A full title to this very, very long entry would read "THE NAVAJO WESTERN BOUNDARY ON LEFT BANK OF COLORADO RIVER AND THE NORTH BANK OF THE LITTLE COLORADO RIVER (LCR) ADJACENT TO GRAND CANYON NATIONAL PARK". A subtitle might read: An argument from history, law, ethics, and common sense. My aim is to be as comprehensive and complete as I can be in gathering and presenting the relevant materials. First, I present the foundation arguments for my conclusion that the boundary is on the riverbank, the edge of the river. The focus is on the strip of Grand Canyon east of the Colorado running from the confluence with the Little Colorado River upstream along the east bank to Nankoweap. The focus then shifts to documents and action to do particularly with Marble Canyon from Nankoweap upstream, the stretch that was included in Marble Canyon National Monument.
This matter of the Navajo Reservation boundary location is a deeply serious matter, as the current controversy over a heinous proposal to industrialize the confluence of the Colorado and the Little Colorado shows (my blog entry of 24 June 2012). Let me be honest and clear: I strongly wish, in the light (and dark) of my 50-year involvement with the Canyon, that the land & waters in question were securely, unquestionably, and unconditionally within the ownership of the people of the United States as part of Grand Canyon National Park. That it is not so I find vexing, but then, the tangled politics and law focussed on the Grand Canyon that have been generated over the past century-and-a-half are, often, exactly that: vexing, and conflict-full, and exasperating. They are, far more, deeply worth the effort, and exacting and exciting to write about.
METHOD & SCOPE
I propose to lay out the case for a Navajo/Park boundary that runs along the Colorado's left river bank, the water's edge. However, and this is my first argument, there are three well-defined segments with different histories and legal justification. Some arguments and evidence for one segment may not apply to the others.
For instance, the first piece runs from the Paria junction to Navajo Bridge. Interestingly, that boundary's location on the left, south, bank seems to be settled and uncontested. I will not discuss it further.
The second is the stretch of the Grand Canyon, its introduction, commonly thought of as Marble Canyon (some parts called Marble Gorge). Running from Navajo Bridge to Nankoweap, it ends at the "old" boundary of the Park, where the Grand Canyon opens wide on the west. This is the stretch covered by President Johnson's 1969 proclamation of Marble Canyon National Monument.
The third runs from Nankoweap to the Little Colorado and up it a bit, and includes the confluence of the two streams. It is, physically, an obviously integral part of the Grand Canyon; it is not an extension of Marble. Maps label this east wall the "Desert Facade", but I am content with LCR-Nankoweap. It is in the lower half of this BLM Arizona Strip 2006 map; the upper half being part of Marble. The boundary of the Park on this map is of course not on the rim, as in the official Park map, and not on the river bank, as I am contending, but is based on one, flawed, interpretation of hydroelectric dam withdrawals some of which extended ¼ mile from the riverbank. Aside from that, it is a good map for orientation:
This is the area currently the target of inappropriate development scheming aimed at the two rivers' junction. This area has a history not shared by the lands upstream.
THREE SPEEDING OBJECTIVES
A short bit about the years from the 1880's to the early 1920's. It astonishes me to think that the three concerns most important were all such new Grand Canyon claimants. The Navajo had been moving into the Southwest more or less contemporaneously with the Spanish, and from the 1880's were reaching toward the Canyon, claiming piece after piece of land for their Reservation. Electrification was a baby at that time; yet by 1910 huge hydropower dams were being routinely proposed. And in the 1880's USGS Director J.W. Powell and brand-new Senator Benjamin Harrison of Indiana made their first attempts for a Grand Canyon National Park, an effort then pursued with ever more effort and complications to 1919 and beyond.
These three would co-exist and contend through much of the 20th century, not least in this stretch of the Colorado River and its canyons. All new and vigorous, pushing for primacy; the three demanded political and legal advantage. This bit of Canyon wall is thus a case study of the American West. We cannot see it, perhaps, but human history is embedded there as surely as is the Redwall limestone.
LAYING OUT THE POLITICAL-LEGAL GRID
Before 1893, this part of the Canyon, and focusing on Nankoweap-LCR, was a spread of unappropriated public land, a part of the United States' spoils from the war with Mexico. As mentioned, Powell & Harrison had put Park legislation before Congress in the 1880's; to no avail. But during Harrison's presidency, an opportunity arose to do something for the Canyon under a kind of disguise, giving Presidents the power to create Forest Reserves.
(A digression to ask you to consider for a moment what if the Park and the Park Service had come first, before the Forest and the different goals of its Service. Imagine the tree-cutters and grass-eaters' owners having to petition the Park Service for land instead of vice versa.)
Here is a reference map from that time, showing part of the Forest as it related to the Canyon, and also showing Roosevelt's 1908 Grand Canyon National Monument (GCNM):
The green line is the Forest, and out of it is carved GCNM, shown by the straight black lines + the little green segment at LCR. The Colorado is shown winding its way south, then west. The letters LCR (Little Colorado River) and NANK (Nankoweap ) indicate the limits of the piece of land we are discussing, inside the northeast lines of GCNM. The larger northeast piece inside the green line will come into play a bit later.
Meanwhile, the Navajo had also been busy, and seven years after the Grand Cañon Forest Reserve, they had reached the Canyon. This map (from a University of Oklahoma publication) may be an unfriendly one to follow, for the Reservation expansion is a knotty subject:
Each of the differently shaded blocks shows an addition with its date (the letters refer to the book text), some by executive order, some by legislation. The top part of the western crinkly line is the Colorado; you can see a V on its side in the middle; that is President Harding rapid, just upstream from Nankoweap. For more detail, compare the "K 1930" block to the BLM map above.
In 1884, President Arthur moved the Navajo line to the Colorado upstream of the Canyon through an order that read in part:
Washington, D. C., May 17, 1884.
It is hereby ordered that the following-described lands in the Territories of Arizona and Utah be, and the same are, withheld from sale and settlement and set apart as a reservation for Indian purposes, viz:
Beginning on the one hundred and tenth degree of west longitude at 36 degree and 30' north latitude (the same being the northwest corner of the Moqui Indian Reservation); thence due west to the one hundred and eleventh degree 30 minutes west longitude; thence due north to the middle of the channel of the Colorado River; thence up and along the middle of the channel of said river to its intersection with the San Juan River;... Provided, That any tract or tracts within the occupied, or to which valid rights have attached under existing laws of the United States prior to date of this order, are hereby excluded from this reservation.
Chester A. Arthur."
In block D 1884 above, note the right angle bend north to the Colorado, which it reaches a few miles upstream of Lees Ferry and the Grand Canyon. This piece is not part of our concern, but it will show up in the oddest way, so keep in mind its point of meeting the Colorado.
The Reservation reached the Colorado at the Canyon under President McKinley's Executive Order of 8 January 1900, (E 1900 on the above map) describing the boundary as starting from the southwest Hopi corner then "running due west to the Little Colorado River, thence down that stream to the Grand Canyon Forest Reservation, thence north on the line of that reserve to the northeast corner thereof; thence west to the Colorado River, thence up that stream to the Navajo Indian Reservation" as set aside in 1884.
PROGRESS ON A PARK
As the second map above shows, the Nankoweap-LCR stretch was included in the 11 January 1908 Grand Canyon National Monument famously set aside by President T. Roosevelt as a huge expansion of presidential power, in a proclamation that said in part
So all the the GCNMonument lands were reserved from any other kind of appropriation. That is, the lands could not be taken for some other purpose, even if some people thought that purpose was more justified than being in a Monument/Park. Since the Monument was within the Forest, the proclamation allowed some forest purposes as long as they were subordinate to the Monument's purpose, which was the strictest kind of preservation. Indeed so strict was the bar on development and other activities, it became a spur to passing a G.C. National Park law that would allow activities like reclamation projects, mining, etc. (See this blog, under the tab for THE PARK.) That is, in these early years of Monument creation, that status was more preservationist than a Park.
