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Tribes' own words raise scary questions

Published March 29, 2004 by Lynn Bayona, guest columnist

The Basin Alliance has been bringing the community facts right out of the Tribes' own documents. These tribal documents are far scarier than any myth.

A huge concern is the threat that a tribal government would have civil authority over community members, and the basic American freedom of voting on the government that controls them would be taken away. On Feb. 22, 2003, the Klamath Tribal General Council approved "Matters Concerning Return of Forestlands to the Klamath Tribes." Community concerns are hardly "myth" considering the following excerpts:

n "Upon return of the lands to the Tribes, the Tribes will implement laws and regulations for the management and protection of cultural resources located within the lands returned. The Tribes will have civil enforcement jurisdiction for violation of the laws and regulations by both Tribal and non-Tribal members."

n "As is the general case for all federally recognized Tribes, upon return of the lands, the Klamath Tribes will have environmental regulatory authority over lands within the boundaries of the reservation."

n "When ownership of the lands surrounding the non-navigable waters transfers to the Tribes, so will ownership and authority over the waters, beds and banks. Therefore, the Tribes will have jurisdiction over these waters and will regulate boating and other activities of both Indians and non-Indians on these waters."

"The lands returned to the Tribes will be Indian Country and subject to Klamath Tribal regulatory jurisdiction and control. Therefore, the Klamath Tribes will develop land use laws according to its land management goals."

The tribal constitution says, "The sovereign powers, authority and jurisdiction of the Klamath Tribes and its government shall extend to all persons and activities within the territory, which formerly constituted the Klamath Reservation and is consistent with Federal law.

It also says, "The sovereign powers, authority and jurisdiction of the Klamath Tribes and its government may extend beyond the geographical boundaries of the Klamath Tribes territorial jurisdiction."

According to a Tribal survey of its members, 90 percent answered yes to a question that asked, "If public access is allowed on land acquired as reservation land do you believe the Klamath Tribes should be responsible for the enforcement of civil (not criminal) laws and regulations?

The Supreme Court has generally ruled that tribes cannot prosecute non-Indians on criminal matters. However, some in Congress are trying to "fix" these decisions with Senate Bill 578, which seeks to give the Tribes greater authority.

Additionally, tribes can prosecute their own tribal members, in tribal court, which brings up serious concerns about the rights of those victimized.

What about the tribal proposal of limited withdrawal of sovereign immunity?

The key word is "limited." No assurances can provide citizens fair treatment except the elimination of sovereign immunity. An extremely limited ability to appeal on a few narrow issues to one federal court, if the Tribes break the law, is not adequate. A journey to federal court often costs well in excess of $100,000.

Why impose this burden upon the citizens of Klamath County? What is wrong with our current elected government and judiciary?

A report of the Tribes' land and water negotiation team in December included results of a survey of tribal members, with the following results: "If land is acquired as a reservation land are you willing to allow for unlimited public access, as it currently exists in the Winema and Fremont National Forests? The response was 73 percent no, 25 percent yes.

"If land is acquired as reservation land, are you willing to allow for unlimited public hunting and fishing on that land, as those activities are currently allowed in the Winema and Fremont National Forests? The no response was 75 percent, yes was 21 percent.

In a handout, the Tribes say, "The Klamath Tribes will honor current permitted uses and valid existing rights. The issuance of further permits and rights and the extension of same upon expiration will be based on Tribal management goals." Who determines "valid existing rights" and "Tribal management goals" - the tribal government?

Community concerns are entirely justified. The Tribes are seeking ownership of all the surface water through the Klamath adjudication. If granted, this would destroy the agricultural community.

The Tribes' constitution says, "All waters which originate in or flow through the Klamath Tribes jurisdiction, or which are stored within the Klamath Tribes jurisdiction, whether found on the surface or underground, are a valuable Tribal resource of the Klamath Tribes, and are to be protected for the present and future use of the Klamath Tribes."

Are house wells and irrigation wells next? Tribes elsewhere are seeking control of groundwater including individual house water wells. If the Tribes are not going to attack groundwater they should file a legally binding statement, absent any lawyer-weasel language, with Water Resources Department stating that they will not seek control of groundwater in any way and they will not seek any action against existing wells.

While they are at it, they could drop their massive claims for all the water in the adjudication.

Another question is instructive: "Do you think that the Klamath Tribes should enter into negotiations with the federal government if we can only acquire 692,000 acres of reservation at this time (in addition to a quantified water right)." Eighty percent said yes.

The Tribes are seeking control of the surface water and 690,000 or more acres in Klamath County. What more do they want? Do they need hundreds of millions of dollars worth of assets to be self-sufficient?

After lobbying for the ability of tribal members to dispose of reservation assets in exchange for cash under the voluntary withdrawal act, the Tribes got that option. Most of the tribal members voted to get cash with a lopsided vote of 1659-80.

This is the problem with any negotiated settlement. How long before the Tribes are asking for more land or water? We remind people of the comments of former Rep. Bob Smith when he introduced the bill to reinstate the Tribes, "Smith Said the bill would not restore the Klamath Tribe's reservation nor would it suggest that the federal government should ever provide land for a reservation."

The community is being torn to its very seams by the constant tribal threats to seize control of the land and water. History is replete with all of our ancestors mistreating each other. There is no one who is alive today who has not been wronged at some point. We are fast becoming like Bosnia and Afghanistan, where tribal governments and ancient feuds rule the day. We need to work together toward good management of our forest and water resources and ensure everyone is kept whole. We must not destroy the entire community in a vain attempt to right some past wrong.

The author

Lynn Bayona is the chairman of the Basin Alliance to Save the Winema and Fremont National Forests, 2575 Campus Drive, Suite 346, Klamath Falls, OR 97601, www.basinalliance.com  Phone (541) 880-2606.

Basin Alliance in Keno March 31--for information go HERE

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