1. Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations (Sutherland, Kathryn ed., Hackett Publ'g Co., Inc. 1993)Google Scholar. He also warned, however, against the extremes of self-interest, “All for ourselves and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.” Id. at 264.

2. Hirshleifer, Jack, Capitalist Ethics—Tough or Soft?, 2 J.L. & Econ. 114, 118 (1959)CrossRefGoogle Scholar.

3. See e.g., Social Security Administration, Historical Background and Development of Social Security, http://www.ssa.gov/history/briefhistory3.html (last visited Apr. 6, 2011).

4. Wikipedia, Social Security Act of 1965, http://en.wikipedia.org/wiki/Social_Security_Act_of_1965 (last visited Apr. 6, 2011).

5. See, e.g., supra notes 1-2 and accompanying text.

6. Hirshleifer, supra note 2, at 116-18.

7. See, e.g., The Federalist No. 47 (James Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”).

8. U.S. Const, art. I, II & III.

9. Individuals who wish, voluntarily, to take responsibility for their harmful acts (for instance by apologizing) may face severe legal repercussions for doing so, because such statements later can be used as ammunition against them in court as admissions against interest. Unif. R. Evid. § 801(d)(2). See, e.g., Cohen, Jonathan, Legislating Apology: The Pros and Cons, 70 U. Cincinnati L. Rev. 819, 827–33 (2002)Google Scholar (discussing several states' attempts to pass so-called “apology statutes” to protect individuals who apologize, but that still retained the inhibitory negative consequences under our evidence laws for individuals who do say that they are sorry).

10. Mediation of civil suits can give individuals an opportunity to take responsibility voluntarily, by protecting the confidentiality of statements made during mediation. See, e.g., Hiers, Rebecca H., Navigating Mediation's Uncharted Waters, 57 Rutgers L. Rev. 531 (2005)Google Scholar (exploring the new mediation privilege and emerging exceptions to this privilege). Even so, adversarial-based settlement law precedents may seep into and undermine mediation's cooperative approaches. Id. at 533-35, 578-86. Our criminal justice system faces a similar tension between retributive justice approaches that emphasize punishment of the offender and restorative justice approaches that emphasize healing for the victim, the offender, and the community. See, e.g., Zehr, Howard, Changing Lenses: A New Focus for Crime and Justice (Herald Press 2005)Google Scholar.

11. See, e.g., Ariz. v. Cal., 373 U.S. 546 (1963), where the parties included five states and the United States in a dispute over the Colorado River.

12. The Confederated Tribes of the Umatilla Indian Reservation is comprised of the Cayuse, Umatilla and Walla Walla Tribes. In current times it functions under one tribal government, yet at the same time individual tribal members still retain their tribal identities; so it is referred to as the “Tribe,” the “Tribes,” or the “CTUIR.”

13. See Treaty with the Walla Wallas, &c, 12 Stat. 945, art. 1 (June 9, 1855) (in which these three tribes ceded around 6.4 million acres of land to the United States government, while reserving what now is the Umatilla Indian Reservation as their remnant homeland). See also Ceded Territory of the Confederated Tribes of the Umatilla Indian Reservation, in It's About Time, It's About Them, It's About Us: A Decade of Papers 121 (Burney, Michael S. & Pelt, Jeff Van ed., J.Nw. Anthropology Memoir NO. 6, Narn Inc. 2002Google Scholar) [hereinafter Memoir No. 6, J. Nw. Anthropology] (Fig. 8, a map showing the ceded lands).

14. For example, Echo, Oregon, in the lower Umatilla River valley, receives an average annual rainfall of only ten inches. U.S. Bureau of Reclamation, Umatilla Basin Project Oregon, Planning Report—Final Environmental Statement 7–1 (1988)Google Scholar [hereinafter UBP Final Env. Stmt.].

15. See, e.g., Diana Kellas, A Discussion of the Confederated Tribes of the Umatilla Indian Reservation and Cultural Affiliation for the Native American Graves Protection and Repatriation Act, in Memoir No. 6, J. Nw. Anthropology, supra note 13, at 72, 73.

16. See id.; Michael S. Burney, Traditional Use Areas and Cultural Properties on the Aboriginal Landscape of the Imatalamláma [Umatilla], Weyíiletpuu [Cayuse], Walúulapam [Walla Walla] of Northeastern Oregon and Southeastern Washington, in memoir No. 6, J. Nw. Anthropology, supra note 13, at 33, 37-38 (listing traditional subsistence areas that were shared by more than one tribe).

