Wednesday, July 27, 2011

Explicating Section 10 of Public Law 93-620

P.L. 93-620 repatriated about 185 Kac to the Havasupai, a minimal kind of correction of a 100-year-old error. This was not a gift, but a hard-won achievement of the Havasupai and their allies. Hard-won, because the opponents were many and determined, and some of the congressional supporters equivocal. So much so that right up to the final weeks and days of the 93rd Congress, roadblocks were offered and changes made. The first year of that Congress had been a waste from the Havasupai perspective, leaving their prospects as gloomy as ever: Promises, promises; empty hands, empty hands.

Senator Goldwater's original bill did grant land, and with few restrictions. In the face of widespread disapproval (including, I believe, from within his own office), he gave up his effort, and the legislation as it went through the stages of Senate passage and consideration by the House Parks subcommittee was nugatory for the Havasupai.

This was all changed by the Havasupai campaign under the generalship of attorney Joe Sparks. The details of that story are yet to be set down, though Stephen Hirst's books tell it overall. In legislative essence, what happened is that in the spring of 1974, Representative Morris Udall, chief mover and shaker in the House for this Grand Canyon/Havasupai bill, was persuaded of the rightness of the Havasupai cause, while also remaining alert to the arguments of those who worried about what the Havasupai might do on the repatriated lands. Therefore, his, and his staff's, task was to grant the land, hedged about with restrictions that would allow the Havasupai to do what they said they wanted to do, but bar development adverse to the land's Park-worthiness; development, that is, of the exploitative type usually associated with schemes proposed by non-Havasupai. How to accomplish such potentially clashing goals?

To see, lets go through the law and conference report reproduced in my previous post. Subsection (a), section 10 of P.L. 93-620, declares 185 Kac to be held in trust for the Havasupai, as shown on a map. And then, in case the map is not clear, "delineates" a line ¼-mile back from the "rim of the outer gorge". Why this setback? I believe it was Udall's idea, to reassure defenders of the Park. With that margin, the Havasupai would not be able to do what the whitefolk had done at Grand Canyon Village (and the Hualapai have done since) and build hotels, trinket shops, and other tourist-handling structures right on the rim. In other words, why should we trust you, Havasupai, when even we mess things up? 

The land having been granted, subsection (b) goes on to set forth the do's and the dont-you-try's. (1) incorporates the Havasupai claim that they wanted the land only for purposes they pursued from time immemorial. This was a central theme in the repatriation case, tying 1970's claims back to the way of life that had been disrupted by the constraint introduced in the 1880's. We do not want to exploit the land in the whitefolk way, the Havasupai said; we want to be able to carry on our traditional way of life.

(2) recognizes that agriculture and grazing were legitimate activities, although farming could be seen as traditional and grazing a later introduced use. However, those uses were to be overseen by the Secretary's Indian Affairs bureaucrats, which could have been an impediment or a boost, but have likely been neither, since a grazing industry seems always to have been deemed marginal on those lands. In other words, the Havasupai were welcome to try for a grazing economy, but nobody was much worried. Their horses had always used the lands, and industrial feedlots were not a concern. 

(3) strikes me as another aspect of (1).

(4)-(6) have a twist in their history. Congressman Udall wrote the provisions originally, and then the conference of House and Senate members actually extended them. This is a bit curious, since the Senate had if anything less to say about restrictions. However, two elements enter here, as I remember: First, there was Udall's stepping back for a second look at what he was doing, to consider that additional protections for the Canyon might be a good idea. Second, although the Senators might not worry about details, some key Senate staff were not pleased about the repatriation. Changes therefore came out of the conference, leaving the central accomplishment of Havasupai repatriation for traditional uses intact, while strengthening protections against exploitation.

So (4) originally told the Secretary to study use and then do a plan, providing for residences, schools, and other "community" purposes. This was strictly in line with the Havasupai desire to  spend part of their time up on the plateau that they were regaining access to. They wanted winter houses and associated buildings; nothing more. It is worth noting that this legislation did not even nod at the problem of east side transportation; this strikes me as an oversight since a connection between Grand Canyon Village and the east side of the reservation that depended on existing paved roads is a long way around. 

(4) was greatly expanded by the second thoughts of the conference. First, the phrase "shall not be inconsistent with, or detract from, park uses and values" is introduced, though the sentence becomes complicated enough that it is not clear whether it is the plan, the use, or the areas that shall not be inconsistent. Now this is not necessarily a big deal. There are residences, stores, clinics, schools in many parks, and we can hope they do not detract from park values. But it is the kind of language that might allow Havasupai-haters (one trusts they are an extinct breed if they ever existed) to quibble. Which the second part of (4) makes easier by expanding the procedures of the plan to a near-match with Wilderness and NEPA requirements -- exactly what the writers of the provision had in mind. The Havasupai and the BIA were not to be given carte blanche; their planning process (and any later revisions) could be scrutinized by the public, supposedly providing further protection against the kinds of misguided uses the Havasupai said they did not want to undertake anyway.

