National Park Jurisdiction Along the Hualapai Reservation
By Jeff Ingram
Jeff
Ingram helped craft legislation passed in 1975 to enlarge Grand Canyon
National Park and the Havasupai Reservation. West of the Havasupai
Reservation, the 1975 Act strove to take no lands from the Hualapai
Ration. Jeff still ponders the effects of the legislation to this day.
The following was recently written by Jeff after receiving some
questions about the boundary of the Park.
Let’s
see what we know. The Hualapai claimed the riverbed out to the middle
of the river. The history of the 1975 Grand Canyon National Park
Enlargement Act includes the desire of the principal sponsor to 1. unify
administration and jurisdiction over river traffic in the Park Service
at GCNP, and 2. to have nothing in the Act that would take Hualapai land
without their agreement. The Act aimed to resolve any ambiguity in the
1883 Executive Order, and thus placed the Park boundary on the south
bank, running along adjacent to the Hualapai boundary. Later on,
(1976/1997), the Interior Solicitors said their opinion on the Hualapai
claim was that “no”, the boundary did not go to the middle of the river;
and in their opinion the 1883 Executive Order set the boundary at the
high water level along the river.
It
is my opinion that reconciling any ambiguity raised by the two desires
of the sponsor means that “high water level” must be construed to favor
the Hualapai and thus take none of the south bank above the high-water
level as marked by the usual diurnal rise and fall of the river caused
by normal operation of Glen Canyon dam. This point is reinforced because
that is the high-water level at the time the Park boundary was set by
the 1975 Act, as the sponsor knew. This construction is further
reinforced by Hualapai-controlled riverside activities such as the
Whitmore helispot and use of Diamond Creek beach. The sponsors, I am
sure, would have been strongly negative about the Park Service asserting
jurisdiction over the south bank to that extent.
We
are left then with river traffic use of rocks and trees along the shore
to tie up and scout the river ahead being a legitimate use for river
traffic. Beyond that, lunch stops (which can include moving away from
the river, up the beach), overnight camps, hiking etc., are all to be
construed as taking place on Hualapai land and therefore are under their
jurisdiction. This, of course, also includes the Whitmore helispot and
Diamond Creek beach. That is, if the Hualapai wish river travelers to
secure a permit and to pay for the privilege for stops of the latter
sorts, it is their right as the landowners (sovereigns) to do so. I
firmly believe this would be the opinion of the sponsors of the
legislation, based on my memory of conversations, meetings, and actions
with them and their staffs in the 1972-5 period of the legislative
history.
While
it is true that referring to the high-water level in 1883 can be
defended in some strict sense of the law, such an interpretation runs
counter to the 1975 Act and the 1883 Executive Order when they are
construed in favor of the Hualapai. Bluntly put, to insist on an 1883
high water line would be theft of the Hualapai’s land, given the
history. It is enough to deny their claim out into the river; we need
not then turn around and advance beyond the river’s edge to stake any
larger claim to their territory.
I
was reinforced in this point by something I came across, traced back
across the centuries to the Institutes of Justinian in the 6th century:
The
public use of the banks of a river, as of the river itself, is part of
the law of nations; consequently every one is entitled to bring his
vessel to the bank, and fasten cables to the trees growing there, and
use it as a resting place for the cargo, as freely as he may navigate
the river itself. But the ownership of the bank is in the owner of the
adjoining land, and consequently so too is the ownership of the trees
which grow upon it.
No
one therefore is forbidden access to the sea¬shore, provided he
abstains from injury to houses, monuments, and buildings generally; for
these are not, like the sea itself, subject to the law of nations.
This may sound antiquarian, but the principle of it has lasted.
The
administration of Grand Canyon National Park would be well advised to
follow the intent of the 1975 Act and previous initiatives of Park
administrators and seek to work with the Hualapai for harmonious and
pro-environmental oversight of use of the Colorado River in Grand
Canyon.