This first Grand Canyon Monument (we are now up to four) existed from 11 January 1908 until the Park was established on 26 February 1919. All the land from LCR to Nankoweap (and a bit more) on both sides of the Colorado were included within the Monument. When proclaimed, the only other formal designation or claim was the Forest, which was subordinate. To quote again: the lands were "reserved from appropriation and use of ALL kinds under ALL of the public land laws" (my capitals).
A NEW STATE IS EXCLUDED FROM TAKING COLORADO RIVER LANDS
In 1910 (after GCNM had appeared), another player appeared, as Congress passed the Arizona Enabling Act of 20 June 1910. Its Section 28 said in part:
Provided, that said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such government project.
There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this act to said proposed State all land actually or prospectively valuable for the development of water power or power for hydro-electric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no land so reserved and excepted shall be subject to any disposition whatsoever of said State
AND section 29:
all lands granted in quantity, or as indemnity, by this Act, shall be selected, under the direction and subject to the approval of the Secretary of the Interior, from the surveyed, unreserved, unappropriated, and nonmineral public lands.
Therefore, the U.S. had the right to keep its public lands that were valuable for irrigation, water power & hydro-electric power, and to bar Arizona from selecting any such lands & waters if the Secretary designated them before 14 February 1917. That is, this Act affected Arizona prerogatives. In granting Arizona statehood and the right to select public lands for various purposes like schools, the U. S. exacted the price of barring Arizona from taking lands "actually or prospectively valuable for the development of water power or power for hydro-electric use or transmission" (my emphasis). At this early date, everything in water power was speculative and up for grabs, and, making life a bit less complicated, the U.S. cut out the new state. Note the words "prospectively" and "ascertained". The Secretary did not have to determine these were good lands for water-power; he did not have to dedicate these lands to water-power. He just had to cast a wide net of possibility, no matter how remote, to bar Arizona from owning river-tinged lands.
So it is not surprising that when we look at the withdrawal most often cited, Water Power Designation No. 7, Arizona No. 4 (AR7-4), dated 9 February 1917 we see a swath all along the Colorado River regardless of other reservations and withdrawals. (I will treat the withdrawals again below when I deal with the solicitor analyses, which rely on them.) It was too early by a few years for anything concrete to be planned or put forward; no lands were being dedicated for a dam or canal or powerlines; all that was done here was to tell Arizona: hands off. For instance, therefore, AR7-4 runs through Grand Canyon National Park. It means nothing about the lands being needed for water power; it is just an artifact of a Fed jealous of its prerogatives. And of course, in particular, these designations, coming after, could not apply to or weaken the near-absolute protection given the Grand Canyon National Monument by the Antiquities Act. Once again, a reason to legislate a Park, with its permissions and exceptions for exploitation, though the withdrawal could not be re-applied, being after the five-year limit.
THE FED WANTS CONTROL, YES, BUT FOR WHAT?
Nevertheless, something is afoot. For when the Monument is replaced by the Park, 26 February 1919, these two provisions are included:
"Nothing herein contained shall affect any valid claim, location, or entry existing under the land laws of the United States, prior to February 26, 1919, whether for homestead, mineral, right-of-way, or any other purpose whatsoever."
"Whenever consistent with the primary purposes of such park, the Secretary of the Interior is authorized to permit the utilization of those portions of the park, which may be necessary for the development and maintenance of a Government reclamation project."
So does the first provision amount to boosting AR7-4 into a reservation of land in the new Park for "the development of water power or power for hydro-electric use or transmission", even though AR7-4 could not apply to the Monument as actually taking a right-of-way? And does the second allow any part of the Park it desires for its purposes? To put the question another way, in these crucial early years, the debate was on as to which this nation was making dominant: power or Park.
History has the answer for that question, though it spans a half-century. But an important tilt of the balance came when, after strong efforts by conservationists, the Federal Power Act of 1921 removed the authority of the Federal Power Commission to license any dams in existing Parks. Arizona could not select Park lands and the FPC could not utilize the withdrawals there anyway. This was only emphasized when the 1923 USGS Birdseye survey of the river for damsites ended up with attention being directed toward Marble and way downriver below Diamond Creek. Indeed, no proposal has been promoted for water-power in the eastern Canyon. For water-power developers, it is a dam desert.
The reclamation provision seemingly still stood after 1921, though it refers to no particular piece of the Park. In fact, reclamation authorization has always been the possession of Congress. The Secretary only had the role of proposer, not authorizer. The language has been carried forward; we have never been able to clean up the GCNP's Act by completely ridding it of these & other such anti-park provisions. However, in fact, as far as the Grand Canyon is concerned, all that we have just been discussing is tantamount to saying, "Yes, this withdrawal & reservation business is complicated, but for all practical, meaningful, legal, and I would add, ethical, purposes, the fight over keeping dams out of the Canyon rendered all this stuff based on proposals for hydropower a dead letter, a historical artifact.
THE PARK TURNS ITS BACK ON THE EAST SIDE
It is 1924. The Monument and then the Park have been established. Hydro-power proposing is at full throttle. Creation of the Monument had made any attempt to withdraw or reserve lands for dams null and void, words without effect. Moreover, the proposals for dams and the most meticulous 1923 USGS survey found no interest or practicality in considering hydroelectric use of the eastern Grand Canyon. The Park Act language cited above would dent my belief had the provisions ever been implemented. However, the 1921 Federal Power Act re-strengthens my conclusion, since the support mustered by advocates for the National Park System being free of dams triumphed, for the time anyway, and as it would eventually.
Various water-power withdrawals were in place, but they were sleeper agents since the Park had been set by Congress on both sides of the Colorado up to Nankoweap. Important in 1924 to new superintendent Eakin was trespass east of Grandview near the Navajo lands. He wanted to take in more land on Cape Solitude, going to the Little Colorado as far as Straight Canyon. However, he had a very different opinion for the area north and east of the junction of the Colorado and Little Colorado. On the map USGS's R.T.Evans was preparing of Park boundary recommendations (1 December 1923), there are initialed notations that this trans-river area above the junctions [speaking of what maps now label "Desert Facade"] was of no interest to the Park and very difficult to administer. Eakin recommended returning (sic) it to the Navajo and following a natural boundary. Evans, by the way, wanted the Park to go farther up into Marble Canyon, but only on the west side. (See my 12/20/10 post for more details.) When Senator Hayden introduced a 1925 bill to make agreed-upon changes, he included the trans-river elimination, the area being "of little scenic value". Eakin, reporting to NPS Director Mather, repeated his desire for the Park to lose the trans-rivers corner, since there was no survey out there, and anyway, it was a 57-mile walk or ride from Cameron. He repeated this in December in a confidential note to another D.C. NPS official. He got his way, and this is what the eastern GCNP line looked like to tourists for almost a half century(courtesy of the So. Cal. Auto Club), following the 25 February 1927 Act changing the Park boundary:
Just look at that missing bite.
Leaping ahead with NPS, the Park and Region in the 1940's and 50's were working out recommendations for a new set of GCNP boundary changes. These included adding the second Grand Canyon National Monument (or part of it, anyway) and making other additions to round out the Park, including the lower part of Kanab Canyon. The Regional Director was then M. Tillotson, who had been GCNP superintendent, one of its strongest, for 11 years; The superintendent was H. Bryant, the Park's longest serving, an even stronger conservationist.
Tillotson in 1930 doubted the advisability of taking back the trans-rivers corner in the northeast (for the same reason of "remoteness" as in 1927); "it is much more logically a part of the Indian reservation". Repeating this in 1931, Tillotson noted that the trans-rivers land had been added to the Navajo Reservation, and did not want DC to even think about adding it back.
These two were NPS at GCNP for a quarter century. Another influential voice, Bestor Robinson of the Sierra Club and member of the Secretary's National Advisory Board on Parks, in 1949 urged the Park Service to consider extending the Park up into Marble Canyon, after he had been on one of the then-rare river trips. Sad to say, the Eakin distaste for the east rim of the Canyon prevailed, and when the boundary recommendations were formulated in a bill introduced at NPS request in the mid-1950's by Senators Hayden & Goldwater, nothing was included for the east side of the Colorado; it was still of no interest. True, a dam was going to be built upstream in Marble Canyon, but that did not affect the Nankoweap-LCR stretch below Marble. This Marble-less, eastside-less proposal, and here is a map, remained the NPS position into the mid 1960's.
