PIPE SPRING Cultures at a Crossroads: An Administrative History

A Bittersweet Trade

The controversy over interpretation of the proclamation clause that simmered during the fall of 1929 was kept on the bureaucratic back burner until the spring of 1931. In April of that year, Commissioner Rhoads sent a lengthy letter to Secretary of the Interior Ray Lyman Wilbur regarding land and water rights at Pipe Spring. The letter outlined the history of the establishment of the Kaibab Indian Reservation as well as provided a summary of the Heaton land claims. [700] Then Rhoads discussed Pipe Spring (which he referred to in plural form), first pointing out that Charles C. Heaton's claim, which he attempted to locate under the Valentine scrip, had been rejected by Departmental finding of June 6, 1921. Rhoads continued:

The 40-acre legal subdivision upon which the Pipe Springs are located having thus in 1921 been officially cleared as to prior homestead or entry rights became the subject of discussion as a suitable location for a national park which culminated in a Proclamation by the President under date of May 31, 1923 actually designating said 40-acre tract as a national monument. The Proclamation, however, contains the following provision regarding the use of the water of the Springs... [701]

Rhoads then quoted the provision as contained in the monument proclamation that granted water privileges to the Indians of the Kaibab Indian Reservation under regulations to be prescribed by the Secretary of the Interior. Rhoads referenced the meeting held during the summer of 1924 at Pipe Spring between Chief Engineer Reed, Dr. Farrow, Superintendent Pinkley, Charles C. Heaton, and Randall L. Jones for the purpose of discussing ownership and use of waters at Pipe Spring, the meeting which led to the June 9, 1924 memorandum. [702] Commissioner Rhoads pointed out to Secretary Wilbur that,

This memorandum agreement does practically nothing more than to acknowledge the ownership of one-third of the waters from these Springs as belonging to the cattlemen and granting them the right to conduct that quantity of water to and upon any portion of the land covered by their grazing permits, or upon the expiration of such permits, to conduct that quantity of water off the reservation.

Notwithstanding the provisions of the Presidential Proclamation and the subsequent agreements in regard to the use of the waters of these Springs, there still continues a controversy in the matter and the same was the subject of a conference recently held in the Indian Office between officials of the National Park Service and the Indian Irrigation Service at which Dr. Farrow, Superintendent of the Kaibab Indian Reservation, was present. The following facts and conditions were brought out:

1) In regard to the National Park Service, their present Caretaker of the Pipe Springs National Monument is serving practically without salary other than the benefits he may derive from the premises furnished him on the grounds, the value of which depends almost altogether upon his being permitted to have the use of the water from Pipe Springs over and above the one-third set apart for the cattlemen. The National Park Service raises a question as to the validity of the claim to a use of this water for irrigation purposes by the Indians. But they further point out that if it shall be decided that the use of this water belongs to the Indians, it will be necessary for the National Park Service to recommend legislation looking to the establishment of a definite salary for the Caretaker of the National Monument or to an appropriation of funds with which to purchase any rights the Indians may have to the use of the water.

2) In regard to the Indian Service, the records show clearly that the available water supply from Pipe Springs over and above the one-third set apart for the cattlemen and the water required for general domestic purposes, is only sufficient to irrigate garden tracts upon which the Indians would depend for subsistence and would leave none for the Caretaker to use for irrigation purposes.

It is the contention of the Indian Service that these Springs being situated within the boundaries of the Kaibab Reservation and having been cleared officially by the General Land Office as to prior homestead or entry claims, clearly come within the principle laid down in the Winters case whereby the Indians are entitled to the use of the water for irrigation, as was recognized in the Presidential Proclamation. If this contention be true, it is the plain duty of the Indian Service to insist the Indians be protected in their rights to the use of the water, or if it shall be found that they are without valid rights thereto, that fact should be established so that other provisions may be made for these Indians.