17. See, e.g., Burney, supra note 16, at 35.

18. Confederated Tribes of the Umatilla Indian reservation Columbia Basin Salmon Policy § II (1995) available at http://www/umatilla/nsn.us/salmon.pdf [hereinafter CTUIR Salmon Pol'y].

19. We Are Keeping This Promise: The Salmon Corp (CTUIR 1996) (statement by Armand Minthorn, CTUIR Bd. of Trustees member and Longhouse leader in a video that focuses on how the Salmon Corps was helping young people restore habitat as well as their heritage). See also, Hiers, Rebecca H., Water: A Human Right or a Human Responsibility?, 47 Willamette L. Rev. 467 (2011)Google Scholar (discussing the traditional tribal emphasis on the responsibility to take care of the land and the water).

20. Phillip E. Cash Cash, It is Good That You Are Listening: The Dynamics of Native American Cultural Resource Management, in Memoir No. 6, J. Nw. Anthropology, supra note 13, at 118, 119.

21. Water Code of the Confederated Tribes of the Umatilla Indian Reservation, § 1:01 (2005)Google Scholar [hereinafter CTUIR water code], available at http://www.umatilla.nsn.us/WaterCode.pdf.

22. CTUIR salmon Pol'Y, supra note 18, pmbl.

23. Id. at § III.A.

24. CTUIR Water Code, supra note 21, at § 1:01.

25. Today's tribal government follows this tradition, with the governing body, the Board of Trustees, comprised of nine elected members, and with a number of Commissions, made up primarily of members of the community, that oversee the tribal staff's implementation of tribal policies in specific areas.

26. Rebecca H. Hiers, Memorial Dedication for Paul “Bucky” Minthorn, in Memoir No. 6, J. Nw. Anthropology, supra note 13, at iii, v (including former Cultural Resources Protection Program Manager, Jeff Van Pelt's, description of the late Deputy Director of the Tribes' Department of Natural Resources, Bucky Minthorn).

27. Confederated Tribes of the Umatilla Indian Reservation's Water Spreading Policy 3, CTUIR Board of Trustees Res. No. 94-19 (1994) [hereinafter CTUIR Water Spreading Pol'y].

28. Antone Minthorn, CTUIR General Council Chairman, Umatilla Watershed Restoration—Success Through Cooperation, Address at Watershed '93 Conference (Mar. 24, 1993) (on file with author) [hereinafter “Antone Minthorn, Umatilla Watershed Restoration”].

29. Kellas, supra note 15, at 73. See also Burney, supra note 16, at 37-38 (listing traditional subsistence areas that were shared by more than one tribe).

30. Tamástslikt Cultural Institute, Cayuse, Umatilla & Walla Walla Homeland Heritage Corridor Audio/driving tour: Northeastern Oregon—Southeastern Washington (2006) [hereinafter Cayuse, Umatilla & Walla Walla Homeland cd], disk 2, track 8, 9:15 (Roberta Conner, Director, Tamástslikt Cultural Institute).

31. Id. at disk 2, track 8, 8:36.

32. Id. at disk 2, track 6, 5:08 (comment by tribal elder).

33. Burney, Michael S., American Indian Consultation Regarding Treaty Rights and Cultural Resources: A Response from the Imatałámlama [Umatilla], Weyíiletpuu [Cayuse], and Walúulapam [Walla Walla] of Northeastern Oregon, in Memoir No. 6, J. Nw. AnthropologyGoogle Scholar, supra note 13, at 27, 29 (quoting Ben Bearchum).

34. CTUIR Water Code, supra note 21, at § 1:01.

35. See, e.g., The Columbia History of the World 659–80 (Garraty, John A. & Gay, Peter eds., Harper & Row 1986)Google Scholar.

36. Jefferson, Thomas, Jefferson, : Political Writings 149 (Appleby, Joyce & Ball, Terence eds., Cambridge Univ. Press 1999)CrossRefGoogle Scholar.

37. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Ga., 30 U.S. (5 Pet.) 1 (1831); Worcester v. Ga., 31 U.S. (6 Pet.) 515 (1832).

38. Johnson v. McIntosh, 21 U.S. at 574.

39. Id. at 576.

40. Id. at 591-92.

41. Id. at 573.

42. Worcester v. Ga., 31 U.S. at 545.

43. 1 Stat. 51, Note a, art. III (1787).