But even after the 1966-8 death of the dam dreams, NPS did not see the value of the LCR-Nankoweap stretch. In late 1968, when it formulated the Marble Canyon National Monument proclamation, it went downstream only to Nankoweap. Why stop? Could it be that NPS still did not think that stretch of "scenic value", of that it was "too remote"? Could it be that NPS then understood that the case for that stretch being Navajo land was paramount? (see below) In any case, even as late as January 1969, NPS on the record did not see the Desert Facade rim as desirable, much less required, for the Park. The Navajo, however, had valued this land.
THE NAVAJO GET TO THE RIVER, BUT ...
- The Nankoweap-LCR stretch that Eakin disdained was deleted from the Park by the Act of 25 Feb 1927, and it became part of Tusayan National Forest once again. Guess what, the Forest Service did not want it either; it was much too remote and only used by several thousand Navajo sheep. This was not surprising, for the Navajo and their sheep had been moving west for some decades, reaching into Coconino Basin south of the Park, as well as all about the Little Colorado and north. In 1917-8, another piece of the Forest west of the LCR had gone into their Reservation. This combination of FS disinterest and Navajo active use makes what happened in 1929-30 of no surprise.
In May 1929, Navajo living in their Western Agency had the BIA ask the Forest Service about that part of Tusayan N.F. north of the LCR and east of the Colorado (including the piece eliminated from the Park; see the strip on maps above), saying the area was inaccessible and of no value to the F.S.. The Tusayan supervisor sent a report to his Region, which agreed that the land was of negligible forest value, remote, difficult of access, never under FS direct administration, and ought to be eliminated from TNF. The only use was intermittent grazing (when there was water) by 7000 Navajo sheep. By November, the report had reached the Chief Forester. BIA pushed, opining that now would be the easy time to get that land. By January, the agencies were in agreement. Indian rights advocates were consulted. Senator Hayden had checked with local ranchers as well as the Coconino Board of Supervisors (always a pet of Hayden's). The Act was passed, and signed on 23 May 1930, saying in part:
That the following-described land be, and the same is hereby, eliminated from the Tusayan National Forest, Arizona, and added to and made a part of the Western Navajo Indian Reservation, subject to all valid rights and claims of individuals initiated prior to the approval of this Act: All that part of the Tusayan National Forest lying east of the Colorado River and north of the Little Colorado River
It is worth noting that the rights and claims of individuals were protected; no mention of water power. Also, the Navajo continued to gain land in this general region by exchange.
Now we sit down to feast on the utterly delicious legislative sausage that is the Navajo Boundary Act of 1934. Watch carefully, for it was written by the craftiest, shrewdest defender of Arizona and especially its economic interests we ever sent to Congress: Carl Hayden.
I paraphrase his February 1933 press release on the exterior boundaries of the Navajo Reservation: The chief object of my bill is elimination of checkerboard land holdings. There are three interests: Navajo, private owners, local governments [JI note: no Park Service]. My bill conserves for the Navajo domain sufficient to support their flocks and herds. "As a consideration for this benefit the Navajos are denied by the bill any interest in future water power development on the Colorado and other streams in that part of Arizona. The principal water power withdrawal is a strip one quarter of a mile wide on each side of the Colorado".
We need to break in on the Senator's release to look, just a glance, at these withdrawals. They were done on unsurveyed lands, but often used language that would then be interpreted by, e.g., the USGS or Reclamation, to figure out where a line went. For instance, "¼-mile" was interpreted to mean " all lands which when surveyed will be within legal subdivisions within ¼ mile of" the river". Other interpretations put the line at 3150' elevation. The orders and interpretations relevant here were mapped by the Arizona Power Authority in 1961 when it sought a license from the Federal Power Commission to build Marble dam. Here is a piece of their map to provide some idea of the complications of this boundary:
Now back to the good Senator's 1933 press release; it stated:
A bill has been introduced in the House by administration request with nothing in it about power withdrawals. Earlier, the Secretary had said my bill would deprive the Navajo of rights to water power, but the administration [JI note: This was the New Deal, with reform-minded J. Collier as BIA chief] thought that my proviso for benefitting the state should be replaced by one not depriving the Navajo of power rights.
Hayden had taken his own path to a balance, preparing an amendment excluding lands from the Reservation designated for power purposes but saving the Navajo right to use and occupy the lands until required for power. There were other changes in his handwriting, including putting the line on the river banks.
Collier's disapproval led Hayden to go around him in July 1933, writing to Navajo Chairman Chee Dodge that "what the Navajo want is consolidation of lands within limits". He was convinced it will be "many, many years before there will be any water power delivered on the Colorado, so looking into the future, I think the best policy is for those revenues to go to all Arizonans. You cannot develop such power sites, and what you want is land, while the whole state gets the power benefits."
In final form, the Act of 14 June 1934 is THE key document on the boundary matter, and I excerpt here the key parts, only reformatting and numbering for explicatory purposes. Within my explanation, I will refer back to these pieces by numeral -- (1) points to FIRST, and so on. My explanation does not always, of course, treat the pieces in the numerical order of the bill. Sausage is not striated, but mixed.
That the exterior boundaries of the Navajo Indian Reservation, in Arizona, be, and they are hereby, defined as follows: Beginning at a point common to the States of Arizona, New Mexico, Colorado, and Utah, thence west along the boundary line between the States of Arizona and Utah to a point where said boundary line intersects the Colorado River; thence down the south bank of that stream to its confluence with the Little Colorado River; thence following the north bank of the Little Colorado River to a point opposite the east boundary of the Grand Canyon National Park; thence south along said east boundary to the southeast corner of section 5 township 30 north, range 6 east, Gila and Salt River base and meridian, Arizona; ...
All vacant, unreserved, and unappropriated public lands, including all temporary withdrawals of public lands in Arizona heretofore made for Indian purposes by Executive order or otherwise within the boundaries defined by this Act, are hereby permanently withdrawn from all forms of entry
There are hereby excluded from the reservation as above defined
all lands heretofore designated by the Secretary of the Interior pursuant to section 28 of the Arizona Enabling Act of June 20, 1910 (36 Stat.L 575), as being valuable for water-power purposes and all lands withdrawn or classified as power-site lands,
saving to the Indians, nevertheless, the exclusive right to occupy and use such designated and classified lands
until they shall be required for power purposes or other uses under the authority of the United States:
Provided, That nothing in this Act contained shall be construed as authorizing the payment of proceeds or royalties to the Navajo Indians from water power developed within the areas added to the Navajo Reservation pursuant to section 1 of this Act;
and the Federal Water Power Act of June 10, 1920 (41 Stat. L. 1063), and amendments thereto, shall operate for the benefit of the State of Arizona
as if such lands were vacant, unreserved, and unappropriated public lands.
All valid rights and claims initiated under the public land laws prior to approval hereof involving any lands within the areas so defined, shall not be affected by this Act.
This is an Act, first and foremost, about the boundaries of the Navajo Reservation (1). It was not legislation to promote water power, though Hayden wanted to protect Arizona's right to it (8); it is certainly not legislation to provide for the defense of the United States, or study the weather, etc. It is not, again certainly, an Act to provide lands for the National Park Service to administer. It is not, above all, a dead letter to be ignored.
As the history shows, Hayden's intent was to consolidate Navajo lands, especially in those areas where there was checkerboarding left over from the railroad grant days. He exacted a price for this firming up of the Navajo home -- they were not to share in proceeds from water power(7) (8). He is a little sneaky here; when he wrote Chee Dodge (above), he spoke of power revenues going to "all" Arizonans(8) as if that might in 1934 include the Navajo, but look at (7).
However, to be sneaky back, none of the lands along the Colorado were "added" by this Act (7); they were already part of the Reservation by the 1900 Executive Order and the 1930 Act. Is that really a loophole so a would-be dam-builder could buy Navajo support? Even sneakier, or cheekier, 2, 8, and 9 together could be argued to suggest that the authority to issue a Federal Power license, a form of entry, was permanently withdrawn. Gristle in the sausage. But enough sneakiness; Hayden legislated so the Navajo could have, use, and occupy their reservation, at the cost of not realizing any water power benefits. And if there were never to be any dams, would someone try to exact another cost?
