Wednesday, March 4, 2020

The Navajo-Park boundary: scene of a land grab or beneficial cooperation?


The location of the western Navajo Reservation boundary along the Colorado and Little Colorado Rivers is a matter vexed by the usual plethora of crisscrossing land actions and overlain by the responsibility of the federal government to behave in ways mindful of its ethical duties toward the Navajo and the Grand Canyon.

I have written, at great length, a comprehensive chronological and topical examination of these issues (
Here I wish to state the matter as it stands today, cutting through the Gordian knot presented by the history of those land actions:

The intentions of the sponsors of the 1975 Act to enlarge Grand Canyon National Park included placing the jurisdiction over the Colorado River and administration of a regime for river traffic solely within the National Park Service at the Park.
The rights and lands of the Hualapai and Navajo, as they existed at the time, 1975, were to be respected. Specifically, no land was to be taken without concurrence of the tribal government.

More positively, in section 6 of the 1975 Act, the National Park Service (NPS) was to reach out and cooperate with "interested Indian tribes" in order to enhance protection, understanding, and public enjoyment of the Canyon. This included authorization to spend money on non-Park lands for a unified interpretation of the entire Grand Canyon.

One effect of the legislation was that the entire river surface was within the Park, with the additional mandate that it be considered for status as part of a Grand Canyon Wilderness.
The land actions taken that affected the Navajo and Hualapai Reservations reinforced, on the Park side, only jurisdiction over the surface of the river, and on the land/Reservation side, the tribal sovereignty over the land, the left bank of the Colorado, down to the river based on the 1975 levels resulting from the normal operations of Glen Canyon dam. This was meant by the sponsors to provide realistic and enforceable Park jurisdiction over water traffic, not to take into the Park any Reservation land beyond the water's edge. To repeat: the purpose and effect of the 1975 Act was to give the Park control over traffic on the river, not to extend the Park's reach beyond the existing river's edge onto Navajo and Hualapai land. 

As the principal sponsor of the Park Enlargement legislation, Senator Barry Goldwater of Arizona had expressed his fear of untoward and defacing development on the Canyon's rim that lay within the Navajo Reservation, from the Park's start at the Paria River down to the Confluence of the Colorado and Little Colorado Rivers. Prescient as this fear may have been, neither Senator Goldwater nor the Park Service, in their 1967-72 approaches to the Navajo, could move the Navajo to agree to any sort of land cession, even just an easement.

Moreover, the Senator accepted the Navajo tribal counsel's formulation that nothing in the new legislation would affect the status of the Reservation's lands. The result, if the history is unknown, is a puzzling situation: A Park boundary could be established landward from the water's edge on river left, but only if the Navajo government should ever concur in such a change. Yet all parties knew that the Navajo would not ever so concur. Confusingly, some maps, including the official NPS map, and many individuals have been led to conclude that this situation confers on the Park a claim to some part of the east side of the Canyon along the Paria-Confluence stretch of the river's left bank. That is not the case. However laudable the Senator's concerns, in the law he fathered, Park jurisdiction ends where the river's water touches the left bank of the Colorado.

The situation created by the 1975 Act therefore was (1) a National Park - Navajo Reservation boundary on the left bank, opposite Paria River down to the Confluence, at existing river's edge, and (2) an encouragement for the Park to take the initiative and work with the Navajo Nation on protection, presentation, and public enjoyment of the Canyon. The latter aim has never seriously been taken up by the Park administration, while the boundary has become the subject of mischief-making.

Sad to say, that mischief is the ghostly miasma left after the evaporation in 1968 of the dam dream -- or rather, nightmare. It is a curiosity that the history of fantasizing about the Canyon's hydro-electric potential, the history of protecting and celebrating the Grand Canyon within a National Park as pro-environmental icon, and the history of building the Navajo Reservation as an adequate home for that Nation, nearly coincide, and are -- at times nearly inextricably -- interwoven. I wish I could say the resulting pattern takes on the quality and artistry of a fine Navajo rug. Alas, that would be far from the truth.

 Only one conclusion is absolutely clear -- the entanglement of the three histories has bequeathed confusion and mis-emphasis. What I would like to do here is re-state the boundary situation within the context set out above created by the 1975 Act, as a basis for future cooperative, mutually beneficial, relations between Grand Canyon, the Park, and the Navajo Nation.


An 1884 Executive Order started things off by sending the Navajo Reservation boundary "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". That stretch of the Colorado is well upstream of the Grand Canyon, starting at 111 degrees 30 minutes west longitude (just below Glen Canyon dam). Next, a 1900 Executive Order started a line much farther south, and running west to the Little Colorado and "down that stream" until it hit what was then the Grand Canyon Forest Reserve boundary which it followed north and west to the Colorado River, and then "up that stream" to the place where the 1884 line was, in the middle of the channel. 