44. 9 Stat. 323 (1848).

45. After extinguishing by treaty the claims to this region by Spain (8 Stat. 252 (1820)), Russia (8 Stat. 302 (1824)), and Great Britain, (9 Stat. 869 (1846)), Congress created the Oregon Territory (9 Stat. 323 (1848)).

46. Donation Land Claim Act of 1850,9 Stat. 946 (1850).

47. Id. at § 5.

48. See supra notes 37-44 and accompanying text.

49. Treaty with the Rogue River Indians, 10 Stat. 1018 (Sept. 10, 1853); Treaty with the Cow Creek Indians, 10 Stat. 1027 (Sept. 19, 1853); Treaty with the Rogue Rivers, 10 Stat. 1119 (Nov. 15, 1854); Treaty with the Chastas, &c, 10 Stat. 1122 (Nov. 18, 1854); Treaty with the Umpquas and Calapooias, 10 Stat. 1125 (Nov. 29, 1854); Treaty with the Nisquallys, &c, “Treaty of Medicine Creek,” 10 Stat. 1132 (Dec. 26,1854); Treaty with the Willamette Indians, 10 Stat. 1143 (Jan. 22, 1855); Treaty with the Dwámish, &c. Indians, “Treaty of Point Elliot,” 12 Stat. 927 (Jan. 22, 1855); Treaty with the S'Klallams, “Treaty of Point No Point,” 12 Stat. 933 (Jan. 26, 1855); Treaty with the Makah Tribe, “Treaty of Neah Bay,” 12 Stat. 939 (Jan 31, 1855); Treaty with the Walla Wallas, &c., 12 Stat. 945 (June 9, 1855); Treaty with the Yakamas, 12 Stat. 951 (June 9, 1855); Treaty with the Nez Percés, 12 Stat. 957 (June 11,1855); Treaty with the Indians in Middle Oregon, 12 Stat. 963 (June 25, 1855); Treaty with the Flatheads, &c, “Treaty of Hellgate,” 12 Stat. 975 (July 16, 1855); Treaty with the Molels, 12 Stat. 981 (Dec. 21, 1855); Treaty with the Qui-Nai-Elts, &c, “Treaty of Olympia,” 12 Stat. 971 (July 1, 1855 & Jan. 25, 1856). All of these treaties were ratified by Congress and proclaimed between 1855 and 1859.

50. 12 Stat. 945, art. 1.

51. 10 Stat. 1132, art. 3; 12 Stat. 927, art. 5; 12 Stat 933, art. 4; 12 Stat 939, art. 4; 12 Stat. 951, art. 3; 12 Stat. 957, art. 3; 12 Stat. 963, art. 1; 12 Stat. 971, art. 3; 12 Stat. 975, art. 3.

52. Sohappy v. Smith, 302 F. Supp. 899, 906 (D.Or. 1969) (citation omitted). See also Wood, Mary Christina, The Tribal Property Right to Wildlife Capital (Part II): Asserting A Sovereign Servitude to Protect Habitat of Imperiled Species, 25 Vt. L. Rev. 355, 378–80 (2001)Google Scholar (“The negotiators and Congress were well aware of the vital importance of salmon to the Indians, and that the Indians would not have relinquished millions of acres of land but for the promise that they could continue fishing as they had done for millennia.”).

53. See, e.g., Glennon, Robert, Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters 14–18 (Island Press 2002)Google Scholar.

54. Wilkinson, Charles, Crossing the Next Meridian: Land, Water, and the Future of the West 232 (Island Press 1992)Google Scholar.

55. Ariz. v. Cal., 373 U.S. 546, 555, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963).

56. Wilkinson, supra note 54, at 234.

57. Glennon, supra note 53, at 17.

58. 11 Stat. 383 (1859).

59. “Water development began in the Umatilla Basin in the late 1850's. The earliest water right of record dates to 1860.” Or. Water Resource Dep't, Umatilla Basin Report 30 (1988)Google Scholar.

