Sunday, October 2, 2011

Boundary of Grand Canyon National Park Adjacent to the Hualapai Reservation

The Grand Canyon National Park is bounded by the Hualapai Reservation between river miles 164.8 and 273.1 of the Colorado in the Grand Canyon. I labelled this boundary segment as F on the map in my post of 14 Jul 2010. (Segment G is also a joint boundary, but is not in dispute. My blog entries on the boundary run from July into October 2010.)

BASIC POSITIONS

The Reservation was first established by the Army on 8 Jul 1881, and given permanence by President Arthur's executive order dated 4 Jan 1883. Here is the text of that order:
Here is a copy of the map the responsible Army officer drew in 1882:
By the way, just for kicks, please notice that the east-side line running north "to" the river, doesnt quite make it. And C.F.Palfrey did not even attempt to draw a line down the river, it was boundary enough. Just saying.

Note, added 29 May 2012: Army Engineer Lt C. F. Palfrey, according to E Coues (translator of Garces), went down Peach Springs Canyon to the river on 19 Jun 1881, just before the Army set up the Hualapai reservation. Palfrey retired in 1895; no date of death found, but quite possibly he would have been alive to testify had there been a court case in the early XXth century. W. R. Price, who presided over this and the Havasupai reservation, died 30 Dec 1881.

On 3 Jan 1975, the Grand Canyon National Park Enlargement Act extended the Park west, adding the second Monument with its queer river boundary, and setting its boundary with the Hualapai Reservation as "Boundary on South Bank of Colorado River (River Mile 18 to 273.1)". (See map in my entry of 6 Sep 2010.)

On 21 Jan 1975, I wrote to Merle Stitt, then Superintendent of the Park, a letter in which "I thought it might be helpful to offer you a section-by-section review of the Act…Nothing I say, of course, has any official status, but then again I probably know some relevant parts of the story that have not come to official attention." Perhaps I should not have been so modest; for over two years, I had been the principal lobbyist for the views held by those friends of the Canyon who believed in a vision of a more complete Grand Canyon National Park. The third and fourth paragraphs below cover what the Act accomplished with respect to the river boundary.



Between the Order and the Act is a gap of 92 years. They were not vacuous years insofar as opinions and actions that affect any boundary debate, and I will try to fill them in below. The point here is that these were the actions by the sovereign, first setting the Hualapai boundary, then the Park boundary adjacent to it . There were, in particular, no court adjudications as to the boundary of the Hualapai Reservation and the river. There was the immensely significant decision of the Supreme Count in the 1940's that finally gave the Hualapai clear title to their reservation vis-a-vis the Santa Fe Railroad, but it did not deal with the boundary to and along the river. There was, more problematically, a decision by the Indian Claims Commission, which I will look at below. There was, naturally, a lot of gas and flatus puffed out, claims made, letters sent, books written. I have tried to cover these below. But if you are looking for a no-counter-argument-possible answer, read the above two paragraphs again, and you will see that I did not anticipate what next happened, that the Park Service would go beyond the "entire river, all of its WATER surface" to grab for Hualapai land between the water and the high water line.

SOME LEGISLATIVE HISTORY

For 30 years before the Park enlargement, the principal Hualapai lawyer, Royal Marks, had been involved in promoting Hualapai interests. Starting in the late 1940's, two of his main tasks were: 1. Securing congressional recognition that the Hualapai had an interest and must be remunerated were any Grand Canyon dam to be built that used their land. 2. Pressing a claim for compensation through the Indian Claims Commission process for lands outside the Reservation that the Hualapai had lost. One facet of these matters was the claim that the language of the 1883 Order should be interpreted to say that the Hualapai owned to the middle of the river.

During the legislative battle over enlarging the Park, we pushed the interpretation of the Order that it did not go to the middle of the river, but only "to" and "along" the water, the river's edge and contact with the shore. Since one of the goals of the legislation's sponsors was to unify administration of the river and traffic on it, it was sensible to clarify the Order's ambiguity by assigning the water to the Park and the land on the south bank to the Hualapai. In fact, the bill as passed by the Senate in 1973 had placed the boundary "on South Bank of the Colorado River (subject to Concurrence of the Hualapai Tribe)". However, the House of Representatives, in its wisdom, accepted the view that the Hualapai Reservation stopped at the water's edge. Therefore requiring the concurrence was not necessary, and indeed might imply the Hualapai did own half the river surface. So the House removed the "concurrence" qualification when it passed its version in 1974, firmly assigning jurisdiction over the river water surface to the enlarged Park. The Senate, in conference with the House, then accepted this change. Both houses passed the bill, and it was signed by the President.

The Act also included standard language that no Indian land could be taken without consent, so the Hualapai could not lose any of their reservation. This would guard against any taking of rivershore from the Hualapai, since in the common sensical interpretation of the 1883 order, the reservation went down "to" the water, and then "along" the water's edge, just like a person might walk over to a river and along it. And we thought that Representative Morris Udall, architect of the House version, had clearly reinforced this point in the Congressional Record and Conference Report. 

That there was room for concern, nevertheless, was shown in a letter of 15 Nov 1974 from Marks to Senator Barry Goldwater (principal Senate sponsor of the legislation) in which Marks noted "that you are going to try to amend the House Bill so that the lands taken in at the South Bank of the Colorado can be removed". However, Goldwater did not and they were not. During the intense period preceding and during the conference, no one brought up or tried amending the river boundary language. Indeed, whenever Goldwater or his aide T. Emerson opined about this matter, it was always something like "there was no intention of taking any of the lands of the Hualapai Tribe". This steps right around the point that the Senate, in accepting the House determination that "to" and "along" meant along the water's edge, agreed that none of the water surface was or ever had been in the Reservation, so Hualapai concurrence was not relevant.

