Charles Switzler; Patricia Jill Switzler; The AFFIDAVIT ...erhiwhadocs.com/Documents/280 FINAL-...

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGSSTATE OF OREGON

for the WATER RESOURCES DEPARTMENT

In the Matter of the Determination of the Relative Rights of the Waters of the Klamath River,a Tributary of the Pacific Ocean

Charles Switzler; Patricia Jill Switzler; The Nature Conservancy; WaterWatch of Oregon, Inc.; Roger Nicholson; Richard Nicholson; AgriWater, LLC; Maxine Kizer; Ambrose McAuliffe; Susan McAuliffe; Company; Kenneth L. Tuttle and Karen L. Tuttle dba Double K Ranch; Dave Wood; Kenneth Zamzow; Nicholson Investments, LLC; William S. Nicholson; John B. Owens; Kenneth Owens; William L. Brewer; Mary Jane Danforth; Jane M. Barnes; Franklin Lockwood Barnes, Jr.; Jacob D. Wood; Elmore E. Nicholson; Mary AnnNicholson; Gerald H. Hawkins; Hawkins Cattle Co.; Owens & Hawkins; Harlowe Ranch; Terry M. Bengard; Tom Bengard; Dwight T. Mebane; Helen Mebane; Sevenmile Creek Ranch, LLC;

AFFIDAVIT AND DIRECT TESTIMONY OF E. RICHARD HART

Case No. 280

Claims: 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, and that Portion of Claim 612 pertaining to the Sprague River and its Tributaries1

Contests: 21, 22, 23, 24, 25, 26, 27, 28, 2802, 28082, 3016, 3040, 3041, 3042, 3043, 3044, 3045, 3046, 3047, 3048, 3049, 3050, 3051, 3052, 3053, 3054, 3055, 30563, 33144, 3343, 3344, 3345, 3346, 3347,

1 Claimant Klamath Tribes filed a notice withdrawing limited parts of its water rights claim. See KLAMATH TRIBES' NOTICE OF WITHDRAWAL OF STRUCTURAL HABITAT MAINTENANCE CLAIMS dated July 5, 2005.2 The Nature Conservancy voluntarily withdrew Contest 2808. See NOTICE OF WITHDRAWAL OF CONTEST dated March 16, 2007. The Nature Conservancy voluntarily withdrew Contest 2808. See NOTICE OF WITHDRAWAL OF CONTESTS dated April 10, 2007.3 WaterWatch of Oregon, Inc.’s contests 3016, 3040, 3041, 3042, 3043, 3044, 3045, 3046, 3047, 3048, 3049,3050, 3051, 3052, 3053, 3054, 3055, and 3056 were dismissed. ORDER DISMISSING WATERWATCH OF OREGON, INC.’S CONTESTS, May 20, 2003.4 On October 31, 2003, William Bryant voluntarily withdrew from Contests 3314. On October 26, 2004, Dave Wood voluntarily withdrew from Contest 3314. Change of Title Interest for Contest 3314 from Roger Nicholson Cattle Co. to AgriWater, LLC (2/4/05). Change of Title Interest for Contest 3314 from Dorothy Nicholson Trust and Lloyd Nicholson Trust to Roger and Richard Nicholson (2/4/05). Change of Title Interest for Contest 3314 from Kenneth Hufford, Leslie Hufford, and Hart Estate Investments to Jerry and Linda Neff (2/11/05). Change of Title Interest for Contests 3314, 3343-3359 from William and Ethel Rust to David Cowan (3/9/05). Change of Title Interest for Contests 3314 and 3343-3359 from Walter Seput to Wayne James, Jr. (5/2/05). Change of Title Interest for Contest 3314 from Jim McAuliffe, McAuliffe Ranches, and Joe McAuliffe Co. to Dwight and Helen Mebane (7/8/05). Change of Title Interest for Contest 3314 from Anita Nicholson to Nicholson Investments, LLC (7/8/05). Change of portion of Title Interest for Contest 3314 from Dwight and Helen Mebane to Sevenmile Creek Ranch, LLC (8/15/05). Kenneth Zamzow voluntarily withdrew from Contest 3314 on September 2, 2005. William Knudtsen voluntarily withdrew from Contests 3314 and 3343-3359 on September 13, 2005. Change of Ownership filed for Contest 3314 reflecting that William V. Hill is deceased and his ownership rights transferred to Lillian M. Hill (6/15/06). Sevenmile Creek Ranch voluntarily withdrew from Contest 3314 on March 1, 2007. Franklin Lockwood Barnes, Jr. and Jane M. Barnes voluntarily withdrew from Contest 3314 on April 6, 2007. Mary Jane Danforth voluntarily withdrew from Contest 3314 on June 19, 2008. Change of Title Interest for Contests 3314 and 3343-3359 from Robert Bartell to Michael LaGrande (1/9/09).

Ex. 280-US-100 of 73

Affidavit and Direct Testimony of E. Richard Hart, Case 280-Sprague River

James G. Wayne, Jr.; Clifford Rabe; Tom Griffith; William Gallagher; Thomas William Mallams; River Springs Ranch; Pierre A. Kern Trust; William V. Hill; Lillian M. Hill; Carolyn Obenchain; Lon Brooks; Newman Enterprise; William C. Knudtsen; Wayne Jacobs; Margaret Jacobs; Michael LaGrande; Rodney Z. James; Hilda Francis for Francis Loving Trust; David M. Cowan; James R. Goold for Tillie Goold Trust; Duane F. Martin; Modoc Point Irrigation District; Peter M. Bourdet; Vincent Briggs; J.T. Ranch Co.; Tom Bentley; Thomas Stephens; John Briggs; William Bryant; Peggy Marenco; Jerry L. Neff & Linda R. Neff;

Contestants

vs.

United States, Bureau of Indian Affairs, as Trustee on behalf of the Klamath Tribes; Claimant/Contestant, and The Klamath Tribes;

Claimant/Contestant.

3348, 3349, 3350, 3351, 3352, 3353, 3354, 3355, 3356, 3357, 3358, 3359, 3902, 3903, 3904, 3905, 3906, 3907, 3908, 3909, 3910, 3911, 3912, 3913, 3914, 3915, 3916, 3917, 3918, 4002, 4031, 4032, 4033, 4034, 4035, 4036, 4037, 4038, 4039, 4040, 4041, 4042, 4043, 4044, 4045, 4046, 4047

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I. Introduction

1. Please state your name and occupation.

My name is E. Richard Hart and I am the president and owner of Hart West & Assoc.,

located in Winthrop, Washington. I provide consultation, research, and expert testimony in

history and ethnohistory relating to American Indian tribes and in environmental history. I work

directly for tribes, the United States, and state offices.

2. Please describe your educational background.

I received a BA (1969) and an MA (1971) in English Literature at the University of Utah

focusing on research and writing. Beginning in 1969, I worked for the American West Center at

the University of Utah, first as a Research Assistant and later as Director of the Zuni Research

Project. I was trained under noted western historians Floyd A. O’Neil, S. Lyman Tyler, and C.

Gregory Crampton.

3. Please describe your work experience.

I worked for the American West Center from 1969-1975. The center is noted for its work

creating historical curricular materials for and with western tribes. At the American West

Center, I researched tribal history for several tribes and assisted in the preparation of curricular

materials to be used in tribal schools. I wrote a short history of the Pueblo of Zuni that is still

used in Zuni schools. I also assisted the Inter-Tribal Council of Nevada in producing histories of

all the Nevada Tribes and wrote most of the book on the history of the Western Shoshone. I

wrote and compiled several other tribal curricular materials and assisted a number of other tribes

in tribal history projects. After drafting the curricular materials for Zuni, I was asked by the Zuni

Tribal Council to research their tribal history and report to them on whether or not they had a

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good claim that could have been presented to the Indian Claims Commission, and if they had a

good claim, why had they not filed it. After working on that project for approximately two

years, I drafted in 1974 a 650 page report, “Preliminary Examination of Documents Relating to

Zuni Lands: 1846-1951.” In the report I explained that Zuni had an excellent basis for a land

claim against the United States. The following year, a long section of my report was published

in the Congressional Record. In 1978 a jurisdictional act was passed by Congress allowing Zuni

to file claims in the United States Court of Claims (subsequently the United States Claims Court)

against the United States.

I left the American West Center in 1975, and became Director of the Institute of the

American West in Sun Valley, Idaho in 1977, a position I held until 1984. The Institute was a

non-profit educational institution focused on humanities and critical issues in the American

West. At the Institute of the American West, I directed annual conferences, publications, public

radio and public television on critical issues in the West. Conferences focused on water rights,

arid land management, and parks management. One conference held in 1983 focused on “Indian

Self-Rule: Fifty Years under the Indian Reorganization Act.” These influential conferences and

publications drew participants from throughout the United States. I also directed tribal history

projects organized under the Institute of the American West. One resulted in a history of the

Duck Valley Shoshone-Paiute Tribe.

In 1979, I was hired by the Zuni Tribe as an expert witness in its claims cases against the

United States. In 1984, I became Executive Director of the Institute of the North American West

and continued there until 1995. The Institute of the North American West, under my direction,

organized and directed the work of experts testifying in the two Zuni claims cases over the

course of the next sixteen years. Dozens of expert reports in many different disciplines were

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produced as part of that work. I also had under me at the Institute, directors of both Canadian

and Mexican projects and we carried out several such projects over the ensuing years such as

“Causes of Erosion in Arid Lands and Traditional Methods of Rehabilitation: The Zuni

Resources Development Plan,” produced for the Global Tomorrow Coalition and the United

Nations Environment Program. I also provided expert testimony and consultation in a number

other matters while Executive Director of the Institute of the North American West.

In 1995, I founded Hart West & Associates (“HWA”). As president and owner of HWA,

I have researched, consulted, and provided expert testimony in a number of cases and matters for

the United States, Indian tribes, and states. (See Vita, Ex. 280-US-101).

4. What is your field of expertise (or fields, as appropriate)?

My expertise is in American Indian history and ethnohistory. I have focused on a number

of tribes’ reservations, including, but not limited to Zuni, Ramah Navajo, Coeur d’Alene,

Confederated Colville Tribes, Duck Valley Reservation, the Klamath Tribes and reservation, the

Amah Mutsun of San Juan Bautista, Hualapai and Swinomish.

5. Have you published in your field of expertise?

Yes. I have published seven books and over fifty articles, reports and pamphlets. Most

of my publications have to do with the history of American Indian tribes, federal Indian policy,

and environmental history relating to Indian tribes. My full list of publications is included in my

Vita (Ex. 280-US-101). One of my books, Zuni and the Courts (University Press of Kansas,

1995), provided a history of the land claims and associated cases in which I testified relating to

Zuni. With that book, I published a CD-ROM which contained thousands of pages of expert

reports and depositions in the claims cases. Other books include Pedro Pino: Governor of Zuni

Pueblo, 1830-1878 (2003), and A Zuni Atlas (1985, with T. J. Ferguson). My articles have

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appeared in such publications as Western Legal History, The Western Historical Quarterly, and

American Indian Culture and Research Journal. Recent articles in Western Legal History have

included “The 1851 Treaties and Cultural Continuity: The Amah Mutsun of Mission San Juan

Bautista” (2005), “The History of the Wenatchi Fishing Reservation” (2002), and “The Dawes

Act and the Permanency of Executive Order Reservations” (2000).

6. In addition to your publications have you written any other historical papers or reports?

Yes. I have authored over ninety papers, most having to do with Indian history or

ethnohistory and quite a number of those delivered at professional meetings on panels. Recent

papers I have authored include “The Mashpee Wampanoag Petition for Federal Recognition”

(2005, prepared for the Mashpee Wampanoag Tribe), and “Traditional Cultural Properties and

Rocky Reach Dam” (2004, produced for the Chelan County PUD). The full list of my papers

and panels is included in my Vita (Ex. 280-US-101).

7. Have you received any distinctions for your work?

Yes. For example, I received a year-long National Humanities fellowship to work on

Zuni ethnohistory. Two of my books received the Gaspar Perez de Villagra Award for

Outstanding Publication by an Individual from the Historical Society of New Mexico (Zuni and

the Courts, and Pedro Pino). I have been appointed to a number of National Endowment panels

(Folk Arts, State Arts, and National Heritage Awards), and chaired one (Folk Arts Panel, 1987-

1988). I have also been appointed to positions of authority in my professional organization, the

Western History Association. My papers form a special collection at the University of Utah’s

Marriott Library. The full list of my distinctions is included in my Vita (Ex. 280-US-101).

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8. Please describe some of the types of historical projects you have worked on or are currently working on.

I have worked on numerous historical or related projects since 1969. For example, in the

past, I have directed large scholarly conferences that dealt with critical issues in the humanities.

Associated with the conferences were publications and public radio and public television

broadcasting. I have done a number of types of projects with tribes dealing with history and

ethnohistory, including assisting a number of tribes to carry out tribal history projects–assisting

them in research, writing, and publication. I have helped tribes reach NAGPRA (Native

American Graves Protection and Repatriation Act) agreements with entities carrying out a

federal project. I have done Section 106 Traditional Cultural Properties investigations under the

National Historic Preservation Act for areas to be impacted by federal projects. Also, I have

directed projects to determine the extent of traditional water use by Indian tribes in the

Southwest, and multi-disciplinary projects aimed at determining the history of geomorphological

impacts in the Southwest (a number of these projects are outlined in Zuni and the Courts; others

are related to the ongoing water adjudication of the Zuni River Basin). I have also provided

extensive expert testimony in a variety of matters and cases.

9. Have you ever been qualified in legal proceedings as an expert witness in your field?

Yes. I have been qualified as an expert witness in Federal District Court in Idaho,

Federal District Court in Arizona, Federal District Court in Oregon, Federal District Court in

New Mexico, state courts in Arizona and New Mexico, and in the United States Court of Claims

(subsequently the United States Claims Court).

10. Where have you provided testimony previously?

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I have testified on numerous occasions before the Senate Select Committee on Indian

Affairs, the House Committee on Interior and Insular Affairs, Federal District Court in

Washington, Federal District Court in Idaho, Federal District Court in Arizona, Federal District

Court in Oregon, Federal District Court in New Mexico, state courts of Arizona and New

Mexico, and the United States Court of Claims (subsequently the United States Claims Court

(1984-present). Cases in which I have been qualified as an expert include the following:

• Expert witness on the federal acknowledgement of the Mashpee Wampanoag (2005 –

2006);

• Expert witness in Klamath Basin Adjudication cases 277, 279, 280, 281, 282, and 286 for

the United States as trustees on behalf of Klamath Tribe (2005 – Present);

• Expert witness in United States v. State of New Mexico, et al., Zuni River Basin for the

United States (2004 – Present);

• Expert witness for the Coeur d’Alene Tribe (pre-litigation, 2004 – Present);

• Expert witness in federal acknowledgement of the Amah Mutsun of San Juan Buatista

(2002 – Present);

• Expert witness for the State of Utah (pre-litigation, 1997 – 2002);

• Expert witness in various cases, including US. v. Oregon, for the Confederated Tribes of

Colville (on appeal) (1996 – Present);

• Expert witness in Fence Lake Mine – Administrative Hearing; New Mexico Mines and

Minerals, Zuni Tribe, et al. v. SRP, for the Salt Ring River Project (1995 – 1997);

• Expert witness in United States v. Idaho, for the United States on behalf of the Coeur

d’Alene Tribe (1993 – 2001);

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• Expert witness in Arizona v. Little Colorado, Civil No. 6417, Cibola County, New

Mexico State District Court, for the United States (1989 – 1995);

• Expert witness in City of Gallup v. United States of America, Civil No. 84-0164, District

Court, McKinley County, New Mexico, for the United States (1986 – 1995);

• Expert witness in United States v. Platt, Civil No. 85-1478, Federal District Court,

Phoenix, Arizona, for the United States (1985 – 1991);

• Expert witness in Zuni v. United States, Docket 327-81L, U.S. Court of Claims, for the

Zuni Tribes (1983 – 1990); and

• Expert witness in Zuni v. United States, Docket 161-79L, U.S. Court of Claims, for the

Zuni Tribes (1979 – 1990).