Seriously, the Act is clear, no?
(1) The exterior boundaries lie along the south bank of the Colorado and the north bank of the Little Colorado. This was already true of the lands that had been transferred from the National Forest in 1930.
(3) But some lands are to be excluded, taken away, given with one hand and snatched with the other; what we used to call, in dumber days, Indian giving; an ironic twist, then.
(4) Hayden thought the withdrawals resulted in a ¼-mile strip of excluded lands, although there were already Secretarial Orders interpreting these lands more restrictively, and even more important, although the Nankoweap-LCR lands had been in the Grand Canyon National Monument and therefore were "reserved from appropriation and use of all kinds under all of the public land laws" when the water power reservation orders were issued in 1914-7. So the ¼-mile strip inside the Nankoweap-LCR strip could not be excluded from the reservation. Does not that mean we are done? No withdrawal means the boundary is on the river. So the argument ought to be over, at least for this stretch. But some base their argument on the upstream Marble stretch, and they hope that by implication, it will apply down to the Confluence, I guess.
So lets continue, and complete the analysis of the 1934 Act.
(6) I want to break this piece up some more (and this is the very key of this very key action):
A: until they shall be required for power purposes OR
B: until they shall be required for other uses under the authority of the United States.
That is, "other" means "other uses" than "for power purposes"; and it means any other uses.
Now let's not joke around. Under our system, if the authority of the United States is invoked appropriately, those "required … other uses" carry the day. For instance, if the Secretary of Defense said, my pilots need Marble's walls to practice bombing and demolition of Afghan mountains to capture what's-his-face, then it will be done if properly ordered. With that kind of power in play, the Fed has an obligation to be careful how it handles "required" and "other uses".
A speculation: What if the correct reading is not what everybody has assumed, which would read in full: until they shall be required for power purposes or, if they are no longer required for power purposes, for other uses. Instead, suppose that the correct reading allows an "other, required use" to be authorized by the United States at the same time as a power use. While Arizona was pressing for a dam license from the Federal Power Commission in Marble, could not the Park Service when it was reviewing the Park boundaries in the 1950's have argued that it really, really required Marble Canyon as a Monument to stop that dam?
I conclude all kinds of "other" things could be done, if "required". However, now it is time to remember (5). The Navajo, nobody else, had the
(iii) to occupy
(iiii) and use these excluded lands.
What was Hayden doing here? He was writing legislation to help the Navajo, to respond to their felt and declared needs for a workable, consolidated, adequately sized, reservation. For half a century, the Navajo had been making and winning arguments to improve their land base. In the area we are considering, Navajo grazing requirements determined several land actions. True, they could receive no benefits from hydropower. And if hydropower were no longer in the picture? That is, if a use, under the authority of the United States, other than hydropower were to be invoked, what use would be more relevant, more dominant, more "required" than the purpose of this very Act: to help the Navajo get and keep their reservation? Surely, the Act's wording cannot be validly tortured to keep the Navajo from obtaining what is the very purpose of the Act. They accepted that they would have to pay the price of not receiving power benefits. That was enough of a price. It was not their fault that Arizonans spent millions chasing the dam fantasy and failed; the Navajo kept their part of the bargain. Therefore, when the U.S. chooses between required uses once hydropower is gone, the Navajo use, the Act's purpose--still alive, still dominant, and required--must prevail over other claimants.
Now, I offered a couple of fantasy examples for "required" other uses to highlight the need to confront that what this Act was in fact and law about was the Navajo and their requirement for a well-defined reservation. Let's use the Act provisions again for guidance:
(1) The boundary is defined; it is on the river bank, so it is well-defined.
(2) Lands previously open to entry were closed by the Act; they belong to the Navajo.
(5) They have the right to exclusive use and occupancy.
(6) In plain sense, under the 1934 Act, protecting the Navajo right and its requirement for a well-defined reservation is the dominant "other use".
Given what this law is about, what are the grounds for considering some other use that would be "more required" than Navajo needs? No alternative uses were offered in 1934 as examples; Hayden was just including standard language to protect the sovereign. The Act itself stands as the answer to the question of what use, other than as a power site, is "required" for the lands excluded under (3). No further action is needed; there will be no use of the water power withdrawals for water power; so the Navajo's exclusive use and occupancy to the river is a right; guaranteed, and in perpetuity even if the withdrawals still showed signs of life. Let me repeat, even if the lands are seen as excluded from the reservation, once the power uses were out of the picture, the Navajo exclusive use and occupancy of the excluded continues.
By the way, do you think this reasoning is tortured? I agree, but it has been tortured by the all-too-flawed activity of making laws in a multi-spectrum society with its kaleidoscope of often clashing interests and claims. Pity the poor Park Service, having given the land away, today trying to torture these same laws & history even more savagely to get them to tilt their way, even though they have to rely on laws promoting that anathema to the Park System, dams. Think of it: The Park Service's solicitor parading proudly down the avenue of history using hydroelectric withdrawals to claim a near-undefinable "¼-mile" strip of land exclusively reserved for Navajo use and occupancy. Except it was not done striding along in broad daylight; the deed was done in the dark; but that comes later, and north of Nankoweap; we do not have to consider Marble Canyon and its Monument for the Nankoweap-LCR stretch, but see my post of 27 Apr 2012 for the back-story.
But were not the reserved lands, (3), excluded from the Reservation (that is, if they were not overcome by Monument and Park)? How would they get back in? The answer is in (4) & (6). The water-power strip was excluded for a specific purpose. Now either that purpose is still possible or it has been closed. Hayden of course, though he saw that water power use of the river was a long, long time off, probably thought something was going to happen. Certainly there were piles of schemers full of plans for dams in the Grand Canyon. So he might have answered if queried, "Well, if there's no dam, the law says the Navajo get to continue. Its their land. They wanted it. Nobody else wants it. I even guided bills to take it out of the Park and Forest and put it into the Reservation." So if they are not required for water power, their required other use means they get the lands as if they had been withdrawn for them.
A common-sensical answer, but Hayden was not only shrewd, crafty, and tough; he was common-sensical. He might have added "I didnt mean to exclude them from using that strip; I just wanted to be sure that when a dam starts spewing money, the Navajo did not get any as the price for securing their reservation." And that is all that is at stake here; the Navajo's cost of the 1934 consolidation was to receive no dam revenues. Even if there were no dam and no Arizona benefits, nevertheless, the payment had been exacted from the Navajo by their accepting and living under the 1934 Act. Surely the U.S. would not welsh on the deal and demand the withdrawal strip no longer be subject to Navajo "exclusive right to occupy and use such designated and classified lands". And anyway, they could only be designated if the withdrawals had been applied retrospectively after the strip came out of the Park. That would require real torture. Instead, lets leave the torture chamber and carry the story forward in order to have a more definite consideration of the current situation.
THE NAVAJO: PARKS AND DAMS
Above I brought the story of NPS disinterest in Marble Canyon to the mid-1960's.
In the big Grand Canyon story of the 1950's-60's, the Navajo were peripheral. This was to be expected as the consequence of the 1934 Act. Both federal Reclamation and the Arizona Power Authority investigated and wanted to build a dam in Marble Canyon some miles upstream from Nankoweap. (For this story, click on the tab DAMS in my blog.) The Navajo were not pleased at being excluded; they testified against the state's proposal. At first, they stated a preference for a federal dam, but things changed in the 1960's, and as they found they were not in fact to be paid attention to, they opposed any dam, in part because of the development of coal-fired electric plants on the Reservation.
Navajo interest in the Canyon region was more than economic. In a nice example of positive interchange between the Park and the Navajo, ranger Dan Davis investigated the lower LCR, recommending in 1960 that it be registered as a National Landmark and that the Navajo be encouraged to add it to their Tribal Park system. In 1962, a Little Colorado River Gorge Navajo Tribal Park was established; its 50th anniversary was celebrated in April. This map from the Delorme book shows the northern boundary line, going from the highway west to the Grand Canyon at Kwagunt.
