal officials why their members can't just move on from the past, accepting the mistake of their forefathers to sell off the Tribes' homeland.

Foreman said part of the problem is that the members of the Tribes didn't get paid for their land, but rather were paid for their lost assets, such as timber. He said the government forced the Tribes into termination, and it was unjust.

His response lead to more groans from many in the crowd. Throughout the evening there were several heated moments, most coming from debates about the past.

Debbie Brown, who has lived with her husband on 12.5 acres near Beatty for 10 years, said people who live in or near the old reservation area shouldn't be punished for what the government did to the Tribes.

"We can't be held responsible for what happened 20 years ago," she said.

She said people who live on or near the old reservation are worried about how a new reservation will change their properties. Many said they bought land where they did because they wanted to get away from people and have national forest land beyond their back yards.

Missy Hess, who said she is a rancher and an Indian, said less time should be spent arguing about the past and more should be used to discuss the future.

"I thought this was going to be about what needs to be done, not what has happened," she said.

At the Chiloquin meeting, many wanted to talk about what is happening now, not what might happen later.

People from the public and the Tribes raised concerns about the conditions of the Kla-Mo-Ya Casino, Williamson River, town of Chiloquin and other areas seen as being under the control of the Tribes.

Jim Kincaid, who has lived near Chiloquin for about a year, said he sees a trash-filled river and a run-down town.

"If this is how they treat the river, if this is how they treat the town, then what are they going to do with 700,000 acres of land?" he said.

Officials with the Tribes said there are many cleanups of the river and much of the waste in it wasn't dropped in by members of the Tribes. They also said they aren't the ones who run Chiloquin.

Although some of the subject matter was touchy, Anna Bennett, a member of the Tribes land and water committee, said the Chiloquin meeting was not as "vicious" as the Beatty meeting.

Despite differences in points of view, those at the Chiloquin meeting want to work together, she said.

"I don't get that feeling from those out in Beatty," she said.

The formats of the two meetings were a bit different.

In Beatty, tribal officials gathered in a corner and Foreman tried to call on people with their hands raised for comment, but many interrupted each other. Foreman then tried to answer as many of the questions he could on his own, sometimes turning to the other tribal representatives for help.

In Chiloquin, those with questions had to come up and speak into a microphone. Their questions were asked of a panel of tribal officials.

Bennett said the Chiloquin meeting was more structured than the Beatty meeting partially because of reaction to how the Beatty meeting went and partially because of the change in venue and the different facilities.

She said the Tribes plan to have more public meetings in December, including one in Klamath Falls and several in the I-5 corridor. At those meetings, questions about the past and present will probably come up again, Bennett said.

She said the Tribes will do the best they can to address the concerns.

"We are not going to fight with people, we are here to find solutions to problems in the Basin," she said. "But some people are not going to agree with you no matter what you do."

The Tribes' next public meeting about the reservation is from 1 to 5 p.m. Saturday, Dec. 13, in Klamath Falls at the Mabel Liskey Henzel Pavilion, 2200 Eldorado Blvd.

Reporter Dylan Darling covers natural resources. He can be reached at 885-4471, (800) 275-0982, or by e-mail at ddarling@heraldandnews.com.



Following is the text of a document distributed by the Klamath Tribes Wednesday during a public meeting in Chiloquin. The document, titled "Frequently Asked Questions & Answers" addresses issues regarding the Chiloquin-based Tribes' effort to regain their former reservation.

History

1. How long have the Klamath, Modoc and Yahooskin people resided in the Klamath Basin area?

We are taught that we have been here "from the beginning " According to federal case law, we have been here "since time immemorial. " According to professionals in the field of archaeology, we have been here for 14,000 to 20,000 years. Our ancestors were already firmly established residents when Mount Mazama erupted and created Crater Lake more than 7,000 years ago.

2. What is the basis for the Klamath Tribes' existence as a distinct sovereign entity?

The United States Constitution recognizes Indian Tribes as distinct sovereign entities. The Supreme Court has held that Tribes have both inherent sovereignty and the sovereignty accorded to them by Congress and the Courts. We believe that our sovereignty is inherent - it is, as the Supreme Court has held, an attribute of our indigenous or aboriginal existence.

Although our sovereignty has been diminished, the United States continues to legally recognize Indian Tribes as domestic dependent nations. The United States Congress acknowledged the Klamath Tribes' sovereign status when it chose to restore our federal recognition in 1986.

3. Did the United States give the Klamath Tribes a reservation in the 1864 Treaty?

No, as part of the Treaty negotiations, the Klamath Tribes ceded, or gave to the United States, over 20 million acres. Our ancestors reserved to themselves (for our benefit) over 2 million acres of our aboriginal homeland, to be permanently held in trust for us by the United States.

