[Encore presentation of Episode 21 from November 19, 2013]
In the Western United States, water law is based on what seems like a simple principle: “first in use is first in right.” In other words, first come first served. But take a severe drought, a Native American tribe and a hardscrabble band of ranchers, and it’s actually pretty complicated.
The Klamath Tribes are based here in Oregon’s Upper Klamath Basin, about 50 miles north of the California border. This is high desert country. A watershed rimmed with timberlands, sloping down towards sagebrush and marshes and a vast shallow lake.
Like so many stories from this part of the country, this one is about land and the water that flows through it: who claims it, and what does that really mean?
In March, the Klamath County Circuit Court approved the principle of first come, first served for the tribes. It accepted that not only were the Klamath Tribes here first. But that they’ve been here since ‘time immemorial.’ In other words, forever.
“So, all the rights that we have, including the surviving water right, it’s an inalienable right. It’s an inherent right from being the first people of this land,” says Don Gentry, chairman for the Klamath Tribes. “In terms of Western Water Law, I think it’s appropriate, and it’s based on that legal principle first-in-time, first-in-right. Because we were first here, we have that first-in-time right.”
“All the rights that we have, including the surviving water right, it’s an inalienable right. It’s an inherent right from being the first people of this land”
— Don Gentry
What that means is that when there’s not enough water, the Klamath get first dibs on what water there is. Water wars are nothing new to the Basin, but in the latest legal twist, many ranchers have been left literally high and dry. These are people like Becky Hyde and her husband, who run a ranch in the area; both grew up in Western ranching families, so they understand the depth of the problems.
“Around the water, there’s just this tension. There’s this natural tension about people who had been on the land before, and, kind of, where we find ourselves today,” says Becky Hyde.
For Hyde and the 200 or so ranchers in this area, it means living on land with cattle to raise and not enough water to do it. But to understand how the Upper Klamath Basin got to this point, we have to go back almost 150 years.
In 1864, just a few years after Oregon and California became states, the Klamath Tribes signed a treaty with the Federal government. With it, the Klamath ceded around 23-million acres of land to the United States. The Tribes kept roughly 2-million acres for a reservation, and hunting and fishing rights within its borders.
Although the tribes were financially compensated for their land, it’s clear the two negotiating parties were not equals. In legal terms, the tribes that had lived on this land for hundreds, if not thousands of years, lost all claim to it.
“They lost it magically, when Europeans arrived on the shore and planted their flag and cross in the soil,” says Bob Miller, a law professor at Arizona State University, and a citizen of the Eastern Shawnee Tribe of Oklahoma. He’s also the Chief Justice of the Grande Ronde Tribe’s Court of Appeals, and sits as a judge for other tribes.
Miller says Native Americans lost their rights to ancestral land because of because of the Doctrine of Discovery: an idea first laid out by a Papal Bull in 1455. It said Christians owned any land or other assets they ‘discovered,’ even if indigenous people already owned and/or occupied them.
“Around the water, there’s just this tension. There’s this natural tension about people who had been on the land before, and, kind of, where we find ourselves today”
— Becky Hyde
In 1823, the Supreme Court clarified what the Doctrine of Discovery means in the US. The court ruled in Johnson v. McIntosh that only the Federal government has the right to negotiate with Native American tribes. That left the government with all the bargaining power and Native Americans with little recourse.
“That settled the question of who could engage in trade with tribes, and, most importantly, who could buy tribal lands. And it is only the federal government. That is absolutely still the law to this day,” says Miller.
But part of the treaty was that the Federal government was also supposed to look out for the tribes’ best interest. This included health care, education, and protecting hunting and fishing rights. Only that didn’t happen very often.
In the case of the Klamath, once they were on the reservation, the government stopped paying attention to protecting their water rights. Instead it started diverting water from streams and rivers to encourage people to move West, and start ranching or farming.
Bob Miller says nobody thought it would matter. “I think all Americans, the Federal Government, the state governments, thought tribes would be pushed into extinction or they would assimilate,” says Miller.
But the tribes survived, and, for the most part, didn’t assimilate. That includes the Klamath, who, for nearly a hundred years, proved resilient. Making the best of a grim situation, the Klamath Tribes developed and owned profitable lumber mills and some sizable cattle ranches. By all accounts, they were considered one of the wealthiest tribes in the nation.
But in 1954, the situation turned dire, when Congress passed the Termination Act. The act was supposed encourage Native Americans’ to assimilate by moving them off the reservations. The Klamath were one of the first groups the Federal government stopped recognizing. They were forced to sell off most of their reservation lands, and many Native-focused health care, education, and social services were suspended. The move was economically and socially devastating, and drug abuse, alcoholism, poverty, and crime all increased.
“Those are all a result of what happened with termination,” says Gentry, “and we are still recovering from that.”
Even so, in 1975, the tribe filed a case that ended up going to the U.S. District Court of the District of Oregon. The Klamath argued that, even though water rights weren’t specifically mentioned in the treaty language, the treaty they signed with the government in 1864 included water rights. Gentry says the Tribes argued that was the case because the treaty did explicitly include the right to hunt, fish, and gather plants on the reservation.
