CHILOQUIN, Ore. – The Klamath Tribe is at long last nearing the end of a legal battle over disruption of ancestral remains unearthed during a wetland expansion project on the Chewaucan River in 1993.
An agreement with Oliver Spires, owner of River’s End Ranch, a private duck hunting club, was reached in February. A meeting to complete negotiations for government assistance from the Bureau of Land Management and the U.S. Army Corps of Engineers is scheduled with Bob Dodge, attorney for the U.S. Department of Justice, as well as with other government agency representatives in early May.
“At this point, we’re going to sit down to discuss what avenues we have,” says tribal attorney Craig Jacobson, an associate with Hobbs, Straus, Dean & Walker in Portland. “What form the settlement will take is, at this point, really completely beyond my capacity to guess.”
The River’s End Project was a planned expansion of private wetlands that border BLM land on the Chewaukan River. The project included the construction of a dam and a shallow, 700-acre lake.
A private hunting club, River’s End Ranch was purchased by Oliver Spires before the dam construction and fill dirt operations began. Original permit applications to the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act included a report completed in 1986, documenting the presence of archaeological sites at the project. A Division of State Lands Waterway Project Permit Review contained a statement by the Oregon State Historic Preservation Office that the “project area is filled with prehistoric sites.” The preservation office apparently indicated the project would be acceptable only if efforts were taken to prevent damage to the sites during construction.
In December of 1992, the corps issued Spires a permit under Section 404 and, in 1993, construction of the dam began. Although presumably the corps was aware of the archaeological significance of the site, neither the Klamath Tribe nor any other tribe with potential claims in the area was notified.
“They have records that this is a very high-density archaeological area,” said Klamath Chairman Alan Foreman. “Our cultural heritage department should have been notified so that we could have a monitor there, so that if something was discovered you could stabilize the site and figure another way to go around it. Ideally that’s what should have happened. Apparently somebody didn’t do their homework.”
It was not until the project was completed in early 1994 that the tribe was notified by an Oregon Burns Paiute Native, who had been invited onto the property, that human bones littered the entire dam surface.
As the river waters rose behind the dam, more remains from Indian graves along the embankments were exposed by water action. In April 1994, BLM agents confirmed that the dam fill used to construct the dam, taken from nearby BLM property, contained human remains. Post facto, the corps suspended the permit issued to Spires. But the damage had been done.
Talks between the tribe, Spires and the corps broke down within the year, long before any out-of-court settlement could be reached. In 1995, the tribe filed suit in district court against Spires as well as the corps and BLM, invoking the Native American Graves Protection and Repatriation Act, the National Historic Preservation Act and the National Environmental Protection Act to seek injunctive and declaratory relief.
“We were asking to be able to sift the dam and the areas where there are remains,” Foreman says, “and repatriate whatever exposed remains there are.
The area (needs) stabilizing, bringing in some clean fill and putting up embankments or break waters where it’s eroding. “We’re trying to get some in-kind services to have the equipment and manpower to do that. Otherwise everything would have to be done by our people by hand. And that won’t cover very much.”
But to complicate matters, representatives from three other tribes, the Burns Paiute and the Warm Springs tribes from Oregon, and the Fort Bidwell Tribe from California, also approached government agencies seeking repatriation rights and restitution. Some remains were turned over to the Fort Bidwell Tribe as well as the Burns Paiute. In January of 1997, the U.S. Department of Justice offered all four tribes a “Global Settlement” of $383,000. It made no further provision for repatriation or stabilization of the site.
The Klamath Tribes’ general council turned the settlement down flat, as did the Burns Paiute. Joe Hobbes, vice-chairman of the Klamath Tribes, said the Fort Bidwell Tribe as well as an “individual representative” from the Warm Springs Tribe, took the settlement. As far as the U.S. government was concerned, the case was closed. The U.S. district court in Portland ordered a dismissal against all federal defendants named in the tribe’s suit in July 1997.
That decision astounded the Klamath Nation.
“I’m not saying they (other tribes) don’t have interest there,” Hobbes says. “Some of those bones are Paiute bones. The Paiutes were wanderers. They never stayed in one specific area. “But … we gave up 22 million acres of land in order to get a 2.2-million-acre reservation, and that River’s End Ranch is right inside of our ceded land boundaries. We’re the only ones who have proven direct linear descendancy. No other tribe’s proven that. That’s why we never could figure out why they’re (the government) giving to those other people what is ours.”
To add insult to injury, the court issued an order awarding attorney fees to the private defendants – $40,000 to be paid by the Klamath Tribes.
A series of appeals by the tribe and proposed settlements followed. In June 1999, Klamath tribal council members, after numerous requests, were given permission by Spires to personally inspect the site for the first time.
Despite the settlement with Warm Springs and Fort Bidwell, no reclamation work had been done on the site. Witnessing the exposed skeletons and human remains scattering the dam and shores was a tremendous shock. Hobbes and Foreman both recall their dismay at discovering skeletal remains and several skulls as they walked along the shoreline.
“There was one complete skeleton and three skulls,” says Hobbes. “When I walked up on that dam, I found some pieces of human bone there, little chunks that their machinery had broken up. We called to Spires to come see and he said, ‘I don’t want to hear it.’ He wouldn’t even go over there.”
As disturbing as the discoveries were, the site visit opened doors to continued talks. Since that time, Foreman said, Spires has been willing to cooperate with tribal members. A final settlement signed between the tribes and Spires in February permits the tribes to remove remains from the dam and back-fill with clean dirt. Additional fill will be used to cover exposed remains along the shoreline, and breakwaters will be built. The agreement is renewable after two years, and is everything the tribe hoped for since talks began in1994. Work will begin in the fall when lower water levels won’t impede the process.
In the meantime, the tribe hopes a settlement with the U.S. government will provide the equipment and money that the project will require.