RE-STARTING THE ARGUMENTS

What we did not anticipate was that the Park Service would ignore common sense, ignore Representative Udall, Senator Goldwater, the House & Senate & President, Royal Marks & the Hualapai, and even me. However, in July 1975, Marks, after a conversation with GCNP Superintendent Stitt, reported to the tribe that the Park was claiming to the high water line!! When I heard of this, I thought of George Orwell's most trenchant line: "It is ridiculous to get angry, but there is a stupid malignity in these things which does try one's patience." Our patience is being tried to this day.

How did this come about? I am not entirely sure. The Act was signed on January 3. The Associate NPS Director for Legislation, 23 Jan 1975, sent an "acreage figure" memo to the Western Regional Director. Under additions were 327,215 acres from Lake Mead NRA (LMNRA), and 2,700 acres for the "Lower Colorado River Riverbed". On my copy of this memo, I have noted that this latter is due to the boundary along the second Monument (now added to the Park) having been on the north bank (see my posts of Jan-Mar 2011) and now going to the south bank. We should have been more suspicious, however: Why the use of "RiverBED"? And 2700 acres is too much for that 20-mile Monument stretch; it makes more sense spread over the 110 miles next to the Hualapai lands. Next, on 27 Jan 1975, that regional office received an "Activation" memo from the same source. (We received copies of these in early March.) That memorandum contains no mention in its two pages of the Hualapai or the river addition,  mentioning only "parts" of LMNRA.  John McComb and I met with Stitt in early March and he wrote a letter to us about current action, with no mention of the river boundary as late as March 10. Then somehow, the Park Superintendent was advised by somebody and believed, contrary to any official statement as well as to my letter, he could pick up the boundary from the river's edge and carry it up to the high water line. A heavy burden he had better left lying where Congress told him to put it.

A word about the high-water line in the Canyon. Before Glen Canyon Dam was built, the Colorado fluctuated severely over a year's time, to a flow (in cubic feet per second) of 100,000, 200,000, maybe more, and down to 15,000, 10,0000, even lower. With the dam in operation (1965 on), the regular water flow varies more like 5 - 15,000. Occasionally, larger flows will be sent down, like 25 - 40,000. At places, this water will be up against a wall; at others, it can spread out up a side canyon; at many spots, sand beaches and rocky talus could be affected by the water, even being eroded away. As a boundary, the high water mark is a mug's game, a field day (literally) for geologists and hydrologists, and (figuratively) for lawyers. They can choose between the absolute highest historic (or even pre-historic) line, an average high line, a line after the dam either normal or extreme, or something even more exotic. Whatever the theoretical legal definition, choosing such a line is clearly against common sense. No fences will ever, could ever, be built. The boundary was set by Congress in this case to ensure uniform administrative jurisdiction over river traffic. The water's edge, though it does move, is always clear to anyone on a boat or on the shore.

Back to the story: Sometime in July 1975, Marks talked with Stitt, who told him that the Park was claiming to the "high water mark". So Marks wrote letters:
24 Jul 1975 to HTC chair Whatanome: “It may be true that the drawing that fixed the boundary as set forth in section 3 of the Act shows that the Park extends to the high water mark, but" and he cites section 5. “Certainly you still have jurisdiction on to the water’s edge wherever it might be.” 

31 Jul Marks to Goldwater: Stitt claiming to high water mark; “I told Stitt that their jurisdiction did not extend to the Hualapai Res which reservation went to the Colorado River wherever it might be.” And again about an R.Johnson, park scientist, saying the boundary was the high water mark: the Executive Order's definite boundary is along the river and “in fact extends to the middle of the Colorado River”.

11 Aug Goldwater wrote to Marks in what sounds to me like face-saving:  “My legal staff in Washington has written a letter…complaining about this action (by the park staff) pointing that at no place in my bill did it change Indian boundaries of any concerned tribe, nor did it settle existing disputes between the tribes and the United States over where those boundaries are located. It preserved the status quo which means these disputes continue unless resolved in legal action or by voluntary agreement.” Perhaps that was true of "his bill", but it was not true of the final action by Congress.

 5 Sep 1975, Goldwater's aide Emerson expanded this point by writing that the map language was only so that "the United States may be authorized to negotiate with the Hualapai Tribe, if it wishes, regarding the possible acquisition of clear title to an area of the Colorado River that all of us knew the Hualapai have historically claimed as belonging to the reservation". The letter ended by saying that the Act "did not change the boundaries of the Hualapai Reservation". Indeed not, since the Reservation had never gotten its feet wet in the first place. 

My guess is that having been asleep at the critical moments, this face-saver was an attempt at legislation-by-bluster. Here is Marks, after a call from Emerson, to his DC colleague Lazarus, 4 Sep:  “He then brought up matter disturbing to him when they discovered map that is on file didn’t have same wording as map that passed Senate, and evidently in the House someone slipped up unintentionally or otherwise, the map on record only shows about boundary: Proposed Boundary of the Hualapai Reservation.” He points out that this wasn’t left off on Navajo; he has done a lot of research and has contacted Udall’s office to see that letters are placed in file to correct this. You should do what you can from your end. “For even though there is a problem of ambiguity if that map is the one that remains on record and 20 or 30 years from now none of us is around to show the correct intent.” (Emerson) says that everyone he has contacted on House side denies they had any instructions to take the wording off. Emerson said that Stitt had called him and assured him that he was backing off from his former opinion on the boundary. Terry also says he remembers well that everyone who had anything to do with CAP gave opinion that boundary is in the middle. “We may have some problems later on with this.”

Emerson did try to get the House Committee to admit that it had "inadvertantly omitted" the phrase about Hualapai concurrence. Counsel L. McElvain replied on 9 Sep, "No." "While the tribe contends that it owns to the center of the stream, legal title to the riverbed remains in doubt." The conference had agreed to the House version so that the park boundary "encompassed the entire Colorado River". Still, the Act does protect the Hualapai interest, if it has any, in the riverbed. The Senate version suggested that tribal ownership was established, but if legal title is not established, then concurrence is not required. 

