Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Trump Signs DeFazio-Walden-Wyden-Merkley Bill Giving Away 50 Square Miles of Federal Public Land in Oregon

A bill that gives away 32,261 acres of federal public land in Oregon’s Coos and Douglas Counties, formerly administered by the Bureau of Land Management, has been signed into law by President Donald Trump. H.R.1306 was proudly sponsored by Representatives Peter DeFazio (D-4th-OR) and Greg Walden (R-2nd-OR), and the identical S.508 was sponsored by Senators Ron Wyden and Jeff Merkley. The new owners are expected to intensively log and road their new holdings.

What Was Lost to Public Ownership

According to an analysis done by Oregon Wild in 2013, of the acreage lost to public ownership,

·     ~16,000 acres were either riparian or late-successional conservation reserves;

·     11,100 acres are (but not for long) older (mature and old-growth) forests, some stands of which are 420 years old;

·     much is critical habitat for the Endangered Species Act–protected Oregon coho salmon and northern spotted owl; and

·     much is habitat for winter steelhead, fall chinook salmon, and coho salmon.

The acreage also includes a designated BLM recreation area. Giving it away fragments important habitat concentrations and migration corridors between and within the Coast and Cascade Ranges.

No appraisal of the federal public lands was done before disposal, but given the significant amount of standing older forest on the lands, their timber productivity, and other factors, a valuation of $5,000 per acre is a reasonable guestimate, for a total of ~$161 million.

By now you’ve probably noticed that I haven’t told you who the new owners are. I had my reasons.

The new owners are the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CLUS Tribes) and the Cow Creek Band of Umpqua Tribe of Indians (Maps 1 and 2).

Now, did learning who the new owners are mitigate—or even obviate—the outrage you were just feeling? In my view, it should not have.

Conservation Organizations: Missing in Action or in Active Support

Where was the public lands conservation community in all this? If any public land were to be given away to any entity other than Native American tribes, total outrage would ensue. By my lights, conservation organizations either

• were opposed but knew they were going to get rolled politically so didn’t make it an issue,

• were conspicuously neutral (in politics, neutrality is acquiescence), or

• actively supported the giveaway.

Those that were opposed were politically pragmatic. There is white liberal guilt aplenty about the treatment of Native Americans in Oregon (and rightfully so). The Democrats who supported this legislation came down on the side of Native Americans and, in this case, against nature. As for the Republicans who supported the bill, it was more a matter of it being a politically elegant way to effectively privatize the lands. “But they were tribalized, not privatized,” you say. From the standpoint of the environmental impacts of logging the hell out of these lands, tribalization versus privatization is a distinction without a difference. If one examines other tribal forests in western Oregon, they look much more like industrial private timberlands than federal public forestlands.

Some organizations chose neutrality if for no other reason than that their leadership didn’t want blowback from some of their members and donors who, if they had to choose, would favor tribal ownership over public ownership. They are not one and the same. Federal public lands are owned by all Americans, including Native Americans. Tribal lands are held in trust for the benefit of tribal members. The interests of a member of a tribe and other members of the public are not the same.

Some organizations actively supported the giveaway. Such support in light of their otherwise zealous advocacy for nature can only be seen in the light of white guilt.

You may want to ask your favor public lands conservation organization that focuses on western Oregon just where it did stand.

Conquest of Native Tribes in Oregon and the Beginning of Reparations

All of the land under all of the houses, farms, forests, factories, schools, roads, skyscrapers, docks, and every other kind of land use in Oregon, be it public or private, was once owned by Native Americans. Through a long and sordid history of conquest, either by the force of arms or disease, Native Americans in western Oregon and elsewhere were nearly wiped out. Those who survived were driven to various reservations. As these reservation lands became valuable to European invaders, they were often shrunk or eliminated. 

In the 1950s, the termination policy of the Eisenhower administration resulted in the loss of official tribal status for many small tribes (including several in western Oregon), often without a reservation or a reservation of any significant amount of land. Notably, three large tribes were terminated: the Klamath and Siletz Tribes in Oregon and the Menominee Tribe in Wisconsin. Not coincidentally, these three tribes had large reservations with large amounts of forest. Along with termination of tribal status came liquidation of the reservations.

