On a special episode (initially released on January 25, 2024) of The Excerpt podcast: The Winters Doctrine, a significant 1908 U.S. Supreme Court ruling, asserts that Native American reservations have the right to sufficient water to fulfill their tribes’ requirements. Recently, this doctrine was invoked as tribes endeavored to revive the Klamath River, which traverses Oregon and California. The primary objective is to rejuvenate the fish spawning habitats after a hiatus of over a century. Debra Krol, an Indigenous Affairs Reporter from the Arizona Republic, a part of the USA TODAY Network, joins The Excerpt to delve into the persistent struggle concerning Indigenous water rights.
Hit the play button on the player below to listen to the podcast and peruse the transcript provided below it. This transcript was automatically generated and subsequently refined for improved clarity. Discrepancies may exist between the audio content and the text.
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Dana Taylor:
Greetings and welcome to The Excerpt. I am Dana Taylor. Today is Thursday, January 25th, 2024, and this marks a special episode of The Excerpt.
As per the Winters doctrine, a 1908 ruling by the U.S. Supreme Court, Native American reservations are granted adequate water to satisfy their tribal necessities. This doctrine was recently invoked by tribes in their efforts to revive the Klamath River, which courses through Oregon and California. The objective is, in part, to reinstate the breeding grounds for fish after a hiatus of more than a century. Joining us to shed light on the enduring battle over indigenous water rights is Debra Krol, an indigenous affairs reporter from The Arizona Republic, affiliated with the Gannett network. Thank you for being with us, Debra.
Debra Krol:
Thank you for having me.
Dana Taylor:
Let’s commence with an overview. Could you succinctly explain why the Klamath River holds such significance for the tribes residing along its banks?
Debra Krol:
The Klamath River essentially serves as the lifeblood for the seven tribes and, not coincidentally, seven distinct tribal cultures that have inhabited the basin for the past 15,000 years. It serves as a vital source of sustenance through fishing and supports various wildlife such as deer, squirrels, and foxes. Nearly all the sacred sites revered by these tribes are situated either directly on the water or in close proximity to it.
Dana Taylor:
The final of the four hydroelectric dams on the Klamath River is slated for removal this year. You highlighted that these dams established an unnatural system that left both fish and people in a precarious situation. How long have these dams been in place, and how severe were the repercussions?
Debra Krol:
The initial dam was constructed between 1913 and 1915. For the past 110 years, salmon, steelhead, and other fish that historically used the river above the dam sites for spawning have been obstructed. This obstruction has severed access to up to 400 miles of their spawning grounds. The entire Klamath basin possesses high phosphorus content, crucial for plant growth. However, as this phosphorus accumulates in the shallow reservoirs, during the summer months, toxic algae blooms proliferate. I distinctly recall an instance when we visited the reservoir, the stench was so overpowering that individuals were retching, compelling us to vacate the area. Clearly, this scenario is detrimental to humans, fish, pets, wildlife, and when this contaminated water flows downstream into the middle and lower Klamath, it carries a lethal concoction of algae that decimates all in its path.
Dana Taylor:
How long have the tribes residing along the river been advocating for the removal of these dams? Was there a pivotal moment that bolstered the tribes’ arguments?
Debra Krol:
Indeed, tribes have been advocating for the dams’ removal for decades. However, the turning point materialized in 2002 following the Klamath fish kill incident. This catastrophe stemmed from the Bureau of Reclamation halting the flow from the upper Klamath to fulfill the water rights of other tribes to safeguard their fish. As the water traversed through the reservoirs, the concentrated toxic algae proved exceptionally lethal, resulting in the demise of an estimated 30,000 to 70,000 fish, including salmon, steelhead, and lampreys, among others. This event, a cultural and economic calamity for the tribes, prompted the declaration that enough was enough—the dams had to be dismantled.
Dana Taylor:
Alright, Debra, who bears the responsibility for the removal of these dams and subsequent habitat restoration?
Debra Krol:
The states of California and Oregon collaborated with the then-owner of the dams to establish a non-profit entity known as the Klamath River Renewal Corporation. This organization has been tasked with the removal of the dams and the reinstatement of the Klamath’s natural flow. Additionally, another entity, abbreviated as RES, has been entrusted with the restoration of the exposed land post the final dam removal.
Dana Taylor:
Following the river’s restoration to full flow, how long might it take for the fish, particularly the salmon and steelhead you mentioned, to repopulate?
Debra Krol:
Some individuals anticipate that it could require decades. Nonetheless, drawing from the experience at the Elwha River, it took approximately 10 years before the salmon population rebounded sufficiently to permit the commencement of a fishing season. There is a sense of optimism prevailing.
Dana Taylor:
Let’s revisit the discussion regarding the Native Tribes with connections to the Klamath River. I understand that the river holds sacred significance for tribes in Northern California and southwestern Oregon.
Debra Krol:
Seven tribal governments representing seven distinct tribal cultures possess a cultural, spiritual, and subsistence stake in the Klamath River’s well-being. For instance, the Karuk Tribe recently reclaimed 1,200 acres to be designated as trust land, essentially creating reservation land for them. These 1,200 acres lie directly along the river and embody the most sacred areas of the Karuk people. Essentially, the heart of the Karuk world resides on these sites, situated along the river.
