Friday, July 1, 2011

The Havasupai versus the NPS, part 2, 1950's; Lawyers and Claims, 1949-72

After Sup't Bryant had overseen the dismissal of the Crow proposal for an appropriate  reservation, the Park Service felt comfortable dismissing any further assertion of Havasupai ownership rights as a closed matter. Little help though Bryant and Tillotson may have been, their passing from the scene in the 1950’s led into a time of increased vexation for the Havsupai, even as they became more assertive. 

A moment of recall: An inexcusable error was made in 1882. Making that error and then perpetuating it over the ensuing decades was the work of many hands, as again and again, proposals to rectify the error were shelved. The Havasupai were, of course, the prime victims of this policy of error, but as its implementation grew more and more encrusted and knee-jerk on the part of successive perpetrators, the policy obscured for many involved any route to useful and corrective action.

Not the Havasupai themselves, however. Even as the IA was in its 1950’s retreat under the Eisenhower administration, the Havasupai Tribal Council in 1953 again affirmed its resolution by asking for long-range permanent relief. It requested permission to state its position before the newly-formed Arizona Commission on Indian Affairs, saying "we are all in favor of political and economic independence, but we are forgotten, penalized for having permanent garden homes. Neighboring tribes have much larger reservations. Our hunting grounds on the plateau have been taken away, except for temporary grazing permits where there is no water. It is necessary for us to have a larger reservation so we can be dealt with on a par with others." In reaction, the IA man claimed an allergy to whitefolk trying to save the Havasupai; any lawyers were only interested in financial gain. The GCNP Sup't was skeptical because of the complex problems of kids in school, unsanitary conditions, and unemployed at GCV.

A new Sup't, unencumbered, began a removal policy in 1955, at the very time the IA was under the hopeless policy of shutting reservations down. This superintendent, John McLauglin, was determined to clean up and move any unemployed away, claiming the Hopi & Havasupai did not get along. Answering in an authentic Havasupai voice, Mrs. Clark Jack, in outrage, accused "the rangers of treating us as animals. This has been our land since long before 1936. Rangers have damaged many good houses. There were no troubles; we went up there to get our children in school. The Supai school has been closed, and the IA has done nothing for us"

This view was seconded by itself, as the IA admitted it had not had on-the-spot communication with the Havasupai people for several years. But now it was going to study conditions and let them know they were not abandoned. A November 1955 IA “census” of those living at GCV listed 22 “family units” (almost as many as at Supai). Four were on welfare; the rest were working, looking for work, or used as temporary & seasonal employees. All intended to stay; the employables hoping to pick up work. Few school-age children were left at Supai. The situation was “extremely tense”, and there would be trouble if NPS insisted on evicting the unemployed. The IA worried about disorderly acts, but could not figure out what to do with these people they had admittedly neglected. They opined that the Havasupai might be jeopardizing their land case before the Indian Claims Commission by “squatting” on the Park.  Of course, this stance was a variant of the IA argument that it needed to have a proper reservation on the plateau, where IA money could be spent, and where they could have been close enough to the area’s big employer and existing schools.

The Superintendent’s view was that "the matter had been allowed to continue for too long, and some refuse to understand that I cannot authorize unemployed persons to live in park. It is now or never. I hope I am sympathetic, but conditions are a menace to health & welfare of Havasupai. We will clean up when the situation is fixed, but we must insist that they abide by regulations that apply to everyone." It would end up working with BIA to move only people who had places to go and schooling for children.

NPS, however, was now being opposed. First, the Havasupai Council attacked the NPS attempt to “evict” Havasupai from “ancestral lands”, denying their right to live on their lands as respected citizens without fear of eviction or having horses & dogs destroyed. Their voice was intensified by the Arizona Commission on Indian Affairs. A fresh whitefolk voice, Barry Goldwater, a new Senator, was heard, further amplifying the arguments’ volume. GCNP was doing active harm because the IA had provided no school on the reservation for years. The 1930’s cabins have deteriorated, and there is sewage as always. Rangers harassed horse owners. Anyway, the Havasupai have a right to the land, and are being pushed away. GCNP tried to placate Goldwater, claiming NPS was working very hard to improve conditions and make sure no kids were disadvantaged. A long-range tribal program was developed with the following facets: Re-open a reservation school for those under 11. Acquire range from FS & NPS, with water improvements. Do regular road & trail maintenance from west. Improve health and law and order. Provide housing at GCV for school attendance & grazing for horses on NP. However, the IA repeated that it could not spend money on NPS-FS land, so permits were not the answer. Still, cattle-raising should be the route to get them out of the cellar.