I hasten to point out the use of "riverbed". The Park does not regulate traffic on the river's bed, but on its surface. As if "to" and "along" were not ambiguity enough, we have to contend with "bed" and "surface"; well, not to mention, "high" water line. Why is something so obvious, made so befogged?

And here is my chance to point this out: Marks, the HTC chair, several other Hualapai, plus allies lobbied extensively in person throughout House consideration of the bill. However, they were focussed on getting language in the bill that would allow the Hualapai and the Arizona Power Authority (who paid the Hualapai a retainer) to build a dam. Apparently they did not pay attention to other parts of the legislation. They missed their chance to affect the bill, and then tried, along with Goldwater/Emerson, to rewrite it after it was law. i cannot feel sorry that they blinkered themselves with false visions of a dam, but it is even more ironic that the Park Service has been trying for the past 36 years the same trick of rewriting the legislation,  against the Hualapai interest.

Marks reported to the HTC in October that he had met with Stitt in a "most successful" meeting. He added that the boundary is in the middle of the river "since the Executive Order is very definite", and Stitt did not have legal advice. This is puzzling, since on 3 Sep, Stitt informed the Hualapai that he had asked for the Solicitor's advice. He was not the only one. A Goldwater letter of 5 Sep to the Interior Solicitor made their case: "I repeatedly assured everyone…that there was no intention of taking any of the lands of the Hualapai tribe." He then quotes section 5 which says that no land held in trust for a tribe may be transferred to the U.S. except after tribal approval. I agree. Everyone agrees. He then pounds this point home, making the astonishing statement that the legislation could not claim jurisdiction for the National Park Service "over any area where it did not claim jurisdiction before". True enough, most of the areas transferred to the Park came from other NPS areas, but there were some from the Forest Service and even unappropriated. Careless. He then trots out the idea that he put the "concurrence" provision in so that there could be negotiations with the Tribe. This is mouthwash; In the act establishing Lake Mead NRA, the northern third of the Hualapai Reservation was included in the NRA if the tribe approved. It did not, and anyone the slightest bit familiar with Hualapai history would know it would not even give up claiming to the middle of the river, much less title. It had always been, however, only a claim, and a claim is not possession, even when a powerful Senator and his aide wave their hands vigorously. 

The last paragraph of the 5 Sep letter tries to explain the House change as "an oversight" or "because the Hualapai tribal lawyer had persistently asked for removal of the entire phrase". Both are factually false. At meetings in his house to prepare the ground for the legislation, in December 1972 and January 1973, Goldwater expressed his hope and intention of providing a unified jurisdiction and administration over the river in the Grand Canyon and its traffic, which at the time was as hot an issue as it has ever been. Throughout 1972, Goldwater was deeply and personally involved in getting policy on river traffic changed.  In fact, the Park enlargement bill he had drafted for discussion in Dec 1972 had a section on "river protection" that mandated one trip launched per day, a prohibition on the use of motors on commercial watercraft, and no alteration in the free flow of the river down to Lake Mead, as well as telling the Secretary to protect the river and its environs from overuse. Sadly from the perspective of 2011, NPS and we agreed to ask Goldwater to drop that provision, since it was all being handled administratively (how dumb could we be!). However, we understood and pursued his intent to unify river traffic administration under the Park.

9 Sep, Emerson to Marks: McIlvain’s memo says Senate language was openly supportive of Hualapai, and Udall decided to leave the issue of title “in limbo”, instead of using Senate language which  appeared to accept Hualapai claim. Anyway, says Emerson, sec. 5 protects, and McIlvain agrees that S1296 doesn’t change legal situation. 10 Sep, Marks to Lazarus on Emerson: What disturbs me is the above; “I believe we were always concerned about the question of the boundary, whether it went to the middle of the Colorado or just to the water’s edge, but, at any rate, I guess we are not worse off than before. But I can’t understand how Barry let this go by if he was on the conference committee.” Goldwater was not on the conference committee. Should burnt pots call kettles black?

On October 1, the San Francisco Interior Solicitor, provided a draft, in "response to an inquiry from Senator Goldwater", saying the Enlargement Act "did not resolve the Hualapai - Park Service boundary disagreement". His final fatally flawed opinion is dealt with below. (Please notice the obvious conflict of interests: Interior is responsible for the welfare of both the Hualapai and the Park.) As an interim response, on 23 Oct, the Solicitor wrote Goldwater that he agreed that the Enlargement Act "did not take any lands away from the Hualapai". (Why do these people not add "but the claim of the Hualapai to the middle of the river is only a claim that has not be adjudicated or otherwise decided"?) He accepts Section 5, and adds: "There would be serous constitutional questions raised" if Hualapai land were taken unilaterally. And true, that did seem like what the Park was now trying to do. He also agreed the map is subordinate to section 5, if it applies to "certain lands not previously under the jurisdiction" of NPS, which raises the subtle question, what was the effect of the LMNRA Act? (Indeed, did the Hualapai ever assert any need for compensation for lands taken by Lake Mead?) He then says, and this may have influenced the field solicitor's opinion: the precise location of the boundary, before and after the Act, has been subject to disagreement due to the wording of the 1883 Order. "Resolution of this issue will not be affected by the boundary map".  Arrogant s.o.b., but I guess that what Congress disposes, the lawyers opposes. No wonder this matter is a swamp.

Dec 1976, at a big meeting with NPS, Hualapai asked for river partnership, including river tours from Lees Ferry and collection of fees for camping on Hualapai land. NPS stiffed them, saying doing this would be inappropriate and present legal problems. An opportunity lost.