At the peak of the dam fight, the Tribal Council in Aug 1966 passed resolution CAU-97-66 opposing any dam and urging "Congress to consider favorably bills to enlarge the Grand Canyon National Park to include the entire area of the Grand Canyon [JI note: this referred to the Sierra Club proposal introduced earlier that year], provided however, that the Navajo Rim shall be administered by the Navajo Department of Parks and Recreation in cooperation with the National Park Service respecting tourist facilities in any portions of the area … which lie within the Navajo Reservation." A missed opportunity?
As part of their position against a dam in Marble, in 1966, the Grand Canyon Navajo Tribal Park was established, going north from the LCR Park and taking in Marble Canyon east over to Highway 89. The name was changed in 1973 to Marble Canyon (to avoid confusion with the National Park), and guidelines were published, including a ban on commercial development. In spite of a number of fine overlooks, no Park facilities have been developed, and of course, its southeast corner, along with a piece of the LCR Park is the current target of an anti-Canyon industrial tourism scheme.
To summarize, the Nankoweap/LCR strip is not in Marble Canyon, was never considered for any water power or reclamation project, was never in the Marble Canyon National Monument. The first Monument and the Park meant dams never could be practically, and eventually legally, considered. The withdrawals in this stretch were absolutely only there to prevent Arizona from selecting the lands, not for water power licensing, and could not apply because of the Monument. Therefore the 1930 and then the 1934 Navajo Acts put these lands, without qualification, within the Reservation. A petty quibble that the withdrawals are really still there and have never gone away, although some have been revoked, would only mean that the Navajo right to exclusive use and occupancy also still operates. In this strip, they demonstrated their interest in the Canyon by creating tribal parks and opposing dams. Not a perfect record, but as of the mid-1960's, a decided contrast to that of NPS, which had received the Canyon strip in question and then shed it, and never asked for it back.
GOING UPSTREAM: MARBLE CANYON
Before bringing history up to the 1970's and the Grand Canyon National Park Enlargement Act of 1975, I need to go back and consider the Marble Canyon segment of the Grand Canyon, that stretch from Nankoweap to Navajo Bridge, from 1969-75 affected by the proclamation of Marble Canyon National Monument. Here is the theme of my discussion of the law and history for Marble, though it certainly applies to the 1934 and other Acts already considered:
"A statute should be construed to give effect to all of its provisions."
Quoted by R.C.Eaton (see below) in footnote 5 of his 23 Aug 2003 memo "SUBJECT: Boundary Between Grand Canyon National Park and the Navajo Indian Reservation in the Marble Canyon Area".
In the limited policy world of Navajo frontage, there could hardly be a more different history than Marble's from Nankoweap-LCR's. No one ever considered the latter for a water power project; the former was the hottest contest between very different dam builders, principally the Fed's Reclamation and Arizona's A. Power Authority (APA), although Los Angeles, other Arizonans, and of course advocates for the Grand Canyon were all involved. I have recounted this history up to the mid-1960's in my blog under the tab for DAMS.
However, to recap the story, it of course starts before that when President Harrison established the Forest Reserve, and then T. Roosevelt proclaimed the first Monument in 1908, which extended a short distance above Nankoweap, although this lower Marble piece was "lost" when the 1919 Park boundary was brought down to Nankoweap. After that, the jurisdictions on the right, west, bank were National Forest up to Bedrock Canyon and what became BLM lands the rest of the way to the Bridge. Meanwhile, left, east, bank lands were going into the Navajo Reservation in 1900 and 1930, and then being set on the riverbank in the 1934 Act, simultaneously being taken for water power in that same Act, although the Navajo retained the right to exclusive use and occupancy.
And the dam battle raged, peaking in the late 1950's and into the 1960's. When the APA was on the point of obtaining a Federal Power Commission license, Congress passed a law in 1964 imposing a moratorium on FPC action while Congress considered the Reclamation claim that a federal Marble dam was essential to help the Central Arizona Project. And that battle raged, through 1965-8, though with the APA effort thwarted and the dam builders really wanting the larger Bridge Canyon (Hualapai) dam, the action sidelined Marble some.
And then it was over. The Colorado River Basin Act was signed 30 Sep 1968 and Marble Canyon dam, any Marble Canyon dam, any water power use in the Grand Canyon, was history, never again to be "required" or sought; dreamed of, maybe. The language is in two parts: In section 303:
"Provided, That nothing in this section or in this Act contained shall be construed to authorize the study or construction of any dams on the main stream of the Colorado River between Hoover Dam and Glen Canyon Dam."
"SEC . 605. Part I of the federal Power Act (41 Stat. 1063; 16 U.S.C. 791a-823) shall not be applicable to the reaches of the main stream of the Colorado River between Hoover Dam and Glen Canyon Dam until and unless otherwise provided by Congress."
And earlier that year, the Sierra Club, the leading proponent of a "complete" GCNP, had explicitly made it policy not to include any proposals for adding Hualapai or Navajo land to the Park (see this blog under tab THE PARK for the late 1960's). Our first proposal, in 1966, did, but we changed through 1967, and the Club's official position of early 1968 did not include the Navajo lands; we hoped we could work with the Navajo. As did NPS, off and on. However, all this was planning and proposing. The next action with the force of law came 35 years after the Navajo Boundary Act of 1934, on 20 Jan 1969.
PROCLAIMING A MONUMENT
Anyone who lived through the last year of the Presidency of L. B. Johnson, rejected and despised for pursuing an unnecessary, thoroughly contested, war, a lame duck from early 1968 when he announced he would not run again, with his Vice President rejected by the country in the election, can understand him and his allies casting around for actions to make his administration remembered for its good works, including conservation. No wonder Interior Secretary Udall thought of invoking the Antiquities Act(AA), even though he knew the key Representative, W. Aspinall, was opposed to its use.
The story, summarized in my blog entries of 20 Apr 2012 and 23 Jul 2010, indicates that the work on the AA proclamations was done, apparently by the Park Service, under cover, even in secret.
Was the BIA consulted or allowed to review the Marble order for its impact on the Navajo, or what their opinion might be? So far, I have not come across any such evidence. There might be something in Secretarial archives, or even in NPS that I missed. I have to assume not, and wait for someone better informed to correct me. However that may be, secrecy was important. And before I start a textual analysis, I want to note that the lack of review continued. There have been two field solicitor office documents, and the first indicates no Navajo, BIA, or departmental review. The action seems confined within those to do with Parks. What would full departmental review have brought out? Or would bring out today? How can a secret and prejudicial action be a sound basis for long-term policy? What will the result be except confusion and even anger? The second solicitor's consideration does mention a Navajo document, but only in part and only to doubt its arguments.
There are three pertinent documents: The proclamation, the 1969 Santa Fe field solicitor opinion for NPS Southwest Region, and a 2003 unissued review by that Santa Fe office.
My analysis depends heavily on my above reading of the 1934 Navajo Boundary Act.
First, Proclamation 3889 establishing Marble Canyon National Monument, Arizona. (On some references, the number is 3890, but the copy of the signed proclamation shows 3889. Go figure.) It starts out with the justifications, the Whereas's, with four listed:
Marble was the northerly continuation of Grand Canyon and possesses unusual features, geologic et al.;
public interest would be promoted by reserving lands to permanently protect them;
the National Parks Advisory Board endorsed such protection in Park System;
the President has the power under the Antiquities Act to put lands in national monuments,
"AND MAY RESERVE AS A PART THEREOF PARCELS OF LANDS, THE LIMITS OF WHICH IN ALL CASES SHALL BE CONFINED TO THE SMALLEST AREA COMPATIBLE WITH THE PROPER CARE AND MANAGEMENT OF THE OBJECTS TO BE PROTECTED."
Now look, I know that trying to get at the Antiquities Act power is a losing game; it was written as a sharp-shooters rifle, and it has long since become a nuclear weapon in land preservation. But in this case, there is actually some relevance in pointing out that qualification about the smallest area. (By the way, just so you know, I thought TR violated the AA by drawing lines for the first GCNM so that it was too small for the proper care and management of the Grand Canyon; he should have made it twice as big at least, including a chunk of Marble.)
