Tuesday, February 9, 2010

Hualapai Reservation north boundary; a comment (edited 7/11/10)

In working on the river maps to update them with respect to the GCNP boundary as established by the Grand Canyon National Park Enlargement Act of 1975, I want to stress that I am dealing with the Park boundary, set in that Act "on south shore" of the Colorado.

The Hualapai Reservation was established by Executive Order on Jan 4 1883. Its boundary description opens as follows: 
Beginning at a point on the Colorado River 5 miles eastward of Tinnakah Spring,    
and concludes as follows:
thence north 30 miles to the Colorado River, thence along said river to the place of beginning.
These are the only references in the E.O. to the River and to the northern Reservation boundary. So far as I know, there were no arguments or legal opinons or determinations or even claims about the meaning of the above language before 1947. Please note the triad of words: on   to   along.

The Hualapai have claimed that this language should be interpreted to mean the center of the river. Another interpretation is that the words "on", "to", and "along" mean only to the river itself, that is, to the water's edge, the river surface not being included. Still a third is that the Reservation stops at the historic highest water line of the flooding river.

As a matter to be interpreted, Congress could certainly resolve this ambiguity, in order to establish GCNP authority over river running use, one of the things Senator Goldwater wanted to accomplish when he set the legislative process moving in Dec 1972. Therefore the Park boundary was set "on south bank" so that the entire water surface of the river was in the Park.

Goldwater also did not want to take any Hualapai land without their approval, and this possiblity was covered by section 5 of the 1975 Act. 

What I want to emphasize here is that the language of the 1883 E.O. fits perfectly both before and after the 1975 Act. Before, the on-to-along triad of words left matters in ambiguity. After, the triad was specified and still makes complete sense.  As in
Beginning at a point on the south bank of the Colorado...then north 30 miles to the south bank of the Colorado River, thence along the south bank of said river.
No Hualapai territory has been taken, therefore; section 5 does not apply. Rather, a linguistic ambiguity has been made specific. And this is not a little or easy thing. As I look today at the phrase "on south bank", I can see how the Park Service made the mistake after the 1975 Act in claiming up to the high water mark, which would certainly have been taking Hualapai land. I believe NPS has educated itself on the 1975 Act and its history, and so no longer makes this claim; I hope not, since it would violate the intent and result of that Act. NPS has jurisdiction over the river = water surface, from the Paria junction to the Grand Canyon Cliffs. Along the Hualapai Reservation, all the land south (river left) of that water surface is Hualapai land.

To repeat, my goal on the river maps is to indicate the Park boundary includes all the river surface. And river runners should be made aware that from mile 164.8 to 273.1 (as specified in the 1975 Act) when they step on land to river left, they are on Hualapai land. That is the wet foot/dry foot doctrine.

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