This opinion, 6 Feb 1976, had been farmed out to the San Francisco field office. First, it said Congress had not settled the boundary disagreement. Then it went on and on, ending up by just asserting that "there is no doubt (the 1883 Order) did not include the bed of the Colorado River", nor did the Hualapai consider that bed to be of any utility to them. Indeed, the river being navigable, the river bed, from high water mark to high water mark, belongs to Arizona. (The BIA, earlier, had said that the Colorado being navigable, the boundary went to the middle of the river.) Twenty-one years later, the Interior Solicitor himself contradicted this opinion, writing 25 Nov 1997 that no one had ever adjudicated the navigability. But he also offered more assertions, only weakly supported, that the 1883 Order did not include the river bed, and is therefore at the high water mark. Majeske attacks these arguments, but then also offers no strong evidence, even asserting that because there was not much river traffic, the river was obviously not navigable. (Then why are all those thousand of people and millions of dollars going into year-round traffic?) The point all this drives home is that there was no action, no evidence, no relevant finding, no adjudication, no nothing but the original "to" & "along". Which ambiguity is what Congress dealt with, contrary to the opinion of any stripey-pants lawyers. Ambiguity and lack of previous determination left the field open, and so Congress divided the water from the land. And river traffic does flow, and less turbidly than all these words do. 

In February 1976, apparently before he knew of the Field Solicitor's opinion, Marks reported to Lazarus that the "unfortunate" north boundary question had been brought up by a Hualapai request for an opinion. We wanted it left the way Emerson said. If the HTC (Hualapai Tribal Council) wants to pursue this, let them, but if we get an opinion, there may be future problems. There is no question that when people step on beach they are on Hualapai land. And in March Marks was telling the Hualapai he was trying to get the Hualapai request for an opinion squashed, but the request had been so emphatic and explicit, it could only be withdrawn with an explicit request. Marks emphasized that we have heard already that the boundaries werent changed. 

The next opinion did not in fact come until 1997, so Marks' final position may be that in his report to the Hualapai of June 5 1976: The Park Superintendent said "the Park's jurisdiction extended to the high water mark within the inner gorge of the Colorado and this, of course, was taking in a part of the Hualapai Reservation on the south bank of the river. [This] threatened to interfere with the [Hualapai] River Running Enterprise … going from Diamond Creek down to Lake Mead. I obtained through Senator Goldwater's office a written opinion from the Solicitor … that the [Park] enlargement of the … did not change the boundaries of the Hualapai Reservation. Therefore, the northern boundary of your reservation still extends to the Colorado River. I believe this problem has now been put to rest, at least for the time being." This was nicely trimmed. After all, I believe that in placing the Park boundary on the water's edge of the south bank so that all the river surface, but none of the land on the riverbank, is in the Park, there was no change to the boundaries of the Hualapai Reservation, which still goes "to" and "along" the River, or as Marks says, "extends to the Colorado".  

In the Hualapai newspaper, "Gum-U", Feb 1978, W J Havatone wrote about going to DC: The Goldwater bill of a few years back, in making the park area bigger, would have taken in the Northern portion of our reservation, the area all along the Colorado River. The Tribal council went on record objecting to the enlargement proposal. Mrs. Louize Benson who was a council member then gave a lengthy statement stating the tribes objection to the Bill. With the tribe standing up for its rights, the portion of our reservation in question was not taken as part of that enlargement. We are supposed to give consent. Now there is a (Grand Canyon) wilderness proposal; our objection is that our reservation goes to the middle of the Colorado River, and we would lose 15,000 acres and the river area, plus our rights to use the river for any future development. So we went to DC to object. Our delegation met 17 Jan with Wayne Nordwall of Interior on proposed wilderness (he had come to council in 21 Dec 1977 for meeting on northern boundary "and the passage of the enlargement Bill". He told us the wilderness proposal was going to Congress 23 Jan. We drafted a letter with our and Havasupai objections to wilderness. We met with Ass't Sec. for Indian Affairs Forrest Gerard, and he told us the bill would not have Hualapai and Havasuapai portions when it went to Congress. He wrote that down for us. (Gerard had been mentioned in Hualapai minutes, Jun 1976, by Marks as being on Interior Committee staff, was leaving to be lobbyist, and was interested in lobbying for dam. He became Ass't Sec. a year later.) 
"Our northern boundary has often been somewhat cloudy and unclear. We will still have to wait for a definite opinion from the solicitors office in Washington. Bur for now we have been promised that our portion along the river, and the land of our neighbors, the Supais, will not be in jeopardy."

The next item I have is the 1997 Interior Solicior's opinion requested by the Hualapai--see below.

In concluding this section, I need to repeat that the reason why, and the process by which, the Park made the claim about the high water line are a mystery to me. There can be no real benefit to administration of river traffic to have a variable strip of rivershore where some hard-to-find line divides a bit of Park from Hualapai land. No one is so loony as to want to erect a border fence, surely. [The same is true for a line down the "middle of the river", I would guess.] The genius of the legislation is to use the natural features of river and its shore as a common-sensical division of jurisdiction, clear to all, especially the public. All that takes is an acceptance that the Park is on the water, and the Hualapai on the ground. This apparently worked for a while; for a number of years from September 2000, there were several meetings of Hualapai and NPS officials to cooperate on common interests along the river based on a Memorandum of Understanding that accepted there was a boundary disagreement but allowed them "to work towards a productive relationship". This effort has not been active since 2008. Perhaps this period of cooperation was stimulated by the 1997 Solicitor's opinion (see associated blog entry) which the Hualapai had requested, but could not have given them much comfort.

 SUMMARIES OF (QUASI-)LEGAL OPINIONS

The two solicitor's opinions, Majeske's comments on them, and a statement by the Indian Affairs voice of Interior in 1977-8 are taken up at length in my blog entry of this date, "Park/Hualapai Boundary Documents".
I want to stress by repetition that the solicitor's opinions and Majeske's article point up that there were no actions to fix the boundary's relationship to the River at various relevant points--  early 1880's when Res set up, 1910's when Arizona became a state, 1930's-45 when the Supreme Court upheld the Hualapai claim to all the Reservation. Because there was no such absolute fix until the 1975 Act, we are dropped down to a second level of what might be called circumstantial or behavioral evidence: What did people do and say?

