The Klamath Tribe: 1864 Treaty (1) (2) ; October 14, 1864, United States Statutes at Large, Volume XVI, page 707. Tribe: Klamath and Modok tribes and Yahooskin band of Snake Indians. Description of cession or reservation: Cede territory within the following boundaries: Beginning at the point where the 44ø N. latitude crosses the summit of Cascade mountains; thence following the main dividing ridge of said mountains in a southerly direction to the ridge which separates the waters of Pitt and McCloud rivers from the waters on the N.; thence along said dividing ridge in an easterly direction to the southern end of Goose lake; thence northeasterly to the northern end of Harney lake; thence due N. to 44ø N. latitude; thence W. to the place of beginning. Reserve, until it is otherwise directed by President of U. S., a tract bounded as follows: Beginning upon the eastern shore of the middle Klamath lake at the Point of Rocks, about 12 miles below the mouth of Williamson's river; thence following up said eastern shore to the mouth of Wood river; thence up Wood river to a point 1 mile N. of the bridge at Fort Klamath; thence due E. to the summit of the ridge which divides the upper and middle Klamath lakes; thence along said ridge to a point due E. [W.] of the N. end of the upper lake; thence due E., passing the said N. end of the upper lake, to the summit of the mountains on the E. side of the lake; thence along said mountain to the point where Sprague's river is intersected by the Ish-tish-ea-wax creek; thence in a southerly direction to the summit of the mountain the extremity of which forms the Point of Rocks; thence along said mountain to the place of beginning. (Historical data and remarks: This constitutes the present Klamath reservation. The boundaries had not been determined when the map was drawn (1895), the plat shown being that given temporarily by the General Land Office.) (See Article )
The Klamath Indians have hunted, fished, and foraged in the area of the Klamath Marsh and upper Williamson River for over a thousand years. In 1864 the Klamath Tribe entered into a treaty with the United States whereby it relinquished its aboriginal claim to some 12 million acres of land in return for a reservation of approximately 800,000 acres in south-central Oregon. This reservation included all of the Klamath Marsh as well as large forested tracts of the Williamson River watershed. Treaty between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians, Oct. 14, 1864, 16 Stat. 707. Article I of the treaty gave the Klamath the exclusive right to hunt, fish, and gather on their reservation. Id.; Kimball v. Callahan, 493 F.2d 564, 566 (9th Cir.), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974) (Kimball I.) Article II provided funds to help the Klamath adopt an agricultural way of life. 16 Stat. 708.
The 1864 Treaty provided that the Tribes would have "secured" to them "the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits." In 1954 when Congress terminated the Klamath Reservation, it enacted an express provision continuing the Indians' right to fish on the former reservation land.
Kimball v. Callahan, 590 F.2d. 768 (1979), Treaty rights survived the Termination Act
v. Washington State Commercial Passenger Fishing Vessel Ass'n
United States of America 99 S.Ct. 3055 (1979)
U.S. v. Adair, 478 F. Supp. 336, 345 (D. Or. 1979) (Adair I). In Article I of the Treaty, the Tribes reserved their traditional right to hunt, fish, trap, and gather edible plants on the Reservation, id. at 339, which Judge Solomon found was one of the primary purposes of the Reservation. Id. at 345. He also held that under the Winters doctrine of federal reserved water rights, when the United States reserved land to create the Reservation, it also reserved enough unappropriated water to fulfill the purpose of the Reservation. Id.
U.S. v. Adair, (AdairII) 723 F.2d 1394 (9th Cir. 1983); The court noted that the federal water right reserved by the Treaty is a non-consumptive use that entitles the Tribes to "prevent other appropriators from depleting the streams waters below a protected level in any area where the non-consumptive right applies." The court interpreted Adair I as confirming "to the Tribe the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of the Tribe members, not as these rights once were exercised by the Tribe in 1864." The court explained that the Tribes are entitled to enough of the resource to maintain a "moderate living." Id. at 1415 (citing Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), which cites Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963)). However, the court left open, as did the district court, how much water would satisfy the Tribes' right. As Modified on Denial of Rehearing January 24, 1984
Oregon Fish & Wildlife Dept. v. Klamath Tribe 473 U.S. 753 (1985)
U.S. v. State of Oregon Water Resources Dept. No 92-36983, No. 92-36985, No. 92-36987, No. 92-37001 US Ct. of Appeals, Ninth Circuit, 44 F.3d 758; 1994 U.S. App; No. 95-151 - 1995 The Klamath Tribe v. State of Oregon Dept. of Water Resources - petition for a writ of certiorari to the US Court of Appeals for the Ninthe Circuit
No. 95-151 Klamath Tribe v. State of Oregon petition for writ of certiorari
Klamath Tribes v. U.S. et al. Civ. No. 96-381-HA (D. Or., Oct. 2, 1996)
DOJ Memo September 30, 1999 support entitlement to the minimum amount of water necessary to support the Tribes fishing and hunting rights as they were exercised contemporaneously with the Adair decision.
