UPPER KLAMATH

• 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.

• For 20 years, until 1887, the Klamath lived on their reservation under the terms of the 1864 treaty. In 1887 Congress passed the General Allotment Act, ch. 119, 24 Stat. 388 (1887) (current version at 25 U.S.C. § 331-34, 348, 349, 381 (1976)), which fundamentally changed the nature of land ownership on the Klamath Reservation. Prior to the Act, the tribe held the reservation land in communal ownership. Pursuant to the terms of the Allotment Act, however, parcels of tribal land were granted to individual Indians in fee. Under the allotment system, approximately 25% of the original Klamath Reservation passed from tribal to individual Indian ownership. Over time, many of these individual allotments passed into non-Indian ownership.(See payment in lieu of allotments  June 1, 1938. | [H. R. 5974.] 52 Stat., 805. etc.)    June 17, 1901 agreement

• Klamath and Moadoc Tribes v. United States, 296 U.S. 244, 56 S.Ct. 212, 80 L.Ed. 202 (1935) [See United States v. California & O. Land Co., 148 U.S. 31, 13 S.Ct. 458, 37 L.Ed. 354 and United States v. California & Ore. Land Co., 192 U.S. 355, 24 S.Ct. 266, 48 L.Ed. 476 regarding grants of rights of way on lands later allotted. As a result, Congress, by an act of June 21, 1906, authorized the Secretary to exchange unallotted lands in the reservation for the allotted lands earlier conveyed. The Secretary made an agreement with the land company pursuant to which on August 22, 1906, it conveyed the 111,385 acres back to the United States and in return the latter conveyed 87,000 acres of unallotted lands to the company.] Tribe claimed transfer was made without fair compensation. Court stated that the obligation of the United States to make good plaintiffs' loss is a moral one calling for action by Congress in accordance with what it shall determine to be right. Save to the extent that Congress may authorize, the government's dealings with Indian tribes are not subject to judicial review. United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938)

• The next major change in the pattern of land ownership on the Klamath Reservation occurred in 1954 when Congress approved the Klamath Termination Act. Act of Aug. 13, 1954, c. 732, § 1, 68 Stat. 718 (codified at 25 U.S.C. § 564-564w (1976)).United States Code Title 25 - Indians, Chapter 14. Miscellaneous, subchapter XIII, Klamath Tribe; Termination of Federal Supervision; Section 566. Article Under this Act, tribe members could give up their interest in tribal property for cash. A large majority of the tribe chose to do this. In order to meet the cash obligation, in 1961, the United States purchased much of the former Klamath Reservation. The balance of the reservation was placed in a private trust for the remaining tribe members. See Kimball I, 493 F.2d at 567 (describing termination process); Klamath and Modoc Tribes v. United States, 436 F.2d 1008, 1010-13 (Ct.Cl.) (same), cert. denied, 404 U.S. 950, 92 S.Ct. 271, 30 L.Ed.2d 267 (1971). In 1973, to complete implementation of the Klamath Termination Act, the United States condemned most of the tribal land held in trust. Payments from the condemnation proceeding and sale of the remaining trust land went to Indians still enrolled in the tribe. This final distribution of assets essentially extinguished the original Klamath Reservation as a source of tribal property.Termination Payments. (Solicitor's Opinion regarding reserved Klamath Water rights March 14, 1958 This office, accordingly, will support the rights of Indian landowners and third party purchasers of Klamath lands having either primary water rights under the Winters doctrine or obtaining derivative rights conveyable by deed or patent and enforceable under the Powers doctrine. Further, it will support the right of a non-Indian purchaser of Klamath Indian Reservation lands, having such derivative rights under the Powers doctrine to have his priority under such rights related back to the establishment of that reservation in 1864.) http://thorpe.ou.edu/sol_opinions/p1826-1850.htm
  
  Even though the Klamath Tribe no longer holds any of its former reservation, the United States still holds title to much of the former reservation lands. In 1958 the Government purchased approximately 15,000 acres of the Klamath Marsh, the heart of the former reservation, to establish a migratory bird refuge under the jurisdiction of the United States Fish and Wildlife Service. Pub.L. No. 85-731, 72 Stat. 816 (1958) (codified as amended at 25 U.S.C. § 564w-1 (1976)). In 1961 and again in 1973, the Government purchased large forested portions of the former Klamath Reservation. This forest land became part of the Winema National Forest under the jurisdiction of the United States Forest Service. 25 U.S.C. § 564w-1 (d), 564w-2 (1976). By these two purchases, the Government became the owner of approximately 70% of the former reservation lands. The balance of the reservation is in private, Indian and non-Indian, ownership either through allotment or sale of reservation lands at the time of termination.

• Klamath and Modoc Tribes v. Maison, 130 F. Supp. 634. 635 (1956)

• Public Law 89-224 October 1, 1965 | [S. 664] 79 Stat. 897 AN ACT To provide for the disposition of judgment funds of the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, and for other purposes.

• Kimball v. Callahan, 590 F.2d. 768 (1979), Treaty rights survived the Termination Act

• Washington 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)

• Restoration of Federal recognition, rights, and privileges;  (1986) (Codified)

• 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 Tribe - BIA claims to water; Klamath River Basin Compact

• 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 5.
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.