SURVEYS & USGS TOPOGRAPHIC MAPS 

The 1899 and 1901 Reservation survey notes tip the hat to the Grand Canyon. The scenery “baffles exaggeration”. The river was inaccessible. Going north from Tinnaka spring, the surveyor spent two days getting as near the river as practicable, and had to use trigonometry to find the distance from the bluff to a sharp rock point near the water’s edge. The examiner checking the work concluded most points were spurious, and the country so rough the surveyor should not even have tried. Nevertheless, the surveyor’s map was deemed approximately correct, so whitefolk had no excuse for thinking they could locate there, though the examiner found no Hualapai on the reservation. 

As a footnote, the Department of the Interior's manual of surveying instructions, issued at intervals after 1855, says "navigable" is defined as to the "mean high water line", not the historic. And in the 1924 Hualapai Reservation survey (township 9w31), the boundary is shown as the "approximate water channel of Colorado River". 

The USGS 15' topographic maps were being worked on in the 1960's - 1980's, but were not all done or upgraded as of the same date. So they show different boundaries depending on when they were done. The original quads, put out in 1967, before the Grand Canyon National Park Enlargement Act of 1975, show the Indian Reservation boundary in the middle of the river, and Lake Mead NRA covering the northern third of the Reservation. Strangely, some of these maps do show a Park boundary, but without a date change. However, the maps covering the eastern end of the boundary (Fern Glen & Gateway Rapids) were upgraded in 1988, and the Boundary is accurately shown on these, at the edge of the river left, and not at the high water line.

HYDRO-POWER WITHDRAWALS 

In his take-no-prisoners criticism of Interior Solicitor opinions on the boundary, Majeske says he is puzzled that there is no mention of the power withdrawals. On the other hand, it is quite possible that the drafters of those opinions took one look at the snarl of withdrawals and ran screaming for the exit. I have no hope nor intention of unscrambling that snarl, but it is worth bringing up the subject since hydro-power development of the Colorado River was so clearly a demonstration of federal paramountcy on the River, even if its role has so often seemed only as first among (almost-)equals in the Colorado Basin water wars.  

A slew of Secretarial orders under the 1910 Federal Power Act were issued over the years for water development purposes affecting the river and its banks. In general, there was an order for wholesale withdrawal, followed over the years by "interpretations", other withdrawals, modifications, and revocations. At that time the Hualapai were on river left, federal lands (some were Dixie National Forest once) on river right. 

One of the first orders was 447, 6 Jul 1914, withdrawing for power sites all lands in Indian Reservations within ¼-mile of the River throughout the Canyon and beyond. Next came 446, 5 Sep 1914, (dates are correct) a withdrawal for hydro-power purposes of all lands not in Indian reservations within ¼-mile of the Colorado River. The next year, 11 May 1915, 490 withdrew all lands in some townships within ¼-mile of the Colorado River as a power site. Meanwhile, order 7(AR-4) interpreted the earlier orders to mean ¼-mile using legal subdivisions. Here is how the head of the Geological Survey explained this,15 March 1917: All public lands within ¼-mile of the River from the Utah-Arizona line to the south line of 22w32 (way, way west of the Canyon) had been withdrawn, and this supplement to the previous withdrawals did not increase the withdrawn area. However, existing maps are in conflict as to the location of the river, and it was also necessary to ensure that the withdrawals included land adjacent to small tributaries subject to flowage by reason of a dam. That is what necessitated Order 605, 28 Apr 1917, which just did the ¼-mile thing on the north-&-west and north-&-east side, explicitly including Kanab and Paria Creeks, but not any land within the Tusayan and Kaibab National Forests. Having cleared up the matter, on 8 May 1919, all lands within 2 miles of the river, starting 1 mile down from Diamond Creek, were withdrawn for the Colorado River Storage Project (what became Lake Mead). AR-121, 10 Jun 1922, was expansive, going out to ½-mile from the river, though it did not apply to the entire river.  Order 42, 21 Feb 1924, interpreted 447 so that the withdrawal included the Reservation in some areas. While much of this was detailed correction and adjustment, the main withdrawals made very clear that the Secretary had the power to set land and water aside for hydro-power projects, even within Indian Reservations. By the way, Executive Order 5339 set aside a whole bunch of this area, including Hualapai lands, in 1930, temporarily for classification.

Did any of this affect the Hualapai? Well, Boulder-->Hoover dam was built, and its reservoir invaded the western Grand Canyon, including along some 38 miles of their reservation. So far as I know, the Hualapai did not officially complain nor did they receive any official recognition or compensation for damage to their land, which has been drowned, silted over, re-excavated, and covered by exotic greenery. A Reclamation official did opine that no valuable land had been taken by Mead.

As I wrote in my 27 Sep 2009 entry, a visionary Hualapai, Fred Mahone, developed in 1934 a grand plan by which the Hualapai could profit from recreation developments on and around Mead, but his report was not acted upon. That was the time when the fight by the Hualapai to wrest control of their reservation (or half of it) from the clutching hands of the Santa Fe Railroad was very hot, with Mahone deeply involved. And certainly, the pro-railroad attitude displayed by prominent federal worthies in that fight was in the same class as displayed by the water and power developers toward Indian claims.  

DAMS AND THE LINE

No doubt as well, the Hualapai attorney & other allies would reply that, pre-FDR, the time was just not ripe for asserting ownership and compensation rights from river development projects.
In 1939, the HTC discussed a dam proposed by Arizona, and asked for power or water or anything to benefit tribe. This was the first tingle in the long involvement of the Hualapai in dam affairs, during much of which it was hard to tell whether they were being exploited, ignored, made partners, or leading.

