[env-trinity] Indian Country Today; New Klamath Water Bill ...

[FISH1IFR at aol.com]

In a message dated 6/2/2014 9:17:46 A.M. Pacific Daylight Time,  
tstokely at att.net writes:

“The  Hoopa Valley Tribe is shocked and disappointed,” said Hoopa Valley 
Tribe  Chairwoman Danielle Vigil-Masten, “that the so-called ‘Klamath Basin 
Water  Recovery and Economic Restoration Act of 2014’ introduced by 
Senators:  Feinstein, Boxer, Merkley, and Wyden would effectively terminate water  
and fishing rights of our tribe.”

Colleagues....
 
I find the above statement puzzling as to how the Hoopa Tribe could  
possibly come to this conclusion above.  In fact, there is specific  language in 
the new bill that makes such impacts patently  impossible.  Reading Sec. 3(g) 
of S. 2376 (The Klamath Basin Water Recovery  and Economic Restoration Act 
of 2014) it clearly says:
 
  "Sec. 3(g) TRIBAL RIGHS PROTECTED. -- Nothing in this Act  or the 
Settlements --
 
     (1) affects the rights or any Indian tribe outside  the Klamath Basin; 
or
     
     (2) amends, alters, or limits the authority of the  Indian tribes of 
the Klamath Basin to exercise any water right the Indian tribes  hold or may 
be determined to hold except as expressly provided in the  Agreements."
 
AND ALSO:
 
  "Sec. 5(h)(2) & (3)   EFFECT OF SECTION. -- Nothing in  this section  --
 
     (2) affects the treaty fishing, hunting, trapping,  pasturing, or 
gathering right of any Indian tribe except to the extent  expressly provided in 
this Act or the Agreements; or
 
     (3) affects any right, remedy, privilege,  immunity, power, or claim 
not specifically relinquished and released  under, or limited by, this Act or 
the Agreements."
 
As the Hoopa Valley Tribe is not now, and has never been, a  
Party-signatory to any of the Klamath Settlement Agreements, the savings clause  of Sec. 
3(g) makes it clear in the statutory language itself that this Act would  in 
no way whatsoever impact any water rights the Hoopa Valley Tribe now  has or 
may in the future be determined to have.  
 
And as the Tribal water Settlement provisions of the Act include ONLY the  
"Party Tribes" who have actually signed the Settlement Agreements, and do 
not  include even mention of the Hoopa Valley Tribe, one can only conclude 
that  nothing in this Act would apply to the Hoopa Tribe in any way, nor limit 
either  water or fishing rights of the Hoopa Valley Tribe in any way.  In 
fact just  the opposite -- as the two limiting disclaimers cited above make it 
clear. 
 
S. 2376 should be available shortly in full text from the Library of  
Congress' Congressional Web site THOMAS, both by bill number and key word, at:  
http://thomas.loc.gov/
 
 
*****
 
While it is true that the Klamath Tribal water settlements,  which are 
strictly between the federal government and three other  Klamath Basin Tribes 
(theYurok, the Karuk and the Klamath Tribes of Oregon) who  are Parties to the 
Agreements, means that the Hoopa Valley Tribe  cannot  later force the US 
to sue to overturn its own federal  settlement agreements with those other 
Tribes, this is precise the case  already.  The US cannot be forced by one 
Tribe (for which it is  Trustee) to sue any other Tribe (for which it also 
serves as Trustee) -- this  would be a direct conflict of interest that would 
violate the federal Trustee  relationship, several federal laws and the 
Cannons of Ethics that lawyers must  abide by.  Doing so would mean the federal 
government would be, in essence,  suing itself!  
 
And likewise, since the Bureau of Reclamation and other federal agencies  
are Parties to the Agreements, nor can the Hoopa Tribe force the US (as  
Trustee) to, once again, sue itself to overturn its own agreements  with its own 
federal agencies.  Again, this would be a direct  conflict of interest that 
is not allowed under the current law.
 
But this is precisely the same situation the Hoopa Tribe would be in  
whenever it tried to sue any federal agency of its own Trustee, i.e.,  the 
federal government.  All it means is that in order to do so -- i.e., to  exercise 
any of its water or fishing rights against the feds in Federal  Court -- it 
would simply have to hire its own private attorney's rather  than be 
represented by the U.S. Attorney's Office or Solicitor General.
 
There are many examples of that happening in the past.  A recent  example 
in the Klamath Basin is the case Pacific Coast Federation of  Fishermen's 
Associations, et al. vs. U.S. Bureau of Reclamation (2000)  (Civ. No. C00-1955 
SBA), when we sued BOR over lack of a legal BiOp for the  Klamath Irrigation 
Project.  The Hoopa Valley Tribe and the Yurok Tribe  both intervened in 
that case against the U.S. Bureau of Reclamation to  defend their inherent 
water and fisheries rights -- the only difference between  that and any other 
lawsuit is that, since they were suing their own US  Trustee, they had to 
have their own independent legal counsel.    They could not force their Trustee 
to, in essence, sue itself.  
 
But that restriction remains in place whether or not there is (or is not) a 
 Klamath Settlement and whether or not the Klamath Act is ultimately signed 
into  law.  The Klamath Act does not affect that legal limitation on what a 
Tribe  can ask its federal Trustee to do in any way.
 
Hence the Hoopa Valley Tribe's statement that the Klamath Act of 2014  
"would effectively terminate water and fishing rights of our tribe" simply  
cannot be true.  
 
It may be an inconvenience to the Hoopa Tribe to have to hire its own  
independent legal Counsel rather than have access to free legal  services of the 
US government, but that minor inconvenience in no way affects,  amends or 
negates whatever underlying legal water or fishing rights the Hoopa  Tribe 
might in fact have in Court.  
 
 
======================================
Glen H. Spain, Northwest  Regional Director
Pacific Coast Federation of Fishermen's Associations  (PCFFA)
PO Box 11170, Eugene, OR 97440-3370
Office: (541)689-2000 Fax:  (541)689-2500
Web Home Page: _www.pcffa.org_ (http://www.pcffa.org/) 
Email:  fish1ifr at aol.com
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