Did you notice anything in the "whereas" clauses about monument status being "required"? Was the word or synonyms even used? No-- Marble possesses unusual (not even unique) qualities, the public interest would be promoted, the Parks Board endorsed the idea. It is also true that an outgoing President's reputation might be puffed. But is that a "required" use under the authority of the United States, as the 1934 Act says? Hold that thought.
Next the President proclaimed that, "subject to valid existing rights", federal lands within the following boundaries were "reserved from all forms of appropriation under the public land laws and set apart as the Marble Canyon National Monument". Not even as strong language as in TR's proclamation. Then comes a page of boundary description (half the document; a map is not referred to), starting at the intersection of GCNP and the west rim line of Marble Canyon, then working it way northerly to the north line of T39N,R7E, where it goes east to intersect the western boundary of the Navajo Reservation as "prescribed by the act of June 14, 1934".
And here comes the mischief, inside my green bars:
Please note first that the instructions about the boundary between MCMN and the Navajo occur three (3) times. Note, too, in the first iteration that the 1934 Act is carefully quoted. Well, except for the part about Navajo rights to exclusive use and occupancy. And except for the bit about that exclusive occupancy lasting until "required" for water power uses or "other uses under the authority of the United States". I guess there was not room on the page for such quibbles, particularly when they had to repeat twice where the easterly boundary was.
The authors seem to take some delight in recalling the dams -- lands in the Monument explicitly were to include those "valuable for water-power purposes and all lands withdrawn or classified as power site lands". I wonder why they did not call their creation "Marble Canyon Dam Memorial Monument" or "Marble Canyon Dam National Gravestone".
Also, note that the reservations and withdrawals were revoked -- the authors having utilized them to do their dirty work in aborting Navajo exclusive rights and taking Navajo land, they wanted the bloody knife to disappear, I suppose so the Navajo could not say that being revoked, they could no longer be applied to defining the boundary. Does order of actions within a single document matter, legally? Could the argument run that construing the document as a whole meant that revoked withdrawals could not be used to define a post-revocation boundary? Surely that point has been adjudicated or commented upon.
BACK TO 1934
It is time now to bring back the Navajo Boundary Act of 1934. I will not repeat all the analysis, but recall that it was first and foremost about the Navajo Reservation, consolidating it and providing it with an ascertained boundary. Remember, they agreed to a price; they were not to share in proceeds from any water power; only "all Arizonans" could do that. Here again is the relevant 1934 language :
saving to the Indians, nevertheless, the exclusive right to occupy and use such designated and classified lands
until they shall be required for power purposes or other uses under the authority of the United States:
I repeat too, how I read the above clause: until they shall be required for power purposes or, if no longer required for power purposes, required for other uses under the authority of the United States. And I repeat, given the purpose of the 1934 Act, such a purpose other than power would be, dominantly, to further strengthen the fulfillment of the intent & purpose of that Act.
What I want to emphasize is that word "required". The reserved lands, removed from the Reservation explicitly since water power was a coming, even certain, thing, would have to be required for water power purposes. If and when water power purposes vanished and did not require the lands, they could be used for required other uses under the authority of the United States. As I argued in that earlier paper, there was no mention or presence of NPS purposes from 1927 to late 1968. indeed, NPS had turned its back on the stretch from the LCR up through Marble Canyon to the Paria, leaving it to Reclamation to exploit. Even in 1966-8, when Marble dam was a-dyin', NPS did not feel the need to claim the land. (We did, but then …) And even when Marble was being prepared for Lyndon Johnson's blessing, no one called the Monument "required". Because, of course, it was not. The Colorado River Basin Act, signed a few months earlier took care of that; forbidding water power uses in the entire main stream of the Grand Canyon. Even then, neither Secretary Udall nor the Park Service could muster the rhetoric and call for the national need to be satisfied for the complete protection of all the Grand Canyon. Marble had nice things and was endorsed properly as being in the national interest, but really, NPS could do without it, as it had for half a century. Nor did it remember its orphaned stretch from Nankoweap to the LCR, which may be an indication of the proclamation's writers' fear that they would be accused of taking Navajo land. Above Nankoweap, they could anchor the Monument on Forest and BLM land. South of it, the land was already in the Park, so the only land to acquire was Navajo and the withdrawals. What were they afraid of; why did NPS not try to include down to the Confluence, surely a prize like Redwall Cavern and the Silver Grotto?
Well, I am not going to argue that Marble CNM & its proclamation were invalid because they violated the 1934 Act's provision that they be a required use. The river and the west side were certainly available for Monument proclamation, being on federal public land. It is that eastern boundary that was at fault, and whoever drew up that Proclamation knew it, I bet, and hoped all their repetitions would divert criticism.
So, more directly, the eastern boundary as described in the Monument proclamation three times was invalid. It was very clearly an "other use under the authority of the United States", though not the most relevant or dominant other use. BUT, it was and is NOT REQUIRED. Not only was it not required to be along the withdrawal line for the Monument to exist and succeed (since the boundary could easily and with more practicability have been set on the left, south & east, bank, as it was in 1900, 1930 and in the initial clause in the 1934 Act), it is anti-required as a boundary, because it leaves the Navajo boundary undetermined, indeterminate, hugely difficult to find, directly contrary to the purposes and intent of the 1934 Act. The goals of both the 1934 Act and the Monument could have been splendidly and legally fulfilled by the Proclamation setting the Monument boundary on the river bank. By then revoking the withdrawals, as it did, and emphasizing Navajo exclusive use and occupancy, the 1934 purposes would have been served, and the Monument would have had a legitimate eastern boundary.
I go further. Putting the Monument boundary on the bank and revoking the withdrawals was the required use by the Secretary of the Interior; with his responsibility for both Navajo and the National Park System, he had to recommend that boundary, and the President had to proclaim it. Putting the boundary on the withdrawal line--unrequired and anti-required--was invalid and illegal; that boundary cannot stand.
More abysmally, the Secretary was out of line in having such an action prepared and not consulting the Navajo as a deeply affected party. It was a party he had a responsibility to; surely the amount of law on Secretarial responsibility to the Navajo and other Indians would fill Marble Canyon. So how could he, as the person he claimed to try to be, have used the Navajo Boundary Act to take land, exclusively used and occupied by right, away from the Navajo when he could have fulfilled the 1934 Act purposes and the National Monument purposes by specifying the river bank? How could he? And for such a scraggly pittance, an indefinable boundary wandering lost along the cliffs that would make life for the Navajo interest in Marble less certain, and less certain, too, for river users, hikers, fisher(men), etc. Surely Navajo Reservation integrity was obviously required and a use higher than a confusing boundary for a Monument. Well, not to mention NPS & Secretarial integrity, scrabbling about in the dark behind closed doors to puff up a waning President in his last hours. And with NO NEED. The river bank is well-defined; the withdrawal boundary is confused even in its advocates' minds on paper (see below), much less on the ground and on the many maps that have been produced (see my blog entry of 10 Jul 2012).
That part of the Monument proclamation setting the boundary anywhere except on the river bank as 1934 intended was not only invalid and illegal, it was unethical; it stunk to high heaven. Were this the time of Old Testament prophets, one would proclaim this action rose up as a miasma to offend the nostrils of God.
Well, but wait a moment. We all know that, had we been there, we would have remembered to say to the NPS drafters, "You need to put the boundary up the slope, in the rocks, in order to protect places like Redwall Cavern, to regulate camping, to compel concessionaire obedience to reasonable health and safety regulations. River running in 1969 is doubling every year; NPS must be able to regulate it.", we all would have said. Of course, people with knowledge of river running were likely not there; the principal NPS guy was Bates Wilson from Arches & Canyonlands. Worse, and here comes the real sticking point, the whole process was done out of public view so that there was no chance to comment and catch mis-steps like this one and make recommendations. So now all that can be said is that NPS, the Secretary, and the President did not recommend and proclaim that a boundary above the river bank was required for proper management of river running. Nor did they remember that protection of Marble on the east side, if required, was also certainly needed for the Nankoweap-LCR stretch, including as it does the Confluence where thousands romp and frolic.