11. What types of expert testimony have you provided?

Generally, I have provided expert testimony to determine aboriginal activities and the

extent of aboriginal territory of a tribe. Among the expert testimony I have provided, I have

testified as to the cultural practices of a tribe throughout history; the historical extent of water use

by tribes; the location of submerged land-water boundaries; damage to trust lands resulting from

actions or omissions of the federal government; and tribes seeking federal recognition.

12. When did you become involved in the Klamath Basin Adjudication and what has been your job?

I was hired by the United States in 2005 to research and provide testimony on the general

historic dependence of the Klamath Tribes on fish in the Upper Klamath Basin, and in particular

the Tribes’ dependence on salmon. To carry out this work, I have conducted research at the

regional National Archives facility in Seattle, Washington, at the University of Washington, and

at the University of Oregon. I have also been provided with materials obtained by the United

States (during the discovery process).

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13. What is the purpose of your testimony?

The purpose of my testimony is to determine the extent of the Klamath Tribes’ historical

dependence, if any, on fish in general and on salmon in particular. It is also to determine

whether that historical dependence extended to the four river systems in the Upper Klamath

Basin: the Sycan, Sprague, Williamson, and Wood. My testimony is designed to determine

whether prior to the construction of the Klamath River hydroelectric dams the Klamath Tribes

depended on fish including salmon in those four rivers.

14. How is your testimony organized?

My testimony is organized as answers to a series of questions. Questions are intended to

determine: (I) my qualifications to testify as an expert (questions 1-13); (IIA) general

dependence on fish by the Klamath Tribes (questions 15-44); (IIB) general dependence by the

Tribes on fish associated with the Sprague River (questions 45-55); (IIIA) a particular

dependence on salmon by the Tribes (questions 56-87); and (IIIB) a particular dependence by the

Tribes on salmon associated with the Sprague River (questions 88-116).

15. As an initial matter, please describe what you mean by the name “Klamath Tribes”.

The Klamath Tribe occupied aboriginal territory which encompassed most of what would

become the Klamath Indian Reservation. The Modoc Tribe was the southern neighbor of the

Klamath. Both tribes focused on fishing, gathering and hunting. The Yahooskin Paiute

occupied territory to the northeast of the Klamath. The term “Klamath Tribes” refers to the

Klamath and Modoc, as well as to the Yahooskin and Walpapi Northern Paiute (who were

frequently also referred to as Snake, are Northern Paiute) after they all became part of the

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Klamath Indian Reservation. Considerable documentation is available for the Klamath.

Although less material is available for the Modoc, there is still an ample documentary record.

Little work has been done on the neighboring Northern Paiute who became part of the Klamath

Tribes.

For the purposes of these responses, the Klamath Tribe, singular, refers to just the

Klamath Tribe, while the Klamath Tribes, plural, refers to the united tribes after the creation of

the reservation.

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IIA. General Dependence of the Klamath Tribes on Fish

16. Please describe what you mean by the term “Upper Klamath Basin”.

The Upper Klamath Basin includes Klamath Marsh, the Williamson River, Sycan River,

Wood River, Sprague River, Upper Klamath Lake, and the outlet to Upper Klamath Lake which

forms the Klamath River. (See Spier Figures 1-3).

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Figure 1. Settlements in northern Klamath territory. Triangles represent cremation piles; rectangles, mourners’ sweat-lodges. Spier, 1930, p. 12.

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Figure 2. Settlements in southern Klamath territory. Triangles represent cremation piles; rectangles, mourners’ sweat lodges. Spier, 1930, p. 17.

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Figure 3. Map of Klamath Territory. Spier, 1930, p. 9.

17. Before the Klamath Reservation was established in 1864, what did the Klamath Tribes depend on for their subsistence?

Prior to the establishment of the Klamath Reservation, and for many years after its

establishment, the Klamath and Modoc entirely subsisted on an array of natural resources that

were found within their aboriginal boundaries, including many species of fish. The food

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resources they used were closely associated with their marshes, rivers, and lakes. Their

permanent winter villages were all adjacent to the marshes, lakes and rivers where food and

material cultural resources were available. 1/ Beginning in the early spring, they moved through

their territory as various fish, plants, and game matured and moved with the seasons. The people

left winter villages early in the spring for

...favorable fishing stations where there are successive fish runs. Through the summer they move to the prairies to gather edible roots and berries or to the mountain and desert to hunt. During most of this time families are widely scattered and the winter villages quite deserted, but with the ripening of pond lily seeds in the marshes during August and September they again congregate. The pond lilies grow in enormous quantities, the seeds (wooo kas) constituting a staple second only in importance to fish. 2/

18. Are there documentary sources that demonstrate that fish dependence in pre-reservation times?

Yes. Archaeologists have concluded that the Klamath used hook and line, harpoons, and

various nets to harvest salmon, trout, suckers and mussels in prehistoric times. They moved with

the seasons to take different species of fish from their lakes and rivers. Thus, most of their

villages were located along rivers and the lake. 3/

19. Are there any first-hand accounts of (Klamath) dependence on fish in pre-reservation times?

Both the military and Indian agents observed the Indian dependence on fish. For

example, the military party of John Charles Fremont reached a Klamath village on December 10,

1843, and Fremont commented:

/ 1 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology

and Ethnology, Volume XXX, 1930, pp. 10-11.

/ 2 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology and Ethnology, Volume XXX, 1930, pp. 10-11.

/ 3 Cressman, L. S. W. G. Haag, and W. S. Laughlin. “Klamath Prehistory: the Prehistory of the Culture of the

Klamath Lake Area, Oregon, Transactions of the American Philosophical Society, 1956, 46(4), pp. 388-389.

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Their only subsistence at this time appeared to be a small fish, great quantities of which, that had been smoked and dried, were suspended on strings about the lodge.4/

In 1846, Fremont arrived at the outlet of Upper Klamath Lake, where he said, “This is a

great fishing station for the Indians....” He said salmon reached the lake, “Up this river the

salmon crowd in great numbers to the lake, which is more than four thousand feet above the

sea.” He also reported that one of his party painted a picture of the scene, where they were

trading with the Klamath for “for dried fish and salmon.”

The Indians made me understand that there was another large river [Williamson] which came from the north and flowed into the lake at the northern end, and that the principal village was at its mouth, where they caught many fish....And if we should not find game enough to live upon, we could employ the Indians to get supplies of salmon and other fish.

In the village he reported “Quantities of fish were drying, spread on scaffolds, or hung up

on frames.”5/

20. What did the Indian Agents note as to the Klamath Tribes’ dependence on fish?

Early Indian Agents clearly indicated a dependence on fish in 1854, 1859, and 1861.6/

21. Did any federal government officials observe fish in the Upper Klamath Basin?

/ 4 Jackson, Donald and Mary Lee Spence (eds.). The Expeditions of John Charles Frémont, Volume 1: Travels from 1838 to 1844. Chicago: University of Illinois Press, 1970, p. 587.

/ 5 Jackson, Donald and Mary Lee Spence (eds.). The Expeditions of John Charles Frémont, Volume 2: The Bear Flag Revolt and the Court-Martial. Chicago: University of Illinois Press, 1973, pp. 100-103, 116, and 118.

/ 6 [Ex. 280-US-183] United States. Secretary of the Interior. “Annual Report of the Secretary of the Interior,” 33rd Congress, 2nd Session, House Executive Document 1 (Serial Set No. 746), 1854.[Ex. 280-US-102] Abbott to Geary, July 11, 1859, Report of the Commissioner of Indian Affairs...for the year 1859. Washington: George W. Bowman, Printer, 1860, pp. 435-437.[Ex. 280-US-103] Applegate to Rector, September 13, 1861, Report of the Commissioner of Indian Affairs...for the Year 1861. Washington: Government Printing Office, 1861, p. 168.

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Yes. For example, in 1864 Brigadier General George Wright ordered Lieutenant Colonel

C. S. Drew and his men from Camp Baker back to Fort Klamath. Lt. Drew described the

abundance of fish in the Sprague River Valley:

...[it] is slightly alkaline, but abounds with mountain and salmon trout, and all other varieties of fish that are common to the Klamath Lakes. 7/

22. When the Klamath Reservation was formed in 1864, what was the United States’ intent as to the Klamath Tribes’ continued access to fish?

When Oregon Indian Superintendent J. W. Petit Huntington submitted the Klamath

Treaty to the Commissioner of Indian Affairs on December 10, 1864, he stated in his cover

letter:

The reservation designated by the treaty for the use of the Indians includes, besides much country almost a desert, the Upper Klamathlake or marsh, which affords great supplies of edible roots and seeds for the Indians, and much fine grazing land; and it gives them access to the Middle lake and the Klamath or Williamson river, connecting the two, for fishing purposes. 8/

Further, during the treaty negotiations, the location of the proposed boundaries was

largely left up to the Klamath Tribes.9/ The Klamath Tribes designed boundaries that would

protect their marshes, where wokas, tule, and other important plants were harvested. The

boundaries also protected the important waterways used by the Tribes for fishing and hunting

/ 7 [Ex. 280-US-104] Drew, C. S. “Official Report of the Owyhee Reconnaissance made by Lieut. Colonel C. S. Drew, 1st Oregon Cavalry in the summer of 1864, p. 4. Jacksonville, Oregon, 1865 (University of Oregon, Knight Library microfilm).

/ 8 [Ex. 280-US-105] Huntington to Commissioner, December 10, 1864, enclosing the treaty of October 14, 1864, Bureau of Indian Affairs, Treaty File; Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by Stern. University Oregon Archives.

/9 See, for instance, [Ex. 280-US-157] Testimony of Charley Preston, Allen David, Henry Blow, Pomprey and Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to Commission’s Report, October 20, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

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water fowl. These waterways included the Sprague River, the Sycan River, the Williamson

River, the Wood River and Upper Klamath Lake.

When the parties signed the treaty in 1864, and during the six year period before the

treaty was ratified, the United States understood that the Tribes needed plant, fish, animal, and

water resources in order to subsist, and in fact the United States encouraged the Tribes to use

those resources.

23. Is there any other evidence to indicate the United States understood the Klamath Tribes’ dependence on fishing?

Yes. The United States distributed fish hooks to the Tribes at the 1864 treaty council.

Such action indicates an understanding of the Tribes’ dependence on fishing in the waterways

within the reservation.10/

24. Where did the United States intend the Klamath to have access to fishing?

During Treaty negotiations, the location of the proposed boundaries was largely left up to

the Klamath Tribes.11/ The Klamath Tribes designed boundaries that would protect their

marshes, where wokas, tule, and other important plants were harvested. The boundaries also

protected the important waterways used by the Tribes for fishing and hunting water fowl. These

waterways included the Sprague River, the Sycan River, the Williamson River, the Wood River,

and Upper Klamath Lake.

/ 10 [Ex. 280-US-137] Moghen Kas-kit. Supplemental Examination and Deposition of Moghen Kas-kit, Klamath Indian Reservation Boundary Commission, November 10, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

/11 See, for instance,[Ex. 280-US-157] Testimony of Charley Preston, Allen David, Henry Blow, Pomprey and Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, October 20, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureauof Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden,Cragun and Barker, University of Oregon Archives.

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25. After the establishment of the Klamath Reservation, were there any reports from federal government officials as to the Tribes’ dependence on fish for their subsistence?

Yes. Five separate reports in the 1860s documented the Klamath Tribes’ dependence on

fish. For example, in the Annual Report of the Commissioner of Indian Affairs for 1867, the

Superintendent of Indian Affairs for Oregon, J. W. Perit Huntington, reported to the

Commissioner that:

The lakes, and the small streams putting into them, abound in fish of the finest quality, while the swamps about their border produce a number of varieties of edible roots....These articles, namely, the fish and wo-kus, formed the chief articles of food for the Indians until the advent of the whites.12/

In addition, former Oregon Superintendent of Indian Affairs Alfred B. Meacham

published a memoir of his dealings with the Klamath Tribes in 1875. Meacham gave the

following account of Klamath Tribes’ subsistence practices, as he saw them in the period from

1869 to 1871.

These people have a beautiful country, with a cold climate, being at an altitude of four thousand feet above the sea level. Snows of two to four feet deep are not uncommon. The rivers and lakes are well supplied with fish, the mountains with game, the land with berries and wild roots.

/ 12 [Ex. 280-US-106] Huntington to CIA, August 20, 1867, Report on Indian Affairs by the Acting Commissioner, for the Year 1867. Washington: Government Printing Office 1868, p. 71.See also:[Ex. 280-US-107] Applegate to Huntington, January 20, 1866, Bureau of Indian Affairs, Letters Received at Oregon Superintendency; Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by Stern. University Oregon Archives.[Ex. 280-US-108] Rinehart to Applegate, February 17, 1866, Applegate papers. University of Oregon. Lindsay Applegate papers, Microfilm F881.A67, University of Oregon, Knight Library. [Ex. 280-US-109] Whitmore to Applegate, December 24, 1866, Applegate papers. University of Oregon. Lindsay Applegate papers, Microfilm F881.A67, University of Oregon, Knight Library. [Ex. 280-US-110] Sergeant [?], Fort Klamath Cavalry, December 18, 1868, Applegate papers. University of Oregon. Lindsay Applegate papers, Microfilm F881.A67, University of Oregon, Knight Library.

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The Klamath mode of taking fish is peculiar to the Indians of this lake country. A canoe-shaped basket is made, with covering of willow-work at each end, leaving a space of four feet in the middletop of the basket. This basket is carried out into the tules that adjoin the lakes, and sunk to the depth of two or three feet. The fishermen chew dried fish eggs and spit them in the water over the basket, until it is covered with the eggs, and then retire a short distance, waiting until the whitefish come in large numbers over the basket, when the fishermen cautiously approach the covered ends, and raise it suddenly, until the upper edge is above the water,and thus entrap hundreds of fish, that are about eight inches in length. These are transferred to the hands of the squaws, and by them are strung on ropes or sticks and placed over fires until cured,without salt, after which they are stored for winter use. This fish isvery oily and nutritious, and makes a valuable food. Indeed, this country is more than ordinarily fruitful, and abounds in resources suited to Indian life.