That was not true, however, when the Central Arizona Project and its companion Grand Canyon dam at Bridge Canyon were first taken up by Congress after World War II. As recounted in my entries of 6 Jul and 8 Aug 2010, starting in January 1949 attorney Royal Marks asserted Hualapai claims in connection with the dam. Before Marks got active, they had been ignored, and Reclamation inclined against their assertion of ownership of half the river. Marks and allies worked on provisions for Hualapai protections to be included in the bill that the Senate passed in 1949. In 1950, they secured their big goals, and although not completely satisfied, approved the compromise in February. The matter, of course, then went into limbo for a dozen years.

I might as well argue here that what looked like a success in 1950 to Marks and the Hualapai  became a pit for Hualapai aspirations. Stuck in the muck of hoping for the dam, their efforts to use the reservation for economic prosperity floundered until very recently, when their connections to the Las Vegas tourism industry led to remunerative exploitation of the Canyon. But what if instead they had taken up Mahone's plan and worked with the Park Service in the 1930's on upper Lake Mead recreation? What if, that being successful and with the start-up of a river-running industry, they had ignored the false lure of the dam's easy-street, and joined in the 1960's surge of river-based recreation? What if, instead of Marks and the Tribal Council spinning wheels in a go-nowhere scheme to pollute the GCNP enlargement legislation of the 1970's with pro-dam gibberish, the Hualapai had been partners with the Park Service and Canyon advocates to enhance protection of and recreation in the western Canyon? Even today, with all their fancy hairpin in the air, they are nowhere near realizing the (economic)  potential of their location for helping visitors to the area understand the grandeur & variety of the Canyon.

Later dam-related events -- the congressional battle that ended dam-builders hopes in 1968 and the continued alliance of Hualapai and Arizona Power Authority in lobbying for the dam throughout the 1970's -- make juicy stories, but produced no actions that affected the Hualapai boundary as such. However, it is very likely true that their and their allies' concentration on the dam during the Park enlargement effort led to their not making a fuss about the boundary--they were there and did not see. Of course, their promotion of a dam did not make them particularly popular with Canyon advocates, I suppose.

In any case, I conclude from this excursion into the never-never land of hydro-power for the Canyon, that the federal right to exercise authority on and over the river was demonstrated first by its withdrawal power and Hoover's construction, which ignored the Hualapai, and second by its being able to gain Hualapai support through the re-direction of a bit of Reclamation largesse. Is the sovereign ever more sovereign than when it demonstrates it can stiff you if you are passive, and then when you do make a bunch of noise, it can buy you off? 

ARCHEO-HISTORY

As in the Santa Fe case and the Indian Claims Commission process (see below), Hualapai arguments for their boundary getting wet by going to the river's middle are accompanied by evidence of what they did and how & where they lived before the Reservation, before the rampaging of the whitefolk did them down. 

Archeological work along and near the Colorado River in the Grand Canyon has shown the human presence in varying intensities over maybe the last four millennia. Helen Fairley in 2003 gathered the evidence of riverside use and occupancy in Changing river: time, culture, and the transformation of landscape in the Grand Canyon, SRI, Tech Ser. 79, and ended by saying much more research was needed. She noted that Powell had found an active Southern Paiute garden along river below Lava Falls. Her intensive 1990-1 survey along the river found over 400 sites, and thereby showed that flood zone was lived in. Split twig figurines show Late Archaic (up to 1000 b.c.), with no associated artifacts, but possibly charcoal. Up to 400 A.D., evidence was not strong; no corn was found. Euler did much work on the 700-1150 A.D. period, though his work was not in the western Canyon. The Pai and Paiute arrive after 1200 A.D. She worried about the impact whitefolk had on Indian stories, such as being pushed away from springs. The evidence was equivocal or worse on the most important aspects of culture; mostly charcoal. She suggested much of the discussion has been extrapolated from the area above rivershore level. One of her points had been almost made dogma by Dobyns when he did his Indian Claims Commission work for the Hualapai in the 1950's, emphasizing the superiority of archeological work over testimony. 

In 1994, Stoffle et al. gathered evidence about Southern Paiute use along the Colorado, and took some on river trips. The problem Fairley reported shows up, e.g., a reported garden at the mouth of Whitmore canyon had left no trace when looked for by Euler. Although Fairley rarely mentions the Southern Paiute, Stoffle insists the rivershore was important for farming, hunting, camping, gathering food, trade with the Hopi and others. More than 24 locations were mentioned as river crossings, including Kanab, Diamond Creek, Prospect-to-Toroweap, Hindu, Spencer. He suggests there was a Pai inter-Canyon east-west trail. Logs were used to cross. He collected stories to account for 3 or 4 occurrences of Paiutes south of the river. Some sites were used in recent times, until the Park prohibited them. Palisades Creek, Fairley had said, was a Southern Paiute site. Stoffle says there are of course hundreds of sites, and even if they are not currently used, similar ones are, even farming on some, and carrying on rituals, trade, continuing teaching of farming to family and others. He displays a table of interconnections between sites, to create a sense of a cultural-social web covering the Canyon. 

Henry Dobyns and Robert Euler were heavily influential in preparing the archeological evidence for the Hualapai case before the Indian Claims Commission. in summarizing the Santa Fe case material and in his ICC report, Dobyns presents the view of the Hualapai and the Havasupai as families, one or more of the bands, that were in the vanguard of the advance of Yuman-speakers from along the Colorado River east and northeast. For Dobyns, as a proponent of using archeological over testimonial evidence, the Havasupai-Hualapai separation was a later fact brought on by the incursions by whitefolk. Their similarity is marked by the locations of seasonally used fields and villages of Hualapai bands in Milkweed and MataWidita, southside tributaries of the Grand Canyon. Lower Quartermaster canyon had irrigable land and the agaves of many uses. Bands harvested food and made pottery in the area up until the disruption of the Hualapai war (1865-70), the removal of some to the lower Colorado River, and reservation establishment (1880-3). Dobyns offered no similar evidence from along the river, although he endorsed the concept of haitat, a term through which the Hualapai described the Colorado River as "backbone, spine". This was offered in testimony of the 1950's and later as implying that the Hualapai had a boundary with the Southern Paiute in the middle of the river. However, could further linguistic exploration show that the river was a spine for the territory which went south. If the river is spine, then isnt it for a body that looks inland? And did the Hualapai and Southern Paiute treat with each other as whitefolk do, demarcating a line with mine on one side, yours on the other? Or as the scanty evidence, testimony and speculation indicate to me, was there just activity of various kinds that now and then led people to ford the river? Was it a boundary, a potential barrier, or just a location of joint crossings?

