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.
To
sum it up, Ingram notes "The common sense course for river runners then
is this: Following up on any advice that river runners may legally
carry on any recreational activities on the Hualapai shore between
water’s edge and any high-water-mark
puts those visitors at peril of Hualapai police and legal action if
they do not have a permit from the Tribe. Furthermore, and very
important: the National Park Service will not aid or support such river
runners in such trespass, no matter what the bureaucrats or their
lawyers claim about any high water line."
COMMON SENSE ON THE RIVER – AND OFF IT
History and Policy for the Left Bank of the Colorado River in Grand Canyon
Jeffrey Ingram December 24, 2018
The
Grand Canyon’s lands east and south of the Colorado River have four
major landlords. From the Canyon’s beginning at the Paria junction to
the Grand Wash Cliffs 277 miles downstream, they are the Navajo Nation,
the National Park Service (NPS), the Havasupai Tribe, and the Hualapai
Tribe, ending again with NPS, an agency of the federal Department of the
Interior.
Since
the matters I will be discussing involve the prickly matter of
sovereignty, it is necessary to recognize that in an important sense the
Navajo, Havasupai, and Hualapai have sovereignty over their lands,
though it is of course a jurisdiction and ownership granted by and
resting on the foundation of, the overall national sovereign, the United
States of America.
For
those involved in the protection and presentation of the Grand Canyon
as a natural and environmental icon of world-wide recognition and
concern, as well as for those interested in exploiting the Canyon for
their own short-term financial gain, recent years have seen intense
debate over actions that are inextricable from questions about
sovereignty, and thus inevitably, the boundaries that separate one
landlord’s jurisdiction from another’s.
I
have written at length about boundary matters in my on-line history
blog, “Celebrating the Grand Canyon”, at gcfutures.blogspot.com, under
the headings for Boundaries, Havasupai, Hualapai, Navajo, & The
Park. A century-and-a-half (and of course many centuries further in the
past) of political history have proven the Canyon to be a center of
charged affairs; charged with emotion, yes, but more significantly,
charged with importance for the question of how humanity conducts itself
in and for the world.
A
major example of such an affair – recently, and I hope finally, happily
concluded – was the question centered on Navajo land at the junction of
the Little Colorado and Colorado Rivers: Should the Navajo Nation
approve a tacky, greedy proposition for building a mass-industrial
tourist site that would irreparably damage this extraordinary part of
the Grand Canyon and be contrary to the benefit of the Navajo people,
solely for the enrichment of a few non-Navajo speculators? While the
question was presented in the arena of Navajo Nation government, clearly
it struck home in the hearts and minds of people, not just in the rest
of the United States, but across the world. And threaded throughout this
struggle were the intricacies of how this vital tract of Grand Canyon
heartland came under Navajo jurisdiction, decision-making, sovereignty.
A
minor example is the quiet acquisition by the Havasupai of National
Park land that includes Beaver Falls on Havasu Creek. At present,
paralyzed by a lack of agency leadership and coherence, the National
Park Service at the Park has taken no action to protect public access to
these Falls, allowing the Havasupai to either exclude the visiting
public or charge them a not-insignificant fee.
The Colorado River Boundary at the Hualapai Reservation and Grand Canyon National Park.
This
matter has been in contention most sharply since the enactment of the
Grand Canyon National Park Enlargement Act of 1975. I have reviewed much
of this question in several of my blog entries.
Recently,
the Hualapai have announced their intention of being more active in
issuing permits and collecting fees for use of their lands on the left
bank to camp, stop for meals and attractions, hike, and other such
activities. It is not at all clear how this intention will be carried
out, but it has resulted in discussion among some who raft the river as
to the legitimacy and extent of the Hualapai’s jurisdiction.
In
particular, the issue is raised by John Vrymoed in his paper “Colorado
River Historic High Water Level within the Grand Canyon”, 8 December
2018. From the beginning, Vrymoed makes clear his discussion is based on
his acceptance of pronouncements by Interior Department and NPS
officials (the “U.S.Government” in his words) that the boundary of the
National Park north of the Hualapai Reservation along the Colorado was
set at the historic high water mark. The bulk of Vrymoed’s paper is a
wonderful exploration of the Colorado’s activity as regards its flows in
flood and regular times. It is certainly worth a read for anyone
interested in the ins & outs of hydraulics.
However this exposition is irrelevant as to boundary matters, and Hualapai and NPS jurisdiction.
Based
on a historically false premise, Vrymoed’s conclusions and advice are
contrary to the interests of the public, river users, NPS, and the
Hualapai.
