Klamath Tribes' Water Rights

According to the Klamath Tribes' origin myth the Tribes were created in the Klamath Basin as a part of the Creator's 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 southcentral 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 Tribes' lands, at the same time it recognized the centrality of tribal water resources to the Tribes' survival. Congress included in the Termination Act specific protection of tribal water rights saying, "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 of the tribe or the members thereof enjoyed under Federal treaty." 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. Challenges to those rights were rebuffed by both the District Court and Ninth Circuit 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), aff'd 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 Tribes' water rights. 

Klamath Water Users Association v. Patterson
In 2001, farmers in the Klamath Project went to federal court to challenge the Department of Interior's legal authority to reduce the Project's water allocation for irrigation in order to protect tribal fisheries. The court upheld Interior's management role and its water allocation plan. The water users were held to be mere contractors for water whose "rights to water in the basin ... are subservient to senior tribal water rights." 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 "time immemorial" priority of tribal water rights, and the tribal rights "precedence over any alleged rights of the Irrigators." 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.