Op-Ed: What are the facts about the KBRA, dam removal and tribal rights?
by Dania Rose Colegrove
May 30, 2013
There has been much debate lately over the Klamath Basin Restoration Agreement and whether legislation is needed to remove the Klamath dams and whether the KBRA terminates tribal rights. We are in the war together and should strive for unity. However a debate on whether tribal people should give up the ability to use fishing and water rights as part of the KBRA needs to be addressed openly. Never in history have water rights been as precious.
First, the facts. The KBRA is a water-sharing agreement. The Klamath Hydroelectric Settlement Agreement is the dam removal agreement. They are tied together, but are separate agreements. It is possible for the KHSA and dam removal to proceed without legislation under agreements with dam owners. Historically, dam removal has occurred with and without legislation. No other dam removal legislation has been as complicated as the KBRA.
On the issue of tribal rights, the KBRA Section 15.3 located on pages 77-99 speaks for itself. The Klamath, Yurok and Karuk tribes do get some tribal land restored and restoration funding for assurances to not exercise their rights. However, the government as a trustee for all the tribes, also release tribal rights, whether the tribe signed the agreement or not. It is a dangerous modern precedent that the government can give up rights on behalf of objecting tribes. This is important because tribes, unlike other holders of senior water rights, cannot exercise rights without the support of the trustee, the government.
The following is the actual excerpt from the KBRA:
”The United States, acting in its capacity as trustee for the Federally-recognized tribes of the Klamath Basin, hereby provides interim Assurances as stated in Section 15.3.8.B, and conditional permanent Assurances that it will not assert: (i) tribal water or fishing rights theories in a manner, or (ii) tribal water or trust rights, whatever they may be, in a manner that will interfere with the diversion, use or reuse of water for the Klamath Reclamation Project that is not precluded by the limitation on diversions of water as provided in Appendix E-1 in an administrative context or proceeding, or judicial proceeding, or otherwise,” KBRA, p. 99.
The permanent assurances agreed to by the leadership of the Klamath, Yurok and Karuk tribes read that they will release “all claims resulting from (1) water management decisions, including the failure to act, or (2) the failure to protect, or to prevent interference with, the Tribes’ water or water rights, the relate to damages, losses, or injuries to water, water rights, land or natural resources due to the lost of water or water rights (including damages, losses or injuries to hunting, fishing or gathering rights or other activities due to loss of water or water rights)”, KBRA, p. 94.
It could be that the majority of tribal members on the river agree that the KBRA is worth the weakening of tribal rights at a time when tribes are winning senior water rights claims (which are worth billions of dollars) throughout the west. The question is, are you willing to give up your rights?
Unlike dam removal, there is no question that releasing tribal rights needs an act of Congress. Should we encourage Congress to give up tribal rights?
Dania Rose Colegrove is Yurok/Hoopa tribal member and for dam removal, but not for giving up your tribal water rights.