The whitefolk traded volleys in 1956, with the Superintendent sounding aggrieved about the Havasupai belief that NPS was to provide for them. The ACIA responded that the Grand Canyon was once theirs, and now they were forbidden to use or live on any of it. The Havasupai upset was marked by their complaint that the old mining claims had finally been bought out for GCNP, instead of being turned over to reservation. Goldwater made threats to introduce legislation to settle the land issue. However the GCNP bill that he introduced at this time for the Park Service showed no awareness of the Havasupai desires  The Forest Service didn’t help by starting a fuss over a permit near the drift fence, saying the Havasupai didn’t take care of the tank (after six years, the permit was terminated as unused). After this flurry, events subsided into grumbling and landlord-tenant type complaints: Havasupai horses, GCV cabins, over-camping in Havasu Canyon, a residence permit not being renewed. On the reservation, a caf√© and store were added; businesses providing another friendly voice, and an indication that tourism might make a better economy than cattle-raising.

The story throughout the 1950’s & 1960’s continued this record of exasperation on all sides -- Havasupai, IA, FS, NPS, Boquillas (the huge private ranch). The question of overstocking, horses the main target, bothered the whitefolk no end. Their attitude comes across as that patient roll-your-eyes, this-is-life of big boys for their “charges”. Havasupai did work on improvements, and cooperation was talked about. However, the  situation was laid bare at a 1960 HTC meeting, when older members said any agreement would violate ancestral rights. The fundamental grievance of having lost their homelands would always stoke the sense of being imposed on, of complaining about why they could not do what they wanted on their land.

None of this mutual exasperation was eased by the overall 1950’s IA policy effort at “withdrawal”, a euphemism for closing down reservations. A 1956 BIA summary of the progress toward withdrawal (= “None.”) offered that an effort was being made to relocate the younger families, but the Havasupai “are loath to leave the reservation to seek employment elsewhere because they wish to maintain their home ties. The majority of the Havasupai are extremely primitive and apparently have no desire for any changes. The older members of the tribe attempt to interfere in every way possible with the younger people leaving the reservation.” Furthermore, the reservation was too small, too isolated, and the Havasupai had too little experience “with the outside” to manage independently of the IA.

Indian Claims Commission Case, 1949-69
A dreary, deeply frustrating, pattern this, of recommendation for land followed by inaction. There is a psychological endurance here that begs for something other than facile explanations. Particularly given that throughout, there was the undercurrent that the Havasupai were dying out and their vexatious land claim could be waved away. This not-always-unexpressed whitefolk wish was made national policy when the Indian Claims Commission was set up in 1946. The ICC was to handle any & all claims by Indians, in particular to decide who used what territory pre-1848, and then to compensate (not award lands; this was an attempt to extinguish claims) tribes for lands not in reservations. The ten-year life of the ICC was extended into the 1970’s, with a final date of 1977. The need for the ICC was posited, in whitefolk arrangements, by an 1863 act that barred Indians from filing claims against the federal government. The ICC idea was developed in the 1930’s, a mixture of patronizing help and a wish to be done with some of the problems of conquest. Its enactment in 1941 was only halted by WWII, service by Indians in which spurred this effort to give them full right to have their grievances heard under nondiscriminatory conditions. 

For the Havasupai, the process started when Royal Marks, of the firm Marks (his father) & Marks of Phoenix, the Hualapai tribal attorney (q.v.), was hired in April 1949. Associated with him was Arthur Lazarus, a D.C. lawyer who had also been active in land claims cases. The Havasupai filed their petition in January 1951, based on August 1950 depositions. The Havasupai brought forth evidence for their extra-canyon occupation: plateau lands, GCV settlement, and Indian Gardens, all included within lines that ran south from the Colorado River, west from the Hualapai reservation (although some Havasupai had lived west of the Hualapai’s eastern line), over to the Coconino Rim (roughly the last miles of the Little Colorado River), and north of a line near the great transportation corridor now occupied by the railroad & interstate highway. Here is the claim description:

With the 3.4 million acre claim justified and  filed, there followed a decade of inaction. 