In the latter twentieth century, largely due to the leadership of then US Senator Mark Hatfield (R-OR), the tribal status of the terminated tribes in western Oregon was restored. Relatively soon afterward came legislation transferring relatively modest and usually isolated parcels of BLM lands to restored tribes. At the time, I favored these relatively small losses of federal public lands in Oregon because they offset at least a small portion of the huge injustice suffered by the Confederated Tribes of Siletz Indians and the Confederated Tribes of the Grande Ronde Community.

Until this year, the last such transfer of federal public lands to any western Oregon tribe was in 1996 to the Coquille Indian Tribe. In that case, Senator Hatfield’s legislation included provisions intended to encourage responsible logging of the new Coquille Tribal Forest. The DeFazio-Walden-Wyden-Merkley bill contained none of that legislative language. The Coquille transfer of land was in a package of public lands legislation that included some very good things, including but not limited to the establishment of the Opal Creek Wilderness and Scenic Recreation Area. By contrast, there was no quid pro quo in the bill that Trump signed in 2018.

Each successive transfer of federal public lands to the restored western Oregon tribes has been progressively larger in acreage. One proposal in 2007, by the Klamath Tribes, would have returned ~700,000 acres of the Klamath Marsh National Wildlife Refuge and the Fremont-Winema National Forest to the tribes. Overreach killed that proposal, but I fear it will return, emboldened by the recent success of the two other Oregon tribes. At the time, the Wilderness Society fully supported the transfer out of federal public ownership of ~1,100 square miles of federal public land. It should be noted that the Klamath Tribes were compensated in the early 1960s for the loss of their reservation lands, about half of which became federal public lands. It is also quite questionable whether the amount of compensation was enough to be constitutionally just, but that is best resolved in the U.S. Court of Claims.

A Better Way to Compensate Native Tribes

It is a given: Native American tribes were totally screwed by the United States, the individual states, and all individuals who have ever lived, live, or will ever live in the United States who are not Native American. It is also likely that the injustice will never be, and never could be, adequately addressed. This doesn’t mean that Native Americans should not be more fully compensated for their loss than they have been. But such compensation should not come at the cost of losing federal public lands of benefit to all Americans.

In the society that won out in that struggle for a continent, the most common way to right wrongs is by money being transferred to the aggrieved parties from the parties that unjustly benefited. Such should have been the case here and should be the case for future settlements. The United States should have given ~$161 million in cash to the aggrieved tribes to use as they saw fit. The tribes might have used that money to buy private timberlands and convert them to tribal forestlands. They might have invested the money in trust for tribal members. They might have split it up among themselves. It should have been their choice.

I completely understand Native American tribes wanting America’s public lands—if not all of America’s land, including private lands upon which each and every artifact of civilization lies. The claims of Native Americans to every acre of America’s federal public lands is as valid as for every acre of America’s private lands. But the currency of compensation by the United States to Native American tribes ought to be the currency of dollars, not that of the irreplaceable and precious public lands that belong to all of us.

Map 1.  Federal public lands given to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians . Source:  Committee on Natural Resources of the US House of Representatives .

Map 1. Federal public lands given to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians. Source: Committee on Natural Resources of the US House of Representatives.

Map 2.  Federal public lands given to the Cow Creek Band of Umpqua Tribe of Indians . Source:  Committee on Natural Resources of the US House of Representatives .

Map 2. Federal public lands given to the Cow Creek Band of Umpqua Tribe of Indians. Source: Committee on Natural Resources of the US House of Representatives.

(Author’s Note: In my last Public Lands Blog post, “Tipping Over Old-Growth Trees in the Name of Salmonid Conservation,” I inaccurately characterized a paper by Lee E. Benda, S. E. Litschert, Gordon Reeves, and Robert Pabst entitled “Thinning and In-Stream Wood Recruitment in Riparian Second Growth Forests in Coastal Oregon and the Use of Buffers and Tree Tipping as Mitigation” [available here without cost]. The paper was limited to the potential benefits of tree tipping in monoculture plantations and isn’t applicable to the situation along the Calapooia River. I apologize to the authors.)