Even more speculatively, I wonder if the travel rates of migratory gathering hunting peoples, particularly prior to the horse, suggest that unlike our time of speed and machines, the Canyon may have been no more or less a consideration to movement than other features of the region. After a few centuries, perhaps it all  --springs, trails, campsites, obstacles & dangers, food sources & potential planting sites—would have been familiar, what people knew, used, and passed on? Over such a time of centuries, the balance would have been reached of exploitable resources and the effort needed to use them. That is, once they knew the country, had settled their patterns, would any of them have bothered much with the river and its low-resource shore?  

Land claim testimony from Hualapai and Paiute speaks of visits and permanent re-location by individuals, including intermarriage, across the Colorado. No specific information was offered on whether knowledge of the river area included occupation and use. Fishing was not mentioned, though certainly occupants of the area before 1300 A.D. had constructed permanent structures and cultivated along some of the rivershore. The question of crossing the river has to raise the question of whether it was done during very low flow, by swimming, and whether driftwood or constructed watercraft were used. In any case, there has never been any suggestion that the river was a place of separation. In the oral testimony, it was represented as a place for crossing, not a barrier. And if one accepts Stoffle's work, then both sides of the river might have been busy strip malls, with people moving both ways over the river.

AND MORE RECENT HISTORY

The army’s answer to whitefolk usurpation of Hualapai land was to look at what was the part of their original area most remote from whitefolk activity, running north from the railroad into the Grand Canyon. In May 1881, under orders from General Wilcox, Lt. Col. Price and Lt. Palfrey, decided on a Hualapai reserve deemed to be enough out of the way of whitefolk settlement, as shown on the map of Jun 25 1882. What did they know about river boundaries, or intend by saying "to" and "along" the river? No documentation on that; all we can say is that for this tract of land, "the river" is the logical northern bound. 

Price met with the Hualapai in a general gathering, consulting with the leaders of four Hualapai bands and a majority of the tribe, he reported, on Jul 1 1881. The proposal met with general agreement. This may have been eased because the Hualapai were already clustering around the railroad and finding wage labor.

On July 8, Order 16 set aside a (military) reservation for Hualapai subsistence and better control over them. Price noted that on the reservation whitefolk had already been taking up the water, fencing off land, and running cattle; there were not, however, any minerals. The army intent was to succor and soothe the Hualapai; indeed the Secretary of War had to push his counterpart in Interior to act on the reservation, though the shooting of President Garfield had also slowed the matter. And finally, January 4 1883, President Arthur ratified the military’s action.

Dobyns & Euler open their 1975 book on the Hualapai (Walapai) by marking and lamenting the centenary of the Hualapai’s forced entry into the U.S. economy as laborers. This fits my own impression gathered from archives, that the Hualapai see their reservation, only a piece of their original territory, as a place on which to establish a viable economy. If the story of the Havasupai asks, in part, what would their lives & society have been like had the government established an appropriate reservation in 1882, the Hualapai story asks, in part, what happened to a people when they tried to use a reservation that was set aside for them, and had to contend with whitefolk elbowing in?

For 60 years, the action was over whether whitefolk, ranchers or railroad, would succeed in pre-empting Hualapai exclusive right. Nevertheless, during that time, the essential connection was forged by the Hualapai between a viable economy and what the reservation could provide. The transportation corridor, first dominated by the railroad, then by the highway US 66, was defined by its location away from the Canyon’s difficulties. Grazing, the source of much conflict with whitefolk to start, was again more defined and limited by the Canyon. Logging took place on the high lands of the plateaus the Canyon cut into. Mineral lures resulted in no success, unlike in some other Canyon edge locations. And then came the proposals for a dam & reservoir, with associated electric power and recreational activities. For nearly 40 years, this scheme seemed THE answer. But even as its promise faded into fantasy, the Canyon provided what today may well be the long-sought solution. Even with a stumble or two along the way, now-successful exploitation of the Canyon’s scenic and recreational qualities by the Hualapai and their business associates is powered by the economic energy of the mechanized Las Vegas tourist industry, surely a safe bet if any enterprise is. Industrial tourism, dependent on energy-intensive transport and constructed facilities, is a hardy adjunct of Grand Canyon National Park, but it is having its more exuberant flowering on the Hualapai reservation. Future evaluations of the way humans choose to relate to the Grand Canyon will demand comparison and contrast between these two administrations with their very different incentives and constraints. Meanwhile, the 131-year effort by the Hualapai to make their reservation an economic base can tick along. 

INDIAN CLAIMS COMMISSION

From the Supreme Court: United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 345 (1941), in which the Hualapai gained clear title to their 1883 reservation:
“Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in questions were, or were included in, the ancestral home of the Walapais in the sense that they constituted a definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had “Indian title”…”. 

The Indian Claims Commission was a largely discredited process started in the 1940's that continued for over 20 years. It was a response to the pressure exerted by the huge number of claims made by Indians across the United States for uncompensated loss (theft) of their land. The idea was a semi-court, full of procedure and rules. It took on a taint of being anti-Indian. Nevertheless, it was another venue where the arguments over the aboriginal territory and the reservation boundary were vetted.