The lakes are well supplied with various kinds of trout. They are taken in many ways; mostly, however, with hook and line. I remember, on one occasion, going to a small slough making out of the lake among the tules. Being prepared with American equipment of lines and flies, I was sanguine of success; but I was doomed to disappointment so far as catching trout with fly-hooks was concerned. I finally succeeded in capturing a pocketful of large black army-crickets. The first venture with this bait was rewarded by a fine trout of six pounds’ weight.13/

Meacham said these were “golden trout, a species peculiar to Klamath lake,” and that

silver trout, lake trout, salmon trout and dog trout were found as well.14/ Also, a private citizen

provided a description of Klamath fishing in 1873,15/ and Indian agent Dyer also observed

Klamath Tribes fishing in 1874.16/

/ 13 [Ex. 280-US-111] Meacham, Alfred B. Wigwam and War-path: or, The Royal Chief in Chains, 1875, 2d and rev. ed., Boston: John P. Dale and Company, pp. 281-284.

/ 14 [Ex. 280-US-111] Meacham, Alfred B. Wigwam and War-path: or, The Royal Chief in Chains, 1875, 2d and rev. ed., Boston: John P. Dale and Company, p. 284.

/ 15 Clarke, Samuel A. Papers [1873]; with an Appendix Compiled from Material in Clarke’s Scrapbook. B. K. Swartz, Jr., ed. Klamath County Museum Research Papers 2. Klamath Falls, Oregon, 1960, pp. 5 and 14.

16 [Ex. 280-US-112] Agent Dyer to Inspector Vandever, August 29, 1874 (p. 2 of 15); Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by

Ex. 280-US-100 of 73


26. Who was the first ethnologist to do any serious work among the Klamath?

Albert S. Gatschet is the first, and arguably the most famous, ethnologist to have worked

among the Klamath. Gatschet first met Klamath individuals in 1875 when they were part of a

speaking tour of a former Klamath Superintendent. He did much of his field work in 1877 and

spent much time in Klamath country in the 1880s.17/ (See Figure 4). His monumental two

volume work on the Klamath contains many mentions of fish and the dependence of the Klamath

people on fish. In Volume I of his Klamath Indians of Southwest Oregon, he described Klamath

territory, saying “...the limpid waters are full of fish and fowl....”18/ He said, “The species of fish

found in the country are the mountain trout, the salmon, and several species of suckers.”19/

Gatschet said the Indians fished in Klamath Marsh beginning in June and their village and camp

sites were in locations where fish were available. Some villages had names related to fishing.

He also described rock dams constructed to assist in the capture of fish.20/

/ 17 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. xi, xxix and 6-7.Also see: [Ex. 280-US-114] Gatschet to Commissioner of Indian Affairs, October 13, 1877, Letters Received at BIA, Oregon, Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden,Cragun and Barker, University of Oregon Archives.

Howe, Carrol B. Ancient Tribes of the Klamath Country. Portland, Oregon: Binfords & Mort, 1968, p. xi.

/ 18 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. xi.

/ 19 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. xxv.

/ 20 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. xxii-xlii.

Ex. 280-US-100 of 73


Figure 4. “Map of the Headwaters of the Klamath River,” by Albert S. Gatschet, 1890.

Ex. 280-US-100 of 73


27. Did Gatschet indicate any connection to fish by the Klamath?

Yes. Gatschet explained that spiritual beliefs of the Klamath were closely related to

fishing practices. The being who created the Klamath, K’múkamtch, gave names to each locality

and used names that sometimes indicated uses.

Some of these names must be regarded as giving indications as to the earliest places inhabited by these Indians, especially when they designate fish-traps and ceremonial sudatories [sweat lodges]. Thus on the Upper Klamath Lake we find Kûûo mbat, Túkwa, Tulísh, Kohásh, Koháshti as fishing places, Ktá-i=Tupáksi and Yulalóna as fish-traps, the special gifts of the deity to the people.

The deity provided fish and game for the people’s sustenance and with the means to

capture the fish and game.21/

28. What was the relationship, if any, of the Klamath annual calendar of subsistence activities to fishing?

The names of the months of the year (really the “moons” of the year), indicated fishing

practices. For example, in the month of the “small finger”, the Klamath Tribes dried large

suckers at the fish-dam located near the confluence of the Sprague and Williamson Rivers. At

this location, at this time, Gatschet described a fish dam “where the Indians wade in the water

with their dip-nets and catch the fish while it ascends the river in spring time in enormous

quantities.” In the “mid-finger” month, the Klamaths killed large suckers near Linkville.22/

29. Did any Klamath traditional cultural activities relate to fish?

/ 21 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. lxxx.

/ 22 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 74-77.

Ex. 280-US-100 of 73


Yes. Traditional narratives, traditional songs, and the Klamath language related to

fishing.

30. Please describe Klamath traditional narratives tied to fishing.

Klamath traditional narratives were closely tied to fishing. “Kmúkamth Attempts the

Destruction of his Son Aíshish” told the story of the creation of fish for the people and a manner

for them to obtain the fish.23/ The narrative “Human Souls Metempsychosed into Fish” describes

when people (Klamath) die their spirit goes to reside in fish. “Names Bestowed on Upper

Klamath Lake Localities” explains the origin of a fish dam at the junction of the Sprague and

Williamson Rivers and that this spot, Tulîîosh, was made as a “fish-killing place....resembling a

beaver dam” by K’mukámtch for the Klamath people.

31. Please describe Klamath traditional songs related to fishing.

One man interviewed by Gatschet listed Klamath shamanistic songs. Songs Gatschet

collected included “song of the little sucker” (yēēo n sucker) and “song of the tcháwash-fish” (a

palatable sucker species). Other shamanistic songs were songs of trout, small sucker, large

sucker, minnow fish, and salmon.25/

32. Please describe Klamath language related to fishing.

/ 23 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 94-99, quoted at 97.

/ 25 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 165, 169, 171, 177 and 180.

[Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, p. 294.

Ex. 280-US-100 of 73


Considerable additional documentation of Klamath fishing is found in the Klamath

language. Part II of Gatschet’s “The Klamath Indians of Southwestern Oregon,” is made up

primarily of a Klamath/English dictionary. For example, he provided Klamath words for the

following: a fish trap; fish lines and putting fish lines out at night; other fish used by the

Klamath, including the Kótaksh; the phrase “to gig minnow-fish;” a sturgeon-like fish; a “Scoop

made of deer’s horn to clean fish;” “Vuyá-aga...species of small sucker fish;” a reference to

“sucker eater;” “species of freshwater fish, for resembling a sucker;” “wide-meshed scoop-net,

used also by fishing Indians as a drag-net on their canoes;” fish; large fish; small fish; sucker-

shaped fish; sturgeon like fish; dried fish; fin names; to put out fishing line; dipnet; dragnet; to

catch fish; to spear fish through ice-holes; and other methods of fishing; fisherman; trout; and

harpoon.26/

33. Was there a Klamath name for any of the fish species?

Yes. Gatschet’s dictionary provides the Klamath name for “a species of little sucker-fish,

the smallest of that fish-tribe found in the waters of the Klamath region,” called “yēń”.

Gatschet’s description of the “yēń” states:

Yēń, yëń, a very palatable fish of the sucker tribe, over one foot long, and caught in April in large quantities in the Williamson River: Catostomus labiatus....Other sucker-fish are the kápto, sáwalsh, tsuám, útsaks and wúya-ak...The yēń is darker than the other suckers caught in the Williamson River.27/

/ 26 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, pp. 129, 143, 450, 454, 460, 462, 489, 544, 552 and 685.Also see: [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 94, line 4; p. 145, line 11; p. 28, line 5; p. 64, line 1; p. 132, line 3; p. 89, line 7; p. 148, line 19; p. 180, line 14.

/ 27[Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, p. 106.Also see:

Ex. 280-US-100 of 73


Further, Gatschet documented fishing for suckers:

Káptu...a species of small sucker-fish, named by Prof E. D. Cope Chasmistes brevirostris….They are fourteen to sixteen inches long,body nearly cylindric, dusky above, silvery below; caught in April,before the larger sucker species, in the Klamath lakes and in the Williamson River.28/

34. Since Gatschet’s work, has there been any other linguistic work among the Klamath?

Yes. M. A. R. Barker was a linguist who worked for the Department of Linguistics at the

University of California, Berkeley from 1955 to 1957 and chose the Klamath language as his

field language. In his Klamath dictionary, Barker had the names for fifteen different fishes.29/

He spent the summers of 1955, 1956 and 1957 with the Klamath Tribes at Chiloquin, and

transcribed narratives, myths and ethnographic accounts from Klamath individuals.30/

For example, Barker interviewed Robert David, a Klamath, who described the Klamath

myth of “Killing Fish.” David described that right below Chiloquin, a supernatural being made a

dam in a waterway and told the people to kill fish there. “And people came there always now,

every year.” The being also made another dam, at Lobaqsksi. The people moved to the fishing

spot in the spring and killed all kinds of fish. Many trout were caught.

[Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 180, line 14.

/ 28 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, p. 119.Also see: [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 74, line 1.

/ 29 [Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” prepared for the Bureau of Indian Affairs; Portland, Oregon; December, 1981, p. 49.

/ 30 Barker, M. A. R. “Klamath Texts,” University of California Publications in Linguistics, 30, Berkeley, 1963 (reprinted: Kraus Reprint, Millwood, N. Y., 1981), pp. v-vi and 1.

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And suckers the same way, in sucker-season, there where many, many suckers came. And they crowded up against that, that which I told of [i.e., the dam], thus, that kind which he made for them thus. That dam. Now they crowded up against it. And they killed them now at that sort of place. And having made even various kinds of dippers, they killed them with that sort of thing also.

They killed many fish there and dried them, and when dry, pounded them and then stored

them. They shared fish among themselves. David also recalled soldiers from the fort bringing a

large net to the dam and helping the Indians catch a large amount of fish. Then the soldiers and

the Indians divided the catch and shared it.31/

35. Are there any other 1870s reports documenting Klamath dependence on fish?

Yes. There are three annual reports of the Commissioner of Indian Affairs,32/ a book by

Stephen Powers,33/ and an article by Edward D. Cope. The book by Powers described pre-

reservation fishing for salmon, trout and salmon by the Modoc and Klamath. Edward D. Cope

documented the fish he collected at Klamath Lake and the Tribes’ dependence on those fish.

A collection made at various points on the Upper Klamath lake yielded eight species of fishes, as follows: 1. Salmo iridea Gibb. This trout is found abundantly in the lake, as well as in the streams tributary to it; e. g., Sprague river, Wood river, Crooked creek, Fort creek. It reaches a weight of ten pounds, and varies in color from white to red on the sides. 2. Salmo spectabilis Gird. The Dolly Varden is less common than the S. Iridea; the only locality form which I procured it is Seven Mile creek, near Fort Klamath. 3. Chasimistes luxatux sp. Nov. [Lost River sucker] This is a large

/ 31 Barker, M. A. R. “Klamath Texts,” University of California Publications in Linguistics, 30, Berkeley, 1963 (reprinted: Kraus Reprint, Millwood, N. Y., 1981), pp. 133-135.

/ 32 [Ex. 280-US-117] Dyar to Commissioner of Indian Affairs, August 1, 1876, Annual Report of the Commissioner of Indian Affairs...for the Year 1876. Washington: Government Printing Office, 1876, pp.120-121.[Ex. 280-US-118] United States. Secretary of the Interior. “Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1878.” Washington: Government Printing Office, 1878, pp. 113-115.[Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” preparedfor the Bureau of Indian Affairs; Portland, Oregon; December, 1981, p. 46.

/ 33 Powers, Stephen. Tribes of California, with and Introduction and Notes by Robert F. Heizer, Berkeley: University of California Press, 1976 (originally published in 1877 in Volume III of Contributions to North American Ethnology), p. 256.

Ex. 280-US-100 of 73


fish, and with its congener below named of no little interest, as extending the range and characters of Jordan’s little-known genus Chasmistes. Form elongate, head long, flat above, and with a largefontanelle. Mouth terminal, the spines of the premaxillary bones projecting so as to form a hump on the top of the snout. Lower lip is very thin dermal fold, extending entirely around the chin. Scales12-80-9; radii D. 11. A. 9. Color clouded above with black punctulations; below paler, with red shades in some specimens; fins uncolored. It attains a length of nearly three feet. It ascends the streams in thousands in the spring, and is taken and dried in great numbers by the Klamath and Modoc Indians. The former call it Tswam. 4. Chasmistes brevirostris sp. Nov. This fish does not exceed 14-16 inches in length, and has a differently formed head and muzzle, and the latter is without the hump produced by the protuberant premaxillary spines. Parictal fontanelle small. Thelower lip-fold is only present at the sides of the mandible. Body nearly cylindric. Scales 12-74-11; radii, D. 11. A. 9. Color dusky above, silvery below; fins colorless. This fish is abundant in the lake, but I was informed by a Klamath Chief that it does not ascendWilliamson’s river in spring with the C. Luxatus and Catostomus. Klamath name Xoöptu. 4. Catostomus labiatus Gird. Very abundant; Yehnne of the Klamaths. 5. ?Mylopharodon sp. Not certainly of this genus, and resembling the genus Auchybopsis, found fossil in the Idaho and Oregon Pliocenes. I was interested tofind this species quite abundant. I am not yet able to ascertain whether the present species is one of those already named or not. 6. Gila. A species of medium or small size, and rather robust proportions. 8. Uranidea. Undetermined; a stout species, and very abundant.34/

36. Were there reports in the 1880s documenting the Klamath Tribes’ dependence on fish?

/ 34 [Ex. 280-US-119] Cope, Edward D. “The Fishes of Klamath Lake, Oregon,” The American Naturalist, Volume XIII, Philadelphia, 1879, pp. 784-785.

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Yes. Indian agents,35/ a newspaper account,36/ and a professional paper37/ all documented

Klamath dependence on fish.

37. Was there any documentation of the Klamath Tribes’ dependence on fish in the 1890s?

Yes. Indian Agents in 1892, 1893, 1894, 1895, 1896, 1897 and 1898, all noted that fish

were found on the reservation.38/

In addition, two publications in the 1890s shed light on Klamath dependence on fish, one

by Charles H. Gilbert39/ and another by Barton Warren Evermann and Seth Eugene Meek.

Gilbert, Evermann and Meek completed “A Report upon Salmon Investigations in the Columbia

/ 35 [Ex. 280-US-120] United States. Secretary of the Interior. “Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1881.” Washington: Government Printing Office, 1881, p. 144.[Ex. 280-US-121] United States. Secretary of the Interior. “Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1886.” Washington: Government Printing Office, 1886, p. 212.[Ex. 280-US-122] Emery to Commissioner, August 20, 1887, Annual Report of the Commissioner of Indian Affairs...the Year 1887. Washington: Government Printing Office, 1887, p. 187.[Ex. 280-US-123] United States. Secretary of the Interior. “Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1889.” Washington: Government Printing Office, 1889, p. 272.[Ex. 280-US-124] United States. Secretary of the Interior. “Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1888.” Washington: Government Printing Office, 1888, p. 208.