(But there is a mystery here. When the Havasupai claim was filed, there had been 70 years of continuous Havasupai claim, wish, complaint, request, demand, recommendation,  all centering around an appropriate reservation of 2-300 Kac (thousand acres), the northwestern corner, about 10%, of the 3+-million-acre ancestral claim presented to the ICC. Now why wasn’t this desired area left out of the ICC case by their lawyers, with the explicit statement that the Havasupai wanted the land, not money? They knew & stated they did; surely the IA & Marks knew too. Was the argument made outright -- and accepted -- that they would never get the National Park System lands, so they might as well get cash? Hardly likely. Even after the claim was filed, there came Goldwater and other friends in the 1950’s. In 1968, the very year of the ICC settlement, their Congressman, Sam Steiger, introduced a bill to give them the lands. Are we to understand that Marks did not talk to Steiger or Goldwater? Well of course he did. Did nobody talk to the Havasuapai then? The whole ICC wind-up process, with several chances to say something, produced not a whisper. Yet immediately after this, during the 1972-5 fight for an appropriate reservation, the ICC settlement was brought up by opponents as an argument against giving the Havasupai an appropriate reservation, since payment of any claim determined by the ICC was supposed to be a full discharge, and forever bar any further claim or demand against the U.S. Surely, this situation was another in a long line where the whitefolk (lawyers in this case) decided what was best, and either argued them into agreement, or just took that agreement for granted. Or maybe we should just give credit to the idea that everybody saw the ICC as a cash cow, and the idea of settling anything was just some pipe dream wafted by the current batch of cynics meddling in Indian “policy” and hoping the smoke would make everyone else just look away.)

Little happened in the case for some years after 1951. The ICC docket ended up with over 600 cases, of which only two-thirds had been decided by the early ‘70’s. One of the reasons must have been that which tangled up the Havasupai case. In 1960, Havasupai docket 91 was found to be conflicting with the Navajo claim (229), and the claims were consolidated. This led to a trial in 1961, with hearings from April to September, featuring competing witnesses from the whitefolk expert pool. Robert Euler & R.Whiting testified, saying Havasupai  agriculture was part-time, not much in the canyon even in summer. The Havasupai’s claim of about 3.4 million acres included small farms(some could be above the rim when water was available) plus hunting and gathering, again above the rim. The Havasupai home was on the plateau, old people said, except for a little cultivating, which was also done on top with little patch gardens. They hunted bighorn on the Esplanade, where they also gathered plants. On top, they hunted both to east & west. The Federal government, as opponent (and why was one needed?), offered as counter that the Havauspai were not always evident to early whitefolk travelers-- no doubt explained by patterns of travel and of the seasonal nature of Havasupai life, or a black-humored hint that the Havasupai should have taken the Hualapai path and declared war on the intruders.

Testimony included a summary of Havasupai ecology, pottery and houses. There was a no man’s land with the Yavapai to the south. They did not claim the eastern part of the Hualapai reservation, although some had lived there. Perhaps Marks, as attorney for both, had mediated that potential disruption. The conflict came with the Navajo overlap running from the San Francisco peaks to the current Grand Canyon Village, the disputed area north from Kendrick and Humphreys Peaks. The Navajo claimed a “conquest” in 1686, and that their sheep were there in the 1800’s. This feast for the lawyers was tried in May, July & September 1961. Havasupai and federal witnesses, including archeologists, accepted only that part of the story that fleeing Navajo had come in the 1860’s, and that there was a major trespass in 1891. The Navajo case of occupation before 1880 was deemed not credible. Nevertheless, the ICC found Navajo in the extreme eastern part, and so cut out of the Havasupai claim land that had already been added to the Navajo reservation, implying that white conquest: bad, Navajo conquest: good. Here are the ICC findings and a sketch map:

There was another hiatus from 1962 to 1968, during which Marks made excuses, about the Navajo intervention taking a long time and troubles with the ICC.  The ICC opinion, based on a settlement between the parties, rather than by adjudication, came on 30 Dec 1968. Following this finding of fact, the HTC in Feb 1969 authorized Marks to negotiate with the feds to avoid the cost of appraisal. Marks argued to Justice that the Hualapai were awarded $.625 per acre. The Havasupai land being similar, $.60 per acre would be equitable, arguing appraisal expense, and that the government is supposed to move along. He offered to take $1.24 (down from $1.355) million for the 2.4 million acres. This would “finally dispose” of any claims or demand asserted or that could have been. Marks called it a “very fine settlement” and went to work on the Havasupai, especially HTC Chair Daniel Kaska, saying,  “I realize it is difficult for some of you folks to understand the situation, especially when you have not been involved. I will try to explain.” The ICC determined acreage and set its value. If we don’t negotiate, there will be delay & costs, but go ahead and you will have your money earning 6% by the end of year. As quoted, Marks was the very model of lawyerly pomposity: “I would further point out to you …”  “We, of course, as attorneys can never guarantee …” Basically, however, he threatened that if they did not accept the settlement he worked out, there would be much more time and less money. Marks also tried to inveigle Steiger in June: What do you think about a delegation coming to DC about land on top? They “are certainly confused” about the case and the effect on their try to obtain more land. “I assured them it had no connection.” Marks then told Kaska that Steiger said his bill was not going anywhere. 