It’s essential to note that while the entire river, basin, or Earth holds sacred value, certain locations bear particular significance. Moreover, it’s crucial to recognize that the benefits of restoring the Klamath won’t be exclusive to the tribes. Numerous individuals residing along the Klamath for generations will also reap the rewards of a cleaner river, enhanced fishing opportunities, restored lands, and notably, commercial salmon fishers in Northern California and Southern Oregon will be able to resume their livelihoods. Therefore, the restoration efforts are poised to benefit a broad spectrum of individuals along the river.
Dana Taylor:
The Klamath River dispute represents just one of numerous conflicts between Native American Tribes and the U.S. government concerning water rights. Do you perceive the government’s consent for dam removal as a signal that its agencies are prepared to address Native American water rights issues elsewhere?
Debra Krol:
In Arizona, we have observed a growing realization among entities like the Bureau of Reclamation, tasked with overseeing rivers and dams in the western region, and other governmental bodies, acknowledging that tribes possess the most senior water rights on rivers and water sources beneath their tribal territories. Insights gleaned from the recent major conference suggest that the approach must evolve beyond a possessive stance to one of collective collaboration to ensure equitable access to water for all.
Dana Taylor:
Could you specify which conference you are referring to? Furthermore, are there specific contemporary water rights policies being proposed to tackle the evolving water demands and obstacles faced by tribes nationwide?
Debra Krol:
That would be the Colorado River Water Users Association. Presently, a notable emphasis is placed on addressing the Colorado River situation in Arizona. Tribes retain senior water rights to 40% of the Colorado River flow in Arizona and between 20 to 25% of the entire Colorado River flow encompassing both the lower and upper basins. The recognition that tribes must be integral to the resolution is gaining traction. While tribes are still striving for equitable representation in certain spheres, the trajectory is undeniably positive.
Dana Taylor:
When water is diverted from reservations, who stands to gain? How closely intertwined is this ongoing conflict with commercial agriculture and landscaping?
Debra Krol:
Commercial agriculture plays a pivotal role in this narrative. In the 1922 negotiations that culminated in the Colorado River Compact, dividing the river’s resources among various states, tribal water was also factored in, albeit with scant regard for potential repercussions. Tribes were attentive to these actions and have been advocating for their rightful water share ever since. Several landmark decisions, including the 1963 Arizona v. California ruling, the 2004 Gila River Water Settlement, and the recent legislation granting the Colorado River Indian Tribes the largest water allocation in the basin, enabling them to lease surplus water to others, signify significant progress. Previously, if excess water flowed out of the reservation, it was up for grabs. However, the current scenario dictates that anyone seeking surplus water must lease it from the tribe.
Dana Taylor:
How do environmental challenges stemming from global warming influence water availability, and how have tribes responded to these challenges?
Debra Krol:
Climate change doesn’t necessarily equate to diminished water supply. Rather, it exacerbates droughts, prolongs their duration, and engenders hotter, drier conditions that persist over extended periods. The Colorado River, for instance, exhibits a declining trend, subject to weather fluctuations, compounded by climate-induced prolonged droughts and heightened demand. As populations burgeon, the desire for amenities like golf courses, lawns, and water features intensifies. Tribes are cognizant of this reality, drawing parallels to instances such as Las Vegas prohibiting non-functional grass. They are exploring innovative solutions encompassing water banking, field rotation, and the adoption of water-efficient irrigation technologies.
Dana Taylor:
Lastly, Debra, what fundamental message would you like our audience to grasp regarding the current status of water rights and basic water access for Native Tribes?
Debra Krol:
Tribes hold the most senior water rights. It is increasingly recognized that while securing these water rights has historically posed challenges, the issue persists. Once a tribe’s water rights are quantified—meaning, an agreement is reached between the tribe, government, and sometimes the judiciary or Congress stipulating, for instance, that the tribe is entitled to a hundred thousand acre-feet of water annually—unless the tribe possesses the requisite infrastructure to utilize this allocation, the water flows freely downstream for others to utilize. To harness this water, tribes must construct pipelines, water treatment facilities, extend water access to residences, establish wastewater treatment plants, all of which necessitate substantial investments. At times, tribes secure water rights without the corresponding financial resources to leverage them, necessitating congressional funding. Recent developments during the Biden administration, allocating approximately $4 billion through the Inflation Reduction Act and the Bipartisan Infrastructure Law, mark positive strides. However, further financial support will likely be sought, prompting tribes to engage with Congress for additional funding.
Dana Taylor:
Debra, it has been a pleasure having you on The Excerpt.
Debra Krol:
Thank you for the opportunity.
Dana Taylor:
Acknowledgments to our senior producer, Shannon Rae Green, for her contributions to the production. Laura Beatty serves as our executive producer. Share your thoughts on this episode by reaching out to [email protected]. Thank you for tuning in. I’m Dana Taylor. Taylor Wilson will return tomorrow morning with another episode of The Excerpt.