/ 36 [Ex. 280-US-125] Linkville Star, May 10, 1884.

/ 37 [Ex. 280-US-126] Cope, E. D. “On the Fishes of the Recent and Pliocene Lakes of the Western Part of the Great Basin, and of the Idaho Pliocene Lake,” Proceedings of the Academy of Natural Sciences of Philadelphia, 1883, pp.140 and 149-150.

/ 38 [Ex. 280-US-127] Matthews to CIA, August 15, 1892, Sixty-First Annual Report of the Commissioner of IndianAffairs...1892. Washington: Government Printing Office, 1892, p. 411.[Ex. 280-US-128] Matthews to Commissioner, August, 1893, Sixty-Second Annual Report of the Commissioner of Indian Affairs...1893. Washington: Government Printing Office, 1893, p. 267.[Ex. 280-US-129] Petet to CIA, September 1, 1895, Annual Report of the Commissioner of Indian Affairs, 1895. Washington: Government Printing Office, 1896, pp. 270-271.[Ex. 280-US-130] United States. Secretary of the Interior. “Annual Report of the Secretary of the Interior,” 54th Congress, 2nd Session, House Executive Document 5. Washington: Government Printing Office, 1897, p. 273.[Ex. 280-US-132] Matthews to Commissioner, August 21, 1894, Annual Report of the Commissioner of Indian Affairs, 1894. Washington: Government Printing Office, 1895, pp. 262-263.[Ex. 280-US-133] Applegate to CIA, August 30, 1898, Annual Reports of the Department of the Interior...1898, Indian Affairs. Washington: Government Printing Office, 1898, p. 256.

/ 39 [Ex. 280-US-134] Gilbert, Charles H. The Fishes of the Klamath Basin. Bulletin of the United States Fish Commission, Washington: Government Printing Office, 1898, pp. 1-4 and 6.

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River Basin and Elsewhere on the Pacific Coast in 1896.” In their report, they described the fish

of Upper Klamath Lake and the Klamath Reservation.

There are five or six species of suckers in this lake and each of them attains a large size, which renders them of great importance to the Indians on the Klamath Reservation. In the spring of the year, during the spawning time of these fish, vast numbers are caught in traps and by hook and line by the Indians and cured for future use. The trout are also very common and reach a very large size. Trout weighing 8 to 10 pounds are not at all unusual, examples of 10 to 12 pounds are not rare, and occasionally one weighs as much as 14pounds. Trout can be taken readily with the fly in the spring and by trolling in the spring and fall. In Pelican Bay they may be takenby trolling at any time.40/

In addition, in 1896 a long-standing dispute over the location of the reservation

boundaries resulted in the establishment of a Boundary Commission by the United States.

38. Did the boundary location issue have anything to do with fish?

Yes. One of the key points in the treaty description of the Klamath Reservation was the

point where Ish-tish-e-wax Creek intersected with the Sprague River (generally in the vicinity of

the upper boundary of Claim Reach 655). A Boundary Commission was established to identify

the location of that point in 1896. The Commissioners learned that “Ish-tish-e-wax” means

“place of little fish.” The commission explained that the little fish are small red suckers, which

...enter this creek from the river in countless numbers, when the Indians gathered not only from the Reservation but from California, entered the narrow creek at the mouth, united in line and drove the fish up to the dam until they formed (as eye witnesses informed us) an almost solid mass, then the men, womenand children scoop them out in great quantities, split and cured them for winter subsistence.

/ 40 [Ex. 280-US-135] Evermann, Barton Warren and Seth Eugene Meek. “A Report upon Salmon Investigations inthe Columbia River Basin and Elsewhere on the Pacific Coast in 1896,” “Bulletin of the United States Fish Commission, Vol. XVII; Washington: Government Printing Office, 1898, pp. 60-69 and 83 (quoted at p. 60).

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The Commission corroborated this by looking at the Indians’ dam and stones worn

smooth by Indian feet over many generations, and by conducting interviews with at least five

Indians who provided evidence about Klamath fishing. 41/

39. Did the Commissioners identify the location of Ish-tish-e-wax?

Yes. The Commissioners precisely identified the location of Ish-tish-e-wax in Section 8,

Township 37 South, Range 15 East. 42/

40. Do you know whether the Klamath Tribes’ dependence on fish continued into the 20th Century?

Yes. Correspondence, Indian agents’ reports, and newspaper articles demonstrate that the

Klamath Tribes continued to have a dependence on fish into the 20th century. 43/ For example, an

/ 41 [Ex. 277-US-136] Report of the Klamath Boundary Commission, December 18, 1896 (quote on p. 11); Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by Stern. University Oregon Archives.See also: [Ex. 277-US-137] Moghen Kas-kit. Supplemental Examination and Deposition of Moghen Kas-kit, Klamath Indian Reservation Boundary Commission, November 10, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives. [Ex. 280-US-157] Testimony of Charley Preston, Allen David, Henry Blow, Pomprey and Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, October 20, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureauof Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden,Cragun and Barker, University of Oregon Archives.

/ 42[Ex. 277-US-136] Report of the Klamath Boundary Commission, December 18, 1896, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

/ 43 [Ex. 277-US-139] United States. Secretary of the Interior. Annual Report of the Commissioner of Indian Affairs, 1900. Washington: Government Printing Office, 1900, pp. 353-360.[Ex. 277-US-140] Evening Herald, “Fish Abound in Klamath Lakes, Rivers,” August 13, 1921.[Ex. 277-US-141] Kirk to Jones, March 7, 1902, National Archives. [Ex. 277-US-142] “Notice,” Klamath Agency, November 2, 1915, National Archives. [Ex. 277-US-143] State Game Warden to Baker, May 19, 1925, National Archives. [Ex. 277-US-144] Holt to Commissioner of Indian Affairs, July 7, 1925, National Archives. [Ex. 277-US-147] Crawford to Sterry, August 21, 1934, National Archives.[Ex. 277-US-148] “Wildlife Inventory,” Klamath Agency, April 1, 1940, National Archives.[Ex. 277-US-149] Moore, Al W., Fish and Wildlife Service. “Outline of A Wildlife Management Plan for the

Klamath Indian Reservation,” April to October, 1943, National Archives.

Ex. 280-US-100 of 73


irrigation engineer on the Klamath Reservation in March, 1948, described Klamath spring

fishing:

Each year at this time there is a large run of fish up the Sprague River, and the Klamath Indians and other residents of the Reservation gather at the river in considerable numbers to fish.44/

41. Have anthropologists who studied the Klamath Tribes considered whether the Klamath Tribes depended on fish for subsistence?

Yes. A succession of prominent anthropologists, throughout the 20th century, have

concluded that the Tribes depended on fish, including Samuel A. Barrett,45/ Edward S. Curtis,46/

Erminie Voeglin,47/ Marion Pearsall,48/ Hiroto Zakoji,49/ Theodore Stern,50/ Leslie Spier, Alfred L.

/44 [Ex. 277-US-151] Parker to Monks, March 30, 1948, National Archives, Pacific AK Region.

/ 45 [Ex. 277-US-152] Barrett, Samuel A. “The Material Culture of the Klamath Lake and Modoc Indians of Northeastern California and Southern Oregon,” University of California Publications in American Archaeology and Ethnology, Volume 5, No. 4, Berkeley, 1910, pp. 242-243, 247-253, 281 and 287.

/ 46 [Ex. 277-US-153] Curtis, Edward S. The North American Indian: Being a Series of Volumes Picturing and Describing the Indians of the United States, the Dominion of Canada, and Alaska. Frederick W. Hodge, ed. 20 vols. Norwood, Mass: Plimpton Press, 1907-1930 (reprinted Johnson Reprint, New York, 1970), Volume 13 (first published 1924), pp. 169-170 and 239.

/ 47 Voegelin, Erminie Wheeler. “Culture Element Distributions, XX: Northeast California,” University of California Anthropological Records, 1942, 7(2). Berkeley, pp. 55-59 and 173-175, quoted at 173-175.

/ 48 Pearsall, Marion. “Klamath Childhood and Education,” University of California Anthropological Records 9(5), 1950, Berkeley (reprinted: Krauss Reprint, Millwood, N. Y., 1976), p. 347.

/ 49 Zakoji, Hiroto. “Klamath Culture change,” M. A. Thesis in Anthropology, University of Oregon, Eugene, 1953, pp. 6-8, 190, 195-196, and 237-238.

/ 50 Stern, Theodore. The Klamath Tribe: A People and their Reservation,” Seattle: University of Washington Press, 1965 (originally published American Ethnological Society, Monograph 41, 1965), pp. 4, 11-12, 66, 190, 192, 264, 294Stern, Theodore. “Klamath and Modoc,” Handbook of North American Indians, Washington, D. C. Smithsonian Institution, 1998, pp. 446-466.Stern, Theodore. “Klamath Myths Abstracts,” Journal of American Folklore, 1963, 76(299), for instance see pp. 32, 34-34, 37, and 39-40.[Ex. 277-US-154] Stern, Theodore. “Affidavit of Dr. Theodore Stern,” United States and Klamath Indian Tribe vs. Ben Adair, et al., 1977, pp. 46-48.

Ex. 280-US-100 of 73


Kroeber and Samuel A. Barrett,51/ and Carrol B. Howe.52/ For example, Leslie Spier conducted

fieldwork on the Klamath Reservation in 1925 and 1926 and published his important “Klamath

Ethnography.” In this work, Spier specifically describes Klamath dependence on fish. He

described fish as the most important staple food for the people and described how the people left

winter villages early in the spring for their “favorable fishing stations where there are successive

fish runs.”53/

Spier identified where Klamath villages were and said that the villages were located so

that fish were accessible. Spier generated maps that generally placed settlements and other

significant Klamath developments along Upper Klamath Lake, Agency Lake, the Lower

Williamson River, and the Lower Sprague River. (See Figures 1 and 2).

Men, but women too, are the fishers. Inasmuch as their primary dependence is on fish, the men’s activities in this direction constitute well-nigh a year-round pursuit.54/

Spier observed:

Klamath life is not that of a lake people, but a river and marsh culture, for the simple reason that their primary food is fish.55/

5 1 Kroeber, A. L. And S. A. Barrett, with special data from E. W. Gifford and G. W. Hewes. “Fishing Among the Indians of Northwestern California,” Anthropological Records, Volume 21, Number 1, Berkeley: University of California Press, 1960, pp. 5, 39 and 151-168.

5 2 Howe, Carrol B. Ancient Tribes of the Klamath Country. Portland, Oregon: Binfords & Mort, 1968, pp. 134-135.Howe, Carrol B. Ancient Modocs of California and Oregon. Portland, Oregon: Binford & Mort, 1979, pp. 150 and 156-159.


/ 54 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology and Ethnology, Volume XXX, 1930, pp. 120, 137, and quoted at 144.

/ 55 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology and Ethnology, Volume XXX, 1930, p. 144.

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He said fish were caught in the rivers and creeks, where “fish are always present in

abundance.”

Fish were the primary staple and much attention was given throughout the year to fishing.

He described in detail how the Klamath people moved throughout the year to harvest various fish

in their rivers and lakes.56/

42. Are there any other important 20th century anthropological works on the Klamath?

Yes. Noted anthropologist Alfred L. Kroeber, along with his former student,

anthropologist Samuel A. Barrett, published “Fishing Among the Indians of Northwestern

California” in 1960. They described the fish used by the Klamath, including the shortnose

sucker, Lost River sucker, minnows, trout, Klamath largescale sucker, the Klamath speckeldace,

the Klamath River tui, and other fish. They also described Klamath fishing technology,

including the use of nets, weirs, and a wide variety of other implements, and Klamath methods of

preparing and storing fish for later use.57/

In addition, Carrol B. Howe published two books that provided detailed accounts of

Klamath fishing: Ancient Tribes of the Klamath Country (1968) and Ancient Modocs of

California and Oregon (1979). In both books, Howe described in detail the fish dependence and

fish practices of the Klamaths.58/

43. Have any other experts concluded the Klamath depended on fish?


/ 57 Kroeber, A. L. and S. A. Barrett, with special data from E. W. Gifford and G. W. Hewes. “Fishing Among the Indians of Northwestern California,” Anthropological Records, Volume 21, Number 1, Berkeley: University of California Press, 1960, pp. 5, 39 and 151-168.

/58 Howe, Carrol B. Ancient Tribes of the Klamath Country. Portland, Oregon: Binfords & Mort, 1968, pp. 134-135.Howe, Carrol B. Ancient Modocs of California and Oregon. Portland, Oregon: Binford & Mort, 1979, pp. 150 and 156-159.

Ex. 280-US-100 of 73


Yes. For example, in 1978, Richard Bryant, David Eisler and John Nelson collectively

completed a cultural resources survey of the Klamath Marsh area for the Department of

Agriculture. The authors observed that the annual cycle of Klamath subsistence included a

heavy dependence on fish in the rivers. They noted that winter villages were located along rivers

and streams near places where fish could be caught. (See Spier Figures 1 and 2 for village

locations at prominent fishing spots). They also described locations of fisheries and stone weirs

that were constructed to facilitate fishing. They said fish were caught with a wide variety of

implements and a large volume of fish were dried and stored for later use.59/ They concluded:

The Klamath fully exploited runs of chub, salmon, suckers, and all year availability of trout, minnows, crayfish, and clams. They possessed a complex technology of net designs for different areas and different types of fish.60/

44. After reviewing all of the materials you’ve just described, what is your conclusion

regarding Klamath dependence on fish?

The importance of fish and dependence on fish were deeply ingrained in the Klamath

Tribes’ culture and were central to the Tribes’ very existence. Fish was the most important

staple meat of the Klamath Tribes since long before whites were present in the area. The

reservation boundaries were established to facilitate the Tribes’ mobile fishing practices. The

Klamath and Modoc Indians continued to depend on fish throughout the 19th century. In the 20th

century, dams, canals and irrigation projects reduced the number and species of fish available to

the Tribes, but abundant historical and anthropological evidence that shows the Tribes continued

to depend on fish well into the 20th century.

/ 59 [Ex. 280-US-155] Bryant, Richard, David Eisler and John Nelson. “Report of the Cultural Resource Survey; Northeaster Klamath Marsh Study Area,” Vol. 1, Eugene, Oregon, 1978, pp. 56-65.

/ 60 [Ex. 280-US-155] Bryant, Richard, David Eisler and John Nelson. “Report of the Cultural Resource Survey; Northeaster Klamath Marsh Study Area,” Vol. 1, Eugene, Oregon, 1978, p. 63.

Ex. 280-US-100 of 73


IIB. Dependence on Fish in the Sprague River

45. Turning now to the Sprague River, please describe where the Sprague River is located.

The Sprague River is a tributary to the Williamson River, which it flows into near today’s

upper reaches of Upper Klamath Lake, near today’s town of Chiloquin. The Williamson River,

in turn, flows into Upper Klamath Lake. The outlet of Upper Klamath Lake is the Klamath

River. (See Gatschet Figure 1).