Starting in the late 1940's, and running on into 1967, the Hualapai made their case for compensation for lands they lost, i.e., those lands outside their reservation, that they had used and occupied exclusively from time immemorial. There is some bearing on this matter as a psychological and political necessity that the Hualapai Tribal Council took three drafts to remember that its claim went to the middle of the river. From Nov 1950 Hualapai minutes: The tribe's business manager said that the Hualapai Tribal Council's review of the 3rd draft of their claims petition needs to say "midstream or center of Colorado", instead of just: “north and east on a line along the said Colorado River to the point and place of beginning”, which was the “intersection of said river and eastern boundary of present Hualapai res”. This was the same 1949-50 period, after Marks became tribal attorney, in which he was pushing backers of the CAP+Bridge Canyon dam legislation to take Hualapai interests into account.

November 1962, the ICC issued findings of fact, including #17 (p 195 ff): "The Commission, based upon the foregoing findings of fact and the record as a whole, find that the Hualapai Tribe exclusively used and occupied the following described tract of land: Commencing at a point on the southern shore of the Colorado River marked by extending a line projected northward from the northernmost tip of the plateau ridge between Prospect Valley and Mohawk Canyon; thence southward (description goes south and west) to Mount Wilson; thence in a direct northeastwardly line to the southern shoreline, thence in a general eastwardly direction along said southern shoreline to the point of beginning." 

An important, maybe crucial point is the use of "exclusively". It may be that the river was judged to be used jointly by the Paiute bands on the north bank and the Hualapai. (Mea culpa: when I did my ICC research, I did not check the Southern Paiute material.) Certainly, there is evidence for Paiute use and occupancy on the northern rivershore. Hualapai and Paiute testimony was given of crossing over, even of mixed couples forming, and even in historic times-- the Ghost Dance was brought south by the Paiute to the Hualapai. References to the Paiutes & the river are scattered, but it is arguable that the Paiute came south rather than the Hualapai going north.  Some of the references imply relations were not always friendly. No Hualapai report seems to have anything to say about use of the river, and only a little on Canyon activity. Nearby, Mattawidita, a major side canyon, is an important site, but there is not a lot about Diamond Creek. Part 5 describes hunting and gathering bands using the land in an extensive, not an intensive, way. The gardens (as in Madwitica Canyon) and springs were mentioned, but the river was not described as used.  

From a 1967 Marks report to the Hualapai: The ICC awarded $2.8 million for the lands you lost. The ICC placed your northern border on the Colorado River's southern shoreline, whereas “according to all authorities” your border lay along the middle of the Colorado River. 
Attorney Lazarus had argued before the ICC in 1967, citing the Examiner's report in the Santa Fe case. He claimed it was out of the ICC case because it was in the reservation, but then argued about the value, as if it were in the case. There is a discussion of where measurement of acreage was done. Lazarus then talked about the stream being navigable and therefore Hualapai was sovereign until 1883. The opposing counsel thought a cliff should be used, since he didnt see a use for any of it, and anyway the witnesses were all careless in their testimony. One commissioner had asked if they came to the river to use it or just to look? He nevertheless concurred in not changing the description. In the ICC opinion, the reasons for including the river were called insufficient to change the description. Marks explained that they could have appealed, but were concerned about the process then being too long even with the extension of the ICC for five more years.

So the ICC heard the Hualapai witnesses and received the archeological and other evidence, and found the boundary to be on the Colorado's southern shoreline. As a body largely sneered at now, should its activity be of any weight? Why did the solicitors' opinions not deal with it?

In Aug 1976, the Hualapai lawyer Marks won a case for another tribe about a river boundary, in which  the judge's conclusions included the statement that the Indian interest was important, but that "practical construction" of law is entitled to great respect, even though laws protecting Indians must  be liberally construed for their benefit. Can we be practical about the Park/Hualapai river boundary, while acting for the Hualapai benefit? 

SUMMARY AND CONCLUSIONS

The legal questions to do with ownership of the riverbed, riparian rights, and the power to regulate public uses on the water surface have provided a field day for the lawyers. What comes out of this for me is that the commerce power of Congress has been shown to be paramount, i.e., Congress has the power to set a line for the public purpose of facilitating and controlling navigation. If the Colorado was non-navigable in 1883, the riverbed belonged to the Hualapai to its middle. But Powell et al. had already shown it navigable. (I reject the experience-limited and time-bound judgement of a judge at any point saying, "This river is so rough, it cannot be run.") Even if this is not conclusive, at the next point, 1912, there had been about 10 trips, including the Kolbs with camera. An adventure, surely, but only that? (Again, I reject a time-bound judgement, apparently aimed only at settling a case that customary use means only tame use; rough waters, rough traverses, but still navigable.) Nevertheless, let us say the Hualapai had a case, a claim, in 1883 and in 1912. But 1975?  Case closed on navigability. The United States, through NPS, had asserted its power to regulate navigation, which was a multi-million dollar affair, and appropriately assigned jurisdiction over the Colorado River's surface in the Grand Canyon to the National Park. Moreover, the United States has exercised its power over the public lands. Admittedly, there have been inconsistencies and changes of heart and mind. Nevertheless, whether making dams or parks,  if the history has shown anything, it is that that this area is over-run, afflicted, infected, and infested with public interest, and therefore great care and respect, for the land and for the public (Hualapai and non), should be used in considering its disposition.

So let us admit the claim of the Hualapai that its land went down to the riverbed, even groping along the bottom halfway across to the north side, based on the idea that if conditions of 1883, even 1912, had never changed, the Colorado in the Grand Canyon would have been tinged with non-navigability. Let us be generous, and not contest this now out-of-date contention. Let the U. S., as sovereign, grant that the Hualapai lands run down past all those high water marks to a point in the muddy, rock-girt bottom we can imagine as the Hualapai Middle. And let the United States, uncontested, get on with its task under the Constitution of protecting our Parks and regulating the Colorado River, its waters and its traffic, under the auspices of the administration of the Grand Canyon National park, from the Paria to the Grand Wash Cliffs. 

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