In any case, i emphasize, the Navajo valid existing right to exclusive use & occupancy foiled the illegal action, and it is time to explicitly reverse it. With the boundary as drawn clearly illegal, the withdrawals revoked and the Monument abolished, and the Navajo rights protected in the 1975 Act and their concurrence required for any action on the east bank, perhaps only a promise from NPS to behave well in the future is needed. Though it might be courteous for there to be an Interior review. Ah, yes, the lawyers. They did not quite argue the way I have. If asked now, and in the bright light of a controversy, would they only repeat now what they said in 1969 and 2003?
FIELD SOLICITOR OPINION, 1969
The opinion is from the Interior field solicitor, Santa Fe, to the Southwest Regional Director, NPS, 16 Jun 1969 on "boundary between Navajo Indian Reservation and Marble Canyon National Monument". Concurred in by Assistant Solicitor, Parks, 12 Jun, saying to issue the opinion, and agreeing that NPS make a detailed study of BLM and Reclamation records "to determine the exact location of all power site withdrawals, which is a necessary prerequisite to any accurate boundary determination."
I am struck by how quickly NPS asked for an opinion, and that there is no reference again as to consultation with BIA or Navajo lawyers or officials. Although Gayle Manges seems a respected personage, having been field solicitor for 25 years apparently, and a supporter of Santa Fe environmental, civic & cultural causes, this opinion perhaps came a bit early in his career. What he does is start to quote from the proclamation, then at the page break, gets confused, and quotes from the 1934 Act without indicating the jump, as if all of a piece. Moreover, he quotes from that Act the language about exclusive use and other uses, as if that had been in the proclamation. Well, it does not really matter, I guess, except the way he has it read implies more complexity by the proclamation writers. However, what does matter is his next sentence, his opinion that:
"Although 'other uses' are not defined, it is apparent that the President's proclamation setting aside the land for Park Service purposes would be a required use under the authority of the United States."
"Apparent". Is that a technical legal term? Does it mean, "I dont have to explain myself, you dummy, anyone can see stealing Navajo land is a required use under the authority of the United States?" Having mangled the quotes from the proclamation and the 1934 Act, Manges makes no attempt at justifying or explaining how this "other use" is required. He does not even recognize that this is not the only other use. There is no explication nor any recognition of what the 1934 Act is about. And certainly no mention of the Navajo, except as an adjective.
After asserting "apparent", he spends the rest of the document on the withdrawals. He lists them, but does not have the interpretations, including the description that they were, generally, to follow section lines. Moreover, he misreads clause (4) -- see above-- from the 1934 Act, as if it just meant withdrawals under the 1910 Arizona Act, but (4) reads as if means all withdrawals. This leads him to conclude that only "Water Power Designation No. 7, Arizona No. 4, as well as the proclamation establishing the Monument, (means) the east boundary of the Monument is located on a meandered line generally north-south, one-quarter mile to the east from the east or south bank of the Colorado River,…the west boundary of the Reservation."
The orders did not use the word "meandered", instead using "within ¼ mile of " the river which was interpreted as "all lands which when surveyed will be within legal subdivisions within ¼ miles of" the river, and "lands at an elevation of less than 3150'". (See the APA map of the withdrawals above) Not only that, but by relying on AR7-4, Manges depends on a law the purpose of which was to bar Arizona from selecting lands that might be used for water power, most of which in the Grand Canyon area were never to be even considered, much less required. Well, he did suggest NPS ought to go check out the records. And please remember, he was looking at the Monument, which stopped at Nankoweap, upstream from the confluence.
He ends by noting that Reclamation wrote on 29 Apr 1969, that while NPS shows the 3150' contour as the boundary, the Reclamation map says the boundary is the south bank. Reclamation!
To re-emphasize, the content of the 1969 opinion boils down to: "it is apparent that the Monument boundary is a required use".
Nothing could be less apparent, legal, or true.
SOLICITOR OFFICE MEMORANDUM, 2003
In August 2003, 34 years after the Manges opinion, but still inside the office of the field solicitor in Santa Fe, Robert C. Eaton, an attorney-adviser, produced, at the request of GCNP Sup't Alston, a confidential "attorney work product" for lawyers in the Div of Parks & Wildlife (Parks) and Indian Affairs (Water & Power) on "Boundary between GCNP and the Navajo IR in the Marble Canyon Area". (It remains intriguing to me as to why the Nankoweap-LCR stretch is ignored.)
It started off with a list of relevant documents:
1884 Executive Order on northwest section of Navajo Reservation
1908 Proclamation 794 establishing Grand Canyon National Monument
1910 Arizona Enabling Act, section 28
1912 Arizona a state
1914 Power Reserve 447
1917 Sec. Order AR7-5
1919 GCNPark created
1927 GCNPark boundary revised
1934 Navajo Boundary Act
1969 Proclamation 3889 establishing Marble Canyon NM
1975 GCNPark Enlargement Act
1984 Revocation of 447 & AR7-4 in GCNPark
This is quite good. And I did not know about the 1984 revocation. So what does this work product do with this list?
Eaton says the 1884 order takes the Navajo boundary up to and along the middle of the Colorado.
Next, the GCNMonument is said to include lower Marble and some areas east of the Colorado; good. And "therefore overlapped a portion of the Indian reservation established by the Executive Order of May 17, 1884".
Oh, oh. In fact, the 1884 Order took the boundary to the Colorado upstream of Lees Ferry and then up to the San Juan (see Navajo reservation additions map above).
And wait a moment, where is the Navajo extension to the Colorado of 1900?
Continuing on, Eaton's citation of section 28 of the Arizona Enabling Act leaves out the clause about preventing Arizona from selecting water-power lands. Yet he was the one, in the quote above, saying one should construe laws taking all their provisions into account.
The two withdrawals, 447 and AR7-4, designate lands for water power within legal lines ¼ miles of the River. Eaton contends these cover the river from Lees Ferry to the LCR. NO. No. 447 could only apply, of course, to the lands in the Reservation from the 1900 extension; the 1930 extension lands were still in the Monument in the 1910's, which prevented withdrawals of ALL kinds. Nor does he recall that AR7-4 was to preclude Arizona selection along rivers, using water power speculation as the excuse.
For the 1919 Park Act, he insists that it overlapped the reservation established in 1884. Of course it did not. Moreover, in footnote 2, he mentions the 1930 expansion of Navajo land without noting that it came out of the Forest, having been in the Park. He blandly comments in that footnote that the 1934 Act set the reservation boundary ¼ mile east of the Colorado's east bank.
In footnote 4, he cites the withdrawals' interpretive orders of 1927 and 1928, and thus realizes that some of the withdrawals only go to 3150' elevation. He seems not to have reached the conclusion that this increases the difficulty of establishing a well-defined boundary. He does note that ¼ mile from the river varies as to how much canyon the strip would include.
On the 1927 Park Act, when NPS gave up the Nankoweap-LCR stretch east of the river, Eaton only comments that it eliminated much of (his erroneous) overlap, but left lands overlapping on the east side of the Colorado's channel! Is this a trivial error, that he doesnt know where the boundaries ran?
He does a good job of quoting the 1934 Act: defining the boundary, noting the exclusion, saving the Navajo exclusive rights, citing the clause on "until required" for power or other uses. About 447 and AR7-4, he notes only that they define the lands excluded and for the exclusive use and occupancy.
From the Marble Canyon proclamation, he cites two of the three boundary statements, and notes the withdrawal revocations.
For the 1975 Park Act, he mentions both the valid existing rights of the Navajo and the need for their concurrence. He notes that MCNM was abolished, and lists the 1984 revocation in the Park of 447 and AR7-4.
What does the attorney-adviser then make of all this? First, he notes the 1934 Navajo boundary (though not noting that it dated back to 1900 and 1930), and that AR7-4 and 447 lands were excluded from it. Next he says that although the two withdrawals were revoked by the 1969 proclamation, the east boundary of the Monument was the east boundary of the (now revoked) withdrawals. He says therefore the boundary is either ¼ mile or at the 3150' contour.
He writes, "The dedication and use of lands for a national monument unquestionably is a use 'under the authority of the United States'". Well, 1. yes, but he did not prove or offer that use as "required", and 2. the question is not the Monument but the placement of part of its boundary.
