Friday, January 11, 2019

The River, the Park Service. The Left Bank, the Hualapai

History and Policy for the Left Bank of the Colorado River in Grand Canyon (cont.)

The recent stir over Hualapai rights on the Colorado's left bank led me to review the two Interior Department's Solicitor's office reports (1976 and 1997) on the Hualapai Indian Reservation and Grand Canyon National Park boundaries. It is good to see our agreement that the Reservation line was established to go TO and ALONG the River. And not to go to the River's middle, the Hualapai's haitat, and not to include the riverbed. Nevertheless the Solicitor officials were incorrect when they inserted the "high water mark" (HWM) language in their opinions, whatever legal theories may have led them to assert this. The HWM was never under consideration or of importance in the 1883 Reservation establishment nor in the 1975 Park Enlargement Act. As we shall see, other considerations were of greater import in the early 1880's and were explicitly expressed in the Act.
The Solicitor was correct to bring up the often-neglected question of navigability of the River under the Commerce Power. It is of overriding importance in the question of Park jurisdiction, since the sponsor's intent was to unify administration over river traffic, on all of the river in the new Park, on all of the water surface. There was no intent to disturb existing ideas about the Hualapai boundary, or to stage a raid on Hualapai land. Unifying a fragmented responsibility for river travel was a desired and desirable object, which the 1975 Act met.

The River has been navigable in fact since 1869, and as with the river downstream of the Canyon, the Commerce Power gives jurisdiction to the federal government. In one case, a dam was built with its reservoir; In the 1975 Act, a Park was enlarged to include the River, the entire water surface from Paria Junction to Grand Wash Cliffs, in order to regular river traffic.
The drafting of the bill (done variously by NPS and by Goldwater’s aide, whose experience was in defense matters) could have been better perhaps, maybe garrulously expanded to “Park jurisdiction went to” the south bank, instead of just “on” the bank. The important thing is that in the case of the Reservation, the grammar (to and along) is determinative by standing alone. For the Park, the Act brings in other considerations of great import.
To repeat, in going downstream, the Park was extended to order to include the water surface, the navigable portion of the Colorado. The HWM was not even mentioned until some months after the Act was signed, when, unassisted by knowledge about the Act's history, the Park superintendent asserted, to the Hualapai no less, that his new boundary went to the Historic HWM. Talk about over-reach.
The Park's jurisdiction does not go to the HWM, H or non-H. The reason is completely obvious to anyone who even just reads through the 1975 Act, much less is familiar with relations as between Park and the Navajo, Havasupai, and Hualapai, to speak only of the landowners of parts of the Grand Canyon.
That reason, expressed in several places, is that the Act was conceived of by its principal sponsor, as well as other involved legislators, to be respectful in the extreme of the Navajo, Havasupai, and Hualapai.
For example, the Act expresses the wish to extend the Park to include the Navajo, East, Rim of the Grand Canyon. BUT ONLY if the Navajo wish that change to happen. That is expressed on the map, and in sections 3a, 5, even 6. Further on, a section 9 was written in the Act as a gesture to the Hualapai hope, as expressed by their lobbying Tribal Chair and Attorney, that they might someday be able to have a dam.
The FACTS that (1) the Navajo have not, and never will --and objected to the notion at the time-- agree to any land status change, and (2) that there never will be a dam authorized, and that the Hualapai no longer even wish it, are irrelevant to the sentiment expressed in the Act of respect for Navajo and Hualapai concerns. The deference accorded to the Havasupai as against the National Park System is even more obvious.
The Senator and others involved at the time wrote and spoke of their stated desire not to change anything with respect to the Hualapai Reservation, unless they chose to work with the Park Service.
Placing the navigable river under the Park using the Commerce Power of course has nothing to do with the Hualapai claim to the river bed, which they began asserting around 1950 in a petition to the now-defunct Indian Claims Commission to obtain compensation for aboriginal lands not included in the Reservation. (For what its worth, the ICC, like the solicitor, did not accept the Hualapai claim.)