Some Untangling of the Law and Opinions
There
are two controlling sovereign decisions. The first established the
Hualapai Indian Reservation in 1883. The second extended the Grand
Canyon National Park Boundary in 1975. The first was a Presidential
action, an executive order by President Chester Arthur on 4 January
1883. The second was an Act of Congress, signed by President Gerald Ford
on 3 January 1975.
Here’s
what’s crucial: There are these two, and only two, such decisions.
There are no other formal adjudications or other actions fixing or
settling the boundary. There are opinions, claims, a fair amount of
bluster, and, fortunately, some relevant historical facts. In dealing
with these (what I called the “swamp” on the river), my goal has been to
present, in a legal, and as important, a common sensical, way, guidance
for the Park visitor. Naturally, I believe that my presence and
participation in the 1972-5 legislative effort that produced the 1975
Act is relevant. As an advocate (lobbyist) for the Grand Canyon,
representing and working with organizations that sought to further
protect it, I was involved in the decisions that set the boundary.
The
Hualapai are justifiably proud of the effort they started and persisted
in from the 1920’s into the 1940’s to gain title to their reservation,
by defeating claims from the Santa Fe railroad. Their success is a
credit to their own determination. That determination also showed in
their multi-faceted efforts over the decades to develop the resources of
their reservation for tribal benefit, one of which was to bring the
construction of a dam at the Bridge Canyon site, a goal they worked for,
off and on, from the 1930’s into the 1970’s. During much of this
period, they also pursued an Indian Claims Commission action to obtain
compensation for aboriginal lands not included in the reservation. My
point in this diversion is that the record shows they shaped their ICC
claim in alignment with their desire for benefits from the dam – a
desire that led them, all of a sudden in the 1950’s, to discover and
proclaim that their reservation went to the middle of the river.
Did
it? That answer starts with the President’s order. The reservation line
started “at a point on the Colorado River” then south, east, and north,
finishing by going “north thirty miles to the Colorado River; thence
along said river to the place of beginning”. (Vrymoed leaves out a
crucial phrase in his quote of the order.) “To” and “along” – that’s it.
Nothing about middles or water marks, high or low. But consider this:
Lieutenant
Palfrey of the Engineers Office, who wrote the Reservation description
and drew the line on the map and signed it, went down Peach Spring
Canyon, then Diamond Creek to the river. So he stood there, or sat on
his horse, and looked at the river. It was June. Did he look out and
fasten on the middle of the river as necessary for Hualapai prosperity?
Did he look up and about, to discover how high the river might come?
I
don’t think so. I think he just thought of the river flowing along as a
nice boundary line to mark off all those acres running south from
there, thousands of acres where the Hualapai had lived for generations.
And so he said the line would run from then around and on up to the
river, then back along it. Along its edge. He could have said “middle”
or “high water”, if he wanted; but it sufficed to describe a line “to
and along” the water’s edge – a good marker for the survey that was to
come.
And
that was good enough -- until 70 years later when the Hualapai and
their lawyers thought they could get a better dam deal by claiming to
the middle. Ok, claim away. But that claim has always been just that –
lawyer’s arguing in a brief, never approved, never adjudicated in court.
The Park Service and their lawyers
Merle
Stitt, Grand Canyon National Park Superintendent in the 1970’s, was a
nice guy, most of the time. He was also an agency man, a bureaucrat. I
tried, when the 1975 Park expansion bill was signed, to tell him what
Congress had done and why (see my blog post dated 2 Oct 2011). This was
necessary since NPS was not a major player in the legislative effort.
However,
unbeknownst to me, and for reasons I never learned, when the Hualapai
and their lawyers came to visit him in 1975, Stitt asserted that the
Park boundary went to the “historic high water line”, an unjustified
statement that immediately caused an uproar as the Hualapai rushed
around trying to get this repudiated by, particularly, Senator
Goldwater, the Park bill’s initiator. The best they could get was a
reminder that the Park Act stated it did not take any land “held in
trust for any Indian tribe or nation”. Unless that tribe or nation
approved – Ha. Ha. Ha.
Of
course, this begged the question given the situation that their land
went “to and along” the river, not to the middle, and they wanted NPS to
accept that. Didn’t happen. Indeed, Stitt, backed up later by
departmental lawyers’ opinions, had way over-reached, climbing the
Canyon walls to attach his new boundary way up high. Which, of course,
is just the point. The Park would never want to, be bothered to, or
dare, to establish a boundary ON the land, its cliffs, canyons, etc., no
matter what it might CLAIM. (Two claims don’t make a Right, either.)