60. The United States Reclamation Service was created in 1902. 32 Stat. 388 (1902).

61. “Project features include Cold Springs Dam and Reservoir, an offstream reservoir, Feed Canal and Diversion Dam, Maxwell Diversion Dam and Canal, Three Mile Falls Diversion Dam on the Umatilla River, West Extension Main Canal, and McKay Dam and Reservoir on McKay Creek.” U.S. Bureau of Reclamation, Umatilla Basin Project Oregon, Planning Report—Draft Environmental Statement 1–2 (1985)Google Scholar [hereinafter UBP Draft Env. Stmt.], incorporated by reference into UBP final ENV. Stmt., supra note 14, at 1-1.

62. Id.

63. see, e.g., Umatilla Irrigated Land Co., Inc., A Letter to Homeseekers: Portraying the Advantages of Irrigated Lands Under the United States Government Umatilla Reclamation Project at Hermiston, Umatilla County, Oregon 2 (n.d.) (on file with author).

64. Id. at 8-9.

65. Id. at 12-13.

66. U.S. Bur. Rec., UBP Draft Env. Stmt., supra note 61, at 1-2, incorporated by reference into U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 1-1. See also U.S. Bur.Rec., UBP Final Env. Stmt., supra note 14, at 7-9 tbl. 7-6, Historic Average Monthly Flows—Umatilla River at Umatilla, UBP Final Env. Stmt. 7-9 (showing that the flows reaching the mouth of the Umatilla River, even when averaged over an entire month, often drop to the single digits in cubic feet per second). “During the irrigation season, the river is substantially diverted at the major irrigation dams—Stanfield, Westland, Dillon, Maxwell, and Three Mile Falls Diversion. River flow occasionally can be totally diverted at Westland and Three Mile Falls Diversion Dams.” Id. at 7-4.

67. Antone Minthorn, CTUIR General Council Chairman, Testimony Before the Oregon Senate Committee on Water Policy 2-3 (Dec. 17, 1991) (on file with author) [hereinafter “Antone Minthorn, Testimony Before Or. Sen. Comm.”].

68. U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 2.

69. U.S. v. Winans, 198 U.S. 371, 381, 25 S. Ct. 662, 49 L. Ed. 1089 (1905).

70. See generally, Winters v. U.S., 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908); Ariz. v. Cal., 373 U.S. 546, 595-601, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963).

71. See supra note 55 and accompanying text.

72. Umatilla Irrigated Land Co., Inc., A Letter To Homeseekers, supra note 63, at 14-15.

73. See, e.g., Western Water Pol'y Review Advisory Comm'n, Water in the West: Challenge for the Next Century 3-48, 3-49, 3-50 (1998) [hereinafter W. Water Pol'y Comm'n] (listing the tribal water rights claims that have been settled and those that were in the process of formal negotiations, but not including those tribes who were still waiting for the Bureau of Indian Affairs' assistance to initiate the negotiation or litigation process).

74. W. Water Pol'y Comm'n, supra note 73, at 3-48 (quoting the National Resource Council 1996).

75. See, e.g., McCool, Daniel, Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water (Univ. Cal. Press 1994)Google Scholar; Fradkin, Philip L., A River No More: The Colorado River and the West (Univ. Ariz. Press 1981)Google Scholar.

76. See, e.g., Wilkinson, supra note 54, at 268; W. Water Pol'y Comm'n, supra note 73, at 3-45, 3-46, 5-39.

77. U.S. Const, art. VI. See also Lone Wolf v. Hitchcock, 187 U.S. 553, 566, 23 S. Ct. 216, 47 L. Ed. 299 (1903) and U.S. v. Dion, 476 U.S. 734, 740, 106 S. Ct. 2216, 90 L. Ed. 2d 767 (1986) (defining the very limited circumstances under which the United States may abrogate a treaty provision).

78. See, e.g., Seminole Nation v. U.S., 316 U.S. 286, 297, 62 S. Ct. 1049, 86 L. Ed. 1480 (1942).

79. See, e.g., wilkinson, supra note 54, at 268.

80. W. Water Policy Comm'n, supra note 73, at 3-46.

81. Id. at 3-51.

82. Id., quoting an EPA report.

83. Id. at 5-3 (1998).

84. Sen. Mark O. Hatfield, Statements on Introduced Bills and Joint Resolutions, The Umatilla Basin Project Completion Act, regarding S. 1986, 104th Cong., 2d Sess., 142 Cong. Rec. S8639 (July 24, 1996).