The congressional process for the 1975 Act included these considerations: It responded to the Hualapai lobbying effort to include a (dead-letter) dam gesture.
It responded to Senator Goldwater’s desire for a uniform river traffic administration by placing the entire water surface of this navigable stream under the jurisdiction of GCNP.
There was no lobbying done by the Hualapai as far as their boundary was concerned, nor as far as the matter of GCNP jurisdiction over the navigable stream. They had several opportunities to raise any questions during the two-plus years of legislative consideration if they had desired to do so; they did not do so.
Therefore, the official map of the enlarged Park without qualification places the Park boundary “on the south bank”. In several places in accompanying documents, Congress thus made clear that the entire water surface is to be considered by the Park Service in its administration of the Park, e.g., in recommending formal Wilderness status.
Perhaps this may seem to leave a question as to the status of the actual south bank, crumbling sand banks, soaring cliffs, deep-diving side canyons and all.
There is no question.

The Reservation set up in 1883 quite explicitly goes to and along the river. Lt. Palfrey, in drawing up the map and the reservation description, was well aware of what he was doing, having taken a trip down Diamond Creek to the river. It is pure lawyerly metaphysics to assert that he intended that the boundary he was drawing went only to the historic or any other fixed high water mark. Whether he thought about it is not recorded, but it distorts to the point of farce, what would have been clear to an army engineer’s common sense about the conditions where Hualapai land met the river in 1881.
Going down Diamond Creek, he intended that the boundary should be pulled somewhere up that canyon away from the river? At the river, he intended that the boundary should be hitched somewhere high up on the various cliffs coming to the river? Balderdash!
There is no purpose in saying that legal doctrine calls for some high water boundary. The fluctuations of the real river --THEN in 1883 and NOW from 1975 -- do not matter, since what Palfrey put on paper was quite adequate as a limit to the land mass that all agreed was to be the Hualapai Reservation. There was no challenge to that limit then, nor has there ever been any adjudication in court over that limit.
And such a challenge would be rejected, since American legal practice is to favor an Indian claim if there is doubt, and as I have indicated, the legislative record of the 1975 Act showed the utmost respect for the Hualapai, Navajo, and Havasupai. To flout that record, eloquent in stating Congress’s wishes, by accepting the ignorant slip of the tongue by a long-dead Park Superintendent, much less the “metaphysical” legal doctrines of solicitors’ opinions, carries the farce to the point of a grotesque effort to commit aggression by legalism against the Hualapai use and occupancy of the land behind, south of, their line that goes to (the river’s water edge--splash, splash) and along (that edge).
It should be added that the Hualapai have, legalisms or no, been putting land along the river’s edge to various uses for some years without Park Service interference. One has to hope that the Park Service is not so intimidated by events of the recent past that it will hesitate to exercise its authority, granted by the 1975 Act, over any and all traffic on the river, even if engaged in by the Hualapai. The respect of the 1975 Act is dual: to the Hualapai, Navajo, and Havasupai within their respective reservations. By the Park and its administrating service, to the Grand Canyon, which that service is charged with protecting, including from un-permitted river activities by anyone.  
All that said, should the Hualapai make an effort to issue permits for activities on their south, left, bank of the Colorado along their Reservation, they are within their legal rights to do so, given the controlling actions of the Reservation Proclamation and the Park Enlargement Act. It would be within the letter and spirit of the 1975 Act to respect those rights and comply with Hualapai regulations.
Aside from cooperative or negotiated actions, the only course that could in legality change this status would be an adjudication within the court system, surely of enough weight to reach the Supreme Court. And it would be in that formal arena where the arcana of the magical, mystical, metaphysical Historic High Water Mark can be properly taken up. Until then: wet feet = on the river = in the Park. Dry feet = on their south bank = the Hualapai rule.

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