GUEST COMMENTARY: Indian Water Settlements, the Media and the Future of Western Rivers

“I believe historians will look back at the current Water Settlement Era as the second big rip-off of the Indigenous natives of the western USA,” writes Felice Pace.  “First white society took the land and attempted to “exterminate” the native peoples; now, with the complicity of tribal government leaders and bureaucracies, they are taking water worth billions for the modern equivalent of a handful of beads.”

Felice Pace

Guest Commentary by Felice Pace:

Wallace Stegner famously called the American West “the native home of hope.” But “hope” that our iconic Pacific Salmon can be restored to abundance is rapidly fading even as politicians and bureaucrats of all stripes – not to mention the new restoration bureaucracies – continue to assure us that Pacific salmon can be restored if only we spend a bit more on the myriad of feel-good projects which pass in this region for “restoration”.

Meanwhile, the process which is foreclosing the best hope for real restoration, not just of salmon but of western rivers generally, progresses unnoticed by most westerners and inadequately reported by the media. I speak of the 31 western water settlements which have been completed by tribes, states, irrigators and the federal government since the mid-1980s. Twenty six of those settlements have been endorsed and funded by Congress, five others did not require Congressional approval or funding. Eighteen more settlements are currently being negotiated.

Each of these settlements involves at least one federal Indian tribe. Each has at its center one or more tribes ceding water rights – or agreeing not to assert the water rights they hold – in exchange for tribal government funding to be used for “restoration” projects, to bring water, sewer or other services to tribal members or to fund tribal government bureaucracies.

The Western Water Settlement Era is the brainchild of the Native American Rights Fund (NARF) and the Western Governors Association (WGA).  In the early 1980s leaders at NARF and WGA recognized that tribal water rights had been ignored when the states and the federal government divided among themselves the waters of the West.

The two organizations understood that western tribes were rapidly gaining the capacity to assert those rights. NARF and WGA leaders also understood that when tribal rights were effectively asserted – in the language of western water transforming “paper” water into “wet” water – irrigated agriculture stood to loose control of a significant amount of the water which had been diverted from western rivers and on which not just fortunes but immense political power had been built.

The greatest concern was that the vast irrigation projects which the federal government had developed since passage of the Reclamation Act in 1905 would be forced to shrink significantly or to pay tribal water right holders for the privilege of continuing to irrigate with the tribes’ water.  Throughout its history, the federal Bureau of Reclamation has implemented the Reclamation Act in a manner that disregards tribal water rights, the health of western rivers and native aquatic species while providing the irrigation interests the agency serves with taxpayer subsidized water, subsidized power rates and other benefits.

All of the West’s great rivers have suffered degradation as a result; some rivers have been substantially dewatered. Federal irrigation has played a major role in the decline, endangerment and extinction of numerous native aquatic species, including Pacific Salmon.

NARF and WGA believed settlement of western tribal water claims could prevent the potential disruption of western (largely white) irrigation while providing benefits to tribes. In 1981, along with the Western Regional Council and the Western States Water Council, they formed the Ad Hoc Group on Indian Water Rights. Arguing that settlement of tribal claims through negotiations would  “promote sound water management…establish the basis for cooperative partnerships between Indian and non-Indian communities….and save millions of dollars through avoidance of prolonged and costly litigation,” the Ad Hoc group quickly convinced the federal water bureaucracy and Congress to support and fund settlement negotiations. Ad Hoc Group members, the federal water bureaucracy and Congress have never looked back.

Whether or not these settlements have been in the interest of tribes and their members is, however, open to debate. Unfortunately, that debate has rarely taken place. Instead all parties to the settlements have presented them as unquestionably good for all involved. Local, regional and national media have parroted those interpretations, often simply repeating the salutatory claims featured in press releases from the agreeing parties.

The Settlements have also been presented as good for western rivers and the aquatic species residing in them. This too has been dutifully parroted by the media. Rarely has anyone raised concerns either for the members of tribes which are ceding or agreeing not to assert their water rights or for the rivers and the species living in them.

While many tribal water rights are related to agriculture, most also include in-stream flows sufficient to maintain or restore aquatic species which form all or part of the basis for treaty and reserved tribal water rights. In the case of Northwest and Northern California tribes, tribal water rights include the amount of river and stream flow necessary to restore Pacific salmon to abundance. Yet settlements on salmon rivers to date have provided only minimum water flows. Often those flows are determined by Endangered Species Act processes. ESA flows can prevent extinction; but they are a far cry from the restoration flows to which tribes have a right.

Recovery flows are among the items western tribes have negotiated away in several completed western water settlements. The Nez Perce settlement is an example; minimum stream flows in that settlement will keep salmon alive but will not result in restoration to abundance. Meanwhile, as part of the settlement, the Tribe took over operation of a federal salmon hatchery.

The Klamath River Basin settlement which failed to pass Congress and therefore terminated would have locked in river flows which subsequently proved to result in the deaths of up to 90% of migrating juvenile salmon before they could reach the Pacific Ocean.

I believe historians will look back at the current Water Settlement Era as the second big rip-off of the Indigenous natives of the western USA.  First white society took the land and attempted to “exterminate” the native peoples; now, with the complicity of tribal government leaders and bureaucracies, they are taking water worth billions for the modern equivalent of a handful of beads.

Worst of all, the settlements, including whether they are in the interest of native members whose tribal governments are agreeing to them or of the rivers and aquatic ecosystems to which they apply, are not being adequately debated. That fact should be of concern to those who support the concept of “informed consent” whenever Indigenous or Public Trust resources are alienated.

The fate of Tribal Trust and Public Trust resources – including water, salmon and aquatic ecosystems – should be debated and decided in a democratic manner, that is, with the informed consent of all those who have a stake in those resources; which is to say, by all westerners. That is unlikely to happen, however, so long as members of the media simply parrot the talking points of settlement supporters. Instead journalists, reporters and editors should question western water settlements: Are tribes and their members receiving fair compensation for water rights which will be lost if the settlement is approved? Are in-stream flows mandated to preserve irrigation water supplies sufficient to restore fisheries and aquatic ecosystems to health and abundance? Have the members of tribes which will give up or agree not to exercise their water rights been sufficiently informed when voting to approve or reject settlements?

These questions are too often not being asked, much less answered, in media reports on proposed settlements. That ought to change; when Public and Tribal Trust Resources are on the line, reporters and editors can, and should, do better.

Felice Pace resides at Klamath Glen near the mouth of the Klamath River in far Northwest California. He was born in 1947 into the working class Italian Community in South Philadelphia. Felice holds a BA in Economics from Yale University, a MA in Education from Montclair State University and a life-time California teaching credential. Felice was prominent in the Forest Wars of the 80s and 90s, currently coordinates the Project to Reform Public Land Grazing in Northern California and serves as water chair for the North Group Redwood Chapter Sierra Club.  

Note: The views expressed in this guest commentary are those of the author.  This commentary is published here in the interest of providing alternative points of view to complex California water issues.  Maven’s Notebook is an independent broker of information.  Maven’s Notebook has no political affiliation, is not a member of any specific organization, and does not take a position on any of the issues.

Picture credits: Pictures of Klamath tribes by Patrick McCully.  Klamath River header picture by US FWS.  Klamath River scenic picture by Bureau of Land Management.

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