85. See, e.g., supra notes 1-2 and 6 and accompanying text.

86. “The catch, gear, and season restrictions of the nineteenth century, universally disregarded and sporadically enforced, were seen as a joke by fishers and enforcement officers alike. Willful violators were prosecuted only when a particularly objectionable violation was accompanied by publicity sufficient to make it hard to ignore.” Wilkinson, supra note 54, at 191.

87. See, e.g., id. at 187-92.

88. Id. at 191.

89. Id. 192-93.

90. See, e.g., id. at 196-98 (discussing the impact on Grand Coulee Dam and Hells Canyon Dam).

91. See, e.g., id. at 193-203; CTUIR Salmon Pol'Y, supra note 18, at § IV.B.

92. See, e.g., CTUIR Salmon Pol'y, supra note 18, at § II.

93. See, e.g., U.S. v. Winans, 198 U.S. 371, 381,25 S. Ct. 662,49 L. Ed. 1089 (1905).

94. “The impact of illegal regulation … and of illegal exclusionary tactics by non-Indians … in large measure accounts for the decline of the Indian fisheries during this century.” Wash. v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 669, n. 14, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979) (citations omitted). See also Puyallup Tribe v. Dep't Game, 414 U.S. 44,48 (1973).

95. Maison v. Confederated Tribes of the Umatilla Indian Reservation, 314 F.2d 169 (9th Cir. 1963), cert, denied, 375 U.S. 829, 84 S. Ct. 73, 11 L. Ed. 2d 60 (1963) (upholding the Tribes' treaty off-reservation fishing rights).

96. Sohappy v. Smith, 302 F.Supp. 899 (1969).

97. Id. at 910-11. The long line of cases, generally referred to as U.S. v. Or. began with the consolidation of U.S. v. Or., No. 68-513 (1969), and Sohappy v. Smith, No. 68-409 (1969). The original parties—the United States, the State of Oregon, the Confederated Tribes of the Warm Springs Reservation, the Confederated Tribes and Bands of the Yakama Indian Nation, the Confederated Tribes of the Umatilla Indian Reservation, and the Nez Perce Tribe—later were joined by the States of Washington and Idaho and the Shoshone Bannock Tribes. It was only in 2008 that most of the parties agreed to a ten-year management plan. See 2008-2017 U.S. v. Or. Mgmt. Agreement (May 2008), available at http:www.critfc.org/text/press/2008-17USvOR_Mngmt_Agrmt.pdf.

98. See, e.g., U.S. v. Wash., 384 F.Supp. 312 (W.D. WA 1974) (often referred to as the “Boldt” decision), and Wash. v. Wash. State Commercial Passenger Fishing Vessel Ass'n 443 U.S. 658, 672-74, 692-96, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979).

99. See, e.g., Wilkinson, Charles, Messages From Frank's Landing: A story of Salmon, Treaties and the Indian Way 32–63 (Univ. Wash Press 2000)Google Scholar

100. See, e.g., id. at 58-61.

101. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 696, n. 36 (quoting the court of appeals, Wash. v. Wash. State Commercial Passenger Fishing Vessel Ass'n 573 F 2d 1123,1126 (9th Cir. 1978)).

102. See, e.g., Puyallup Tribe v. Dep't Game, 391 U.S. 392, 399, 88 S. Ct. 1725, 20 L. Ed. 2d 689 (1968) (“[T]he ‘right’ to fish outside the reservation was a treaty ‘right’ that could not be qualified or conditioned by the State.”); Fishing Vessel Ass'n., 443 U.S. 679 (“In our view, the purpose and language of the treaties are unambiguous; they secure the Indians' right to take a share of each run of fish that passes through tribal fishing areas.”).

103. See supra notes 81-82 and accompanying text.

104. See supra notes 56-57 and accompanying text.

105. U.S. v. Adair, 723 F.2d 1394, 1413 (9th Cir. 1983), cert, denied sub nom. Or. v. U.S., 467 U.S. 1252, 104 S. Ct. 3536, 82 L. Ed. 2d 841 (1984).

106. Id. at 1414.

107. Id. at 1411.

108. Id. at 1410, n. 18.

109. Id. at 1411, n. 19.

110. U.S. Bur. Rec., UBP Draft. Env. Stmt., supra note 61, at 3-29, incorporated by reference into U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 3-1. See also id. at 1-4.

111. Cone, Joseph, A Common Fate: Endangered Salmon and the People of the Pacific Northwest 228 (Henry Holt & Co., Inc. 1995)Google Scholar (discussing the Umatilla Basin farmers' feelings about the existence of the Tribes' water rights).

