sign in sign up
<<
Home , Upper Klamath Lake

UN Declaration on Rights of Indigenous Peoples - 2007

• December 2010 – US Declared Support • International community in recognizing that American Indians and other indigenous peoples have a permanent right to exist as peoples, nations, cultures and societies.

• http://www.un.org/esa/socdev/unpfii/en/drip.html • http://www.un.org/esa/socdev/unpfii/ US Federal Trust Responsibility

• 1. The protection of Indian trust lands and Indian rights to use those lands; • 2. The protection of tribal sovereignty and rights of self-governance; • 3. The provision of basic social, medical and educational services for tribal members. Bureau of Indian Affairs

• Operates schools on Indian reservations; supports tribal governments, courts and police forces; and helps tribes to build housing, roads, adult care facilities, and many other things. It is also assigned the responsibility to manage Indian lands, including lands owned by tribes and those which have been conveyed to individual Indian owners Dept Interior

• When some tribal lands were turned over to individual Indian owners pursuant to the General Allotment Act of 1887, the Bureau of Indian Affairs retained the responsibility for management of the natural resources located on and under those lands. • All contracting with private entities to extract or utilize those resources is the task of that bureau, and the proceeds of those contracts are supposed to be turned over to the individual or tribal land owners. Fiduciary responsibility

• The failure of the US government to carry out this special fiduciary responsibility with integrity is what is often referred to as the "Indian trust scandal." • The shortcomings in carrying out that special duty is what spawned the Cobell v. Norton litigation which seeks that the individual Indian money account holders be paid what is due to them. Cobell Settlement and Trust Responsibility • 1999 lawsuit filed against US government finally settled

• Treaties between American Indian tribes and the colonists provided the settlers access to land in exchange for agreeing to provide goods or services to tribal members.

• These treaties normally were explicit that the obligations would exist in perpetuity.

• http://www.cobellsettlement.com/video_en Indigenous Peoples Fisheries

• Rights have been established • How did it happen in US • Examples in NW USA – then broader discussion – Belloni – Boldt – Orrick vs. Washington

• Originally filed in September 1970 by the federal government, and joined by 14 Indian tribes. • The controversy centered on the degree to the state of Washington could regulate the fishing rights of Indians who were parties to treaties concluded by federal negotiators. History of Stevens Treaties

• Washington first became a U.S. territory in 1853, and an estimated 8,000 Indians lived west of the Cascade Mountains and north of the Columbia River. • Isaac Stevens, the first territorial governor, was also named superintendent of Indian affairs. Under this authority, Stevens began to negotiate with native peoples of the region to cede part of their land and establish reservations. Stevens’ Treaties

• Within two years, Stevens concluded six treaties with Washington Indians, beginning with the treaty of Medicine Creek in 1854. While ultimately conveying ~ 64 million acres to the US government, most of the treaties also recognized that the Indians retained certain rights, including "the right of taking fish at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." Authorities

• Following these treaties, non-Indian settlers and then the state of Washington fought to control access to the region's fisheries. • Sportsmen and commercial fishermen adamantly argued that treaties should give the Indians no special rights; the state (Washington) claimed they had the power to regulate Indian fishing, interpreting "in common with all citizens" to mean that Indians must also be subject to state control. WA Dept of Game

• In January 1962, the Game Department began a series of surprise deployments on the Nisqually River south of Tacoma, using walkie-talkies and a reconnaissance plane to track Indian fishermen, arrest violators and seize their boats and gear. The Indians retaliated with their own adaptation of 1960s civil disobedience -- fish-ins -- to protest interference with treaty rights. Billy Frank

In• the 1960's and early 70's, Frank was a grass roots political activist who was frequently jailed for his role in civil disobedience, which involved taking part in numerous "fish-in's" in opposition to state authority over the tribes. He has been chairman of the Northwest Indian Fisheries Commission (NWIFC) for the past 24+ years http://stories.washingtonhistory.org/treatytrail/resources/video.htm Indian Fishery War The “war” was elevated in the media as a parade of the famous came to support the Indian cause: Marlon Brando was arrested in 1964 while "helping some Indian friends fish" on the Puyallup River, and comedian Dick Gregory was jailed for joining the Indians in illegal fishing.

Actor Marlon Brando and Puyallup tribal leader Bob Satiacum just before Brando's arrest during a fish-in, March 2, 1964 • The "outside agitators" were viewed in some respects with dissension within Indian communities. But the increased militancy of Indian groups such as the Survival of American Indians Association actually foreshadowed the rise of Indian resistance movements nationwide. Red Power vs Other Civil Rights Fights

• Indian fishing rights were linked to civil-rights causes that were active at the time. Attorney Jack Tanner, regional director of the NAACP and later a federal judge, represented many Indians arrested for illegal fishing. • Native peoples saw their cause as unique. Red Power meant sovereign, not equal, rights. The battle went beyond fishing as Indian activists not only tested state restrictions on reservation cigarette and fireworks sales, but also fought to reclaim federal land at Fort Lawton and to establish an Indian Center in Seattle. Regaining of Established Rights

• Native peoples, held that the treaty rights entitled them to fish unimpeded at any of their "usual and accustomed" places, both on and off their reservations. • These differing interpretations periodically led to conflict. Open warfare had followed within a year of the original treaty signings, but battles in 1900s were in the courtroom or in the halls of government. Ambiguous to Clarification Took Time