“If you are talking about fishing, if you are talking about trapping and hunting, it’s basically implied that you need to have harvestable resources, water is important to the harvestability of those resources,” says Gentry.
What he means is, you can only hunt and fish if there’s enough water around for the animals and fish to live. And you can’t pick plants if there’s not enough water for them to grow. The U.S. District Court agreed, saying the Klamath had to have enough water to maintain its traditional way of life.
Since the early 1900s, an extensive irrigation system has diverted water from the Klamath River and its tributaries to ranches and farms in the area. Those rivers feed into the Upper Klamath Lake, a shallow lake that is home to a fish called the Lost River Sucker, and another called the Short Nose Sucker. Both are on a federal list of endangered species, and are culturally important to the Klamath.
As part of the cultural divisions here, tribal chairman Don Gentry says people think irrigating fields is more important than a healthy fish habitat in Upper Klamath Lake.
“I think that there is this feeling that an in-stream right for fish isn’t quite as valid and justifiable as consumptive use for agricultural purposes,” says Gentry. “That’s something that we always contend with.”
The irrigation systems are like something a corn or tomato farmer uses. But in this case, they water what amounts to enormous lawns, which, in turn, feed herds of cattle like the ones Becky Hyde and her family raise.
“The proceeds from raising those cattle for us, you know, go back into making a payment on the land here,” says Hyde.
In other words, for people like the Hydes, water is, quite literally, money. And for the Klamath, having water means they have their fish. But there’s not enough water for both. Bob Miller, the law professor, says that helps explain why the question of water rights is so fraught. “You know the old saying in the West. Whiskey is for drinking. Water is for fighting,” he says.
The person responsible for enforcing water regulations in the Upper Basin is Scott White. His title gives you an idea of how important his job is: Upper Klamath Basin Water Master. The water masters manage and regulate for senior water rights. “And what that means,” White says, that “whoever has the oldest water right, they are the last to get shut off in times of water shortage.”
In places like the Upper Klamath Basin, the state has to figure out who has the oldest water rights. That process of determining priority dates for water use is called adjudication. The state looks at everybody’s land claims and the water rights associated with that land. In this case, it was so complicated that it took a full 38 years to figure out who owned what land when, and how much water that person was entitled to. So even though Oregon began adjudicating the Upper Klamath Basin in 1975, it only recently finished sorting it all out.
“They lost it magically, when Europeans arrived on the shore and planted their flag and cross in the soil”
— Bob Miller
But while the state was working on the complex adjudication, the Federal District Court for Oregon said the Klamath Tribes ‘were entitled to as much water on the reservation lands as they need to protect their hunting and fishing rights,’ and that they had owned it since ‘time immemorial.’ In other words, when there’s not enough water, the Klamath Tribes’ claims trump everybody else’s. That includes people like Becky Hyde whose land has water rights going back to the mid-1800s.
Scott White, the Water Master, showed me a map of the water rights above Upper Klamath Lake. He located Becky Hyde’s ranch, and pointed out different colored dots all along the rivers. White says, “The different dots indicate the priority of the rights, the deepest blue dots have the oldest water rights…we go to greens and oranges and reds to the most junior.” The more junior you are, the sooner you lose your water when there’s not enough to go around.
This past winter, there was little snowfall, followed by a summer drought. The Klamath made a call for water, claiming enough water to fill its rivers and streams.
“So when we made the call it’s to keep water in the rivers and the streams for our fish,” says Gentry. “To protect our treaty rights.”
After the ‘call,’ Scott White, the Water Master, went around to all the ranches and farms in the Upper Basin who get water from the rivers, and turned off the spigot. He was like a repo-man, except that instead of taking cars or boats, he took water.
One of the people he took it from was Becky Hyde. “This sort of situation throws this community into a pretty traumatic lurch,” she says. She moved her family’s cattle to her parents’ ranch a few hours to the northeast. Some neighbors moved their cattle, too, and others bought feed for the animals.
Hyde knows what’s at stake. She understands why the Klamath think they should have priority. But she also knows if there’s another water shortage, the Klamath Tribes can make another “call” for water. And she knows it will probably happen. In this region where water has been over-allocated for generations, there’s just not enough water to go around anymore.
So Hyde has been working towards a different kind of settlement with fellow ranchers, the Klamath Tribes, and other stakeholders. They’re hoping for an agreement that would make sure everybody gets some water, even when there’s not really enough to go around.
She’s also hoping for rain. Hyde grew up on what’s called a “dry” ranch in Eastern Oregon. “I was raised in the high desert on a ranch that was not irrigated. So I know that this time of year, if it would rain my dad would always say ‘boy, this is a million dollar rain.’ And I think about it now and, no, it’s more like a billion dollar rain,” says Hyde.
Hyde and I are sitting in her yard. The brown grass is waving in the afternoon breeze. On the horizon, a massive cloud rolls in, covering the surrounding hillsides in shadow. It looks like rain.