112. Hadley Akins, Address at Conference sponsored by Columbia River inter-Tribal Fish Commission 41: Fulfilling Indian Water Rights: Practical Approaches, in Panel, The Umatilla Project: A Case Study of Success” (Dec. 16-17, 1986) (transcript of panel discussion on file with author).

113. See supra note 19 and accompanying text.

114. See supra note 33 and accompanying text.

115. See supra note 20 and accompanying text.

116. Antone Minthorn, Address, Watershed Initiatives—Umatilla Basin, at Conference, Sustainable Development and Natural Resources in the Columbia River Basin 1 (Nov. 3, 1994) (on file with author) [hereinafter “Antone Minthorn, Watershed Initiatives”]. See also Tirado, Michelle, The Salmon People: Tribes in Crisis, Am. Indian Rep. 12 (07 2000)Google Scholar (discussing the impact of declining salmon runs on the economies and cultures of the Pacific Northwest tribes).

117. Tamástslikt Cultural Institute, Cayuse, Umatilla & Walla Walla Homeland CD, supra note 30, at disk 2, track 8, 5:28 (Roberta Conner, Director, Tamástslikt Cultural Institute).

118. CTUIR Salmon Pol'y, supra note 18, at § III.A.

119. Interview with Louis Dick, CTUIR tribal leader, on Oregon Field Guide: Umatilla Salmon Project (No. 504) (Or. Public Broadcasting 1993), available at http://www.opb.Org/ofg/segments/view/l158.

120. CTUIR Water Code, supra note 21, at § 1:01.

121. See, e.g., supra notes 9-10 and accompanying text.

122. The Cayuse were especially feared by the newcomers to the region. See, e.g., Ruby, Robert H. & Brown, John A., The Cayuse Indians: Imperial Tribesmen of Old Oregon (Univ. Okla. Press 1972)Google Scholar (Vol. 120 in The Civilization of the American Indian series; a detailed account of the Cayuse people, from a non-Indian perspective); Josephy, Alvin M. Jr., The Nez Perce Indians and the Opening of the Northwest (Mariner Books 1997)Google Scholar (a detailed account, from a non-Indian perspective, of the Nez Perce people, who were close allies of the Cayuse and whose histories are intertwined). For a tribal perspective on the history of interrelations between the Tribes and the newcomers to this region, listen to, e.g., Tamástslikt Cultural Institute, Cayuse, Umatilla & Walla Walla Homeland CD, supra note 30 (includes excerpts of interviews and oral histories from several elders).

123. See supra Section III.

124. See supra Section II.

125. See, e.g., supra note 30 and accompanying text.

126. Antone Minthorn, Testimony Before Or. Sen. Comm., supra note 67, at 3.

127. Akins, supra note 112, at 40.

128. U.S. Bur. Rec., UBP Draft Env. Stmt., supra note 61, at 1-3, incorporated by reference into U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 1-1.

129. Or. Water Resource Dep't, supra note 59, at 32.

130. The Bureau of Reclamation, the Oregon Water Resources Department, the Oregon Fish and Wildlife Department, and the Bonneville Power Administration all became central participants, along with the Tribes and the irrigation districts. In addition, many other governmental agencies and bodies, as well as private groups, participated in this coalition.

131. See, e.g., U.S. Bur. Rec., UBP Final Envtl Stmt., supra note 14, at 2-1, 2-14—2-18. Because of the Tribes' strong interest in obtaining adequate flows in the Columbia River as well, this water rights exchange was designed as a “bucket for bucket exchange,” where, for every “bucket” of water that was withdrawn from the Columbia River at McNary Dam, an equal “bucket” of water would then flow back into the Columbia from the Umatilla River, thus affecting only a two mile stretch of the Columbia River.

132. Umatilla Basin Project Act, Pub. L. No. 100-557, 102 Stat. 2791 (codified at 16 U.S.C. § 1274 (1988)). Senator Mark Hatfield played a key leadership role in sponsoring the authorization for this project. In addition, significant funding from the Bonneville Power Administration, under the Columbia River Basin Fish and Wildlife Program, pays for the pumping costs associated with this project. Id. at § 204.