In May, Marks presented the matter to the HTC. He said the lands they had used were now used by (whitefolk) hunters. The government is paying for land taken; it doesn’t belong to you anymore. “You cant get it back.” So the HTC approved, calling for a full tribal meeting in June. 171 eligible voters attended, at least 85 adults; 61 signed the register as tribal members. The minutes record Marks as saying: “I want to tell you if you accept settlement it will have nothing to do with losing your reservation, it will have nothing to do with trying to get the land on top. This involves land that was taken from you that you originally occupied years ago.”  There were Havasupai questions & discussion. Could all money be per capita? Marks replied: “I know it will not be.” To the complaint that they are giving us “chicken feed”, and can we fight again?, Marks said no, and at some point states his fee is 10%. When someone said that NPS had taken the campground a few years ago, Marks replied it has nothing to do with this, which is odd or disingenuous, since any non-reservation land was being included. When asked about rights on top and for grazing, Marks said, “nothing to do with your free use permits…still in effect”. Havasupai: Its our right to go to Steiger & Goldwater? Marks: I have been trying to help you get some land on the top. There has been a bill in Congress…this has no effect on that at all.”  Havasupai: So if we want to try to enlarge reservation, we can? Marks: Yes, there has been a bill to get you more land. The Forest Service fights the IA when it tries to get you more land. You might use this money to buy some. Havasupai: Can we buy back our own land at Grand Canyon? Marks: I guess NPS felt an obligation to you because there were Havasupai at GCV; there must be some agreement. Havasupai: We should sue on that too. 

The vote was 52-10. There was further whitefolk language in documents, which could only create more misunderstandings: The parties waive any and all rights to appeal or seek review of the judgment. The Havasupai present and voting understood the terms, and were representative, according to the IA & chairman Kaska. The HTC had had a yes vote of four with no negatives. The stipulation for final judgment language stated it finally disposed of all rights, claims or demands. Petitioner was barred from asserting claim in any future action. Judgment shall be by way of compromise and settlement. Final determination by ICC in this case was for a judgment of $1.24 million for about 2.3 million acres on August 6 1969. Then, stretching his “end of 1969” promise, Marks wrote that after settlement, there would still be a long time to get money;  you need a congressional appropriation and a plan on how the money is to be used. He stated the attorney fees plus expenses were $131,648 (>$700K today). The Havasupai award was finally authorized by Congress in June 1972. 

In 1973, as the fight in Congress to enlarge the reservation warmed, the Havasupai wrote of their fear that accepting per capita payments for the ICC award would prevent them from getting the land back. In response, the ICC peeped one more time,-- the Havasupai-Navajo opinion was a settlement negotiated by the parties The ICC was not a participant; nevertheless, on the other hand, and henceforth, the decision was to “finally dispose of all claims and demands which the Havasupai tribe has asserted”. The IA danced about forthrightly, saying that it was long-standing that ICC awards cannot interfere with congressional land return. Still, the Havasupai might quietly set aside some of the land money. The Havasupai then objected to the tone of finality by the ICC, saying an error had been made (this, after 30 years of ICC ‘action’ and Marks representation) in that our ICC claim included 200,000 acres we have used since the reservation was set up, with continuous permits since 1908. We are ready to return $100,000. Interestingly, they quoted GCNP Supt Bryant, agreeing in May 1943 at the time of the Crow proposal that there had been “no legal extinguishment of rights”. 

[My comment: Well, truly; fifty cents an acres was hardly worth fighting over. And there was no question that the case for an appropriate reservation had been made again and again from 1881. Still, the trickiness of how whitefolk systems impacted on Havasupai basic desires can make the ICC action look like a double-cross or at least having an eaten cake. Even Marks’ positions do not seem entirely straightforward. In the intensity of the 1973-5 reservation expansion battle, the ICC settlement, along with incidents that mixed Havasupai & whitefolk desires, such as backing a Grand Canyon dam and approving a railroad and tramway, should help us remember that we are all fallible. The Havasupai were discriminated against and deserving recompense, but they were still human, and, entangled in whitefolk conflict, got side-tracked and attacked just the same. The tragedy, embedded in the over-arching century-long victimization of the Havasupai, of the bitter, unnecessary 1973-5 fight  is that we did not then, and still do not, have a way in which Havasupai and we, their neighbors, can work cooperatively, in the context of celebrating the Canyon, for mutual prosperity and protection.]


  1. Fascinating blog. Thank you for all the detailed information and background story. What you post here has so much impact on what is happening now with the West Rim and Lake mead

  2. And thank you back. Much of what I write about is in the past, so I dont think of it as having immediate impact. Can you tell me more about "what is happening now with the West Rim and Lake mead"?