It is respectfully requested therefore that this matter be referred to the Solicitor for the Interior Department for his opinion as to who really has a legal right to the use of that portion of the water of Pipe Springs available for irrigation over and above the quantity required for stock water and domestic purposes. [703]

"It is the contention of the Indian Service that these Springs .... clearly come within the principle laid down in the Winters case." What Rhoads is referring to is known as the Winters doctrine. This doctrine of reserved water rights emerged from the legal case of Winters v. U.S (207 U.S. 564, 1908). The suit was brought before the government to restrain appellants and others from constructing or maintaining dams or reservoirs on the Milk River in Montana, or in any manner preventing the water from this river or its tributaries from flowing to the Fort Belknap Indian Reservation. This reservation, located in eastern Montana, was set aside in 1888 for the Gros Ventre and Assiniboin Indians. The U.S. Supreme Court made the decision that access to water there was a "reserved right" implicit in setting aside reservation land, for without water, the court argued, arid land was "practically valueless." In the case of Winters v. U.S., it was decided that the traditional western legal doctrine that guaranteed prior appropriation of water was subject to preceding Federal reservation of lands and implicit reservation of water rights in the amount sufficient to fulfill the purposes of the reservation. The doctrine was not absolute, however. It did not affect pre-reservation appropriations, and the amounts of water reserved were limited to the amounts reasonably necessary for present and future Indian needs. [704] Rhoads' contended in his statement above that the clause inserted into President Harding's proclamation provided de facto recognition that the Winters case applied on the Kaibab Indian Reservation.

Director Albright indicated his concurrence with Commissioner Rhoads' request for a decision by the Solicitor. First Assistant Secretary Joseph M. Dixon also concurred, then the matter was referred to Solicitor Edward C. Finney for an opinion on April 15, 1931. On May 6, 1931, Finney responded to the Department of the Interior's request about the use of Pipe Spring water. He stated that "certain premises" in the proclamation were very important in determining the rights of the springs. These premises were:

1) that the spring afforded the only water along the road between Hurricane, Utah, and Fredonia, Arizona;
2) that the public good would be promoted by reserving land on which Pipe Spring and the early dwelling place were located; and
3) that the Indians were to have the privilege of utilizing the water from Pipe Spring.

Finney stated that in the dispute between the Park Service and the Indian Service on the use of the waters the problem narrowed down to the

...right of the caretaker of the national monument to receive part or all of his pay for service rendered the United States by the use of the waters of Pipe Springs for irrigation or other purposes.

The rights as referred to in the Presidential proclamation to the use of the waters of Pipe Springs apparently contemplate (a) use by travelers on the highway, (b) the privilege of the Indians of utilizing the water for irrigation, stock watering, and other purposes, and whenever these priorities are satisfied the rights of the junior appropriator would begin. It is, however, not intended to define or determine the rights or priorities under (a) or (b) above. [705]

What Finney completely sidestepped in his decision was the legal question of water rights. Rhoads' contention that the Winters case applied to Pipe Spring went unaddressed, as did Pinkley's assertion that, under Arizona water laws, legal ownership of two-thirds of Pipe Spring's water was acquired when the Park Service took possession of the land.

Commissioner Rhoads forwarded copies of the joint request for the Solicitor's opinion on water use at Pipe Spring, as well as the Solicitor's response, to Dr. Farrow at the Kaibab Indian Reservation. In addition, he informed Farrow that Director Albright had asked permission to continue existing conditions for the time being, to allow the Park Service to approach Congress when it reconvened in December with a request for "necessary relief of the situation." Rhoads directed Farrow to grant Albright's request "to the fullest practicable extent without serious loss to the Indians..." [706]

The opinion rendered by Finney meant the Park Service could no longer offer Heaton a livelihood in exchange for his labor. On the other hand, it created the perfect "crisis" situation for asking Congress for an appropriation to fund a salaried position. In a May 18 letter to Chief Landscape Architect Thomas C. Vint, Pinkley wrote,

We just got a body blow at Pipe a few days ago when the solicitor of the Department ruled that we had no right to use of the spring water for irrigation; that it belonged to the Indians. Since we are paying the Custodian $12 per year and the use of the water as his compensation, this is going to force us to make other arrangements in the matter of a Custodian. It is possible it will result in us getting a full paid salary there in the next deficiency bill. [707]

In June 1931, at the director's request, Pinkley forwarded budget estimates for the monument for FY 1932 and FY 1933, with the warning, "Unless we get a full time custodian at Pipe Spring, we will be forced to do without one altogether, as Mr. Heaton will be unable to continue holding the place down if he is deprived of his irrigation water for his crops." [708] Shortly thereafter, Pinkley informed Heaton that the Park Service had permission to continue using water as they had in the past until the matter could be brought before Congress, so that the Park Service could get relief in the way of a full salary for the custodian. He wrote optimistically, "I feel fairly certain that this salary will be allowed." [709] The result was that the Park Service would soon get its funding for a custodian, but only at the cost of sacrificing its previously unregulated use of two-thirds of Pipe Spring's water.