These orders are only mentioned because they may be why some suggest the Navajo line goes to the middle of the river. However, the two orders were negated by  P.L. 73-352, "an Act to define the exterior boundaries of the Navajo Indian Reservation in Arizona",  approved 14 June 1934.  

Before we got to that, an astonishingly non-prescient move was made by the Park Service administering the fairly new Grand Canyon National Park in 1927. The piece of the Canyon on the east of the Colorado (across from Nankoweap) and north of the Little Colorado was given by the Park Service to the Forest Service, which passed it on to the Navajo in a 1930 law assigning the National Forest "lying east of the Colorado River and north of the Little Colorado River" to the Reservation. Only good for Indian sheep was the Services' judgment.

With these pieces of the riverbank in place, the 1934 Act then brought consistency by defining the Reservation's exterior boundaries as going west on the Utah-Arizona boundary to its intersection with 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", then south along that boundary. This is the boundary that, in law, justice, and ethics, defines the Navajo Reservation. In my opinion. Others opine differently, as follows.


Here there be dragons -- or at least their ghosts. It is, perhaps, a mark of the twentieth century pace of things that study and planning for a dam in the Paria-Little Colorado stretch of the Grand Canyon -- we will call it Marble Canyon dam -- occupied our intense attention for about 20 years, although fancies about a dam in that stretch wafted about from earlier. It shaped up as a real project only after the Bureau of Reclamation, followed by the Arizona Power Authority (a state entity), settled on the site as worth exploring -- either as a power producer itself or as part of a more monstrous storage-diversion-tunnel scheme that would send all but a trickle of the Colorado around the National Park. A robust infant in the early 50's, that dam dream reached its final demise in 1968 -- that part of the Grand Canyon was "saved" in fairly short order. Sad to have to deal, then, with its ghostly echoes in the claims that Marble Canyon dam left behind -- its memorial arguments that the Navajo Nation should be deprived of some of its land, a well-defined boundary, and its share of the Grand Canyon.

The legal argument of the ghosts goes like this:
By 1930, the Reservation had been extended to reach the Colorado River from the Little Colorado upstream to beyond the Grand Canyon. There was no question or contest about the pieces of this boundary when, in 1934, Senator Hayden sought to settle various issues about the Reservation. Almost first in his mind was that, in exchange for a settled land base to support their "flocks and herds", the Navajo would give up any stake in future water power development on the Colorado River. He wrote into his legislation various clauses to make clear that Arizona, not the Navajo, would be the beneficiary of any such development. Then he made clear his understanding of the land situation by legislating for the Navajo a continuing  "exclusive use and occupancy" of water-power lands inside the Reservation boundary (which his bill formalized as the south (left) bank of the Colorado) until there was such a water power development. 

So far, so good. Lands the Navajo had been granted by executive order were now described in a congressionally mandated Reservation with a well-defined boundary on the banks of the Colorado and Little Colorado. Furthermore, those lands within that boundary that might be used if a dam were built remained in Navajo "exclusive use and occupancy". Fine.
Now we reach 30 September 1968, and the enactment of the dam-free Colorado River Basin Project Act. With that Act, the bargain Hayden had had the Navajo make over land and dam benefits ended. There would be no water-power projects. The withdrawals for power were now dead letters.  Although nothing was said about the Navajo Reservation, the Navajo Nation now had in fact based on law a land base with a well-defined boundary and no contested purposes for what is, in effect, a share of the Grand Canyon.

Lets go back to 1934 and what Senator Hayden wrote that applied to this situation: the withdrawals were for Navajo exclusive use and occupancy "until they shall be required for power purposes" or "until they shall be required for ... other uses under the authority of the United States". Affirmation of  the Reservation boundary was certainly a use under the power and authority of the United States, and at the key 1968 moment was, by default, the use to which the lands in the withdrawals were put. The "exclusive use and occupancy" lands within the Reservation along the Colorado became just Navajo land. That this change in status was "required" may depend on whether one believes in treating the Navajo in a fashion becoming to their status as a sovereign people or whether one believes Indians are a subject people to be kicked around or out of the way as the dominant power sees fit. It is my understanding that carried into the court system, the former stance is more likely than the latter to influence a judge or justice's decision.  

This uncontested status lasted until January 20, 1969. 