133. Antone Minthorn, Testimony Before Or. Sen. Comm., supra note 67, at 4.

134. WaterWatch of Or., Inc., Water Management Issues in the Umatilla River Basin 3 (06 1991 draft)Google Scholar (on file with author). See also Benson, Reed D. & Priestley, Kirnberley J., Making a Wrong Thing Right: Ending the “Spread” of Reclamation Project Water, 9 J. Envtl. L. & Litig. 89 (1994)Google Scholar (authored by WaterWatch attorneys, discussing their concerns over the water spreading problem, and using the Umatilla Basin as a case study).

135. See, e.g., Benson & Priestley, supra note 134, at 92-104.

136. U.S. Dep't of the Interior, Office of Inspector General, Audit Report: Irrigation of Ineligible Lands, Bureau of Reclamation, Rep. No. 94-1-930, at 4 (1994) [hereinafter Inspector General Audit Rep.].

137. Id. at 13.

138. Id. at 8.

139. For example, when Newsweek magazine featured a story on conflicts over natural resources in the West, it singled out the Umatilla Basin for praise. “Still, reconciliation is possible. Farmers and Native Americans in northeastern Oregon have agreed on a plan to restore salmon to the Umatilla River, which dries up in summer because of agricultural diversions.” Bill Turque et. al., The War for the West, newsweek, Sept. 30, 1991, at 18, 27-28.

140. No environmental groups had been included in the original Umatilla Basin Project coalition.

141. WaterWatch of Or., Inc., supra note 134.

142. Inspector General, Audit Rep., supra note 136, at 13. “An acre-foot of water is the quantity required to cover 1 acre of land to a depth of 1 foot. It is equal to approximately 326,000 gallons, or 43,560 cubic feet.” Id. at 6, n. 6.

143. U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 3.

144. Tribal members have the power to recall tribal leaders at any time, and thus to remove them from office. CTUIR Const. & Bylaws, art. V, §§ 2 & 6 (2008).

145. See, e.g., Antone Minthorn, Address Before the Or. Water Resources Comm. on Umatilla Basin Water Rights Application (Nov. 15, 1991) (requesting that the commission postpone the contested case hearing to allow the interested parties to try a formal mediation process) (on file with author); Cone, supra note 111, at 229-30 (describing this pivotal event).

146. On March 5, 1992, the parties signed the following agreements: Memorandum of Agreement (Bureau of Reclamation); Memorandum of Agreement (Hermiston Irrigation District); Memorandum of Agreement (Stanfield Irrigation District); Stipulation of the Parties, Before the Water Resources Department of Oregon, In the Matter of the Contested Case Proceeding on Protested Applications 71293 and T6621E for Use of Water from the Columbia River for Irrigation, in Place of Waters from, and to Enhance Flows and Anadromous Fish Migration in, McKay Creek and the Umatilla River, Umatilla Co. (Umatilla Project Phase II); draft State of Oregon Permit to Appropriate the Public Waters to the Bureau of Reclamation, approving application 71293 (permitting the diversion of water from the Columbia River for use in the Umatilla Basin Project Phase II exchange) (on file with author).

147. Enough Water for People, Crops, and Fish, 15 Consensus 1 (MIT-Harvard Public Disputes Program, Cambridge, MA), 07 1992Google Scholar. See also Cone, supra note 111, at 226-38 (discussing the Umatilla Basin Project and the water spreading controversy).

148. See, e.g., supra note 139.

149. See supra note 146.

150. The environmental review would be under the National Environmental Policy Act, 42 U.S.C. §4321 et seq.

151. See supra note 146.

152. Inspector General Audit Rep., supra note 136, at 5-6.

153. CTUIR Water Spreading Pol'y., supra note 27, at 1.

154. See, e.g., CTUIR Water Spreading Pol'y., supra note 27, at 2. See also Antone Minthorn, Chairman, Testimony Before the Subcomm. on Oversight & Investigations, H. Comm. on Natural Resources 7 (July 19, 1994). Supplemental Testimony of Chairman Antone Minthorn 1-2 (Aug. 2, 1994) (both on file with author).

155. Dan Beard, Comm'r of the Bureau of Reclamation, Remarks at the Water Spreading Task Force Meeting 3 (Feb. 8, 1994) (on file with author). See also Benson & Priestley, supra note 134, at 103-04.

156. See, e.g., supra notes 142, and 152 and accompanying text.

157. Water Spreading: Hearing Before the Subcomm. on Oversight & Investigations, H. Comm. on Natural Resources, 103d Cong. (1994) [hereinafter Water Spreading Hearing].

