The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

10: The Boundaries of Winters—When the Courts Alone Are Not Enough to Protect Indian Reserved Rights

191 The Boundaries of Winters— When the Courts Alone Are Not Enough to Protect Indian Reserved Rights Scott W. Williams  chapter 10 If the Klamath River salmon die, there will be no more Yurok people. We will not disappear; we simply will no longer be Yurok. —maria tripp, Chairperson, Yurok Tribe The Yurok Tribe, the largest tribe in California, with more than five thousand members, occupies a small portion of its ancestral lands in Northern California. The reservation straddles the Klamath River from its mouth at the Pacific Ocean upriver approximately forty-seven miles to the confluence with the Trinity River at the Yurok village of Weitchpec. The Yurok Reservation, created in the late 1800s, was “ideally selected for the Yuroks,” a fishing people; the river then “abounded in salmon and other fish.”1 In 1861 the Klamath River was described as a “perfect paradise for these Indians” because they were “self-sustaining” through fishing and hunting.2 The fishery is “not much less necessary to the existence of the Indians than the atmosphere they breathed.”3 Indisputably, in the language of Winters, the creation of the Yurok Reservation contained an implied reservation of water sufficient to maintain the fishery.4 The existence of a healthy fishery in the Klamath River and the tribe’s reliance upon it were the “very purpose[s] for which the Reservation was created .”5 The courts have agreed. Since time immemorial the Yurok people have 192 PART III depended upon the Klamath River for sustenance, and the creation of the reservation established their fishing and water rights forever.6 The obligation to ensure compliance with Yurok water rights lies squarely with the U.S. Bureau of Reclamation. As the Ninth Circuit stated in Klamath Water Users Protective Association v. Patterson, “We have held that water rights for the Klamath Basin Tribes carry a priority date of time immemorial , . . . [and the Bureau of Reclamation] has a responsibility to divert the water and resources needed to fulfill the Tribes’ rights, rights that take precedence over any alleged rights of the [Reclamation Project] irrigators.”7 But judicial confirmation of the Yurok people’s priority rights to water did not slow the precipitous decline in the tribal fishery; the degradation began with non-Indian extraction of basin resources in the 1800s. In the dry year of 2002, just two years after Patterson’s sweeping pronouncement, the Bureau of Reclamation’s water diversions to agriculture upriver from the Yurok Reservationcontinuedunabated,andmorethansixtythousandsalmon(mostly chinook, but also several hundred Endangered Species Act–listed coho) died on the reservation as they attempted their spawning run in a warm river with low flows. Post-disaster litigation intended to protect the tribe’s priority right to water had not secured injunctive relief.8 The Bureau of Reclamation proved incapable of assuring the tribe that the agency would retain sufficient water in the river in the future to sustain the fishery. The fishery could not withstand another disaster of that magnitude. The tribe, dependent for its existence on a healthy fishery, had limited options, none of which promised sustained river flows. It could not rely upon the Bureau of Reclamation to honor its trust responsibility or upon the courts to enforce that trust obligation or protect the tribe’s Winters rights. So the tribe’s leaders pursued a different course. They began the politically painful and risky process of trying to forge alliances with their historical opponents. As a direct consequence of the tribal leaders’ decision, the United States, California, Oregon, reclamation project irrigators, off-project irrigators, local governments, three other Indian tribes, conservation groups, and commercial and recreational fishing groups began the torturous process of sitting down together to find common ground. In a tentative agreement announced in January 2008, Klamath Basin stakeholders published a blueprint to create sustainable communities in the basin.9 That blueprint, if implemented, will for the first time in a century reverse the ongoing decline in the Yurok fishery. It will provide wet water to the Yurok fishery and will bring about a realization of the Winters promise. 193 The Boundaries of Winters What follows is a discussion of Winters rights in the context of political and legal opposition to their enforcement. The Geography and Politics of the Klamath Basin It’s huge and complicated and complex. But it’s still the one single place on the continent [where] there is still an opportunity to restore an...