Monday, July 19, 2010

GCNP Boundary: B. Navajo 2, The Park, the power, and a digression to the point

We have the establishment of a west boundary for the Navajo on the Colorado as a national purpose (1900 & 1933). 

Another such purpose was certainly protection and presentation of the Grand Canyon within the National Park System. For convenience we will refer to the entire reach, or partial tracts, as Marble Canyon or just Marble.

We must also look at the federal power withdrawals and reservations along the river that were made in 1914-20, and interpreted in later orders. Hydro power development, too, was made a national purpose. These two purposes were brought into conjunction in the Navajo Boundary Act of 1934, at a time when the Park possibilities for Marble were dormant.

The original Powell-Harrison attempt at a Park and the consequent Forest Reserve, included Marble lands. So did the Monument of 1908 and the Park line of 1919. Then, the adjustments in 1927 took the Marble lands out of the Park beyond the river banks.* Those ex-Park lands were first restored to the Forest Service, then put in the Navajo IR in 1930.**  The Park interest in the east side of Marble was extinguished, with NPS agreement and without any idea of lands in return. 

Revival came when the great national conflict of Canyon purposes between electricity and preservation was resolved in 1968, first as legislation reserved dam authorization to Congress, and then by Presidential proclamation of Marble Canyon National Monument by President Johnson on 20 Jan 1969.  Here is the relevant boundary description (the first "thence" puts it just south of Navajo Bridge):

Thence easterly along the north line of T39N, R7E, to its intersection with the western boundary of the Navajo Indian Reservations as prescribed by the act of June 14, 1934 (48 Stat. 960).  
Thence in a generally southerly direction along the western boundary of the Navajo Indian Reservation (which is described by the act of June 14, 1934, as the south bank of the Colorado River to its confluence with the Little Colorado River, excluding from the reservation all lands designated by the Secretary of the Interior pursuant to section 28 of the Arizona Enabling Act of June 20, 1910 (36 Stat. 575), as being valuable for water-power purposes and all lands withdrawn or classified as power site lands)*** 
to its intersection with the eastward extension of the boundary line of the Grand Canyon National Park in the SW1/4SW1/4 of sec. 27, T34N, R5E, unsurveyed;
Thence westerly along the said eastward extension of the boundary line and the existing boundary of the GCNP to the Point of Beginning
Beginning at a point in the NE1/4NE1/4 of sec. 29, T34 N, R. 5 E., unsurveyed, said point being the intersection of the boundary of the GCNP and the west rim line of Marble Canyon.

I moved the start of the description to the end here to join it up. A quick read of this "legal" description, however, underlines how a well-drawn line on a properly scaled map can be just as definitive as these township descriptions: "unsurveyed"? "a point in" NE1/4NE1/4, which equals 40 acres? Not to mention other parts, e.g. "northerly along the north south center line of secs. 9 and 4 to a point 500' north of the rim of the aforesaid unnamed canyon, said point being approximately 830' north of the south quarter corner thereof". Give me a line on a decent topo map anytime. However, here is what NPS map drawers provided. I added the west-side green line.

Marble CNM was not to have a long life, though it was in existence in the boom years of increasing river running. With the 1975 GCNP Act, Marble was abolished. The west side line was set "on canyon rim" (Segment P).  

Here again is the language for east Marble from the official GCNP Act map: "Marble Canyon East: Proposed Boundary on canyon rim; NOTE Subject to concurrence of the Navajo Nation". Further, section 3a of the Act says that the Park lands are added "subject to any valid existing rights under the Navajo Boundary Act of 1934". Which is a bit of a hoot, since as we shall see, and as we should have come to expect, the valid existing rights are preferentially Arizona's rights as far as the water power withdrawals, and then Navajo use and occupancy of the Canyon. 

Let me re-state the issue: Establishing a western Navajo boundary that went to the Colorado River was a national purpose. Making the southern part of Marble part of GCNP was, until 1927, a national purpose, which purpose was revived in 1969, but was circumscribed by reference to the 1934 Navajo Boundary Act. That qualification was made even more explicit in the 1975 Act, when the boundary was placed on the eastern rim, subject both to the 1934 Act and, where that Act was not involved, only with the Navajo's agreement. 

Again, let me repeat, none of this ambiguity applies to jurisdiction over the river, which was never placed in the Navajo IR. 