• The US Supreme Court issued an ambiguous decision in 1968 that left the issue unresolved. In 1970, the Nixon administration's U.S. Attorney for Western Washington, Stan Pitkin, filed a new complaint against the state of Washington. • State Attorney General was the “future” U.S. Senator Slade Gorton. Commercial and sport fishing groups submitted friend-of-the-court briefs opposing treaty fishing rights. Sohappy v Smith, US v

• 1968 - Fourteen members of the Yakama tribe filed suit against Oregon's (and Washington) regulation of off-reservation fishing (Sohappy v. Smith). The United States and the Yakama, Warm Springs, Umatilla, and Nez Perce tribes also sued (U.S. v. Oregon). The federal court combined the two cases. Judges in Important Roles

– 1969 - Judge Belloni, in Sohappy v. Smith/U.S. v. Oregon (Belloni decision) held that the tribes were entitled to a "fair share" of the fish runs and the state is limited in its power to regulate treaty Indian U.S. v Washington

• 1974 - In U.S. v. Washington (Boldt decision), Judge George H. Boldt mandated that a "fair share" was 50 percent of the harvestable fish destined for the tribes' usual and accustomed fishing places and reaffirmed tribal management powers. (Belloni then applied the 50/50 principle in Columbia River fisheries). • 1974 - In Settler v. Lameer, the Ninth Circuit Court of Appeals ruled that the treaty fishing right is a tribal right, not an individual right, and that tribes had reserved the authority to regulate tribal fishing on and off the reservations. • 1977 - The federal court, under its jurisdiction in U.S. v. Oregon, approved a five-year plan that set up an in-river harvest sharing formula between non-Indian and Indian fisheries. The plan failed because it did not include specific controls on ocean harvests or specific measures to replace fish runs destroyed by development. • 1979 - The Supreme Court upheld U.S. v. Washington (Boldt decision). Judge William H. Orrick Jr. died at 87 years 2003

• 9th circuit Judge in 1980s to early 90 • Tribes argued that “authorization of non- native fishing and state authorization of watershed alterations, water storage dams, industrial developments”… led to degradation of usual and accustomed fishery grounds. Findings Orrick

• Agreed “commercialization of fishing industry, degradation of fishing habitat largely non-Indian activities. • Found implicit right in treaties to have the fishery habitat protected from “man-made despoliation” … • Development of water power, lumbering, , and pollution contributed to alteration and destruction of habitat for success fish reproduction. State disagreed

• Existing federal and state laws and programs sufficiently protect fish habitat and obviated need to imply any right regarding the environment. • Indians and US sought the recognition of a duty on behalf of the state to refrain from impairing the environmental conditions necessary for survival of treaty fish. Indian country- video link about Umatilla Tribes • http://indiancountrytodaymedianetwork.co m/2011/01/protecting-native-land-and- waters/ Ecosystem Management Models

• What happens with water rights issues? – Tribes – RESTORATION AGREEMENT FOR THE SUSTAINABILITY OF PUBLIC AND TRUST RESOURCES AND AFFECTED COMMUNITIES – February 18, 2010

– http://klamathrestoration.gov/ Native American tribes, , , and tribes Confederation of the Klamath, Modoc, and Yahooskin people known as The

• The river is considered a prime habitat for Chinook salmon, Coho salmon, steelhead trout, and . • the river has produced only a fraction of its historic runs since the construction of six dams built between 1908 and 1962. • The removal of the dams has been a controversial issue in the region for many years. • Despite intense lobbying by local Native American tribes, conservationists, and fishermen, the 2004 renewal application by PacifiCorp for another 50-year federal operating licence for the dams did not include any provisions for allowing salmon to return to over 300 miles of former habitat above the dams. Upper Klamath

• A separate controversy on the river surrounds the removal of water from Upper Klamath for irrigated agriculture, which was temporarily halted in 2001 to protect endangered salmon and lake fish during a record-breaking drought. • The federal government, under Interior Secretary Gale Norton, reversed this decision in 2002, and provided full water deliveries to irrigators as the drought continued. • This is despite the fact that Klamath area tribes have treaty rights that predate the settlement of the farmers. • Norton argued for a "free market" approach by allowing farmers to sell the water to the Native Americans downstream. According to biologists from the state of and the U.S. Fish and Wildlife Service, the resulting low flows in the river sparked a massive kill of over 68,000 salmon in September 2002, who died before they could reproduce. Klamath Settlement

• As part of the agreement, PacifiCorp has pledged to raise $200 million of the cost of removing of the dams by implementing a surcharge on its customers in and . The offer is seen by many that tearing down the dams would be likely to cost less than making the improvements necessary to comply with the federal and Fish and Wildlife Agency regulations, which would require, among other things, the construction of fish ladders and screens, and cleaner water quality

News Clips

http://www.pbs.org/newshour/bb/environment/july-dec01/fish_8-20.html#

http://www.pbs.org/newshour/bb/environment/jan-june06/salmon_4-3.html#

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/11/14/MNA21441S7.DTL Assignment 3

• Listen to pod casts of the restoration process. And review documents on policies Restoration plans; controvery • http://klamathrestoration.gov/ • Be prepared to discuss some of these issues from the point of view of the US government, private landowners, power production, and Tribal government positions. • Explore the roles of the Indian Tribes involved and evaluate information. • Yurok, Hupa, and Karuk tribes have their own identity. Then confederated Klamath Tribes separate