Common Sense On The River -- And Off It

History and Policy for the Left Bank of the Colorado River in Grand Canyon

Introduction
The Grand Canyon's lands east and south of the Colorado River have four major landlords. From the Canyon's beginning at the Paria junction to the Grand Wash Cliffs 277 Miles downstream, they are the Navajo Nation, the National Park Service (NPS), the Havasupai Tribe, and the Hulapai Tribe, ending again with NPS, an agency in the federal Department of the Interior.

Since the matters I will be discussing involve the prickly matter of sovereignty, it is necessary to recognize that in an important sense, the Navajo, Havasupai, and Hualapai have sovereignty over their lands, though it is of course a jurisdiction and ownership granted by and resting on the foundation of the overall national sovereign, the United States of America.

For those involved in the protection and presentation of the Grand Canyon as a natural and environmental icon of world-wide recognition and concern, as well as for those interested in exploiting the Canyon for their own short-term financial gain, recent years have seen intense debate over actions that are inextricable from questions about sovereignty, and thus inevitably, the boundaries that separate one landlord’s jurisdiction from another’s.

I have written at length about boundary matters in my on-line history blog, “Celebrating the Grand Canyon”, at gcfutures.blogspot.com, under the headings for Boundaries, Havasupai, Hualapai, Navajo, & The Park. A century-and-a-half (and of course many centuries further in the past) of political history have proven the Canyon to be a center of charged affairs; charged with emotion, yes, but more significantly, charged with importance for the question of how humanity conducts itself in and for the world.

A major example of such an affair – recently, and I hope finally, happily concluded – was the question centered on Navajo land at the junction of the Little Colorado and Colorado Rivers: Should the Navajo Nation approve a tacky, greedy proposition for building a mass-industrial tourist site that would irreparably damage this extraordinary part of the Grand Canyon and be contrary to the benefit of the Navajo people, solely for the enrichment of a few non-Navajo speculators? While the question was presented in the arena of Navajo Nation government, clearly it struck home in the hearts and minds of people, not just in the rest of the United States, but across the world. And threaded throughout this struggle were the intricacies of how this vital tract of Grand Canyon heartland came under Navajo jurisdiction, decision-making, sovereignty.

A minor example is the quiet acquisition by the Havasupai of National Park land that includes Beaver Falls on Havasu Creek. At present, paralyzed by a lack of agency leadership and coherence, the National Park Service at the Park has taken no action to protect public access to these Falls, allowing the Havasupai to either exclude the visiting public or charge them a not-insignificant fee.

The Colorado River Boundary at the Hualapai Reservation and Grand Canyon National Park.

This matter has been in contention most sharply since the enactment of the Grand Canyon National Park Enlargement Act of 1975. I have reviewed much of this question in several of my blog entries.

Recently, the Hualapai have announced their intention of being more active in issuing permits and collecting fees for use of their lands on the left bank to camp, stop for meals and attractions, hike, and other such activities. It is not at all clear how this intention will be carried out, but it has resulted in discussion among some who raft the river as to the legitimacy and extent of the Hualapai’s jurisdiction.

In particular, the issue is raised by John Vrymoed in his paper “Colorado River Historic High Water Level within the Grand Canyon”, 8 December 2018. From the beginning, Vrymoed makes clear his discussion is based on his acceptance of pronouncements by Interior Department and NPS officials (the “U.S.Government” in his words) that the boundary of the National Park north of the Hualapai Reservation along the Colorado was set at the historic high water mark. The bulk of Vrymoed’s paper is a wonderful exploration of the Colorado’s activity as regards its flows in flood and regular times. It is certainly worth a read for anyone interested in the ins & outs of hydraulics.

However this exposition is irrelevant as to boundary matters, and Hualapai and NPS jurisdiction.

Based on a historically false premise, Vrymoed’s conclusions and advice are contrary to the interests of the public, river users, NPS, and the Hualapai.

Some Untangling of the Law and Opinions

There are two controlling sovereign decisions. The first established the Hualapai Indian Reservation in 1883. The second extended the Grand Canyon National Park Boundary in 1975. The first was a Presidential action, an executive order by President Chester Arthur on 4 January 1883. The second was an Act of Congress, signed by President Gerald Ford on 3 January 1975.

