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https://www.heraldandnews.com/members/forum/letters/the-state-is-making-up-its-own-water-rules/article_1c16cd98-1db5-5d39-a1f8-468f635d32cd.html


The state is making up its own water rules

Herald and News Letter to the Editor Feb. 21, 2019, by Jerry Jones, Chiloquin, Oregon

Historical documents show Oregon Department of Water Resources (ODWR) has engaged in water theft from the historical ranches of the Upper Klamath Basin.

In 1906, over 622,000 acres in the Upper Sprague and Sycan areas was removed from the Klamath Indian Reservation in a boundary settlement with the tribes. At the same, 87,000 acres was removed in a land exchange agreement with a private company for 111,000 patented acres the company owned within the reservation. Each agreement was approved by the tribal elders and in each case the tribes were paid twice by the government to make sure they received fair market value. In exchange for the first payments, government required the tribes to "execute a release of any claims and demands of every kind against the United States for the land involved."

OWRD has erred in mixing of traditional western water law (first in use, first in right) with treaty rights which define Indian rights. In the treaty of 1864, the Indians ceded 22 million acres of traditional hunting and fishing area for safety and guaranteed rights within a reservation. This too was approved by the tribal council.

In 1985, the U.S. Supreme Court in ODFW v. Klamath Tribes ruled that the tribes hunting and fishing treaty rights were limited to the former 1954 reservation boundaries and did not extend to the lands ceded out of the reservation.

The only time immemorial rights the tribes have are hunting, fishing and gathering rights with water to support these activities. The water rights cannot be separated from these other activities. The Adair decisions which gave the tribes in-stream water rights only referred to activities within the reservation.

The ranches in the adjudication had water rights before the state started granting rights in 1910. The state in the adjudication process has made up its own rules.

Jerry Jones, Chiloquin

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