46. Are there any early accounts of Klamath dependence on fish in the Sprague River?

Yes. Beginning in the 1880s, and through the end of the 19th century, Albert S. Gatschet

conducted a study of the Klamath Tribes. He described fishing locations on the Sprague River.

He noted a fish dam on the Sprague and described folk tales relating to fishing on the Sprague.

Gatschet described “a camping and fishing place on the headwaters of Sprague River:

‘Fishery of small suckers,’”61/ [in the approximate area of the end of claim reach 655].

Gatschet also said that in the month of the small finger, Klamath Indians caught and dried

large suckers at the fish-dam located on the Sprague River near the confluence of the Sprague

and Williamson Rivers.62/ At this location there is a fishing camp63/ and a fish dam “where the

/ 61 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Pt. II (Klamath/EnglishDictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 66, italics in original.

/ 62 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Pt. II (Klamath/EnglishDictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 149 and 253. [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 74, line 2 and 76.

/ 63 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Pt. II (Klamath/EnglishDictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 122 and 129.

Ex. 280-US-100 of 73


Indians wade in the water with their dip-nets and catch the fish while it ascends the river in

spring time in enormous quantities.”64/

Finally, Gatschet described a folk tale that explained the origin of a fish dam at the

junction of the Sprague and Williamson Rivers.65/ Gatschet said that Ktái=Tupákshi was a rock

...about ten feet high and fourteen feet in width, situated fifty yardsnorth of the Sprague River and about one hundred fifty yards from the junction of the Sprague and Williamson Rivers. Indian pictures are visible on its surface, and the rock is called ‘K’múkamtch’s chair,’ because this deity had, according to the myth, constructed a fish trap of willow branches there, and was watching on this rock for the preservation of this structure.66/

47. Are there any early accounts of Klamath dependence on fishing in the Sprague River?

Yes. As noted above, one of the key points in the treaty description of the Klamath

Reservation was the point where Ish-tish-e-wax intersected with the Sprague River [Claim Reach

656]. The 1896 Boundary Commission went to considerable effort to identify the location of

that point in 1896. “Ish-tish-e-wax,” which means “place of little fish,” was an especially

important fishery location for the Klamath and many fishers gathered there annually for the

sucker run. It corroborated the location of Ish-tish-e-wax by looking at the dam and stones worn

smooth by Indian feet over many generations.67/


/ 65 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 142-143, and 145.

/ 66 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Pt. II (Klamath/EnglishDictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, p. 149.[Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 74, line 2.

Ex. 280-US-100 of 73


The Commission reported that the Indians had constructed a dam on Ish-tish-e-wax Creek

to facilitate fishing, and interviewed a number of elder Klamath tribal members who remembered

the treaty negotiations and the fishing that occurred at this fishery. Among the Indians

interviewed were Allan David, former chief and about 70 years old when interviewed, and tribal

member Henry Blow, who was at the treaty council and was also about 70 years old when

interviewed. David and Blow said that at the treaty negotiations the Indians told Superintendent

Huntington that they wanted to keep the Sycan and Sprague River Valleys for roots, pasture,

game, and fish.68/

48. Did the Boundary Commissioner interview anyone else who talked about the Sprague River?

Yes. Mo-ghen Kas-kit, also from the treaty council and about 75 or 80 years old when

interviewed, described Ish-tish-e-wax stating, “the Indians have caught small fish there as long

as I remember...” He also recalled the dam constructed there.69/ Like Blow, Kas-kit said that at

the treaty council, the Indians “told Mr. Huntington...that we particularly wanted all the Sycan

Valley down to Ish-tish-e-wax, including Sprague River Valley, because we needed it especially

for the camas and other roots in the valley and the game and the fishing at Ish-tish-e-wax.” He

said

/ 67 [Ex. 280-US-136] Report of the Klamath Boundary Commission, December 18, 1896; p. 11, Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by Stern. University Oregon Archives.

/ 68 [Ex. 280-US-157] Testimony of Henry Blow and Allen David to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, October 21, 1896, pp. 6-20, copy from Klamath, Modoc andYahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

/ 69 [Ex. 280-US-157] Testimony of Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, October 21, 1896, p. 24, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

Ex. 280-US-100 of 73


The main part of the living and subsistence of the Klamaths and Snakes was obtained from these two valleys–such as camas...and many of the roots and seeds, all of which were largely produced in these places, which with the fish from the Ish-tish-e-wax formed the principal part of their living.70/

A second deposition of Moghen Kas-kit was taken as he took the commissioners to Ish-

tish-e-wax in which he carefully recalled how that fishery was used by the Klamath and how

they repaired the dam each year.71/

49. Did the Commissioners identify the location of the Ish-tish-e-wax fishery?

Yes. The Commissioners identified the location of the Ish-tish-e-wax fishery, a tributary

to the Sprague River, in Section 8, Township 37 South, Range 15 East.72/ [In this adjudication,

Ish-tish-e-wax Creek is a tributary to Claim Reach 656.]

50. Was there any subsequent documentation after the 1890’s of fish presence in the Sprague River or the Klamaths’ dependence on fishing in the Sprague River?

/ 70 [Ex. 280-US-157] Testimony of Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, October 21, 1896, pp. 25-26, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

/ 71 [Ex. 280-US-157] Supplemental Examination and Deposition of Moghen Kas-kit to the Klamath Indian Reservation Boundary Commission, Exhibit A to the Commission’s Report, November 10, 1896, pp. 32-37, copy from Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission), National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker, University of Oregon Archives.

/ 72 [Ex. 280-US-136] Report of the Klamath Boundary Commission, December 18, 1896; p. 11, Klamath, Modoc and Yahooskin, Docket 100 (Indian Claims Commission)/ National Archives. Bureau of Indian Affairs. Microfilm. 5 reels (Microfilm E99.K7 K48 1960z). Assembled by firm of Wilkinson, Boyden, Cragun and Barker. Cited by Stern. University Oregon Archives.

Ex. 280-US-100 of 73


Yes. For example, in 1915 a Sprague River rancher who purchased an allotment on the

river near R9E, T34S, S30 (Claim Reach 643) wrote to his brother and talked about the Sprague

River:

Ordinarily the river anywhere is very fine fishing as those big troutfrom the lake come up here, but last winter the Govt put in a dam at Chiloquin for an irrigation project and the fish ladder put in by the engineer is a joke, absolutely useless as nothing comes up it. The Indians are making a big holler about it, and they have promised to fix it right.73/

In addition, on May 19, 1925, Oregon State Game Warden W.O. Hadley wrote to the

Superintendent of the Klamath Indian Reservation, regarding a dam on the Sprague River which

was limiting Klamath Indian fishing. Fishways constructed over the dam were inadequate, and

many fish could not pass over the fishways. Hadley reported:

We noticed thousands of trout at the foot of the dam, making desperate efforts to surmount the dam, but, owing to the construction and height of the dam, it was impossible for them to ascend to the stream above.

Hadley further stated that:

A large portion of the Indian population of the reservation lives in that part of the reservation served by the Sprague river, all of which lies above the Chiloquin dam, and the privileges of these Indians are curtailed and restricted because of the inability of the fish to ascend Sprague river from the Klamath lake area.74/

51. Did Indian Office personnel respond to the game warden’s letter?

/73 [Ex. 280-US-158] F. F. M. to “Bro” May 17, 1915. Transcript.

/74 [Ex. 280-US-143] State Game Warden to Baker, May 19, 1925, National Archives.

Ex. 280-US-100 of 73


Yes. An engineer on the Klamath Reservation wrote to the Commissioner of Indian

Affairs on July 7, 1925, stating that the fish were as numerous as ever.75/ Four years later an

engineer, Holt, reported to the Commissioner of Indian Affairs that since the construction of the

Copco Dam, salmon no longer came up the Klamath and Sprague Rivers, but lake trout and

suckers still went up the Sprague River.76/

Holt also said that at the dam on the Sprague, he counted 30 fish per minute ascending

the fish ladder.77/ In March, 1948, Parker, an irrigation engineer on the Klamath Reservation,

described Klamath spring fishing on the Sprague River:

Each year at this time there is a large run of fish up the Sprague River, and the Klamath Indians and other residents of the Reservation gather at the river in considerable numbers to fish.78/

52. Did any anthropologists who have written about the Klamaths document Klamath fishing on the Sprague River?

Yes, a number of anthropologists noted Klamath fishing on the Sprague River. For

example, Leslie Spier and Hiroto Zakoji both conducted studies regarding the Klamaths and

reported on Klamath fishing on the Sprague River.

53. What did Leslie Spier report as to Klamath fishing on the Sprague River?

Spier’s Klamath village No. 13 was on the Sprague River and near “wooo kstat, the site of

the only first-fish rites among the Klamath.” Near village No. 17, at the confluence of the

Sprague and Williamson Rivers, was “a dam in which spring fish are caught....”79/ Spier said the

/75 [Ex. 280-US-144] Holt to Commissioner of Indian Affairs, July 7, 1925, National Archives.

/ 76 [Ex. 280-US-159] Holt to Commissioner of Indian Affairs, March 14, 1929, National Archives, Pacific-Alaska Region.

/ 77 [Ex. 280-US-159] Holt to Commissioner of Indian Affairs, March 14, 1929, National Archives, Pacific-Alaska Region.

/78 [Ex. 280-US-151] Parker to Monks, March 30, 1948, National Archives, Pacific AK Region.

Ex. 280-US-100 of 73


Klamath had “an observance over the first sucker,”80/ held on the banks of the Sprague River near

village No. 13. (See figures 1 and 2).

54. What did Zakoji document as to Klamath fishing on the Sprague River?

Zakoji said that Klamath winter lodges were “carefully located adjacent to...waters

accessible to fishing during the freezing months of winter.” In spring, fishers moved “to more

strategic positions along the Sprague and Williamson rivers....”

Nets were the principal devices used in catching the many varietiesof fish in abundant quantities by both men and women. A first-sucker ceremony was observed annually just south of what is now Braymill on Sprague River, this right being in accordance to a law delivered by Kumukumps, the Klamath culture-hero. It was believed that suckers caught in the Sprague were not to be taken home but must be roasted and eaten there. If the law were practiced, then fish would come in abundance; otherwise, they would disappear. Fish taken from other waters, however, were dried and great quantity preserved and stored for winter consumption.81/

55. After researching and reviewing the materials you’ve previously described, what is your conclusion regarding the Klamath Tribes’ dependence on fish in the Sprague River?

From the head waters to the mouth of the river, the Klamath Tribes depended on the fish

in the Sprague River for their subsistence. Suckers, as well as trout, caught in the Sprague River

made up an important part of the Tribes’ diet. Villages located along the river allowed tribal

members easy access to fisheries on the Sprague River.

Section IIIA. Klamath General Dependence on Chinook Salmon in the Upper Klamath River Basin



/ 81 Zakoji, Hiroto. “Klamath Culture change,” M. A. Thesis in Anthropology, University of Oregon, Eugene, 1953, pp. 6-8.

Ex. 280-US-100 of 73


56. Is there any documentation of the Klamath Tribe’s dependence on salmon?

Yes. Abundant documentary and archaeological evidence exists to show that the

Klamath depended on salmon, both before and after the Reservation was established, and until

the runs were cut off by mining or the construction of downstream hydroelectric dams. The

presence of salmon in the Upper Klamath Basin or the Klamath Tribes’ dependence on salmon

has been reported by archaeologists, explorers, anthropologists, historians, newspapers, federal

officials, biologists, local non-Indians, and members of the Klamath Tribe.

57. What have archaeologists said about Klamath fishing for salmon?

After four years of field work, L. S. Cressman, William. G. Haag, and William S.

Laughlin published in 1956 “Klamath Prehistory: the Prehistory of the Culture of the Klamath

Lake Area, Oregon.” They reported that salmon were found in abundance in the Upper Klamath

Lake area and that the Klamath fished for the salmon using a variety of implements.82/

58. Is there any other documentation of Klamath use of salmon prior to the 1864 treaty?

Yes. In his Memoirs, John Charles Fremont described a visit to Klamath country in

March of 1846:

The salmon crowd in immense numbers up the Umpqua, Tlamath [Klamath], and Trinity Rivers, and into every little river and creek on the coast north of the Bay of San Francisco; and up the San Joaquin River, into the Stanislaus, beyond which the Indians say they do not go. Entering all the rivers of the coast far to the north, and finding their way up into the smaller branches which penetrate the forests of the interior country, climbing up cataracts and lesser falls, this fish had a large share in supporting the Indians–who raising nothing, but lived on what Nature gave. “A Salmon-Water,” as they named it, was a valuable possession to a tribe or village, and jealously preserved as an inheritance. I found the

/ 82 Cressman, L. S., William G. Haag, and William S. Laughlin. “Klamath Prehistory: the Prehistory of the Cultureof the Klamath Lake Area, Oregon, Transactions of the American Philosophical Society, 1956, 46(4):pp. 379, 386, and 388-389.

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“Salmon-Waters” in the forests along the eastern flank of the Cascade range below the Columbia River.83/

59. Did Fremont document that the Klamaths depended on salmon in the Upper Klamath Basin?

In 1846, Fremont’s party arrived at the outlet of Upper Klamath Lake, where he said,

“This is a great fishing station for the Indians....” He said salmon reached the lake. “Up this

river the salmon crowd in great numbers to the lake, which is more than four thousand feet above

the sea.” He also reported that he traded with the Klamath “for dried fish and salmon.” Further,

he reported that the Klamaths told him that, “if we should not find game enough to live upon, we

could employ the Indians to get supplies of salmon and other fish.” He also reported that in a

Klamath village “quantities of fish were drying, spread on scaffolds, or hung up on frames.”84/

60. Were there any other reports of early use of salmon by the Klamaths after the establishment of the Klamath Reservation?

Yes. In the 1880s to early 1900s, local newspapers regularly reported that large salmon

runs were coming up the Klamath River to Upper Klamath Lake.85/ Further, the Linkville Star

reported on May 10, 1884, that:

The lake [Upper Klamath Lake] abounds in both salmon and trout, a source of pleasure and profit to our citizens, and especially to Poor Lo [Indians], who takes them out in the spring by the wagon

/ 83 Jackson, Donald and Mary Lee Spence (eds.). The Expeditions of John Charles Frémont, Volume 2: The Bear Flag Revolt and the Court-Martial. Chicago: University of Illinois Press, 1973, pp. 85-87 and quoted at 90.Fremont made the same statement in an 1847 publication.Jackson, Donald and Mary Lee Spence (eds.). The Expeditions of John Charles Frémont, Volume 1: Travels from1838 to 1844. Chicago: University of Illinois Press, 1970, p. 523.

/ 84 Jackson, Donald and Mary Lee Spence (eds.). The Expeditions of John Charles Frémont, Volume 2: The Bear Flag Revolt and the Court-Martial. Chicago: University of Illinois Press, 1973, pp. 100-103, 116, and 118.