So where is the boundary? The Park at minimum includes the river. In 35 years, the Navajo have made no move to offer any land, nor so far as I know has GCNP requested any, for the Park. On its face, it is a dubious proposition, and I will explore this in a digression at the end. So there we are floating down the river in the Park looking up toward the rim with its Navajo owners looking down. What is between us? To whom does the land covered by those old, now meaningless, withdrawals belong? Lets see whether  the 1934 Act changed anything.

We left the Navajo western boundary along the river, as provided in a 1900 Executive Order and the Act of May 23, 1930. As late as 1933, the Navajo were adding to their reservation in this general area, as whitefolk sheepmen were leaving. Something prompted Senator Hayden, Chief Protector of Arizona Interests for over 50 years, to legislate "to define the exterior boundaries of the Navajo Indian Reservation in Arizona, and for other purposes". It starts off by describing the exterior boundary as running west on the line between Utah and Arizona 
to a point where said boundary line intersects the Colorado River; thence down the south bank of that stream to its confluence with the Little Colorado River; thence following the north bank of the Little Colorado River to a point opposite the east boundary of the GCNP; thence south along said east boundary to the southeast corner of section 5, T30N, R6E.

Clear enough; it reinforces previous federal actions putting the boundary along the river. Then we get

There are hereby excluded from the reservation as above defined all lands heretofore designated by the Secretary of the Interior pursuant to section 28 of the Arizona Enabling Act of June 20, 1910 ( 36 Stat.L. 575) as being valuable for water-power purposes and all lands withdrawn or classified as power-site lands
STOP. Isnt there at least some qualm here? The lands had been put in the Reservation. Now, putatively, they were to be taken away? Which kind of reservation/withdrawal/ designation trumps which? Does the Secretary's order override the President's?
It continues:

saving to the Indians, nevertheless, the exclusive right to occupy and use such designated and classified lands until they shall be required for power purposes

STOP. Now Congress has the power,yes. But first the Act subordinates Navajo priority to water-power, then it recognizes their "exclusive" use, i.e., nobody else has a claim. (Certainly not the Park, I am sorry to say, since NPS, with no vision of a more complete Park including Marble, had abandoned its foothold.) And who decides "required"? The Grand Canyon dams were never (as in NEVER) required for anything, unless endless mindless economic expansion is something "required" for humans. (Yes, and maybe it is; the answer is certainly not in yet, and the Canyon being a symbol of that is why I am writing all this.) What the Act meant was that Congress or the Federal Power Commission could take the canyon for hydro-power, regardless of Navajo rights. I do understand, the sovereign rules. 

It continues:
or other uses under the authority of the United States
Some have argued (See A. Majeske at the first Grand Canyon History Symposium, Jan 2002: "Parens Patria: Issues Relating to the Colorado River Boundary between GCNP, the Hualapai Reservation and the Navajo Nation") that in the context of the Act, these other uses could only be ones related to hydro-power. I consider this naive. This kind of language is included in all kinds of acts where Congress or executive order-makers are covering their bets as far as the future is concerned. It quite simply means that if Congress and the Secretary of Defense had decided that there would be a bombing range with targets plastered on the east wall of Marble--1000 points if you get one in Redwall Cavern--this law allows that if the lands are so required. (You laugh, but military jets used to fly up and down the Canyon at will. I well remember sitting out on Horseshoe Mesa and watching, HEARING, one go by -- below me.) 

The 1934 Act continues by saying the Navajo shall receive no benefit from any water-power development, The State of Arizona, however, can benefit as if the Navajo lands were vacant. Typical Hayden-- an Arizona, not a Navajo, bill. But anyway, what is the effect of all this? There are two points I see relevant in 2010:
1. Whatever the withdrawals delineate, it will be some line wandering along the cliffs and talus of Marble, and utterly unidentifiable on the ground. Not worthwhile fencing or patrolling or defacing in any other way, a meaningless artifact of a bygone era.
2. And that is the second point. Grand Canyon hydro-power is gone: POOF! All the huffing and puffing is, today, lost in the past. Had hydro never been thought of, the land would have gone to the Navajo. Including a piece from the Park, with NPS approval. With the disappearance of the hydro-fantasy, the 1934 provisions dissolve in a wet tissue of irrelevance. This was emphasized by the revocation of the power withdrawals in the Johnson's Proclamation 3889 of MCNM. For anyone to use the "or other uses" clause to claim the land for the Park is to commit a moral injustice and a legal-political error with willful disregard of the historical record. Indeed, isnt the "other use required" really that of establishing the integrity of the Navajo lands down to the river? 

