FOR IMMEDIATE RELEASE
July 23, 2003

CONTACTS: Allen Foreman, Tribal Chairman, 541-783-2219

Bud Ullman, Tribes¹ water attorney, 541-783-3081
Don Wharton, Native American Rights Fund (land issues) 303-447-8760
Joe Browder, Washington D.C., 202-546-3720
Monica Shovlin, The Ulum Group, 541-434-7028

Appellate Court Reaffirms Tribal Water Rights

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Klamath Falls, Ore. - The Ninth Circuit Court of Appeals recently vacated a
federal court decision involving important water rights of the Klamath
Tribes. In a short opinion released on Monday, Chief Judge Richard C.
Tallman dismissed the case on narrow technical grounds of legal ³ripeness,²
saying U.S. District Court Senior Judge Owen M. Panner was premature in
dispensing his original decision on the scope of tribal water rights before
the State of Oregon had quantified or adjudicated the amount of water to be
allocated to each party.

³We had hoped the decision would provide guidance to the Oregon Adjudication
which now must proceed with continuing uncertainties,² said Klamath Tribes
Chairman Allen Foreman. ³While this decision is a temporary setback for the
Adjudication process, it will have little or no impact on the Tribes¹ water
rights.²

In earlier litigation called United States v. Adair the federal courts
declared the continuing vitality of the Tribes water rights, and left the
quantification of those rights to Oregon Adjudication proceedings. The
declaration of tribal rights was confirmed in the recent Ninth Circuit
opinion.

³We¹re glad the courts have once again affirmed the Tribes¹ water rights,²
said Foreman. ³These property rights have not been appropriately respected,
and we look forward to correcting that problem.²

A full chronology of the Klamath Tribes Water Rights is attached.

BACKGROUNDER - Klamath Tribes¹ Water Rights

According to the Klamath Tribes¹ origin myth the Tribes were created in the
Klamath Basin as a part of the Creator¹s populating the world. Modern
anthropologists say that the Tribes have been in the Basin for about 14,000
years. Whichever history one believes, it helps explain why the courts have
uniformly held that the Tribes hold the most senior water rights in the
Basin, and why Congress has consistently reaffirmed those water rights.

The Treaty of 1864
In the Treaty of 1864, 16 Stat. 707, the Tribes ceded in treaty negotiations
20 million acres ‹ an area the size of Maine ‹ of their ancestral lands in
south central Oregon and northern California. And the Tribes reserved to
themselves a homeland of about 2 million acres, along with the rights to
continue to fish, hunt, trap and gather as they always had.

Termination of federal recognition
The promises of the Treaty lasted for less than a century. In the 1950s
Congress passed the Klamath Termination Act, unilaterally abrogating many of
the Treaty provisions and ending federal recognition of the Tribes. In a
cruel irony, the very land base that had enabled the Tribes to retain their
self-sufficiency was taken away specifically because the Tribes were
self-sufficient and ready for assimilation.

While Congress thus took the Tribes¹ lands, at the same time it recognized
the centrality of tribal water resources to the Tribes¹ survival. Congress
included in the Termination Act specific protection of tribal water rights
saying, ³Nothing in this [Act] shall abrogate any water rights of the tribe
and its membersŠ Nothing in this [Act] shall abrogate any fishing rights or
privileges of the tribe or the members thereof enjoyed under Federal
treaty.² 25 U.S.C. §564m. Congress meant to leave no question that tribal
water rights survived termination.

The Klamath Basin Compact
Because of the interstate nature of the Klamath River and the Klamath
Project, Oregon and California each appointed commissions to negotiate a
water compact. Their work culminated in the Klamath River Basin Compact that
was approved by Oregon, California, and the United States and put into
effect in 1957. Tribal water rights were explicitly acknowledged and
confirmed by the state and federal governments in Article X of the Compact.

Court Challenges
In the aftermath of termination, questions arose over the continuing
validity of tribal hunting, fishing, trapping and gathering rights protected
by the Treaty. Both the District Court and Ninth Circuit rebuffed
challenges to those rights in plain language upholding the continuing
vitality of tribal water rights to support treaty harvest activities, and
recognizing that the rights enjoy a time immemorial priority date. United
States v. Adair, 478 F. Supp. 336 (D. OR. 1979), aff¹d 723 F.2d 1394 (9 Cir.
1984), cert. denied 476 U.S 1252 (1984).

Restoration of federal recognition
Policies of termination were rather quickly revealed as tragically mistaken.
By the 1970s, termination was halted and processes put in place to allow
terminated tribes to seek restoration of recognition by the United States.

The Klamath Tribes took advantage of those processes and were restored to
federal recognition by the Klamath Restoration Act of 1986. While the Act
restored the government-to-government relationship between the Tribes and
the United States, it did not return the lands that had been unjustly taken
from the Tribes by termination. The Act did, however, confirm yet again the
continuing vitality of the Tribes¹ water rights.

Klamath Water Users Association v. Patterson
In 2001, farmers in the Klamath Project went to federal court to challenge
the Department of Interior¹s legal authority to reduce the Project¹s water
allocation for irrigation in order to protect tribal fisheries. The court
upheld Interior¹s management role and its water allocation plan. The water
users were held to be mere contractors for water whose ³rights to water in
the basin Š are subservient to senior tribal water rights.² Klamath Water
Users Association v. Patterson, 15 F. Supp. 2d 990, 996 (D. Or. 1998), 204
F.3d 1206 (9 Cir. 2000).

Kandra v. United States
Later in 2001, Klamath Project water users again contested Interior
management plans, seeking priority access to Basin waters ahead of tribal
and Endangered Species Act needs. Again the court confirmed the federal
obligation to protect tribal fisheries, the ³time immemorial² priority of
tribal water rights, and the tribal rights ³precedence over any alleged
rights of the Irrigators.² Kandra v. United States, Civ. No 01-6124-AA,
Opinion and Order of April 30, 2001 (D. Or.).

Conclusion
In an unbroken line of treaties, congressional enactments and court
decisions, the right of the Klamath Tribes to sufficient water to support
tribal hunting, fishing, trapping, and gathering activities has been
established and reconfirmed.