That would be quite a border wall. So Stitt’s assertion -– I was told by
another NPS official that it was just a business-as-usual assumption —,
was contrary to the Park Act’s intent and just bureaucratic
chest-beating. Not the only time NPS ignored its laws.
In
late 1972, the hottest issue over the Canyon was the runaway,
environmentally destructive, business of commercial motor-rafting.
Senator Barry Goldwater of Arizona, a long-time user and lover of the
Grand Canyon was getting ready to push legislation to, among other
goals, change the Grand Canyon National Park (GCNP) boundaries,
consolidate units, and prevent any more dam talk. Alerted to the river
situation, he added relevant items to his list. To start things off, he
called a river-Park meeting of interested parties at his home in
December, including officials and advocates. He was emphatic about his
desire to consolidate control over river traffic in one agency, namely
NPS. He wanted a single set of rules and procedures, and an end to
anything-goes rafting. (Almost entirely commercial boats; NPS had been
discouraging non-commercial, DIY, private river-runners for years.) But
note that: river traffic. coupled with his other ideas was Goldwater’s
assurance to the Hualapai and Navajo that none of their land would be
taken without their approval.
As
it turned out, Goldwater was not well served by his chief bill-drafter.
Consequently, as advocates of a Park as appropriate to the Canyon as
possible, we worked more closely with Congressman Morris Udall in
crafting a better bill. Any ambiguity in the new Park boundary along the
Hualapai Reservation was resolved by placing the river boundary “on the
south bank” without qualification. (There had been other proposals
previously, such as dealing with the riverbed.) Congressional intent was
emphasized that the “entire” river, “all of its water surface”, should
be studied for wilderness. (NPS did, two years later, propose the river
be included in Grand Canyon Wilderness.) The entire stretch of the
Colorado in the Park would be under NPS administration.
Never
did we imagine, in consolidating river jurisdiction under GCNP, that a
clueless Superintendent would then start over-reaching, and claim to the
historic high water mark. There is a further consideration here, for
those of us with a bit of sense. Glen Canyon dam had been regulating
river flow for a decade. Had the subject come up during congressional
consideration, that regulated flow – today’s diurnal up & down --
certainly would have been the river regime considered. No way would NPS
have been given Hualapai land just because now and again it had been
flooded. What Superintendent will assert jurisdiction over the Diamond
Creek landing?
Congress
did not intend such agency over-reach into a more distant past. Just as
Congress settled any ambiguity about the Hualapai claim to a mythical
river middle, beyond “to and along” the river. The point was to leave
the Hualapai with their land, and to hand regulation of river traffic
completely to NPS.
Can Common Sense Prevail?
Contrary
to their attorney’s advice, in the 1990’s the Hualapai appealed to the
Interior Solicitor to reconsider the 1976 regional solicitor’s opinion
on the middle of the river question. No dice. Perhaps that had some
influence on a later more hopeful development. NPS and the Hualapai
decided in 2000 to work together on matters affecting river running.
They set up regular meetings of the officials concerned, with the
explicit understanding that there was a dispute over the boundary, but
they would commit themselves to “mutual management” of an “Area of
Cooperation” that went from mile 164.5 to Pearce Ferry and across the
river from high water mark to high water mark. (Which is to say, they
agreed to ignore what Congress had intended on either issue, so maybe no
rights do make a wrong.) The meetings were successful for several
years, but ended after a change in Hualapai government. An ambiguous
answer to the question above.
The
Hualapai don’t own the water. The Park doesn’t own any of the Hualapai
bank, mile 164.5 to 273.3. That’s what Congress intended and approved in
the 1975 Act. And the simple formula to carry out that intention is the
wet-foot/dry-foot doctrine: If you are on a boat on the Colorado in the
Park (Paria junction to Grand Wash Cliffs), and you put your foot over
and it lands in water, you are under NPS jurisdiction. However, if you
put your feet over along the Hualapai bank and they don’t splash, the
Hualapai government is the one to worry about. (By the way, the same is
true along the Navajo boundary, which also comes down to the river – but
so far, they don’t seem to care.)
The common sense course for river runners then is this:
Following
up on any advice that river runners may legally carry on any
recreational activities on the Hualapai shore between water’s edge and
any high-water-mark puts those visitors at peril of Hualapai police and
legal action if they do not have a permit from the Tribe.
Furthermore,
and very important: the National Park Service will not aid or support
such river runners in such trespass, no matter what the bureaucrats or
their lawyers claim about any high water line.
The
stretch of the Colorado along the Hualapai Reservation from the river
middle to the maximal high water line should never be the scene of legal
trouble for any river runner using common sense and following the “wet
foot / dry foot” doctrine.