/85 For instance, see:[Ex. 280-US-160] Fortune, John D., Jr., Arthur R. Gerlach and C. J. Hanel. “A Study to Determine the Feasibilityof Establishing Salmon and Steelhead in the Upper Klamath Basin,” April, 1966, p. 7 and 9-11.[Ex. 280-US-161] Coots, Millard. “Klamath River 1957 and 1958 King Salmon counts, Klamathon Racks, Siskiyou county,” California Department of Fish and Game, Inland Fisheries Administrative Report No. 62, 1962,p. 10.

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load, and piles them up like cordwood to dry in the sun for his winter’s food.86/

61. What was the reporting of any Klamath use of salmon in the 1890s?

In the 1890s, Gatschet said that in Klamath country, “...the limpid waters are full of fish”

and he said, “The species of fish found in the country are the mountain trout, the salmon, and

several species of suckers.”87/ He also observed that:

When a party of fishing girls...catches a salmon or other large fish, all the others quit their lines, arrive on the spot, roast the fish whilesinging these words and eat it up.

The words from the girls’ song were “Halloo! let us form a circle and screen the salmon

against sun-heat!”88/

Gatschet also translated a Klamath narrative in which an individual described how

Klamath “would bring home salmon and lamprey-eels,”89/ and provided the Klamath word for

fall Chinook salmon, which he described as a purple salmon, 3-4 feet long, coming up the

Klamath River into the Lake Region in the latter part of November.90/

/86 [Ex. 280-US-125] Linkville Star, May 10, 1884.

/ 87 [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. xi and xxv.


/ 89 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 30.See also: [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 93, line 5.

/ 90 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, p. 30.

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62. Did Gatschet document when the salmon would arrive in the Upper Klamath Basin?

Yes. Gatschet said salmon made two runs up the Klamath River, and that salmon was

an important food-fish of the Máklaks [Klamath] Indians, ascending twice every year into the lakes and rivers of the KlamathHighlands, the first run being in June, the other in autumn....91/

63. Was there any subsequent documentation after the 1890s of salmon presence in the Upper Klamath Basin or the Klamath Tribes’ dependence on salmon?

Yes. Various anthropologists, biologists, and government officials in the 1930s-2000s

documented earlier salmon presence in the Upper Klamath Basin or the Klamath Tribes’

dependence on salmon.

64. Please describe any studies in the 1930s regarding salmon occurrence or tribal dependence prior to blocking of salmon from the Upper Klamath Basin.

Anthropologist and ethnographer Leslie Spier, who conducted field work among the

Klamath in the mid-1920s and published his findings in 1930, concluded that Gatschet was

correct in finding there were two salmon runs that reached the streams above Upper Klamath

Lake:

This is in agreement with my information, that the run comes in the middle-finger month, May-June, and that the large fish run in the fall.92/

In 1931 John O. Snyder, a fish biologist who carried out studies since 1919, published an

article regarding salmon presence in the Klamath River, Salmon of the Klamath River,

/ 91 [Ex. 280-US-115] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Volume II, Pt. II (Klamath/English Dictionary) Contributions to North American Ethnology 2(1-2). Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, p. 436. Salmon are also mentioned on p. 646.See also: [Ex. 280-US-113] Gatschet, Albert S. “The Klamath Indians of Southwestern Oregon,” Contributions to North American Ethnology Volume II, Part I. Washington: U. S. Geographical and Geological Survey of the Rocky Mountain Region, 1890, pp. 189, line 2; 93, line 5; 193, line 12; and 177, line 31.

/ 92 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology and Ethnology, Volume XXX, 1930, p. 153 and quoted at p. 148.

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California. In 1931, based on studies carried out since 1919, Snyder also reported that originally

there had been both a spring and a fall run of salmon in the Klamath River. The spring run had

once been very large, but had likely been almost destroyed by mining activities. One account he

cited said early non-Indian settlers reported that in 1859 spring salmon had been so plentiful that

“it was with difficulty that they [the settlers] could induce their horses” to attempt to ford the

river.93/

Finally, anthropologist Erminie Wheeler Voegelin, investigated Klamath cultural

practices prior to 1942 and concluded that the Klamath had a First Salmon Ceremony (a religious

ceremony honoring the first salmon that could be caught for subsistence use by tribal members

each season). She said that salmon were “abundant” in the Reservation area, with the exception

of Klamath Marsh. She also said there was a spring run of salmon.94/

65. Please describe any investigations in the 1940s regarding historic salmon presence inthe Upper Klamath Basin or the Tribes’ use of salmon.

In the 1940s, Klamath Superintendent B. G. Courtright assisted Kenneth R.L. Simmons,

counsel for the United States, in interviewing fifty Klamath tribal members, as well as a number

of non-Indians, in preparing for litigation against the California Oregon Power Company

(COPCO) for blocking the anadromous fish runs with hydroelectric dams.95/ Superintendent

Courtright drafted a memorandum, “Salmon on the Klamath,” after interviewing many older

Indians. He said that prior to the construction of the hydroelectric dams, salmon run up the

/ 93 [Ex. 280-US-162] Snyder, John O. Salmon of the Klamath River, California. Fish Bulletin No. 34, Division of Fish and Game of California, 1931, pp. 19 and 30, quoted at 19.

/ 94 Voegelin, Erminie Wheeler. “Culture Element Distributions, XX: Northeast California,” University of California Anthropological Records, 1942, 7(2), Berkeley, pp. 55-57 and 174.

/ 95 [Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” prepared for the Bureau of Indian Affairs; Portland, Oregon; December, 1981, pp. 57-63.

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Klamath River reached Upper Klamath Lake and rivers above the lake that flowed into it. He

said salmon were taken out by the wagon load.96/

66. Did Superintendent Courtright say what the Klamath Tribes did with the salmon?

Yes. Courtright said that:

About half of the fish caught here were taken by the Indians to trading posts and markets in the surrounding territory. Sometimes the Indians travelled 50-60 miles to dispose of the fresh fish. The rest of the fish was dried and consumed by the Indians.

The Indians lived in groups along the river and fished by families. They obtained considerable of their subsistence for many years by this source of income. They often traded or bartered the fish for other commodities. I am informed that the Indians used to look forward to the fishing season each year and were much disappointed and discouraged when the salmon finally failed to come up to the Reservation.97/

67. Did Superintendent Courtright indicate how many Klamath tribal members depended on salmon?

Courtright addressed that issue, stating that:

The Indians tell me that there were “any number” who depended upon their salmon catch for half of their subsistence at least. Closer inquiry discloses the information that there were approximately 250 families who lived along the river in former years in order to be close to their salmon fishing sites. The Paiutesin particular, living on the eastern side of the Reservation, benefitted much from the salmon industry.98/

/ 96 [Ex. 280-US-163] Courtright, B. G. “Memorandum–Salmon on the Klamath,” January 16, 1941, Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle).



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68. Did Kenneth Simmons, District Counsel for the United States, whom Superintendent Courtright was assisting, summarize what he learned about Klamath dependence on salmon?

In 1942, Kenneth R. L. Simmons, District Counsel for the United States, drafted a

memorandum, “Proposed Action for Injunction and Damages” against COPCO. He summarized

the history of the establishment of the Klamath Indian Reservation and then described the lakes

and rivers on the reservation:

...subsistence fishing for salmon was participated in by practically all of the members of the Klamath Tribe of Indians in Klamath Lake and the Williamson and Sprague Rivers for many, many years prior to 1909, when the salmon were prevented from reaching reservation waters by the construction of the California Oregon power dam in Klamath River, near Copco, California.99/

69. Did attorney Simmons indicate the source of his information?

Yes. Simmons explained that in 1942 he had interviewed “some fifty members of the

Klamath Tribe of Indians who participated in salmon fishing activities...prior to 1915 or 1916....”

He said he took “rather complete statements...from them as to the salmon runs, the amounts of

fish caught, the value of the salmon to the tribe and the number of Indians participating in and

benefitting from these fishing activities.” Simmons then provided numerous quotations from the

statements of the Indians.100/

70. What are the names of the Indians attorney Simmons and Superintendent Courtright interviewed?

Simmons interviewed the following Klamath tribal members: John Cole, Victor Nelson,

Bertha Lotches, David C. Skeen, Tom Lang, Eliza Crawford, Robert David, David Chocktoot,

/ 99 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), pp. 1-2.


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Clayton Kirk, James Johnson, Erskine Beal, and John Jackson. Courtright interviewed the

following members: Harry Wright, Ike Mose, Delford Lang, and Watson Duffy.

71. What did these interviews show regarding tribal dependence on salmon?

All of the Indians interviewed described both individual and tribal dependence on

salmon.101/ For example, sixty-one-year-old tribal member John Cole stated:

Frequently during the fishing season when several hundred salmonhad been speared and removed from the water we would load themin a wagon and we would take them in a wagon to different localities where the Indians were living in communities and distribute them. We would give each Indian family enough fish to last them for some time. They would dry them and use them as part of their food supply for the coming months.102/

Tribal member Delford Lang said the following:

I know of my own knowledge that one-half of the total food supplyof my family was supplied by the salmon taken out by other members of my family and me and I also know of my own knowledge that the salmon taken out by Indian members of the Klamath Tribe of Indians provided approximately one-half of the food that all of the Klamath Indians used from 1898 to the time thefish were stopped by the dam of the California Oregon Power Company in 1910.103/

72. Did those interviewed indicate the quantity of salmon caught in each season?

/ 101 [Ex. 277-US-161] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), pp. 5-15. See e.g.:[Ex. 277-US-162] Harry Wright. Statement, August 17, 1946; Ike Mose, Statement August 17, 1946; Delford Lang Statement, no date (ca. 1946); Watson Duffy Statement, August 18, 1946; Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 102 [Ex. 277-US-161] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), p. 5.

/ 103 [Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” prepared for the Bureau of Indian Affairs; Portland, Oregon; December, 1981, pp. 58-59. Lane and Lane locatedsome additional materials in the archives that are not currently located where Lane and Lane cited them.

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Yes. Cole reported, “I would personally salt down 400 or 500 pounds of fish following

each salmon run while I was here on the reservation.”104/ He continued:

50 or 60 Indians would be fishing during the time that I was there. I have frequently participated in taking between 1200 and 1300 pounds of fish ... in three or four hours. Three of us would very frequently remove between 1200 and 1300 pounds of fish in that period of time...105/

Tribal member Victor Nelson said that at one fishing location an average of 20 men

would take approximately 100 fish a day, weighing about 30 pounds each. He said that

approximately 3,000 pounds of fish were taken at this fishing location each day for 90 days, a

total of about 135 tons.106/ Others also described voluminous catches annually.107/

73. Did those interviewed indicate how many Klamath tribal members fished?

Tom Lang said that probably 1,500 Indians fished each season:

Practically all of the able-bodied members of the Tribe and their families would come each year during the fishing season to these fishing holes and establish camps there and drying racks. We would fish day and night, large bonfires would be built at night which would burn continuously allowing the fishing to continue throughout the night. The fishing there was all done with spears, no nets were used or tackle of any description.108/


/ 105 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), pp. 12-13.


/ 107 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), pp. 5-6, 8 and 10-15.


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Tribal member John Jackson described one fishing location where he fished:

....there would be from 75 to 100 adult Indians spearing salmon in the stream and probably 100 or so Indians with their families camped there....Groups of Indians would remain camped there from about one to two weeks until they had secured sufficient salmon for their present needs and for winter consumption. Then they would leave and other Indians move in. This occurred constantly during the entire period of the salmon runs in the fall of the year. These runs would last about 60 days. There would probably be several hundred Indians fishing there at different intervals during the salmon runs.109/

Tribal member Harry Wright described fishing for salmon:

Several of us used to go up at one time and divide up what we caught. We would come home with about 10 to 12 salmon apiece weighing 12 to 14 pounds. We often fished by torchlight and the salmon run was so heavy they would run between your legs and almost knock you down. We would eat some fresh and dry some but I could not say what proportion. The salmon ran during the last part of August and September and we would go fishing 2 or 3 times during the run. We used to spear them. Salmon was our principal fish food. Some of the Indians would camp for a week and fish.110/

74. Did those interviewed know what species of salmon they were catching?

John Cole described catching King salmon (Chinook salmon).111/ David Chocktoot said

he knew the difference between salmon and trout and the fish he caught were large Chinook:

/ 109 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), pp. 14 (quote) and 16 (corroborating statement).

/ 110 [Ex. 280-US-165] Wright, Harry. Statement, August 17, 1946. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 111 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), pp. 5 and 12-15.

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...it was very important to the Indians to have these salmon. The salmon provided the Indians with about one-third of their food supply each year.112/

Erskine Beal said:

....This was the run of the chinook salmon. Once in awhile some steelhead would appear but the run was composed almost entirely of chinook salmon. This run would last a little longer than a month.113/

John Jackson said:

I know that these fish were salmon. In the Indian language it is called g’otch. These fish weighed between 30 and 60 pounds. Some of them were steelhead salmon.114/

75. You stated that attorney Simmons and Superintendent Courtright also interviewed non-Indians about Klamath dependence on salmon. Who did they interview?

Simmons and Courtright interviewed local non-Indians including Benjamin E. Wolford,

Frank Obenchain, H. H. Ogle, Carrie V. Schmitz, John A. Smith, and O. T. Anderson.

76. What did Benjamin Wolford state?

Benjamin Wolford, one of the non-Indians interviewed, said he knew the difference

between Chinook and steelhead and the fish taken by the Indians were Chinook/King salmon.

He said many tribal members would give him fish.

Affiant remembers distinctly one Indian fisherman named Bidwell Riddle giving him a salmon weighing 35 pounds during the fall of

/ 112 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (circa 1946), pp. 7 and 15.



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1910. Many of the Indians left salmon fish at the store for the consumption of affiant.115/

77. What did the other non-Indians say regarding Klamath dependence on salmon fishing?

Obenchain, Ogle, Schmitz, and Anderson all corroborated Klamath dependence on

salmon.116/

78. Did anyone else report on Klamath dependence on salmon?

Yes. On October 4, 1945, Howard M. Gullickson, District Counsel for the United States

Indian Service, submitted a report to the Justice Department, describing the importance of

salmon to the Klamath people. He said:

The evidence points conclusively to the fact that the construction of the two dams completely obstructed the passage of salmon up the Klamath River above the dam and into the Sprague and Williamson Rivers on the Klamath Indian Reservation where the fisheries were located. The evidence also will establish that the salmon were mainly of the...(king, Chinook) species and were taken during heavy spawning runs up the Sprague and Williamson Rivers during the months of September and October. These fall salmon fisheries constituted one of the main source[s] of Indian food supply.117/

79. Did U.S. District Counsel Gullickson include information on how much salmon was caught by Klamath tribal members?

Yes. Attached to the report was a table showing the amount of salmon caught by

enrolled Klamath families when the September-October salmon runs were still going on.


/ 116 [Ex. 280-US-166] Obenchain, Frank Statement, August 18, 1946; H. H. Ogle. N.D. (ca. 1946) Statement; Carrie V. Schmitz Statement, ND; O. T. Anderson Statement, ND. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 117 [Ex. 280-US-167] Gullickson to Commissioner, October 4, 1946, with attached report, “Statement of Damage...,” p. 1, National Archives, Pacific-AK Region.

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Gullickson estimated that the Klamath averaged a catch of 200 pounds per person each year.

