Tribal Water Rights Save Rivers and Communities

Hayley Hutt
April 03, 2013

Recent news of the Klamath Tribe’s victory in a water rights battle after 38 years of court proceedings came as no surprise to the Hoopa Valley Tribe. Hoopa knows that tribal water rights and tribal trust are the most powerful tools for restoring the West’s salmon rivers. The Endangered Species Act (ESA) only prevents extinction, but tribal trust goes further by requiring restoration of abundance.

Ismail Serageldin, former vice president of the World Bank in 1999 said, "The wars of the next century will be about water." In Indian Country, many of the battles of the last century have been over water, as tribes battle to retain fish populations for sustenance and to retain their cultures. Now, as population growth and global warming threaten the nations water supplies, states like California and Oregon are ramping up the pressure to overturn laws protecting fisheries and rivers so that they can divert more water to thirsty desert cities and farms. But conservation could serve the same purpose.

Battles over the peripheral tunnels, which plan to ship more water south, and Klamath River rage on even as reports are released showing current water supplies cannot keep up with consumption and species are on the edge of extinction. In the mist of this bleak news many of the tribal water battles of the past are being resolved. In case after case it is being established that tribes are the senior water rights holders in many of the rivers in the west. One of the most important developments is that instream flows for tribal trust species’ habitat, such as habitat for Chinook salmon, green sturgeon and pacific lamprey, can be protected using tribal rights; the rights are not to water alone. These decisions are creating real possibilities for large-scale river restoration where tribes still hold water and fishing rights. Therefore tribal rights benefit all those fighting for fish.

This is why we have fought to retain and use our water and fishing rights. Tribal water rights coupled with fisheries science has been a successful combination in restoring salmon on the Trinity River, the Klamath River’s largest tributary. The same combination could work on the Klamath too.

We urge all of those who care about salmon to look at tribal rights, not as a bargaining tool, but as a way to restore salmon populations and justice to our communities. Recent arguments that exercising rights can provoke violence and takes too long, and should therefore be sacrificed in settlement, could apply to every historic struggle for social justice.

Those who care about fisheries and social justice should reject the current Klamath Basin Restoration Agreement (KBRA). Under existing law, the U.S. ensures that irrigation does not interfere with tribes’ senior water rights. Legislation is required to change water rights, but not to remove dams. KBRA Section 15.3.9 asserts tribal water rights will not interfere with the Klamath Project even though therefore any attempt by a tribe to assert its rights against the river’s dewatering would be trumped by the KBRA, even for Tribes that did not sign the agreement. Couple this with the fact that the KBRA allows flows that are much lower then current ESA mandated flows, and that the KBRA lasts for fifty years and it is apparent the agreement gives up too much.

The KBRA process formed important alliances and water sharing discussions that can continue into the future. However, it does not have congressional momentum and even the most ardent supporters of the KBRA have recently admitted dam removal can move forward through simple FERC agreements and the KBRA’s main purpose is to create a soft landing for farmers when tribal rights and other laws take effect in the Klamath.

We cannot sacrifice the very rights tribes have fought for generations to preserve and give up the best tool for restoring the Klamath River and salmon can’t wait 50 year for water. Science, not politics and back room agreements, need to mandate Klamath River flows. It is time for justice and science to rule on the Klamath River.

Hayley Hutt is a councilwoman for the Hoopa Valley Tribe.