Sunday, October 2, 2011

GCNP/Hualapai Boundary documents

6 Feb 1976 Interior Field Solicitor, San Francisco

Hualapai asserts they own half the bed of the river.
Therefore, they are entitled to a portion of river traffic revenues.
10 Oct 1975, in reply to Goldwater inquiry, this office said PL93-620 did not resolve boundary disagreement.
Conclusion in this reply is that 1883 EO established Reservation boundary at high water level. Title to the bed was in US until 1912, when it passed to Arizona.
After moving about, in 1881, majority of tribe proposed a tract of no great use to whites, w/ no mineral deposits, little arable land, water in small quantities, and void of grass for stock raising.
8 Jul 1881, military reservation established; followed by EO 8 Jul 1883.
Colorado River is navigable by Az v. Cal (he says 1912, but it is 1931).
Did US convey title to river bed? No evidence of any intent to do so.  Goes through several irrelevant cases, without attempting to connect to Hualapai situation.
Doubt should be resolved in favor of Indians, but no doubt in this case that EO did not include the bed, as the language "clearly" sets forth (quotes text).
Language of "along" = border the river, and this is supported by description of land without any resources. Therefore the Hualapai did not consider any portion of the river to be within their boundaries; no evidence they considered land under river to be of utility to them.
Ownership in bed lies with State, but ownership and use subservient to the Federal navigation and other paramount Federal laws.
In footnote says that control of river implied by PL93-620 language that GCNP shall "comprise all those lands, waters, and interest therein", but more research needed.

25 Nov 1997, Interior Solicitor to Chairman, Hualapai Nation, who had requested review of above opinion.

Conclusion of 1976 opinion is correct that EO of 1883 did not include the bed of the river.
Question is one of the intent of the parties.
1976 opinion relied on language of EO, construing "along" to mean "bordering". Also, 1883 tribal proposal for reservation made no reference to use of the river, only to land & its characteristics.
Though usually doubt should be resolved in Indians' favor, he looked at other boundary descriptions of Colorado River in vicinity at that time: Havasupai says "middle of" creek. Navajo addition 1880 uses "middle channel of", as does 1884 Navajo addition. 
Navajo again: 1900 "west to (river); thence up that stream", 1905 "south to (river); thence down"; Have not been interpreted.
These differences show drafters knew how to be explicit if they wanted boundary in middle. Since not explicit, shows drafter intended to go to high water mark. 
So based on EO language, differences in language with other contemporaneous withdrawals, language in tribal request for reservation, US did not intend to include river bed.  
Since language controls, no need to decide on navigability. Then says 1976 opinion used Az v Calif 1931,283US423. But this was not on title, which is tied to navigable at statehood, although navigability for commerce may later arise. Moreover, decision did not get up to Hualapai stretch of river. Since no cases found on navigability, therefore no opinion.

Majeske,  Andrew; "Parens Patria: Issues Relating to the Colorado River Boundary between Grand Canyon National Park, the Hualapai Reservation, and the Navajo Nation", Nov 2001.

Notes use by Solicitor of hydropower withdrawal power to exclude Navajo, but not applied to Hualapai lands.
Says Solicitor relied on language of EO, esp. "along", but cited no cases.
Hualapai required to call lands worthless. So could not go to the middle, since that would ascribe value. Attacks solicitor for using obviously coerced statement, which is not legally usable. 
Gets to his primary point, that "along" IS defined in legal encyclopedia along with all the other words as carrying titie to center OF A NON-NAVIGABLE STREAM/RIVER.
Says 1976 opinion cited no support for saying navigable. 
Moreover, 1997 opinion takes back 1976 opinion on navigability, leaving no legal basis at all for assertion of high-water mark. 
In footnote 7 Balsom says Park means "historic", before Glen, high water.  Majeske says there is case saying that grantee to high-water can use to low-water.
Says navigability for title would be determined at time of statehood, 1912, then cites def of navigability talking about the "ordinary condition" of the river permitting trade and travel "in the customary modes".  So it was non-navigable. [But 10 trips had already shown that it was navigable in spite of requiring non-customary modes, which paved the way for becoming customary modes.]
He adds that even if the Colorado was navigable, Hualapai have right to access.
Then he says, the Reservation not subject to hydropower withdrawal should go to the middle since the river is non-navigable. Then what does it mean that the entire section was so withdrawn? He does not have the answer. 

Feb 1978, Forrest Gerard, Ass't Sec for Ind Affairs, memo on Grand Canyon Wilderness bill, sets forth Hualapai position on boundary:

Hualapai have always maintained boundary is middle of the river. Ambiguities and poor draftsmanship in EO, and notation on map of PL93-620. Then cites Emerson ploy that it was just there for negotiation. Somewhere, the notation was dropped; House felt sec. 5 was enough. Wilderness now uses high water mark. NPS "would see its area of control expanded to secure a monopoly on Colorado River traffic." 

Assuming ambiguities in EO: tribe offers, first, it "has occupied and lived in the area of the present reservation." "Since their first contacts with the white man in the 1700's until the present, the tribe has lived on and utilized the Colorado." To the north the Paiutes "recognized the Colorado River as the boundary between their respective territories. the Colorado was a source of livelihood and a delineation of territory and political authority. So they use haitat to indicate significance, spine or backbone of the river. They believe that is their northern boundary. They aboriginally owned and occupied the area. Supreme Court. "Ludicrous to believe that the tribe ceded the narrow strip of land between the middle of the river and the northern boundary of the reservation, thereby cutting themselves off from continued use of the Colorado". So not ceded, and river continues to be part of the res. 

Second point: even if US conveyed res to Hualapai, it went to middle. Riparian owner bordering navigable owns to high water mark. However, if non-navigable, reservation goes to center of waterway. No adjudication of Colorado between Lees Ferry and Virgin River. But upstream, some portions were navigable, some not because of rapids.Then he goes through a long analysis of river: 3 most violent rapids--Lava Cliff, Lava Falls, Separation. Not fully explored and mapped until 1923. History of Separation Canyon. So obviously it was non-navigable. 

He takes up "provision 9" allowing a reclamation project, "to provide them with some hope for future development of the Bridge Canyon Dam". Then he goes into desolation of place. "Repealing of reclamation provision would seal Hualapai's doom."  

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