There were between 1,080 and 1,125 enrolled Klamath each year from 1897 to 1910, thus based

on Gullickson’s report, the catch of salmon each year was approximately 200,000-225,000

pounds. Klamath people who were interviewed by Gullickson indicated per capita consumption

of between 26 pounds and 1,000 pounds per year.118/

80. Are there any published accounts that corroborate the Klamath accounts of salmon fishing?

Yes. Rachel Good, a non-Indian, published History of Klamath County, Oregon in 1941.

In it she reported that Addie Walker, who settled in the Sprague River Valley in 1879, recalled

that, “In winter the Indians brought us the large salmon trout from springs along the river on the

reservation.”119/

81. Was there any additional information collected in the 1940s regarding former salmon runs to the Upper Klamath Basin?

Yes. Millard Coots, California Department of Fish and Game, collected information

regarding salmon in the Upper Klamath Basin. In 1962, Coots prepared a report in which he

concluded that large numbers of salmon migrated upstream in the Klamath River prior to the

1917 completion of Copco Dam No. 1 in the river. Citing both biological publications and

historical documents, Coots concluded

Evidence that salmon, both spring and fall run kings, did migrate into the upper Klamath drainage prior to the construction of the Copco dams in California is provided by...notes from publications and newspaper accounts.120/

/ 118 [Ex. 280-US-167] Gullickson to Commissioner, October 4, 1946, with attached report, “Statement of Damage...,” National Archives, Pacific-AK Region.

/ 119 [Ex. 280-US-160] Fortune, John D., Jr., Arthur R. Gerlach and C. J. Hanel. “A Study to Determine the Feasibility of Establishing Salmon and Steelhead in the Upper Klamath Basin,” April, 1966, pp. 6-7.

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82. Was any additional information developed in the 1950s or 1960s regarding salmon presence in the Upper Klamath Basin or Klamath tribal use of salmon?

Yes. In 1965, anthropologist Theodore Stern researched the Klamath Tribes’ history. He

referenced a spring salmon run, as well as described women preparing the salmon and drying

them while the men fished.121/ In a subsequent 1998 work, Stern said that Klamath fishermen

used canoes, nets and spears to fish for salmon, suckers and trout.122/

In addition, John D. Fortune, Jr., Arthur R. Gerlach and C. J. Hanel conducted a study for

Pacific Power and Light and produced a document in 1966 entitled, “A Study to Determine the

Feasibility of Establishing Salmon and Steelhead in the Upper Klamath Basin.” The authors

researched newspaper reports of salmon in the Upper Klamath Basin prior to the completion of

the first Copco Dam and concluded that salmon once migrated to the Upper Klamath Basin:

One bit of conclusive evidence that Chinook salmon did run to the Upper Klamath Basin is a picture of some fish taken from Link River. Dr. C. E. Bond, Professor of Fisheries at Oregon State University, examined the picture and positively identified a Chinook salmon.123/

The authors further concluded that there were salmon runs in the Upper Klamath

Basin:

From the information at hand, it is evident that a run of Chinook salmon entered the Mid-and Upper-Klamath Basins during the months of September and October. There might also have been a

/ 120 [Ex. 280-US-161] Coots, Millard. “Klamath River 1957 and 1958 King Salmon counts, Klamathon Racks, Siskiyou county,” California Department of Fish and Game, Marine Resources Administrative Report No. 63-1, 1962, p. 9.

/ 121 Stern, Theodore. The Klamath Tribe: A People and their Reservation,” Seattle: University of Washington Press, 1965 (originally published American Ethnological Society, Monograph 41, 1965), pp. 11-12.

/ 122 Stern, Theodore. “Klamath and Modoc,” Handbook of North American Indians, Washington, D. C. Smithsonian Institution, 1998, p. 448.


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run of salmon in the spring months before the time when white men came to the area.124/

83. Did Fortune et al. conduct interviews with residents of the Klamath Basin?

Yes. Fortune et al. interviewed long-term residents of the Upper Klamath Basin and

summarized the results. They said that long-time residents had reported catching salmon in all

the important rivers (Sycan, Sprague, Williamson, and Wood) above and emptying into Upper

Klamath Lake.125/

84. Moving to the 1970s, were there any studies regarding earlier salmon use by the Klamath Tribes?

Yes. Richard Bryant, David Eisler and John Nelson collectively completed a cultural

resources survey of the Klamath Marsh area for the Department of Agriculture. The authors

observed that the annual cycle of Klamath subsistence included a heavy dependence on fish in

the rivers. They noted that winter villages were located near places where fish could be caught.

They also described locations of fisheries and stone weirs that were constructed to facilitate

fishing. They said fish were caught with a wide variety of implements and a large volume of fish

were dried and stored for later use.126/ They concluded:

The Klamath fully exploited runs of chub, salmon, suckers, and all year availability of trout, minnows, crayfish, and clams. They possessed a complex technology of net designs for different areas and different types of fish.127/

/ 124 [Ex. 280-US-160] Fortune, John D., Jr., Arthur R. Gerlach and C. J. Hanel. “A Study to Determine the Feasibility of Establishing Salmon and Steelhead in the Upper Klamath Basin,” April, 1966, p. 17.


1 26 [Ex. 280-US-155] Bryant, Richard, David Eisler and John Nelson. “Report of the Cultural Resource Survey; Northeaster Klamath Marsh Study Area,” Vol. 1, Eugene, Oregon, 1978, pp. 56-65, quoted at 57.

1 27 [Ex. 280-US-155] Bryant, Richard, David Eisler and John Nelson. “Report of the Cultural Resource Survey; Northeaster Klamath Marsh Study Area,” Vol. 1, Eugene, Oregon, 1978, p. 63.

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85. In the 1980s, were there any additional salmon studies?

Yes. Anthropologists Barbara Lane and Richard Lane, Lane & Lane Associates,

conducted an extensive review of the Klamath salmon fisheries for the Bureau of Indian Affairs

and the effects of the construction of the COPCO dams. Lane and Lane cited extensive evidence

of the presence of fall Chinook salmon in the Upper Klamath Basin above Upper Klamath Lake,

including in the Willilamson and Sprague Rivers. They concluded that anadromous fish were

important to the Klamath people, and that, “Fish were basic in the life and culture of the

Klamath.”128/ Lane and Lane also described the fishing technology used by the Klamath and the

cultural importance of fish in Klamath culture.129/ They reviewed the interviews conducted by

Courtright in the 1940s and reported his observation of “amazing” amounts of salmon taken

from reservation waterways prior to the construction of the COPCO dams.130/

86. Since the 1980s, have other professional reports documented the historic presence ofsalmon in the Upper Klamath Basin?

Yes. Several studies were completed in the 1990s and 2000s including reports by Logan

and Markle of the Department of Fisheries and Wildlife at Oregon State University; the Oregon

Department of Fish and Wildlife; and a book by P. B. Moyle. The past presence of salmon in the

Upper Klamath Basin was also documented in Hamilton, et. al (2005) and Huntington and

Dunsmoor (2004).131/



/ 130 [Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” prepared for the Bureau of Indian Affairs; Portland, Oregon; December, 1981, p. 97.

/ 131 Hamilton, John B., Gary L. Curtis, Scott M. Snedaker and David K. White. “Distribution of Anadromous Fishes in the Upper Klamath River Watershed Prior to Hydropower Dams–A Synthesis of the Historical Evidence,” Fisheries History, Volume 30, No. 4 (April, 2005), pp. 10-18. [Ex. 280-US-180] Huntington, C. W. to Larry Dunsmoor. “Preliminary estimates of the recent and historic potential for anadromous fish production above Iron Gate Dam,” April 5, 2004, pp. 10 and 12

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87. After researching and reviewing the materials you have described above, what is your conclusion with respect to the Klamath Tribes’ dependence on salmon in the Upper Klamath Basin?

I conclude that the Klamath Tribes had a very strong dependence on salmon in the Upper

Klamath Basin. Traditionally, salmon were a staple part of the Tribes’ subsistence diet and

provided as much as one half of all food for families annually. Dependence on salmon was

deeply ingrained in the Klamath Tribes’ culture and the Indians had multiple complex

technologies to harvest the salmon at different locations.

See also: [Ex. 280-US-168] Logan, Daniel and Douglas F. Markle. “Literature Review of Fishes and Fisheries of Upper Klamath Lake, Oregon,” 1993, p. 10.[Ex. 280-US-169] Chapman, D. W. “Pristine Production of Anadromous Salmonids–Klamath River,” Final Report for the Bureau of Indian Affairs; Portland, Oregon, 1981, p. iii.[Ex. 280-US-170] Oregon Department of Fish and Wildlife. “Klamath River Basin Fish Management Plan,” Oregon Department of Fish and Wildlife, August 22, 1997, p. 3.[Ex. 280-US-170] Oregon Department of Fish and Wildlife. “Klamath River Basin Fish Management Plan,” Oregon Department of Fish and Wildlife, August 22, 1997, p. 53.Moyle, P. B. Inland Fishes of California (second edition). Berkeley: University of California Press, 2002, p. 253.

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IIIB. Klamath Dependence on the Sprague River for Salmon

88. Turning now specifically to the Sprague River, did any of the materials you researched document the presence of salmon in the Sprague River or Klamath use of such salmon?

Yes. Leslie Spier, a respected anthropologist conducted fieldwork on the Klamath

Reservation in 1925 and 1926. Three of his informants were born around 1860 and one was born

around 1875. Spier concluded that there were two salmon runs:

the run comes in the middle-finger month, May-June, and that the large fish run in the fall. Pat Kane [Klamath informant of about seventy years of age] did not know whether there is more than one variety of salmon, which he called tciaao lEs. They ascend...up Sprague river as Yainax, but are stopped by the falls below the outlet of Klamath marsh.132/

In addition, in his January 16, 1941 memorandum, “Salmon on the Klamath,”

Superintendent Courtright described salmon in the Sprague River:

Prior to the erection of the Copco Dam in the Klamath River near the California-Oregon line salmon came up from the Pacific Oceanthrough Klamath River, Upper Klamath Lake, and into the Williamson and Sprague Rivers on the Klamath Indian Reservation. They went to the Sprague almost to its source and were plentiful at Beatty, Oregon, located on the Reservation. This was prior to 1914 when the work on the Copco Dam was started.133/

89. Did Superintendent Courtright say how many salmon were in the Sprague River?

Although Courtright did not give a specific quantity of salmon in the

Sprague River, he described them as plentiful:

The older Indians tell me that Sprague River was “full of salmon.” There were several holes along the river and fishing was had at these places all day long and most of the night when torches were used. Fish were taken out by the wagonload. About half of the

/ 132 Spier, Leslie. “Klamath Ethnography,” University of California Publications in American Archaeology and Ethnology, Volume XXX, 1930, p. 148.

/ 133 [Ex. 280-US-163] Courtright, B. G. “Memorandum–Salmon on the Klamath,” January 16, 1941, p. 1, Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 3, National Archives, Pacific Alaska Region (Seattle).

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fish caught here were taken by the Indians to trading posts and markets in the surrounding territory. Sometimes the Indians travelled 50-60 miles to dispose of the fresh fish. The rest of the fish was dried and consumed by the Indians.134/

90. Did Courtright indicate whether or not the Klamath Indians depended on salmon?

The Indians tell me that there were “any number” who depended upon their salmon catch for half of their subsistence at least. Closer inquiry discloses the information that there were approximately 250 families who lived along the river in former years in order to be close to their salmon fishing sites. The Paiutesin particular, living on the eastern side of the Reservation, benefitted much from the salmon industry.135/

91. Did anyone identify any Klamath Indians who could describe particular fishing locations on the Sprague River?

Yes. Superintendent Courtright listed a number of Klamaths who could describe specific

salmon fishing holes on the Sprague River. Courtright listed seven Indians who could identify

the fishing hole at Baking Powder Grade on the Sprague River (Claim Reach 641); two who

could describe fishing at the confluence of the Williamson and Sprague Rivers (Claim Reach

626/641); one who could identified fishing at “Cowum Can, Tom or Spring Can located half way

between Chiloquin and Sprague River,” (Claim Reach 646); four who could testify about the

“confluence of Sycan River with Sprague River 1 ½ miles north of Beatty, Oregon,” (Claim

Reach 646); five who identified fishing at “Spring Creek, 3/4 mile East of Beatty where it flows

into Sprague River,” (Claim Reach 646); two who described fishing at “Cottonwood Springs in

Sprague River 2 ½ miles east of Beatty, Oregon,” (Claim Reach 646); one who described the

“Chalk Bank fishing hole in Sprague River 7 miles north of Yainax, Oregon,” (Claim Reach



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659); and one identified fishing at the “mouth of Whiskey Creek–confluence with Sprague River

(Claim Reach 645/649).136/

Finally, Kenneth Simmons, District Counsel for the United States, identified the Sprague

River as a place where the Klamath caught salmon.

92. Please summarize District Counsel Simmons’ description of Klamath fishing for salmon on the Sprague River.

Simmons said the Klamath Tribe depended on fishing in the Sprague River:

....subsistence fishing for salmon was participated in by practically all of the members of the Klamath Tribe of Indians in Klamath Lake and the Williamson and Sprague Rivers for many, many years prior to 1909, when the salmon were prevented from reaching reservation waters by the construction of the California Oregon power dam in Klamath River, near Copco, California.137/

93. What was District Counsel Simmons’ source of information as to the Klamaths’ salmon fishing on the Sprague River?

Simmons said that in 1942 he had interviewed “some fifty members of the Klamath Tribe

of Indians who participated in salmon fishing activities in the Williamson and Sprague River on

the Klamath Indian Reservation prior to 1915 or 1916....” Simmons stated that he took “rather

complete statements...from them as to the salmon runs, the amounts of fish caught, the value of

the salmon to the tribe and the number of Indians participating in and benefitting from these

fishing activities.”138/

/ 136[Ex. 280-US-172] “Klamath Indian Salmon Fishing Holes,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 3, National Archives, Pacific Alaska Region (Seattle).[Ex. 280-US-116] Lane & Lane Associates. “The Copco Dams and the Fisheries of the Klamath Tribe,” prepared for the Bureau of Indian Affairs; Portland, Oregon; December, 1981, pp. 53-54, listed the same Klamath fishing sites.

/ 137 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), No Date (received by Klamath Agency, August 1, 1942), pp. 1-2.

/ 138 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), p. 4.

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94. Of those interviewed by Simmons, who discussed salmon fishing on the Sprague River?

Among others, Klamath Indians who described salmon fishing on the Sprague River

included: John Cole; Victor Nelson; Berthat Lotches; Tom Lang; James Johnson; and Erskine

Beal.

95. Please describe briefly what tribal member John Cole said about fishing for salmon on the Sprague River.

John Cole said he had fished among 50 or 60 Indians on the Sprague River at what was

called the Baking Powder Grade fishing hole (Claim Reach 641). He said he worked with two

other Indians, and that in three or four hours the three could catch over a half ton of fish:

Three of us would very frequently remove between 1200 and 1300 pounds of fish in that period of time...139/

96. What did tribal member Victor Nelson say about salmon fishing in the Sprague River?

Victor Nelson said that:

The Indians obtained a large part of their livelihood from the salmon fish they caught. I would say that all of the Indians on the reservation participated in the benefits derived from the fish taken out of the Sprague River. The fish were pretty well distributed to all Indian families.140/

Nelson described particularly Baking Powder Grade.