"Therefore, we believe that the President's 1969 proclamation … terminated occupancy and use rights that the 1934 Navajo Boundary Act had conditionally granted to the Navajo Indians to the lands formerly included in" 447 and AR7-4. Belief is all very well, but legally, he has not shown (1) that the Marble boundary was required and (2) that meeting the goals of the 1934 Navajo Boundary Act of a well-defined boundary was not a dominant, required, other use. So since that boundary was not proven to be required, the use and occupancy would continue.
Eaton's memo does contain references to a Navajo document, prepared in early 1997(?), titled "Preliminary Analysis of Navajo Nation Western Boundary". He offers some points only to refute them, so we cannot know what the full Navajo argument said. The author was A. M. Pollack, Navajo Special Counsel for Water Rights. The first point was that the 1934 Act's granting clause overrode the exclusion of water power lands. Eaton replies that this would render the exclusion meaningless. This is where he cites the quote above about reading all of a law's provision.
The second Navajo point is that the Antiquities Act does not apply to Indian lands. Eaton cites a 1978 memo from an Interior Ass't Solicitor that this argument is contrary to long-standing Interior interpretation and practice. Though if it were so long-standing, how come the Marble proclamation did not go all the way up to the Navajo, east, rim? So if the Antiquities Act is so powerful, I wonder what he would say as to whether water-power withdrawals apply to a Monument under the Antiquities Act.
A third point, he suggests, might be that abolition of Marble Monument would cause the lands that became unreserved when the withdrawals were revoked in 1969, to revert to Navajo ownership. Eaton remarks that nothing in the 1975 Act's legislative history indicates Congress intended to restore the east bank to the Navajo. Of course, I have argued here, Congress did not have to; the withdrawal-based eastern boundary that is so precious to those who wish to memorialize the dams by sticking the Navajo and river-runners etc. with a crap boundary, is extinguished in favor of the legally sited river bank boundary. But lets look at some of that Act's history.
NATIONAL PARK ENLARGEMENT, 1967-75
In 1966, the Sierra Club opened a new era in Grand Canyon park proposals when congressional allies introduced a bill for a "complete" Park. A little too complete, for we suggested adding not just eastern Marble Canyon, but land out on the Marble Platform, too. Ignorant, but quick learners, we modified our ideas so that the Club's official proposal in early 1968 did not add any Navajo land. However, our effort was the first round as many others offered proposals based in their concerns. The period is covered in my blog under THE PARK tab, which brings up a table of contents for Park history, with this period at the bottom.
After its near-half-century dormancy, NPS was not to be left behind in the study-and-propose scramble. It was strategically placed, for it was the agency that drew up maps to be attached to proposed legislation. On its own, in 1967, NPS was not including any of Marble east, having heard personally from a Navajo official that they would not consent to any of their land being included in the Park. The strategy under then-Director Hartzog was to avoid antagonizing the Navajo, while working toward long-range establishment of ties. After a fly-over, NPS officials felt maybe Park status was not needed for the entire Marble reach or its east side, and their bill added only Marble west. Interior Secretary Udall went down the river that summer and wrote NPS that it should propose going up to Lees Ferry.
A re-arrival on the political scene was Senator Hayden's replacement, Barry Goldwater, who had a strong interest in, as well as knowledge of, the Canyon. He immediately become a lead sponsor of Park enlargement, and was fixated on Marble Canyon. This suited NPS, for it had changed its direction and decided not only to go for the Nankoweap-LCR strip, but to push for the east side of Marble with a 500' setback on the rim. [My blog, 15 & 18 May 2012] There was also a provision to increase that to one mile if the Navajo agreed; if they did not, then the bill authorized condemnation for this "scenic easement". The need for Navajo consent was recognized.
By late 1970, NPS had shrunk its Marble east addition back to the rim, but its map suggested that Marble extended down to the LCR. Something odd was indicated by 1971 when Goldwater wrote that there would be a real problem with the Navajo if they do not want to sell or lose any land right up to the rim. He wrote that this must be obtained if the whole effort is to mean anything. In 1972, he was grumbling that the Navajo wanted to build rim hotels.
NPS and its allies had gone 180 degrees around in their position toward the Navajo. The latter replied with silence, not even bothering to appear or send a statement for the 1974 hearings on Goldwater's bill. Possibly, they had just decided that the various provisions in the legislation would not affect them. I recall little or nothing being said about the Navajo addition. We did not favor it, but Navajo rights seemed protected.
So looking back 35 years, I would judge that the decade of preparation for the Enlargement bill was a lost decade, ending with the Navajo indifferent, and perhaps hostile, and the National Park Service keeping its distance, comforting itself that the Park is entitled to assert jurisdiction over remnants of an empty artifact of the dead time when dams were a live threat.
BACK TO OPINION
Attorney-adviser Eaton's take is different, pointing out that nothing in the record indicates that Interior sought or obtained Navajo concurrence. Then he pushes on where he ought not have gone. "However, the act's legislative history is replete with references to Congress's intent to incorporate all of Marble Canyon National Monument east of the Colorado River into the enlarged…Park." Well, in the years before, there was much discussion, but it was totally clear that the Navajo were not interested. So there was minimal consideration of the Navajo lands during the actual congressional consideration.
Eaton offers a page citation at 15 of the House Committee report, but doesnt give any content. So lets look it up. Hmmm, a report from the Interior Secretary, not exactly an unbiased source or an indication of congressional consideration. Now who wrote that? Why, John Kyl (no, not Jon Kyl, Arizona's soon-to-be ex-Senator; this is his father, a Republican ex-congressman who, in his post as ass't interior secretary, appointed by his former congressional colleague, R.C.B.Morton (that's how it works.), suspended the action by another ass't secretary, N. Reed, ordering the GCNP to phase out motorboats on the Colorado so that GCNP could become a real wilderness. And, BTW, LOL, Jon Kyl as a young fella was the lawyer with James Watt who defended the motorboaters as they attacked a decent river management plan in the late 1970's.)
So, hmmm, there doesnt seem to be anything about the Navajo on 15. Ah, but on 16, we read: "Parts of the Hualapai and Navajo Reservations included in the park are to be administered as part of the park, subject to approval of the Tribal Councils. These include an area of the Navajo Reservation east of the existing park boundary, extending to the Little Colorado River". Hmm, but now what's this on 17? "We do not recommend including the area (just referred to) in the park because we understand concurrence of the tribe to its administration as part of the park could not be obtained."
Then, on 17, here is: We do support the proposal to add Marble Monument lands (no mention of the Nankoweap-LCR stretch) so that the park will extend from the east to the west rims, provided the concurrence of the Navajo is obtained for the east rim boundary. But the Monument did not go to the east rim, and even more concurrence. And nothing to indicate any idea where the boundary might be. This is legislative consideration? The Navajo did not even bother to send a statement.
A replete record? Not quite. Yes, Goldwater did have the NPS dream-wish to add Marble, and Congress without consideration passed it with heavy qualification. Eaton's conclusion from this "replete" record of Interior's determination to take Navajo land (and Goldwater's insistence on holding back so it could be taken only with Navajo concurrence) is that "absent the Navajo Nation's concurrence, the park's eastern boundary defaulted to the eastern boundary of what had been Marble Canyon National Monument". Which means his record ends up resulting in a Marble provision that was a dead letter leading him to default to an abolished monument delineated by revoked withdrawals for a defunct dam proposal.
In conclusion, what did the 1975 Park Enlargement Act really say about the Navajo lands?
The Park boundary changes were "subject to any valid existing rights under the Navajo Boundary Act of 1934";
Marble Canyon National Monument was abolished;
"No land or interest in land, which is held in trust for any Indian tribe or nation, may be transferred to the United States under this Act or for purposes of this Act except after approval by the governing body of the respective Indian tribe or nation".
I think this means the Navajo boundary's location on the rivers' banks was protected; that is, it had defaulted to its legal, valid, legislatively supported, ethical, location.
On a positive note, Goldwater included, and we liked, section 6, that authorized and encouraged the Secretary to enter into cooperative agreements with interested Indian tribes providing for the protection and interpretation of the Grand Canyon. This could include interpretive facilities and programs on land outside the park with the concurrence of the owner.