4. Why do the Klamath Tribes want the former reservation lands returned to us?

We believe that the sale of the reservation, like the termination of the Tribes, was morally unjust. President Nixon articulated the injustice of termination in 1972, and the termination policy was ended. We also feel that we have a spiritual and cultural responsibility to heal and protect our Homeland for the generations who will follow us.

5. Is it true that the Tribes sold the reservation three times, and that the government gave it back three times?

No. The United States Congress terminated the Klamath Tribes in 1954 and mandated that the Klamath Tribes assets be sold and the resulting funds disbursed. The only option tribal members were given was to "remain" as a shareholder of the assets (including a proportionate share of the land) which were to be managed by an unnamed trustee, or to accept their share of the assets in cash. A Bureau of Indian Affairs newsletter distributed to tribal members implored them to withdraw or risk ending up with nothing.

After the majority of tribal members chose to withdraw their assets as advised, Bureau of Indian Affairs employees labeled over 70 percent of the withdrawing tribal members incompetent - including many adults. The assets of persons deemed incompetent were then placed under the management of trustees - frequently local attorneys and judges. The local bar association established a "special" (higher) Indian fee for the management of these funds. Many attorneys mismanaged funds - three mismanaged them so grossly that they were disbarred, and at least one was incarcerated in federal prison.

When "remaining" tribal members voted to dissolve their trust, the bank trustee interpreted that as a vote to sell all assets and the resultant funds were distributed. By that time, many of the original remaining members were deceased.

After all of this, the Federal Trade Commission conducted an investigation into Klamath County business dealings. That investigation revealed discriminatory business practices towards Indians after termination. No Indians were compensated for either trustee mismanagement or for the FTC violations.

6. Why didn't other Indians do what Edison Chiloquin did, and take land instead of accepting money?

As many people know, one Klamath Indian - Edison Chiloquin - negotiated with the federal government to accept a parcel of land (as a life estate which transferred to the U.S. Forest Service at his death), instead of accepting his share of the terminated and condemned tribal assets in cash. This was not an option offered to tribal members, but an unique agreement struck between Edison and the federal government.

Land

7. What are the boundaries of the lands the Tribes want to have returned?

Generally, the boundaries include former reservation lands currently held by the Winema and Fremont National Forests.

8. Will non-Indians who currently reside within the boundaries of Winema National Forest lose the right to live there?

Absolutely not. The Tribes would not do to others the injustice that we feel was done to us. (Condemn and take their lands, or try to intimidate them into selling.)

9. Will the Tribes provide for access to people living on private property (in-holders) within the boundaries of the former reservation?

Yes. On February 23, 2003, the Klamath Tribes General Council voted for the Tribes to honor current permitted uses and valid existing rights on the former Reservation lands, and to issue future permits and rights based upon tribal management goals and objectives. The Tribes also adopted the following statement: "Private landowners will have the absolute right to access their property throughout the lands returned to the Tribes. The Tribes will maintain the right to limit certain routes of access in accordance with tribally adopted management goals that are not burdensome to the private landowners."

Anyone with easements or rights of way with the Forest Service will have those honored. Even if someone does not have an easement or right of way, the Tribes have committed to assure that they have reasonable access to their lands.

10. How can the people living within the returned land be certain that they will have access to their private property?

The Klamath Tribes have already agreed that this access right will be included either directly or by reference in any legislation transferring lands to the Tribes.

11. Will people living on private property within the returned lands have to pay for access?

We don't foresee any immediate circumstances in which private landowners would have to pay a fee for access to their private property. If that were to change, any such fee would be commensurate with such fees charged by the federal and/or state government.

12. Will the Klamath Tribes allow for general public access?

Yes. On February 23, 2003, the Klamath Tribes General Council approved the following commitment:

"Non-tribal members will continue to have access to the returned lands for hunting, fishing, camping and other recreational purposes. Such access will be pursuant to the Tribal policy on public access to be developed by the tribes. The Klamath Tribes are committed to building a positive working and sharing relationship with the general public, while maintaining our ability to sustain our culture, enhance the Klamath Basin ecosystem, and protect our culturally significant areas. On this basis, the Tribes will work with the federal government, the state of Oregon and the general public to develop the process for the administration of public access to the lands for recreational purposes, including hunting, fishing, camping and other activities as appropriate. The Tribal policy on public access will provide a framework for the development of relevant tribal ordinances that are consistent with tribally adopted ecosystem management goals. "

As the new manager of these lands the Tribes will be undertaking the restoration of the forest, the watershed, and habitat necessary to support the return of abundant wildlife.

