If corporations can be legal persons under the law, why not natural features like rivers, mountains and forests? The Yurok Tribe did just that this summer. In a first of the kind action, the tribe declared the Klamath River a legal person with standing in its tribal courts. The resolution, which "Establishes the Rights of the Klamath River to exist, flourish, and
naturally evolve; to have a clean and healthy environment free from
pollutants; to have a stable climate free from human-caused climate
change impacts; and to be free from contamination by genetically
engineered organisms,” passed by the tribe's council came after a particularly difficult year for the over-appropriated Klamath. Low water flows for the past few years have caused disease in salmon and cancelled fishing seasons. The Yurok is the largest native tribe in California, and they join a growing movement to protect the environment from more devastation by granting legal standing to natural resources, giving native people another legal mechanism to protect their river.
Last year the Ojibwe Tribe adopted "the right of Manoomin" to protect their precocious wild rice--Mannoomin--and the fresh water sources it needs to survive in Minnesota. Another common law country, New Zealand, adopted the Rights of the Whanganui River, which give it standing in courts. A spokesperson for the tribe said the resolution not only gives legal standing to the Klamath, but reflects the values the tribe. Cherokee Nation lawyer, Geneva Thompson, who worked on the resolution said, “The idea is that the laws of a nation are an expression of the nation’s values.” Tribes under the US legal system are separate sovereigns who can legislate their own laws and enter into treaties with the United States.
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| credit: KCET |
2002 when about 34,000 salmon died in the Klamath, was a turning point for the Yurok, who began to take steps to protect the salmon. Legal fights over water rights and fishing erupt regularly as the salmon population continues to decrease and disease blights the river. This year, thanks to global warming, the snowpack was only 46% of normal; Oregon declared another drought in the Klamath Basin. The drought is causing an "operational nightmare" for agriculturalists, which directly compete with salmon for adequate water flows. Yurok's tribal counsel Amy Cordalis, says the issues remain the same despite some successes in protecting water and salmon: an over allocated river and dams that diminish water quality. What has changed is the tribe's approach. Representing itself in lawsuits, it is reclaiming governance of the river.
In April 2017 a federal district court judge ruled that endangered salmon in the river were entitled to priority over appropriating irrigators. When disease rates exceed permissible limits, water was diverted into the river to maintain flow.
Yurok Tribe et al. vs. U.S. Bureau of Reclamation et al is currently on appeal to the Ninth Circuit. The victory in court represents a resurgence of the Yurock culture. For many years it was submersed in institutionalized racism and limited self governance. The Yurok had lost most of its reservation to white settlers. The reservation was established in 1855 after a treaty with the US was signed in 1851, but as early as 1874 settlers were arguing it had been abandoned, and they had the right to homestead there. In 1878 Congress passed the General Allotment Act, dividing up the reservation into small lots for each tribe member. Surplus lots were granted to non-natives, and more lots bought from natives in a divide and conquer strategy.
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| credit: J. Yazzie |
Despite the 1973 landmark
Bolt case, which reaffirmed natives' right to manage their own fisheries, the state of California claimed the power to regulate native fisheries for conservation purposes pursuant to a 1977 Supreme Court decision. A year later the state closed native gill netting on the river. Surreptitious fishing at night by natives began. It has been an almost continuous struggle to obtain sufficient flows for salmon in the Kalamath. There have been important wins along the way, such as the 9th Circuit case in 2017 that ordered flushing flows to rehabilitate the Trinity tributary, which
had lost 80 percent of its salmon habitat due to the irrigation project
on the river. The judges found the amount of evidence showing the salmons' need for water to be "staggering". In 2009 Pacific Corp., facing environmental lawsuits and expensive dam retrofitting for salmon passage, began negotiations with a coalition of natives, conservationists and regulators to remove dams on the Klamath. The negotiations resulted in an agreement to remove four of the eight dams blocking salmon habitat pending federal approval. If the agreement is allowed to go ahead, it will be the largest dam removal project in the United States.
There have been three failed attempts to reach a long term agreement of how to use the Klamath's waters. The last agreement between irrigators and natives failed because Congress did not implement it with legislation. It was consumated primarily because of a golfing buddy relationship between the tribe's director and the head of the Klamath Water Users Association. Tribal water rights are among the oldest in the basin, going back to treaty days. However, non-native ties to the land are strong too. In 1902 both Oregon and California ceded land to the federal government which opened it to settlement, promising homesteaders water rights. Repeated droughts have caused the shut off of farmers' life blood--irrigation water. Each year the tribe holds a salmon festival
[photo], but lately there has been very little salmon in the festival. The tribe has canceled fishing for two years in a row. Oregon irrigators filed an appeal of the case allowing increased water flows for fish in 2017. Ultimately the Supreme Court will have to decide the fate of salmon and salmon fishers on the Klamath. Whether the river's new personhood will help it regain health remains to be determined.