158. Staff of Subcomm. on Oversight & Investigations, Comm. on Natural Resources, 103d Cong., Report on Taking From the Taxpayer: Public Subsidies for Natural Resource Development 61-62 (1994) [hereinafter Staff of Subcomm. on Oversight & Investigations Rep.].

159. Antone Minthorn, Watershed Initiatives, supra note 116, at 6.

160. Staff of Subcomm. on Oversight & Investigations Rep., supra note 158.

161. Water Rights: Hearing on Water Rights Before the Subcomm. On Water and Power Resources, H. Comm. On Natural Resources, 104th Cong. (1995) (statement of Rep. Wes Cooley) [hereinafter Water Rights Hearing], reprinted in Internet Archive, http://www.archive.org/stream/waterrightsovers00unit/waterrightsovers00unit_djvu.txt.

162. H.R. Res. 2392,104th Cong. (1995).

163. Water Rights Hearing, supra note 161.

164. This time, the coalition supporting the Umatilla Basin Project did include environmental interests; and WaterWatch actively promoted the new bill. See infra note 165 and accompanying text. In addition, the City of Pendleton also actively participated in the coalition.

165. Senator Mark Hatfield introduced The Umatilla Basin Project Completion Act, S. 1986, 104th Cong., 2d Sess., Cong. Rec. S8639-41 (1996); with Representative Cooley reporting an amended bill as the companion bill from the House, H.R. Res. 2392, 104th Cong., 2d Sess. (1996).

166. 142 Cong.Rec. S12280-81 (Oct. 3, 1996) (statement of Sen. Mark Hatfield), quoting the Umatilla Basin Project Act, supra note 132.

167. Water Policy: Hearing Before the Oregon S. Comm. (1991) (Salem, Oregon)Google Scholar.

168. See supra notes 136, 142, 152,156 and accompanying text.

169. See supra note 155 and accompanying text

170. See supra note 158 and accompanying text.

171. Water Spreading Hearing, supra note 157; Water Rights Hearing, supra note 161; Hearing Before the Subcomm. on Forests and Public Land Management, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).

172. See supra notes 160-61 and accompanying text.

173. See, e.g., supra note 159 and accompanying text.

174. While committed to using collaborative negotiations to resolve issues, at times the Tribes have chosen to litigate to protect their salmon fishery and other treaty rights, and have been successful when they have done so. See, e.g., supra notes 95-97 (discussing Maison & U.S. v. Or.); Holcomb v. Confederated Tribes of the Umatilla Indian Reservation, 382 F.2d 1013 (9th Cir. 1967) (upholding the Tribes' treaty off-reservation hunting rights); Confederated Tribes of the Umatilla Indian Reservation v. Alexander, 440 F.Supp. 553 (1977) (obtaining a declaratory judgment essentially blocking a proposed U.S. Corps of Engineers dam in Catherine Creek, in the Grande Ronde watershed).

175. See supra notes 146, 149-51 and accompanying text.

176. In 2009, more than 27,000 salmonids returned to the Umatilla River. See Umatilla River Fish Counts, http://www.umatilla.nsn.us/fishcounts.html.

177. The Umatilla Basin Project's flow enhancement is expected ultimately to increase the total number of salmonids returning to the Umatilla Basin to over 30,000 annually. U.S. Bur. Rec., UBP Final Env. Stmt., supra note 14, at 7-27.

178. Id. at 2-51.

179. Id.

180. See, e.g., National Research Council, A New Era for Irrigation 159 (Nat'l Acad. Press 1996)Google Scholar; “Umatilla River Basin Project, Oregon,” Restoring the Waters 22–23 (Natural Resources L. Ctr., U. Colo. Seh. of L. 1997)Google Scholar; and in 2002, the Honoring Nations out of Harvard University's Kennedy School of Government awarded the Confederated Tribes of the Umatilla Indian Reservation High Honors for the Umatilla Basin Salmon Recovery Project.

181. 142 Cong. Rec. S8639-40 (1996) (statement of Sen. Hatfield).

182. A Success Story: Tribes Deserve a Lot of Credit for Returning Salmon to Umatilla, editorial, East Oregonian, June 9, 1999.

183. See, e.g., supra note 30 and accompanying text.

184. See, e.g., supra Section II.C.

185. See, e.g., supra note 126 and accompanying text.

186. See, e.g., supra Section II.B.