Here’s what’s crucial: There are these two, and only two, such decisions. There are no other formal adjudications or other actions fixing or settling the boundary. There are opinions, claims, a fair amount of bluster, and, fortunately, some relevant historical facts. In dealing with these (what I called the “swamp” on the river), my goal has been to present, in a legal, and as important, a common- sensical, way, guidance for the Park visitor. Naturally, I believe that my presence and participation in the 1972-5 legislative effort that produced the 1975 Act is relevant. As an advocate (lobbyist) for the Grand Canyon, representing and working with organizations that sought to further protect it, I was involved in the decisions that set the boundary.

The Hualapai

The Hualapai are justifiably proud of the effort they started and persisted in from the 1920’s into the 1940’s to gain title to their reservation, by defeating claims from the Santa Fe railroad. Their success is a credit to their own determination. That determination also showed in their multi-faceted efforts over the decades to develop the resources of their reservation for tribal benefit, one of which was to bring the construction of a dam at the Bridge Canyon site, a goal they worked for, off and on, from the 1930’s into the 1970’s. During much of this period, they also pursued an Indian Claims Commission action to obtain compensation for aboriginal lands not included in the reservation. My point in this diversion is that the record shows they shaped their ICC claim in alignment with their desire for benefits from the dam – a desire that led them, all of a sudden in the 1950’s, to discover and proclaim that their reservation went to the middle of the river.

Did it? That answer starts with the President’s order. The reservation line started “at a point on the Colorado River” then south, east, and north, finishing by going “north thirty miles to the Colorado River; thence along said river to the place of beginning”. (Vrymoed leaves out a crucial phrase in his quote of the order.)  “To” and “along” – that’s it. Nothing about middles or water marks, high or low. But consider this: Lieutenant Palfrey of the Engineers Office, who wrote the Reservation description and drew the line on the map and signed it, went down Peach Spring Canyon, then Diamond Creek to the river. So he stood there, or sat on his horse, and looked at the river. It was June. Did he look out and fasten on the middle of the river as necessary for Hualapai prosperity? Did he look up and about, to discover how high the river might come?

I don’t think so. I think he just thought of the river flowing along as a nice boundary line to mark off all those acres running south from there, thousands of acres where the Hualapai had lived for generations. And so he said the line would run from then around and on up to the river, then back along it. Along its edge. He could have said “middle” or “high water”, if he wanted; but it sufficed to describe a line “to and along” the water’s edge – a good marker for the survey that was to come.

And that was good enough -- until 70 years later when the Hualapai and their lawyers thought they could get a better dam deal by claiming to the middle. Ok, claim away. But that claim has always been just that – lawyer’s arguing in a brief, never approved, never adjudicated in court.

The Park Service and their lawyers

Merle Stitt, Grand Canyon National Park Superintendent in the 1970’s, was a nice guy, most of the time. He was also an agency man, a bureaucrat. I tried, when the 1975 Park expansion bill was signed, to tell him what Congress had done and why (see my blog post dated 2 Oct 2011). This was necessary since NPS was not a major player in the legislative effort.

However, unbeknownst to me, and for reasons I never learned, when the Hualapai and their lawyers came to visit him in 1975, Stitt asserted that the Park boundary went to the “historic high water line”, an unjustified statement that immediately caused an uproar as the Hualapai rushed around trying to get this repudiated by, particularly, Senator Goldwater, the Park bill’s initiator. The best they could get was a reminder that the Park Act stated it did not take any land “held in trust for any Indian tribe or nation”. Unless that tribe or nation approved – Ha. Ha. Ha.

Of course, this begged the question given the situation that their land went “to and along” the river, not to the middle, and they wanted NPS to accept that. Didn’t happen. Indeed, Stitt, backed up later by departmental lawyers’ opinions, had way over-reached, climbing the Canyon walls to attach his new boundary way up high. Which, of course, is just the point. The Park would never want to, be bothered to, or dare, to establish a boundary ON the land, its cliffs, canyons, etc., no matter what it might CLAIM. (Two claims don’t make a Right, either.) That would be quite a border wall. So Stitt’s assertion -– I was told by another NPS official that it was just a business-as-usual assumption —, was contrary to the Park Act’s intent and just bureaucratic chest-beating. Not the only time NPS ignored its laws.

