KEEPING THE NAVAJO BOUNDARY ON THE RIVER BANK
Let us start from this point:
There has been no adjudication on the Navajo Reservation western boundary, nor on the eastern Park boundary as set by the Grand Canyon National Park Enlargement Act of 1975.
Therefore there are only opinions, based on events, governmental acts, documents, and arguments drawn therefrom. So…
In a very long blog post and several shorter ones, I laid out what I found to be the history of the western Navajo Reservation boundary. (To see these essays, click on the blog tab for “Navajo”.) I concluded the Navajo Reservation western boundary lies, in the words of its 1934 boundary Act, “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 the 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” …
This Act contains several more clauses, more or less pertinent. The Act itself was followed in the 40-some years after 1934 by actions and events, more or less pertinent. I conclude that the end result of all this later activity is that the words of the 1934 Act hold firm: the Reservation boundary is along the banks of the two rivers. I am strengthened in my view that this is the correct position by the November 25, 1997 statement of Interior Solicitor J D Leshy (dealing with the Hualapai boundary) that “the canon of construction that doubtful or ambiguous expressions in treaties, statutes or documents involving Indians should be resolved in favor of the Indians.”
The 1934 Act purpose was “to define the exterior boundaries of the Navajo Indian Reservation”. It succeeded. The 1934 boundary is well-defined. It is easy to find and follow, and to be used to determine what is Reservation land and what lies outside it. The enactment of this boundary was, as perusal of the history would show, considered to be required to settle a plethora of disputes that had arisen or might arise around the great increase in the lands under the sovereignty of the Navajo Nation. That is to say, the 1934 Act carried out a necessary national purpose.
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That is the simple equitable statement. There are other opinions that would have the Grand Canyon National Park (GCNP) boundary going across the Colorado from its right bank and then climbing some undefined, undefinable distance up the canyon walls. Or, another opinion just claims for GCNP all the Canyon up to the eastern rim since Congress put the Park boundary there. Oops. Put it all in the Park if the Navajo agree to having their land taken. Big oops.
Still, lets for fun, look at how these “New Colonizers” justify their land grab. I start with some reminders from Interior’s attorneys:
In the 1976 Office of the Interior Solicitor opinion on the Hualapai boundary: “well founded doubt should be resolved in favor of the Indians” (p. 6).
“(A) statute should be construed to give effect to all of its provisions,…73 Am. Jur. 2nd Statutes sec.165 (2001)” from Attorney Work Product, 28 Aug. 2003, Robert C. Eaton, Office of the Field Solicitor, Santa Fe.
Yet Interior’s Solicitor attorneys seem stuck on the opinion that the western boundary of the Navajo Indian Reservation follows long-extinguished withdrawal lines for a power project that itself was always a figment of mid-twentieth-century imaginings about American unlimited development.
So lets look at the Navajo Reservation boundary Act (1934) in detail. It sets the western boundary on the south bank of the Colorado River; but
It excludes lands designated as valuable for water-power and power-site purposes; but
It gives exclusive right to the Navajo to occupy and use such excluded lands; until
the lands are required for power purposes; or
required for other uses under the authority of the United States. (My emphases)
The Colorado River Basin Act was signed on 30 September 1968. It included the provision that only Congress could authorize dams in the Grand Canyon. In plain talk, the Grand Canyon dam nightmare was politically and legislatively dead, and any withdrawals for such water/power purposes were likewise null and void.
So on 30 September 1968, Navajo lands to the 1934 boundary (— excluded yes — but — exclusively theirs to occupy and use — and — no longer required for power purposes — and — with no “other required uses” being put forward —) were clearly restored to the Navajo Reservation so that the boundary was incontestably as set by the 1934 Act on the south bank. Had the Secretary of the Interior done due diligence in his general charge to aid and protect and promote Indian interests under his “care”, he could have declared the boundary restored since the lands were no longer required for power-water purposes. Whether by subterfuge or ignorance or neglect, he did not.
Instead, four months later, the United States staged a midnight raid on these Navajo lands, and claimed them for a new Marble Canyon National Monument as possessing unusual geologic and paleontologic features and objects, and other scientific and natural values. However, using a distorted interpretation of the 1934 Act, the raid took only the ambiguously defined power-site withdrawals, now defunct and unavailable. Moreover, the raiders did not offer any evidence that the land grab was “required” as the 1934 Act, uh, required.
Proclamation 3889, 20 Jan 1969, “proclaim(s) that, SUBJECT TO VALID EXISTING RIGHTS, (the lands) are set apart as Marble Canyon National Monument”. My emphasis because surely the 1934 Navajo Boundary Act granting “exclusive use and occupancy” down to the river bank created a valid existing right for the Navajo. Moreover, 3889 says this: “Any reservations or withdrawals (for water/power purposes) heretofore made which affect the lands described above are hereby revoked”, which de facto the CRBAct of 1968 reinforced. Also the CRBAct of 1968 allowed only dams authorized by Congress, not any state or private dam, and since that Act did not authorize any dams, from 30 September 1968, the only competitor left for the withdrawn lands excluded from the Reservation was the Navajo exclusive use and occupancy that had never been extinguished.