...At the Baking Powder Grade in the Sprague River, [Claim Reach641] 20 men on an average, would fish daily throughout the summer months. They would spear and take out of the river approximately 100 fish a day, averaging 30 pounds a fish. I would

/ 139 [Ex. 280-US-164] Simmons, Kenneth R. L. “Proposed Action for Injunction and Damages,” Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 2, National Archives, Pacific Alaska Region (Seattle), pp. 5 and 12-15.


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say that approximately 3,000 pounds of salmon fish were taken outof the Baking Powder Grade each day for 90 days....141/

97. What did tribal member Berthat Lotches say about salmon fishing in the Sprague River?

Berthat Lotches said that her husband

...fished salmon in all of the fishing spots at Sprague River. He particularly fished at the fishing holes where Spring Creek empties into Sprague River two miles north of Beatty [Claim Reach 646]. This was the best fishing hole in Sprague River. He speared salmon during the runs each year from 1901 until the runs stopped.I would help him rack and dry the fish and prepare them for winter use. He would take out between 300 and 400 salmon a year. Theywould average in weight between 30 and 60 pounds. We would use whatever salmon we needed and would put up an ample supplyof dried salmon for the winter months. We always had salmon on hand for our consumption and our friends’ use.142/

98. Did Lotches indicate whether or not the family depended on salmon from the Sprague River?

Yes. Berthat Lotches said:

The salmon caught each year out of the Sprague River provided more than one-half of the food supply for the Indians living there.

She added:

I can truthfully state that there would be ample salmon taken out ofthe river to provide sufficient salmon for each Indian family on the reservation each year.... It would generally take fishermen about a week to get all of the salmon necessary for their family supply for the year although it is true that some fishermen who were particularly expert and loved the sport would fish almost constantly during the runs. I mean by that day and part of the night. They would fish by torch light at night.143/

99. What did tribal member Tom Lang say about salmon fishing in the Sprague River?



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Tom Lang said that the Klamath fished for salmon every year in the Sprague River:

I remember each and every year the Sprague River at the fishing hole known as the Baking Powder Grade [Claim Reach 641] wouldbe filled with fish. I speared fish there with other Indians each andevery one of those years. It was the custom of the Indians to migrate to this fishing hole and to the fishing holes on Sprague River in large numbers. Practically all of the able-bodied membersof the Tribe and their families would come each year during the fishing season to these fishing holes and establish camps there and drying racks. We would fish day and night, large bonfires would be built at night which would burn continuously allowing the fishing to continue throughout the night. The fishing there was all done with spears, no nets were used or tackle of any description.144/

100. Did Lang indicate the total number of Klamath fishermen on the Sprague River?

Yes. Lang said that:

During those years about one-third of all of the Indians of the Klamath Indian Reservation who lived along the Williamson and Sprague Rivers would migrate to these fishing spots and establish camps there and remain there during the entire fishing period....off and on during the season I would estimate that approximately 1500Indians came in to fish.145/

101. What did tribal member James Johnson recall about salmon fishing on the Sprague River?

James Johnson also recalled salmon fishing at Baking Powder Grade:

I speared salmon at Baking [Powder] Grade near Chiloquin, Oregon and at the junction of the Williamson and Sprague Rivers [Claim Reach 641]. I remember seeing many of the old Indians getting salmon at the junction of the Williamson and Sprague Rivers with willow net which they prepared and dragged across the




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stream, stopping the salmon from going up the stream until they had secured all of the salmon they needed for their own use and theuse of their friends. Then these old people would remove the willow nets and allow the salmon to go up the Sprague River. I also speared salmon in the Sprague River at several of the popular fishing holes near Beatty, Oregon [Claim Reach 646]. I speared salmon at what was known as the Cottonwood Springs fishing holeand at the Cowum Can fishing hole I also caught salmon in the Sprague River with a spoon [Claim Reach 646].146/

Johnson also recalled salmon spawning in the Sprague River:

Sprague River is one of the fine spawning streams of the reservation. Around Baking Powder Grade [Claim Reach 641] it was especially easy to spear salmon as the river widens out and is shallow and there are a lot of sandbars on which we could stand to spear the salmon.147/

102. What did Erskine Beal say about salmon fishing in the Sprague?

Erskine Beal said that he fished for salmon in the Sprague River:

I have caught many 40 pound salmon at the fishing holes on Sprague River near Beatty, Oregon [Claim Reach 645/646].148/

103. In addition to Simmons’ interviews of Klamath members regarding salmon fishing in the Sprague River, are there any other sources of salmon information?

Yes. Superintendent Courtright also interviewed Klamath members including

George Duvall; Harry Wright; Eva Mose; and Delford Lang. Courtright interviewed several

white persons as well, including Frank Obenchain; Carrie Schmitz; John A. Smith; and O.T.

Anderson.




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104. What did tribal member George Duvall say about salmon fishing?

George Duvall said:

I remember that salmon used to go up the Sprague River to Bly [Claim Reach 655]. There used to be lots of salmon and many times I saw Indians fishing at Baking Powder Grade [Claim Reach 641].149/

105. What did tribal member Harry Wright remember about salmon fishing in the Sprague River?

Harry Wright said:

I remember that salmon used to run to the head of Sprague River and I used to fish every year in the fall at Baking Powder Grade near Chiloquin [Claim Reach 641]. Several of us used to go up at one time and divide up what we caught. We would come home with about 10 to 12 salmon apiece weighing 12 to 14 pounds. We often fished by torchlight and the salmon run was so heavy they would run between your legs and almost knock you down. We would eat some fresh and dry some but I could not say what proportion. The salmon ran during the last part of August and September and we would go fishing 2 or 3 times during the run. We used to spear them. Salmon was our principal fish food. Someof the Indians would camp for a week and fish.150/

106. What did tribal member Eva Mose recall about salmon in the Sprague River?

Eva Mose said:

I used to see salmon come up the north fork of the Sprague River [Claim Reach 650] every fall. I remember they stopped coming a long time ago but don’t remember just when. There were very large ones.151/

/ 149 [Ex. 280-US-173] Duvall, George. Statement, August 17, 1946. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 150 [Ex. 280-US-165] Wright, Harry. Statement, August 17, 1946. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 151 [Ex. 280-US-174] Mose, Eva. Statement, August 17, 1946. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

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107. What did tribal member Delford Lang recall about salmon fishing on the Sprague River?

Delford Lang said he lived near Lone Pine, along the Sprague River, and:

I used to spear salmon in the riffles at Lone Pine just a short distance from where I live. [Claim Reach 645/648] I was 11 or 12 years old them. An Indian named Loop Walker, now dead, used tospear salmon about a mile down the Sprague River [Claim Reach 645/648] from us and bring salmon to us. They were large salmon and used to average 18 to 20 pounds.152/

108. What did tribal member Delford Lang recall about salmon fishing?

Delford Lang recalled the Baking Powder Grade fishery (Claim Reach 641) on the

Sprague River:

The Indians used to dry a lot of salmon. I used to go with my grandfather, Peter Phillips, to Baking Powder Grade to spear salmon. Lots of Indians used to camp there to catch salmon. Theywould spear salmon by torchlight. Some would use spinners. I went down there twice. One of the times I remember seeing four camps there. Grandfather used to take salmon from Baking Powder Grade by the wagonload with about 20 fish in a load. He took them home and dried them....He went down to Baking Powder Grade about twice during the season....I speared the best salmon in the riffles near our home–just enough for our family. Some of the salmon were not good. They were old and had turned white. We used to catch salmon in September.153/

Lang also said that he had “heard that [salmon] ran up the Sprague River as far as Bly”

(Claim Reach 656).154/

109. You also stated that several white people were interviewed. What did the white man Frank Obenchain recall about Klamath salmon fishermen on the Sprague River?

/ 152 [Ex. 280-US-175] Lang, Delford. Statement. ND. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).



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Obenchain, who was 69 in 1946, when he gave this statement, said:

I used to go down toward Beatty and fish for salmon with a spoon. This was in the vicinity of Cottonwood Springs. I used to see the Indians spearing salmon down there. [Claim Reach 646]155/

110. What did non-Indian Carrie V. Schmitz recall about Klamath salmon fishing on theSprague River?

Carrie Schmitz said:

I remember the runs of salmon in the north [fork] of the Sprague River in the fall and the Indians catching them [Claim Reach 650/651]....The Indians caught lots of salmon and would dry them on racks to provide meat in the winter. I saw the fishing camps around Cottonwood Springs [Claim Reach 646].156/

111. What did John A. Smith recall about Klamath salmon fishing in the Sprague River?

John A. Smith lived in the Chiloquin area, where the Sprague River flows into the

Williamson (Claim Reach 641/642). He described salmon fishing there:

I caught them in rapids near my place and they weighed 20 poundsor better. I used a spinner. Lots of Indians fished there in the riffles and on bars. I have seen salmon go into the north fork of Sprague River near Bly [Claim Reach 650/651]...I saw them spawnin spawning beds in shallow riffles and saw many dead ones.157/

112. What did the white man O. T. Anderson recall about Klamath salmon fishing on theSprague River?

O.T. Anderson, who lived in Beatty, along the Sprague River (Claim Reach 646),

described:

/ 155 [Ex. 280-US-176] Obenchain, Frank. Statement, August 18, 1946. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 156 [Ex. 280-US-176] Schmitz, Carrie V. Statement, ND. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle). Coutright noted at the bottom of the transcript that she had an “excellent memory and would make good witness.”

/ 157 [Ex. 280-US-177] Smith, John A. Statement. ND. Bureau of Indian Affairs, Klamath Agency, Record Group75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle) No Date (circa. 1946).

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The Indians speared salmon around my place a lot and would feed their ponies on my ranch while fishing. They used the salmon mostly for their own food. I saw them drying salmon on drying racks.158/

113. Were there any other reports on Klamath dependence on salmon in the Sprague River?

Yes. Gullickson’s 1945 report to the United States Justice Department describe Klamath

fishing on the Sprague River:

...[T]he salmon were mainly of the...(king, Chinook) species and were taken during heavy spawning runs up the Sprague and Williamson Rivers during the months of September and October. These fall salmon fisheries constituted one of the main source[s] ofIndian food supply.159/

In addition, Fortune, Gerlach and Hanel interviewed long-time residents of the Upper

Klamath Basin. In their report, Fortune, Gerlach and Hanel concluded that salmon entered the

Sprague River to spawn. They said:

Sprague River was apparently the most important spawning stream, on the basis of the testimony received. Six individuals reported salmon in Sprague River and the forks of the Sprague during the months of September and October, with some during August and November. Salmon were reported to have spawned in the Sprague in the vicinity of Beatty [Claim Reach 646], upstream on the South Fork past Bly [Claim Reach 654] to the headwaters [Claim Reaches 655, 656, and 657] and on the North Fork as well [Claim Reach 650/651].160/

114. Have any other professional and scholarly publications and reports documented a Sprague River salmon run historically?

/ 158 [Ex. 280-US-178] Anderson, O. T. Statement. ND. Bureau of Indian Affairs, Klamath Agency, Record Group 75, Decimal Correspondence, File 419.4, Folder 1, National Archives, Pacific Alaska Region (Seattle).

/ 159 [Ex. 280-US-167] Gullickson to Commissioner, October 4, 1946, with attached report, “Statement of Damage...,” National Archives, Pacific-AK Region.


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Yes. For example, the 1966 reports of Pucket, Cannady, Black, Skinner, Kruse, Campbell

and Hamilton; the 1993 report of Logan and Markle; the 1997 Oregon Department of Fish and

Wildlife Report; Moyle’s 2002 book; Huntington’s 2004 report; Hamilton, et al.’s 2005 report;

the California Department of Fish & Game’s 2008 publication; and the Oregon Department of

Fish and Wildlife (Hooton and Smith)’s 2008 reintroduction plan are just a few of the

professional accounts that document Chinook salmon running up and spawning in the Sprague

River.161/

115. What is the Oregon Department of Fish and Wildlife (Hooton and Smith’s reintroduction plan?

Hooton and Smith, writing for the Oregon Department of Fish and Wildlife, have

prepared a reintroduction plan for anadromous fish in the Upper Klamath Basin. Regarding

historic use, Hooton and Smith said that the Klamath Tribes used the Chinook intensively. They

concluded that streams where Chinook could be reintroduced include Sevenmile Creek (which

flows into Agency Lake and Upper Klamath Lake; Wood River; Spring Creek, a tributary to

Williamson River; Williamson River; and Sprague River.162/

/ 161 [Ex. 280-US-179] Puckett, Robert; Bruce B. Cannady; George O. Black; John E. Skinner; T. Eugene Kruse; Charles J. Campbell; and J. A. R. Hamilton. “Report of Steering Committee on the Upper Klamath Salmon and Steelhead Feasibility Study,” September 27, 1966.[Ex. 280-US-168] Logan, Daniel and Douglas F. Markle. “Literature Review of Fishes and Fisheries of Upper Klamath Lake, Oregon,” 1993, p. 10.[Ex. 280-US-170] Oregon Department of Fish and Wildlife. “Klamath River Basin Fish Management Plan,” Oregon Department of Fish and Wildlife, August 22, 1997, pp. 3 and 53.

Moyle, P. B. Inland Fishes of California (second edition). Berkeley: University of California Press, 2002, p. 253.[Ex. 280-US-180] Huntington, C. W. to Larry Dunsmoor. “Preliminary estimates of the recent and historic potential for anadromous fish production above Iron Gate Dam,” April 5, 2004, pp. 10 and 12.

Hamilton, John B., Gary L. Curtis, Scott M. Snedaker and David K. White. “Distribution of Anadromous Fishes in the Upper Klamath River Watershed Prior to Hydropower Dams–A Synthesis of the Historical Evidence,” Fisheries History, Volume 30, No. 4 (April, 2005), pp. 10-18.[Ex. 280-US-181] California Department of Fish & Game. “Upper Klamath–Trinity River Chinook Salmon.” [Ex. 280-US-182] Hooton, Bob and Roger Smith. “A Plan for Reintroduction of Anadromous Fish in the Upper Klamath Basin,” Draft. Oregon Department of Fish and Wildlife; March, 2008, pp. 1, 9, and 12.

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116. After researching and reviewing the materials you have described above, what is your conclusion with respect to the Klamath Tribes’ historic dependence on salmon in the Sprague River?

I conclude that the evidence demonstrates that the Klamath Tribes depended on salmon

caught in the Sprague River basin, and that the salmon harvested in the Sprague River formed an

important part of the Klamath Tribes’ subsistence.

/ 162 [Ex. 280-US-182] Hooton, Bob and Roger Smith. “A Plan for Reintroduction of Anadromous Fish in the Upper Klamath Basin,” Draft. Oregon Department of Fish and Wildlife; March, 2008, pp. 1, 9, and 12.

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