The moment the power withdrawals died, these lands did not become vacant, unreserved public lands. They had been dedicated (in 1884, 1900, & 1930) to Navajo use, occupancy, and boundary definition finally by the 1934 Act, and by default they were now, uncontestedly, part of the Reservation. Nevertheless, unnecessarily, and in contravention of the 1934 Act, President Johnson, as he left office, used his power under the Antiquities Act to challenge the prior, senior, privileged uses of water-power withdrawal and Navajo sovereignty, and claimed Navajo lands for a new Marble Canyon National Monument (GCNM), handing jurisdiction over lands that had been legislatively designated as for Navajo "exclusive use and occupancy" to the National Park Service, heretofore not even interested in being a player for Marble Canyon.

R.C.Eaton, in 2003 working for the Interior Department's Solicitor's office, warns us that "A statute should be construed to give effect to all of its provisions" in his memo on the Park-Reservation boundary in the Marble Canyon Area. 

I agree. The statute I have in mind is the 1934 Act setting the Navajo boundary, and the provision the one quoted above: the water-power lands were for Navajo exclusive use and occupancy "until they shall be required for ... other uses under the authority of the United States". "REQUIRED". The pregnant question then is: Did the proclaiming and existence of the Marble Canyon National Monument REQUIRE using for the Monument the former water-power lands within the Navajo Reservation boundary? 


In a 1969 opinion a regional office solicitor says this; ""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."
That's all: "it is APPARENT." His opinion is full of discussion of the water-power withdrawals, yet says almost nothing about the history of the Navajo boundary and Reservation, -- an astonishing oversight, or rather error. Indeed, his understanding of the withdrawals is so imperfect that he hopes that someone else can figure them out.  

Then, in the 2003 Eaton boundary paper, he does go after the history of the Navajo boundary and gets it just plain wrong, invalidating much of his case. He also ignores the statute's demand that an "other use" be REQUIRED.

I am, to use Eaton's quote against him, "construing to give effect to all of (the 1934 Act's) provisions" as hard as I can. Those who defend the Presidential taking under the Antiquities Act are not. There are two sad points to make here 1. taking Navajo land 2. taking it for no sound, much less REQUIRED, reason.

1. The opinions from the solicitor's office, with their errors and mis-emphases, are a parody of aggression against "the Indian", taking land, APPARENTLY, with no regard for history or the legal situation, and introducing a new "other use" to do so. 

2. What really drives me nuts is that there is no need for this dispute.
i. The GCNM proclamation did not bother to argue that the Navajo land was required. 
ii. It could have argued, but did not, that it did require land on the left bankf for complete protection of Park values.
i. The GCNM proclamation offers as reasons for its action only: the northerly continuation of the Grand Canyon, there being unusual features, and promoting the public interest. Nothing is offered that would indicate a requirement to take land on the left bank that belonged to the Navajo.
ii. Had the GCNM's authors known what they were doing, they could easily have made a case that the canyon on the left bank, and indeed up to the rim, was, in fact, required for the comprehensive protection and presentation of this introductory section of the Grand Canyon. They could have talked about a complete presentation of the Canyon, about features along the river like Redwall Cavern, about river recreation and camping, about exits and hiking opportunities, about the desirability and need to keep the rim free of over-development. Thinking on those lines, they could even have gone downstream to the Little Colorado to include the Confluence, instead of stopping at Nankoweap. But instead of such a bold move, they provided only weak justification for the project in its proclaimed form.

Of course, if we wanted to get boldly into aggrandizement, we could wonder why the proposed Monument could not have 
1) affirmed the Navajo boundary, Reservation, and sovereignty from the riverbank going east; 
2) extended Antiquities Act protection and recognition for the entire stretch, Paria to Little Colorado, west rim to east rim, and 
3) proposed, subject to Navajo acceptance, an administration of this new entity that brought the Navajo and Park Service into a joint, cooperative endeavor that would have ensured maximum presentation of the entire upper Grand Canyon, full protection of the Canyon and Navajo values, and with provisions for enhanced visitor services under the Navajo Parks & Recreation. 

Well, this last is just fantasy, of course. Instead of such a bold vision, we have to deal with arguments for taking Navajo land unnecessarily, argued for by Interior legal staff, maladroitly, and totally failing to make the case for a Federal aggrandizement that annexed land that is the Navajo's and is required, at the least, for their Reservation to have a well-defined boundary. In addition,  practically speaking, failing to accept that the Reservation boundary is on the rivershore would give the Reservation, as well as the Park, a loopy boundary sometimes on the river, sometimes on section lines, sometimes on contours, and everywhere hard for visitors to find, and NPS to enforce. 

It is time to lay the ghost of water-power development in the Grand Canyon and let the Park-Reservation boundary rest securely along the river on the left bank.

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