Adair III (2002) The court held that the Tribes "have reserved gathering rights, along with supporting water," with a priority date of time immemorial.
9th Circuit Court vacates Adair decision (July 23, 2003) Article Court stated Oregon District Court Judge Owen Panner erred by citing 25-year old opinions of the U.S. District Court for Oregon and the Ninth Circuit Court of Appeals because the tribe had conveyed away those rights years ago.The Court also stated; "nor should he have given a judgment in favor of the Tribes which expanded upon those rights." The earlier decisions Judge Panner had relied upon giving the tribes certain rights to the water hinged on the Tribes' dependence upon the water for daily sustenance, which opponents argued is no longer the case.
U.S. Ct. of Appeals, 9th Circuit, Klamath
Water Users v. Patterson. Wirkus (BoR)
No. 98-35708 argued July 12, 1999--Portland, Oregon
"The Irrigators claim PacifiCorp does not have a legal duty to operate the Dam to meet its ESA obligation. The district court held that the Irrigators' rights to water are subservient to the ESA. See Klamath, 15 F. Supp. 2d at 995."
"Because Reclamation retains authority to manage the Dam, and because
it remains the owner in fee simple of the Dam, it has responsibilities under the ESA as a
federal agency. These responsibilities include taking control of the Dam when necessary to
meet the requirements of the ESA, requirements that override the water rights of the
Irrigators. Accordingly, we hold that the district court did not err in concluding that
Reclamation has the authority to direct Dam
operations to comply with the ESA "
"The Irrigators aver that the existence of the Tribes' senior water
rights are irrelevant to the current dispute, and that the district court's conclusion
that the Tribes have senior water rights should be vacated. The district court found that
the Irrigators' water rights were subservient to senior tribal water rights. See Klamath,
15 F. Supp. 2d at 996."0
"Similar to its duties under the ESA, the United States, as a trustee for the Tribes, has a responsibility to protect their rights and resources. See, e.g., United States v. Adair, 723 F.2d 1394, 1408-11, 1415 (9th Cir. 1983) (holding that the Klamath Basin Tribes hold implied water rights to support hunting and fishing rights guaranteed by treaties between Tribes in Oregon and California and United States)."
"We have held that water rights for the Klamath Basin Tribes "carry a priority date of time immemorial. " Adair, 723 F.2d at 1414. Because Reclamation maintains control of the Dam, it has a responsibility to divert the water and resources needed to fulfill the Tribes' rights, rights that take precedence over any alleged rights of the Irrigators. Accordingly, we hold that the district court did not err in concluding that Reclamation has the authority to direct operation of the Dam to comply with Tribal water requirements."
Department of the Interior v. Klamath Water Users Association, No. 99-1871 (2001).
Klamath Tribes of Oregon v. PacifiCorp, ___F.Supp.2d___ 04 644 CO (D. Or. April 21, 2005) Article
See also Klamath Basin Crisis website
Herald & News Series on the Klamath Tribe
An Uphill Fight, Tribes' efforts to regain former reservation land find little support
H&N 6/23/05 Part 5 of
Turning things around, Tribal leaders work to address social problems, regain treaty rights H&N 6/22/05 part 4 of 5.
Spending spree, H&N 6/21/05 Part 3 of 5
A tribe vanishes, H&N 6/20/05. Klamath tribal members voted to terminate their tribe. Part 2 of 5.
Your land, my land, Part 1 of Klamath Tribes regarding wanting back the land they sold, H&N 6/19/05.