The case against restoring the reservation - There are many examples of Klamath tribal members trying to dispose of reservation assets and lands for cash
December 21, 2003
Lynn Bayona is President of The Basin Alliance to Save the Winema and Fremont National Forests, 2575 Campus Drive, Suite 346, Klamath Falls, OR 97601, 541-880-2606. Many Alliance members worked on this article.
Page D11
Published in the Klamath Falls, Oregon, Herald and News
To submit a Letter to the Editor: [email protected]
Save the Winema & Fremont Forests - Proposal to Create Tribal Reservation Is Contrary to the Public Interest

The much publicized negotiations between the Klamath Tribes, federal representatives and a select group of private landowners have highlighted the contentious issue of establishing a Tribal reservation in the Winema and Fremont National Forests .  These negotiations propose to give the Klamath Tribes 690,000 acres of our prime forestlands.


The problem with this scenario is the Reservation was bought and paid for already by American taxpayers.  This would be as if the French claimed that Thomas Jefferson coerced them into the lucrative Louisiana Purchase and that we should return those Southern states to French sovereignty.


An additional justification for having 690,000 acres given to the Tribes is the assertions of mistreatment and the forced transformation to a European society 150 years ago.  This argument is questionable considering many tribal members are over 50% European ancestry, and some tribal members are only 1/16th Native American (Federal Register Nov 21, 1957).


We encourage everyone to take a full and in-depth look at history.


Tribal members attempting to liquidate assets


The historical record is replete with examples of the Klamath Tribal Members actively trying to dispose of their Reservation assets and lands in exchange for a cash payment.  The following are excerpts from Tribal documents received by the Bureau of Indian Affairs and Klamath Tribes currently archived in the regional National Archives repository in Seattle .


We the undersigned, Klamath, Modoc, Piute, and Indians of other Indian tribes, being allottees on the KLAMATH INDIAN RESERVATION, Klamath County, State of Oregon, hereby respectfully request and petition that immediate steps be taken by the Government to sell and dispose of all the tribal timber on the aforesaid Klamath Indian Reservation for cash” (Petition signed by over 400 people 1915)


If it is found at all practicable, we believe the Government should itself purchase the timber on the Klamath Reservation and make it into a forest reservation. This would necessitate an appropriation of a considerable sum of money by the Government, but it would enable the Indians to receive at an early date their respective interests in this estate.” (Petition of Klamath Modoc and Yahooskin bands of Snake Indians, 1922)


Then the 1936 General council discussed a “Proposal for the appraisement of the tribal estate for the assistance of the members for withdrawing their proportionate share from the Reservation


Termination of Federal Supervision


Finally in 1950, the furor of tribal members wanting to sell their share of the reservation compelled the Tribal Council to act.  In the 1950 tribal council meeting, the Klamath Tribes voted to introduce the voluntary withdrawal act in Congress, allowing their members to sell their share of the reservation for cash.  The voluntary withdrawal act did not pass Congress but evolved into the Act Providing for Termination of Federal Supervision of the Klamath Tribes allowing the Tribes to sell the reservation in exchange for cash, for the withdrawing members.


While the Tribes insist they did not receive adequate representation during the passing of the Termination Bill, the Council minutes speak for themselves. In 1954 the two elected delegates from the Tribe, Boyd Jackson and Jesse Kirk were in Washington , D.C. They, along with Wade Crawford who claimed to represent 307 members of the Tribe, testified before the Senate Committee.


Wade Crawford spoke before the Council: “ . . .Mr. Jackson and Mr. Kirk had a meeting on these amendments that are now a  law, and that’s public record . . .Mr. Jackson agreed to that bill. . .The parties representing you agreed to this law, don't let them give you anything about they wanted to change it.”


In the same meeting a letter was read into the transcript from Congressman Sam Coon:


“Last year, at the request of the Klamath Indian Delegates, I introduced the Voluntary Withdrawal Bill. It did not get a favorable report from the Department nor the Committee, so was not acted upon. . . I did not attempt to get a hearing on the Senate passed  bill for termination . . . because your representatives were not in agreement. . . However, they met with their attorneys, the Indian Commissioner and his assistants and finally worked out a bill that they all agreed on. . . The committee asked if all were agreed on the bill. The Klamath representatives or their attorneys all said that this was the bill they wanted. The Committee consolidated the pre capita and the termination bill. This bill was passed”


As reported at the July 29, 1954 General Council meeting the elected Tribal delegates, wrote the following about the Termination Bill:


In conclusion, we desire to advise the tribes that we believe on of the most desirable features of the bill, and one which has encouraged us to agree upon the bill as reported by the House Committee, is that which provides for a complete and accurate appraisal of tribal property.” (emphasis added)


Were the Klamath Tribes terminated?