That will necessitate a different approach to how these lands are managed. The Tribes plans for the management of these lands include a process for public involvement and review of tribal plans.

13. Will the Tribes allow for public recreation?

Yes. On February 22, 2003, the Klamath Tribes General Council agreed that public access would continue to be allowed for "hunting, fishing, camping and other recreational purposes... consistent with tribally adopted ecosystem management goals." The Tribes have also committed to developing a Klamath Tribes Recreation Strategy, which will balance Tribal needs with public access for a variety of recreation experiences.

General Management

14. Will non-Indians be allowed access to the forestlands on foot or horseback?

Yes. Such activities will be allowed for everyone to the extent that they are done in manner that is consistent with the Tribes' overall forest restoration goals.

15. Will the tribal lands be managed like the Warm Springs Reservation - with two different sets of laws (for Indians and non-Indians)?

Yes, to some extent.

A different set of laws already applies to members of the Klamath Tribes, based on our Treaty Rights. The Klamath Tribes also have both civil and criminal jurisdiction over our own tribal members. Under Public Law 280, this jurisdiction is concurrent with that of the state of Oregon. (Tribes do not have the legal authority to exercise criminal jurisdiction over non-Indians, although we may have civil authority over some matters.)

The general public will have legally mandated access to the returned reservation lands and legal recourse to ensure that the Tribes follow the commitments we have made regarding forest management decisions. Furthermore, the Tribes will host regular meetings with private landowners; both within the reservation lands and bordering them, when any decision is being considered that may substantively impact them.

16. Will the Tribes use both Indian and non-Indian companies for forest work if the land is returned, or only Indian companies?

The Tribes hope to employ as many tribal members as are qualified. There is a tremendous amount of work to be done, however, and we anticipate that we will be contracting with both Indian and non-Indian companies to accomplish that work.

17. How will tribal management of the lands be funded?

Most of the tribal management of the lands will be funded by the federal government, just as it currently is. The tribes are looking into various types of environmentally friendly business development to offset some of those costs.

As is the usual case, federal dollars spent for management of the forestlands will circulate several times within Klamath County to the benefit of the local economy.

18. What if someone believes that the Tribes have violated the terms of the transfer of the lands to the Tribes?

The Tribes have committed to a detailed public participation process for review and comment on tribal land management actions. If anyone feels that the tribal plans violate the terms of the transfer or existing tribal land use laws, that person has the right to appeal within the Tribes and then to tribal court. If still dissatisfied with the outcome, that person can appeal the matter to the federal district court.

19. Don't the Tribes have sovereign immunity? How can someone sue the Tribes in their own courts or in federal district court?

The Tribes have agreed to an unprecedented waiver of our sovereign immunity to both our own courts and to the federal district court. Any person who feels that land management actions affecting these lands is in violation of the law transferring the lands, or the Tribes' own laws, may bring suit in tribal court. If that person feels he or she is not accorded a fair hearing in tribal court, the Tribes have agreed to waive our immunity to suit in federal district court.

20. What about federal environmental laws? Will they apply to the returned lands?

The same federal environmental laws that apply to other lands apply to tribal lands; specifically, the Clean Water Act, the Endangered Species Act and the Clean Air Act, as well as other federal laws of general application. Any information that these laws would not apply is simply wrong.

Resource Use

21. Will the Tribes allow for public hunting and fishing access?

Yes. On September 27, 2003, the Klamath Tribes General Council adopted the following language: "Hunting, fishing and trapping permits will be issued to Tribal members and the general public based on the availability of resources." On that date, the Tribes also committed to improving riparian areas to provide enhanced habitat for wildlife and fish, improving fish habitat to provide for increased fish population, improving deer winter range habitat for mule deer, maintaining or improving summer habitat for mule deer, and improving fawning and calving areas. The Tribes also committed to working in cooperation with other agencies to improve mule deer numbers.

22. What kind of fees will be charged for hunting? Will they be in addition to what the state currently charges?

The Tribes plan to take responsibility for issuing hunting tags within the boundaries of the returned lands. We will charge hunting fees that are commensurate with those charged by the state of Oregon. The Tribes will coordinate this responsibility with the state, and will not agree to participate in any plan to double-charge hunters.

23. Will tribal hunting be cut back in order to allow the herds to grow?

The Tribes will take whatever action is necessary to allow the herds to grow. Tribal members, however, have a Treaty right to subsistence hunt and the Tribes would cut back on their hunting privileges only as a last resort.