What Congress Did

In late 1972, the hottest issue over the Canyon was the runaway, environmentally destructive, business of commercial motor-rafting. Senator Barry Goldwater of Arizona, a long-time user and lover of the Grand Canyon was getting ready to push legislation to, among other goals, change the Grand Canyon National Park (GCNP) boundaries, consolidate units, and prevent any more dam talk. Alerted to the river situation, he added relevant items to his list. To start things off, he called a river-Park meeting of interested parties at his home in December, including officials and advocates. He was emphatic about his desire to consolidate control over river traffic in one agency, namely NPS. He wanted a single set of rules and procedures, and an end to anything-goes rafting. (Almost entirely commercial boats; NPS had been discouraging non-commercial, DIY, private river-runners for years.) But note that: river traffic.  Coupled with his other ideas was Goldwater’s assurance to the Hualapai and Navajo that none of their land would be taken without their approval.

As it turned out, Goldwater was not well served by his chief bill-drafter. Consequently, as advocates of a Park as appropriate to the Canyon as possible, we worked more closely with Congressman Morris Udall in crafting a better bill. Any ambiguity in the new Park boundary along the Hualapai Reservation was resolved by placing the river boundary “on the south bank” without qualification. (There had been other proposals previously, such as dealing with the riverbed.)  Congressional intent was emphasized that the “entire” river, “all of its water surface”, should be studied for wilderness. (NPS did, two years later, propose the river be included in Grand Canyon Wilderness.) The entire stretch of the Colorado in the Park would be under NPS administration.

Never did we imagine, in consolidating river jurisdiction under GCNP, that a clueless Superintendent would then start over-reaching, and claim to the historic high water mark. There is a further consideration here, for those of us with a bit of sense. Glen Canyon dam had been regulating river flow for a decade. Had the subject come up during congressional consideration, that regulated flow – today’s diurnal up & down -- certainly would have been the river regime considered. No way would NPS have been given Hualapai land just because now and again it had been flooded. What Superintendent will assert jurisdiction over the Diamond Creek landing?

Congress did not intend such agency over-reach into a more distant past. Just as Congress settled any ambiguity about the Hualapai claim to a mythical river middle,  beyond “to and along” the river. The point was to leave the Hualapai with their land, and to hand regulation of river traffic completely to NPS.

Can Common Sense Prevail?

Contrary to their attorney’s advice, in the 1990’s the Hualapai appealed to the Interior Solicitor to reconsider the 1976 regional solicitor’s opinion on the middle of the river question. No dice. Perhaps that had some influence on a later more hopeful development. NPS and the Hualapai decided in 2000 to work together on matters affecting river running. They set up regular meetings of the officials concerned, with the explicit understanding that there was a dispute over the boundary, but they would commit themselves to “mutual management” of an “Area of Cooperation” that went from mile 164.5 to Pearce Ferry and across the river from high water mark to high water mark. (Which is to say, they agreed to ignore what Congress had intended on either issue, so maybe no rights do make a wrong.) The meetings were successful for several years, but ended after a change in Hualapai government. An ambiguous answer to the question above.

The Hualapai don’t own the water. The Park doesn’t own any of the Hualapai bank, mile 164.5 to 273.3. That’s what Congress intended and approved in the 1975 Act. And the simple formula to carry out that intention is the wet-foot/dry-foot doctrine: If you are on a boat on the Colorado in the Park (Paria junction to Grand Wash Cliffs), and you put your foot over and it lands in water, you are under NPS jurisdiction. However, if you put your feet over along the Hualapai bank and they don’t splash, the Hualapai government is the one to worry about. (By the way, the same is true along the Navajo boundary, which also comes down to the river – but so far, they don’t seem to care.)

The common sense course for river runners

Following up on any advice that river runners may legally carry on any recreational activities on the Hualapai shore between water’s edge and any high-water-mark puts those visitors at peril of Hualapai police and legal action if they do not have a permit from the Tribe.

Furthermore, and very important: the National Park Service will not aid or support such river runners in such trespass, no matter what the bureaucrats or their lawyers claim about any high water line.

The stretch of the Colorado along the Hualapai Reservation from the river middle to the maximal high water line should never be the scene of legal trouble for any river runner using common sense and following the “wet foot / dry foot” doctrine.