The Klamath Tribes were not terminated. Federal Supervision (control) was all that was terminated.  This point is very clearly stated in the Klamath Tribes 11/25/2000 constitution:


By adoption of this Constitution we act to clarify the misconceptions that exist regarding the effect of the Klamath Termination Act (25 USC Sec. 564 et. seq.) by stating to all people that the Klamath Tribes never ceased to exist and that the effect to termination was the eligibility of our members to receive services from the federal government.  Therefore, Public Law 99-398, was approved on August 26, 1986 allowing for the Restoration of Federal recognition for the Klamath Tribes


Both the reservation and the Klamath Tribe existed after termination.  Tribal members were given a choice of whether they wanted to stay in the Tribe, or withdraw from the Tribe and get their share of the reservation in cash.


Following Termination of Federal Supervision, 1,659 tribal members voted to withdraw for a cash payout, 80 voted to remain and 394 did not vote, or presented invalid ballots. Those who did not vote or presented invalid ballots were considered remaining members for a total of 474 remaining members.  Source:  The Federal Register and the list of Persons Electing to Remain.


According to the Klamath Tribes’ own calculations, The Tribes were paid $220,647,000 in termination payments between 1961 and 1980 (Economic studies in support of Klamath Tribes self sufficiency and impacts of Termination). 


In today’s dollars, these payments ranged between $318,613 and $762,787 per person, when adjusted for inflation, utilizing the American Institute for Economic Research’s inflation calculator.


The remaining members received substantially more money than the withdrawing members.  The remaining members received payment when the US bank trusteeship was dissolved at a later date, and the remaining reservation was liquidated.


Restoration of Federal Supervision


In 1986 Congressman Bob Smith introduced legislation to restore federal supervision of the tribes, which entitles tribal members to receive health, education, and welfare benefits.


According to the Herald and News, June, 16, 1986, Congressman Smith made it abundantly clear how Congress stood.


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…If it is the Tribal (chairman’s) intention to reconstruct a reservation in the future that must be done through the same land acquisition methods available to any American


What about water rights?

The water battle continues to be long and divisive. The tribes have filed for claims to essentially all the surface water in the upper Klamath Basin . If successful; these claims would result in the shut down of most agricultural producers. 


Figure 1


Graph showing actual flow back to 1922 compared to the Tribal instream claim (the flat line), when the graph drops below the flat line irrigators would not be able to irrigate, if the claim was granted.  The claim is well in excess of actual flow especially in the period prior to 1954 when the tribes held the Reservation.


The tribes do not have specific instream water rights, but they have massive claims.  The claims may ultimately grant the Tribes a lot of water or virtually nothing, depending upon the Klamath Adjudication.  The Ninth Circuit Court Recently ruled on the Adair case, setting aside a lower court ruling the Tribes were seeking.  Now the standard is back to the amount of water necessary to preserve the Tribes current hunting and fishing livelihood, not as it existed in 1864.  


What about the Environment?


In 1925 the Tribal council states “We have sold 1,000,000,000 feet, and 5,000,000,000 feet of timber [are] yet to be sold.   For reference purposes a billion board feet of boards if laid flat would completely cover 35 square miles of land. 


Figure 2


Logging on the Klamath Indian Reservation 1929


Many tribal members wanted to cut more an more timber as exemplified by the October 1946, general Council Meeting; “BE IT RESOLVED, that the General Council does hereby agree and consent to the sale of all the remaining stand of virgin timber and the cut over lands, in 50 to 100M ft M.B. for cash to the highest Bidder, and that the pro rata share of each man, woman and child shall be paid to him or her, in cash.” 


What about the Sucker?