If it helps, remember that Marble CNM was proclaimed, politically, as a further stake in the heart of the sucking dams, another artifact of that bygone scheme. Yes, Marble Canyon is an integral part of the Grand Canyon; its prelude and introduction. And the west side and the river are part of the Park. The Navajo recognize Marble's park-worthiness, too; decades ago they declared tribal parks for their side of the Canyon and for the Little Colorado, thereby moving even farther away, if possible, from any need or possibility of their concurring to a cession of land to NPS. In 1973 as reinforcement, the Navajo changed the name to  Marble Canyon Navajo Tribal Park, and issued a set of guidelines for the MCNTP's operation. So even though the United States has the authority to use the withdrawn lands for "other required uses", there are none. Congress has insured that only it has the power, ever, to authorize a dam. And Marble is not "required" for GCNP any more than the Hualapai lands are so "required". (As for the Havasupai lands repatriated in 1975 from the Park, GCNP needed them so little that the Havasupai have been able to handle them without any damage to the Park.) Even had NPS worked with its fellow Canyon land-owners over the decades in a large-scale program of interpretation of the entire Canyon, that would not argue for re-gaining all or part of Marble. And in fact, NPS has substantially ignored the great sweeps of the Canyon that the Superintendent cannot reach by a walk from his office.

Therefore, I believe it important to state categorically that the very thin legal-political justification for taking into the Park some of the east side of Marble beyond the river fails and falls under the weight of history, realities, and Navajo rights and actions. The western boundary of the Navajo Indian Reservation / Nation goes to the east edge of the Colorado River in Marble Canyon.

That is, for better or worse, the Navajo vision is the one to prevail for this segment of the Grand Canyon. Just as the NPS (and concessionaires') vision prevails at Grand Canyon Village.

And there is an idea floating about, that the Navajo are thinking of some sort of activity along Marble involving boats and helicopters (It was done in the 1960-70's). Those of us who prize Marble's naturalness may regret this, and hope any such operation will not be intrusive or destructive. One thing we do know is that we cannot look to NPS for any leadership. What indeed would the Park do, if the Navajo began running wilderness-friendly trips down the 60 miles from the Paria to LCR, with stops on its land at Redwall Cavern, Silver Grotto, etc.? NPS says it would evaluate such action "in light of the (river management) plan's requirements". It adds it is "open to cooperating" on economic development, too. Too bad it has never done so, and worse that it has never been open to cooperating on legitimate Park purposes.

Which leads me to the digression. When Senator Goldwater introduced his Park expansion bill in 1973, he was very proud of section 6, which authorizes and encourages the Secretary (i.e., NPS at GCNP) to work out agreements with other agencies and "interested Indian tribes" for the protection and interpretation of the Grand Canyon.  Further authorized were the cooperative development and operation of interpretive facilities and programs on lands and waters outside the park. 

The idea was to get the Superintendent and his staff out of the Park and working with, e.g., tribal councils on ideas and projects. What might have happened, what benefits might have grown our of such cooperation, we will never know, for NPS refuses to carry out this provision. Had it been doing such cooperation over the past 35 years, no doubt there would not be any problem about east Marble's status. But surely, given that NPS has ignored the cooperative possibilities with the Navajo and given their Tribal Parks as evidence of good will toward the Canyon, there is even more justification for considering the "concurrence" option a thoroughly dead and unrequired letter. The Navajo boundary runs down to the river, as it has since 1900 & 1930.

Lets move on.

*Is it worth mentioning that the bank of the river and the rim of the canyon are two different concepts? There are cliffs where they might "coincide", but use of the term "bank" does not argue for inclusion of the canyon rim in general.
**Is it worth mentioning that I dont find in my research notes any reference to anyone opposing this Park deletion? It might be compared to the fight we waged in 1973 to keep Kanab Plateau lands in the Park that hunters and grazers wanted to delete.
***The Proclamation of Marble CNM did two incompatible things: revoke the water power withdrawals, and then re-invoke them as the boundary for the NM. Did not the drafters know that when you stake a vampire, it shrivels into dust and disappears?

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