24. Will the Tribes allow for public wood gathering?

Yes. On September 27, 2003 the Klamath Tribes General Council committed to the implementation of a wood cutting program that will provide a sustainable source of firewood fuels for both Tribal members and the general public. The Klamath Tribes have not yet determined if commercial wood cutting will be allowed in the near future. All wood cutting will have to comply with the Tribes' overall forest restoration goals.

25. Will the Tribes allow grazing to continue?

Yes. On February 22, 2003, the Klamath Tribes General Council agreed to honor current permitted uses and valid existing rights, including grazing. At that time, the General Council also agreed to issue further permits and rights based upon tribal management goals and objectives. On September 27, 2003, the Tribes committed to a grazing program that will be managed in a manner that avoids conflicts with mule deer and other wildlife, decreases erosion, enhances riparian areas and maintains healthy upland conditions.

Water

26. Why do the Klamath Tribes have a water right when they are not irrigators?

The Supreme Court has held that when Congress entered into agreements setting aside reservations for Indian Tribes (such as the Klamath Treaty), enough water was impliedly reserved to meet the needs of the Indians residing there. This is known as the Winters doctrine.

When the Klamath Tribes were terminated in 1954, Congress specifically stated in the legislation that: "Nothing in this [Act~ shall abrogate any water rights of the tribe and its members... Nothing in this [Act~ shall abrogate any fishing rights or privileges the tribe or the members thereof enjoyed under Federal treaty. "

In the case of United States v. Adair, the 9th Circuit Court of Appeals upheld the Tribes' right to enough water to support treaty harvest activities, and recognized a "time immemorial" priority date.

27. Will the Tribes put in dams above private lands?

The Tribes do not have plans to put in any dams. However, the Tribes - like other parties in the Basin - are considering the feasibility of establishing a long-term water storage facility of some sort. Any such plan would be developed with the input of others in the Basin, and with specific attention to anyone whose land or resources could be impacted by such action.

Current Negotiations

28. Why aren't all meetings public - why wasn't everyone involved in the special meetings between the Tribes and some local irrigators and ranchers?

The meetings between the Klamath Tribes and various Klamath Basin rancher and irrigator representatives grew out of contention and conflict. The group, which was originally pulled together by representatives of Klamath Basin Rangeland Trust, determined early on that it would stay relatively small in order to provide a forum for informal, level-headed discussions about highly charged issues.

No "deals" have been made behind closed doors, but the various parties have come to understand one another's perspectives much better as a result of patient and persistent dialogue.

29. Why don't the Tribes plan to buy back the land?

The return of the lands is being considered as part of a negotiated settlement agreement. As articulated by one tribal spokesperson: "The federal and state governments have said that land recovery is unlikely without water settlement. The Tribes have said that water settlement is unlikely without land recovery. "

The Tribes feel that it is in everyone's best interest to reach a negotiated settlement agreement. If the parties are unwilling or unable to come to such an agreement, however, the Tribes and all other parties will have to proceed through the state's water adjudication process.

30. Will the Tribes provide taxes or some other funding for schools?

The federal government provides "impact aid" funds to school districts that have federal and/or tribal employees working on lands held in trust, including Indian reservations, military bases, national forests and similar holdings. Federal impact aid is also provided to school districts that have Indian children living on Indian lands held in trust by the federal government.

Some Klamath County schools already receive extra grant funding from non-profit organizations because of the number of Indian students attending their schools. The Tribes are also looking into various types of business development that would enable us to assist the local schools.

31. Since the federal government is the trustee for Indian reservations, what makes the Tribes think they won't change their minds again as in the past (and take away the returned lands)?

There are no guarantees in life, but since the 1970s the federal government has publicly acknowledged the failure and injustice of the termination policy. Times have changed since the 1950s, and many more people in the United States and around the globe respect the rights of indigenous peoples to maintain their cultural identity and still participate in the majority society.

32. Why aren't the Tribes willing to co-manage the reservation with the Forest Service? Why do they want to have ownership of the lands?

The Tribes had a homeland in the Klamath Basin for 14,000 - 20,000 years. This is where we believe our Creator meant us to be, and we believe that it is critical to the well being of our people - physically, culturally and spiritually - that we remain here. We believe this was meant to be our Homeland, from time immemorial into time infinite. We have an inherent responsibility to care for this place and the resources therein.

We have attempted to co-manage these lands with the Forest Service, but it has been a dismal failure. This is generally not the fault of the local U.S. Forest Service employees, but a result of the fact that policies for national forests are oftentimes national or regional in scope, and oftentimes driven by political decision-making at the Washington, D.C., or Portland level.







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