And now get this: 3889 says “The easterly boundary of the monument shall be conterminous with the westerly boundary of the Navajo Indian Reservation.” Clearly, since 3889 is subject to “valid existing rights”, namely, the Navajo “exclusive” use and occupancy, then 3889’s further provision that “the easternmost limits of the lands within such reservations and withdrawals (that are revoked and no longer exist) shall be the easterly boundary of the monument” cannot apply against those Navajo valid existing rights for exclusive use and occupancy. The only way these two phrasings are consistent with each other is that with the withdrawals wiped out, the Monument boundary must lie on the river bank, that is, the westerly boundary of the Reservation. So the apparent clash between Navajo rights and the Monument’s reach and jurisdiction beyond the rivershore must be resolved in favor of the Navajo boundary being on the river bank as indicated by the Monument proclamation revoking the withdrawals that defined the lands “excluded” from the Reservation by the 1934 Act.
Even more telling, the Proclamation — contrary to the intent and wording of the 1934 Navajo Reservation Boundary Act — set up a vague, ambiguous boundary that would be impossibly impracticable to enforce, fence, or even find. Moreover this would prevail only to put into the new Monument undescribed and unspecified “unusual geologic and paleontologic features and objects, and other scientific and natural values”. However, the Proclamation did not claim that the Navajo-exclusive lands were required for the Monument, as the 1934 Act requires.
And even worse, the Proclamation illogically and dangerously stopped 10 miles upriver from the Little Colorado River junction, leaving a critical section of the Canyon open to exploitation, as we all later learned.
Since 3889 could not affect existing Navajo rights and it revoked the withdrawals that had been excluded from the Reservation, it follows that with the enactment of CRBAct of 1968 the Navajo boundary retained its place along the river shore. And as stated, a well-defined boundary was a national purpose embodied in the 1934 law. It would seem a sad sort of bureaucratic joke that the Proclamation was written revoking the withdrawal whose boundary it then used to try to grab Navajo land.
Now you’ve got it. Now you don’t. Now you keep it. Now we take it. And biggest joke (on you) of all, we will not, or can not, tell you where the boundary is.
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So, in 1934, the Navajo were given land that was then excluded but available for their use & occupancy exclusively. The 1968 CRB Act then released their lands back to them, and four months later, the Monument seemed to extend over those lands, but in a manner inconsistent with existing Navajo rights under law.
That is to say, those who claim Marble Canyon N M extended beyond the river bank to the withdrawal boundaries can only rely on an inconsistent and partial reading of 3889 that violates Navajo rights. Only a “conterminous” boundary on the river bank can make sense of the steps from 1934 to 1968 to 1969.
This position is further strengthened by the awkward handling of Navajo land in the 1975 GCNP Enlargement legislation. In the period 1969-72, when consulted by the Park Service and Senator Goldwater about extending GCNP to include the Navajo part of Marble Canyon, the Navajo insisted they did not want any of their lands taken into Grand Canyon National Park. Goldwater feared development on Marble Canyon’s rim, but this did not move the Navajo, who refused to yield any of their land for an enlarged Park.
Goldwater introduced his Park enlargement bill in early 1973. Stubbornly, its provisions included in the Park Navajo land up to the Canyon rim. For other reasons, the bill had a bumpy ride. It ended up with the following provisions affecting the Navajo:
The Marble Canyon National Monument (so young, so flawed) is abolished.
Section 5 prohibits the taking of any Indian land “except after approval by the governing body of the respective Indian tribe or nation.”
Section 2 says:
“(S)ubject to any valid existing rights under the Navajo Boundary Act of 1934”, lands are designated on the official Act map as added to the Park under the name “Marble Canyon East” with a “Proposed Boundary on Canyon Rim” from the Paria River running all the way down to the Little Colorado. The official map further says about this addition:
“Note: Subject to Concurrence of the Navajo Nation”.
So the 1975 Enlargement Act said no land could be taken without Navajo permission, but inconsistently showed on the map an even larger taking, not just along the 1934 boundary, not just the 1969 boundary, but all the way up to the rim. And then reiterated that this land could not be taken without official Navajo concurrence.
What, then, is the effect of the 1975 Park Act on the Navajo boundary?
The only United States law setting the western Navajo Reservation boundary that remains active and in effect is the 1934 Act setting that boundary on the river bank. The latest law, the 1975 Park Enlargement Act, in effect recognizes that everything other than the 1934 Act is abolished, revoked, non-existent, kaput. Then, with this slate cleaned, the Act “makes an offer” to take Navajo land that the Navajo government not only can refuse, but in fact had refused, and continues to refuse by inaction — and in the opinion of everybody, always will refuse.
In the event, the Navajo Nation, like the Hualapai, has a Reservation the western boundary of which comes down to the river water’s edge.
As was the intent of the GCNP 1975 Enlargement Act, GCNP rules on the Colorado river.
The Navajo and Hualapai control their lands running up and back from the river water’s edge.
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