(5) at first banned only logging and mining. Fair enough. This was expanded by the conference to include industrial or commercial development in order to dim further the hopes of hoteliers, casino moguls, helispot operators, etc. BUT this looked like it might be too wide a blockade, since a Havasupai community store up on the plateau might be deemed a "commercial development". So wiggle room is inserted for "tribal small business …to meet the needs of the tribe … in accordance with the plan". As the conference report puts it: the legislation "does permit small tribal business … under …  the tribe, … approved by the Secretary; … in accordance with the land use plan". There might be a need for "small businesses as gasoline stations, trading posts,… grocery stores, drugstores, and the like … needed to serve any Indian residential communities". Which, as all human legislative endeavors must, leaves us with satisfactory room for argument: If there were such a tribal store, selling groceries and gas, could tourists or hikers buy stuff there? Would anyone be so irritating a stickler as to insist on "No! Never."? 

Hirst, in his 2006 book, I Am The Grand Canyon, wrote on page 239 of some activity on the plateau. However, in a 1995 story by John Dougherty in the "Phoenix New Times", a continuing difficulty was described:
"Although the return of some of the tribe's traditional lands was a great moral victory, the Havasupai have been unable to use the land effectively. Short of funding, the tribe couldn't develop even one small water well on the plateau. The Havasupai want, but have been unable, to construct houses on the plateau, away from the constant threat of floods. The homes also would help alleviate a serious housing shortage in Supai, where, often, as many as ten people will share a small house. Construction of a community on the plateau would enable children to attend local high schools, rather than boarding schools, where the Havasupai now show a 74 percent dropout rate. The plateau community would make life easier for the tribe's elderly. Finally, development on the plateau would expand the tribe's tourism industry. The tribe doesn't want to build a massive resort, Tribal Chairman Wayne Sinyella says, just a simple lodge, market and gas station. Right now, the closest gas station is 70 miles away in Peach Springs. But these goals remain elusive. Until Congress provides funds for the tribe to develop its plateau resources, the Havasupai will remain confined in their beautiful and bucolic, yet isolated and economically depressed, canyon village."
Subsection (6) sought to preserve access for all across Havasupai land to GCNP, under tribal control. The principal addition to (6) allowed non-Havasupai to be licensed to hunt on the reservation, raising the question of whether this might open Park-using wildlife to be hunted on the reservation. However, the outsider uses in (6) are supposed to be overseen by the plan, and so less subject to concern about Park violation, arbitrary changes, or closure of access. Were there friction and dispute, it would be up to the Secretary to resolve; see below. 

(7) further recognizes that it is, after all, the Grand Canyon we are talking about. However, the "forever wild" is a bit of rhetoric when applied to lands lived on for a thousand years and more. Think of it as a blanket permission to hold the Havasupai to a standard we would not think of imposing on Park Service employees or concessionaires.

Subsection (c) sounds like it is taking away whatever discretion the Havasupai might have left, but is just bureaucracy boiler plate. (d) exempted from immediate dispossession the whitefolk rancher that Congressman Steiger was trying to protect; in the event, the Raintank user, Globe Ranch, yielded its permit quickly. 

Subsection (e) was the very fortunate recognition by Udall that the mainstem of the Canyon, while it may have been used by the Havasupai, was not crucial to the future success of the repatriation effort and was central to the National Park presentation & administration of the Grand Canyon. Below the outer rim, therefore, the lands remained in the Park, with the Havasupai able to use them as they, and perhaps some of their horses, had done. Another place where good will and diplomacy could avoid the squabbles ill will would foster. Again according to Hirst 2006, the former has been the case, including "regular conferring" on the Subsection (e) Havasupai Use Lands.

Subsection (f) recognizes that the Hayden agricultural right in the original GCNP Act was now superseded by 10.b.2 along with any claims the Havasupai might think to make to lands outside the repatriated reservation. Had 1950 policies prevailed, this language might have been used to exclude the Havasupai from other lands in the Park. Instead, there was a "new attitude", as Hirst 2006 wrote, that was underscored in August 2010 when new housing in Supai Camp at Grand Canyon Village was dedicated. Here is what the GCNP press release said then: "The NPS, in developing Supai Camp, established a residential area for use of the Havasupai people to accommodate the tribes' customary pattern of seasonal living that was common prior to the establishment of Grand Canyon National Park, as well as to provide the tribe with access to the high school and employment opportunities in the park. A General Agreement between the NPS and the Havasupai Tribe was developed to recognize the historic use and occupancy of Supai Camp by tribal members and to establish terms and conditions for occupancy by the tribe." Surely, someone muttered, "And long past due, too."

So while "extinguishing any other claim" is just rhetoric, it does matter that "the Secretary" (read NPS at GCNP) as well as the Havasupai recognizes, accepted, and celebrates the accomplishment that P.L. 93-620 could only put into words.

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