W.H. Slattery, a reservation engineer, made the following observations while investigating potential repairs to the Chiloquin Dam in 1940.  Please note that suckers are also referred to as “mullets”:


It is my observation that the fishing activities of the Indians near the dam could render serious injury to a great number of fish.  In attempting to “gaff” trout, which seem to be more desirable than mullets, the fishermen often “gaff” mullets, which they immediately return to the stream after serious mutilation by the removal of the gaff hook.  In fishing along the stream for trout immediately below the dam with rod and tackle the fishermen often snag mullets, the hooks entering the body which necessitates the bring the fish to shore for removal of the hook by cutting it out with a pocket knife or by allowing the fish to tear itself free form the hook while being brought into shore.  The trout fishermen do not enjoy these difficulties since it results in the loss of much time and effort besides the loss of valuable tackle.


During the run of fish I have observed as high as twenty-five fishermen both with tackle and gaff hooks, below the dam and I feel that these fishermen would mutilate a great number of fish in the above manner.


As to the fish which have died in their attempt to pass the dam on their migration upstream, referred to in office letter July 24 1939, Mr. Blocklinger claims that the only dead fish he has seen in the vicinity of the dam are those which have been removed from the stream by fishermen and left upon the dam to rot.  Also, he states that these fish are called ‘suckers’ and are not preferred for food.” (Slattery 1939)


Figure 3


Chiloquin Lumber Company Dam. This was one of many former reservation mills; it did not have a fish ladder and was near the mouth of the Sprague River.



What about agreements on Land management?


There is no guarantee that the next tribal council will honor agreements.  The tribes consider themselves to be a sovereign entity within the United States .  As a sovereign Nation they can make and change their policies as they see fit.


Will people be subject to tribal police and courts instead of our locally elected officials?


Since tribes are independent nations, they cannot be sued to enforce a contract.  In the Regularly scheduled General Council meeting, February 22, 2003, a quorum of the Klamath Tribes General Council adopted the “Matters Concerning Return of Forestlands to the Klamath Tribes”, which in part states: “Because the land will be Indian Country upon its return, it will not be subject to state or federal authority except as such authority applies to other Indian Country of the State of Oregon…The Tribes will have civil enforcement jurisdiction for violations of the laws and regulations by both tribal members and non-tribal members…The Klamath Tribal Court…will have jurisdiction over all of the lands returned to the tribes and civil jurisdiction as provided by law over persons located on tribal lands…The Klamath Tribal Court may, in the future, assert jurisdiction over crimes committed by Indians within the boundaries of the lands returned.”


Additionally according to the Klamath Tribes Constitution approved 11/25/00The Klamath Tribal Court shall consist of Native American Judges only, and shall be elected by the General Council”


How Much Control does the Klamath Tribe want?


According to their own 11/25/00 Constitution the Klamath Tribes wants control of:


A) All lands of the Klamath Tribes and all lands thereafter acquired by the Klamath Tribes and held for the use of the Tribes or its members shall be considered a valuable Tribal resource. Control and management thereof are vested in the General Council, which may enact laws governing the use, assignment, permit, lease, or other disposition of lands, interests in land, and resources of the Tribes.


B) It shall be the policy of the Klamath Tribes to seek the return, to the Klamath Tribes, of all lands, natural and cultural resources, including minerals and water rights that become available and which were historically a part of the Klamath Tribes heritage.


C) 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.


Section II: 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.


Section III: 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.”


The land grab must be stopped


The withdrawal of reservation assets in exchange for cash was a goal voted on by a majority of the Tribal members.  It was an outcome they lobbied Congress, under the Voluntary Withdrawal Act.  Having successfully achieved their goal it is inequitable to let them now reassert a right to re-vest themselves with the reservation already sold.


As American citizens we have a moral obligation to preserve our National Forests for future generations.  We must fight to preserve wood cutting, hunting, fishing, snowmobiling, horseback riding; hiking, skiing and other recreational opportunities, which we all enjoy.


But there is a bigger question of the great injustice of Tribal sovereignty where the tribes have used the endless checkbook of the federal government, attacking our agricultural community trying to get title to all the water.  If the Tribes want to be good neighbors the first thing they should do is drop all their massive water claims, and heal the community.


Who will be next if the Tribes get ten times as much power?  One can read various employment advertisements for the Tribes and their Casino where they state “Indian preference will apply”.   Could anybody else get away with race based hiring practices?  Will those same practices apply to lands gained?  We justifiably expect the Tribes to live by the same rules as everybody else, is that too much to ask?