Metal Band Promised Land
Heavy metal meets heavy doctrine, plus other miscellaneous observations and hobbies of a Mormon Gen X'er.

Glacier National Park

Part I

National Park Organic Act

The purpose of the establishment of the National Park Service is stated in section 1 of the National Park Organic Act.[1] Congress declares the existence of a single system that includes multiple, distinct areas that collectively create a single system to be managed by the National Park Service. The individual parks are “united through their inter-related purposes and resources into one national park system as cumulative expressions of a single national heritage.” These areas comprise a national treasure that “derive increased national dignity,” and are preserved and managed “for the benefit and inspiration of all the people of the United States . . . [and] for the common benefit of all the people of the United States.” Section 1 provides additional insight into the purpose of the creation of the National Park system: “[To] conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[2] Furthermore, the Act is meant to clarify and set forth the “authorities” necessary to manage the system.

 

Duties of the Director of the National Park Service

The position of Director of the National Park Service is set out in § 1 of the National Park Organic Act, and it is the responsibility of the Director and his or her two Deputy Directors to manage the Service in accordance with the objectives specified by the Act.  The National Park Organic Act also sets forth the authority of the Secretary of the Interior of the United States, with regard to the National Park Service. The duties thereof are extensive and are codified under § 1a-2 of the National Park Organic Act. It is implicit in the Act that the Director of the National Park Service will assist the Secretary of the Interior in executing these responsibilities and duties. Additional authority comes to the Director of the National Park Service via Executive Orders and other acts of Congress. For example, in an Executive Order of June 10, 1933, President Franklin D. Roosevelt consolidated the authority and oversight of the national parks under the National Park Service, as overseen by the Director: “All functions of administration of . . . national parks, national monuments . . .  are consolidated in an Office of National Parks. . . in the Department of the Interior, at the head of which shall be a Director of National Parks[.]”[3]

 

Establishment of Glacier National Park

The United States Congress decided to protect and preserve the area now known as Glacier National Park, from mining, development and spoliation. Glacier National Park was established by Congress in 1910 in a law currently codified at 16 USC 161 et. seq. This law stated the purpose of the creation of the Park was to “ reserve[ ] and withdraw[ ] from settlement, occupancy, or disposal . . .  and dedicate[ ] and set apart [the park] as a public park or pleasure ground for the benefit and enjoyment of the people of the United States under the name of “The Glacier National Park.”[4]

The primary champion for the preservation of the region as a National Park was George Bird Grinnell, an early explorer of the region.  Grinnell came to the region in the 1880s and described the scenery in a letter as the “Crown of the Continent.”[5]

Another figure instrumental in creating the Park was the Great Northern Railway. In 1891, this railroad company laid tracks across the Continental Divide along the southern edge of the present day park boundary.[6] As recounted in John Burns’ “National Parks, Our Greatest Treasure,” the railroads were eager to promote tourism to the beautiful landscapes, thereby increasing passenger travel on the railways. People began visiting the area, enjoying the majestic views of glacially carved canyons, alpine glaciers and glacial lakes. The Great Northern Railway lobbied Congress, who in turn established a National Forest Preserve.[7] In addition to tourists riding the railroads, prospectors also arrived, seeking profitable mining claims. To the dismay of Grinnell and others, the designation of Forest Preserve did not exclude mining claims and mining activities. Grinnell continued to push for additional protections and in 1910 President Taft signed the bill promoting the region form a forest preserve to Glacier National Park.[8]

 

Special Attributes of Glacier National Park

As its name implies, the Park contains the highest concentration of alpine glaciers in the lower 48 states, remnants of the global Ice Age, ten-thousand years ago. “Glacier National Park preserves more than a million acres of forests, alpine meadows, lakes, rugged peaks and glacial-carved valleys in the Northern Rocky Mountains.”[9]

The park contains over 70 species of mammals and over 260 species of birds.[10] The splendid flora and fauna are best observed while traversing the parks 750 miles of maintained trails. The geology of the park contains examples of geologic thrust and uplift of ancient sea beds, and reversed strata displaying older sections of the Earth’s crust laying above younger strata.[11]

Across the border from the park, in Canada lies a sister national park, called Waterton Lakes National Park (of Canada). Together, the parks were designated in 1932 as “Waterton-Glacier International Peace Park. This designation celebrates the longstanding peace and friendship between the two nations. Both parks have since been designated International Biosphere Reserves and together were recognized in 1995 as a World Heritage Site. Clearly this resource is deserving of world-class recognition.”[12]

Arguably, one of the Park’s most distinguishing features is the “Going to the Sun” highway, running through the park. The road opens up the vase interior of the park, including some of the most striking scenery anywhere in the world. Clearly the scenery, not the road is what lures thousands of annual visitors to the park. But without this road many of the parks most distinguishing vistas would be available only to hikers. The road is not without controversy of course. Atop Glacier’s highest pass, a parking lot became a prime wildlife viewing area after mountain goats were drawn there by the sweet taste of antifreeze.[13]

 

Special Challenges

The glaciers have been continuously studied and photographed from the beginning of the last century. Time lapsed comparisons of photographs of many of the parks most prominent glaciers show the gradual recession of the glaciers. Today’s scientific community is in disagreement over the causes of planetary warming trends. While causes of the phenomenon are in dispute, whether the changes are man-made or part of a natural climate cycle, no one can dispute the evidence of the shrinking glaciers in the park. Scientific studies have been conducted, and more are currently underway, to determine the future of the park’s glaciers. Scientists have stated “the potential future glacier behavior was predicted: all glaciers in the basin will disappear by the year 2030 if current trends continue. Even if no further climatic forcing occurs, the glaciers are predicted to be all but gone by 2100.”[14]

Other challenges faced by the park are typical of many regions of the United States and associated national parks: overcrowding, air quality, aging facilities and budgetary concerns.


Part II

Water Quality

Within Glacier National Park is a three-way headwater of drainage systems that drain in opposite directions as dictated by the Continental Divide. Water flows from within the park to the Hudson Bay, The Pacific Ocean and the Gulf of Mexico. Along these three paths, millions of people obtain their municipal water supplies. Water quality within the park is considered good and much of the resulting pollution enters the water downstream from the park. However, in a three-year study that concluded in 2007, scientists discovered increasing numbers of pollutants entering the park’s watershed via airborne pollution, falling in rain and snow.[15]

Pollutants in the atmosphere may originate from nearby Canada or from as far away as China. The study identified pesticides and toxins that have been banned for decades in the United States but not in other countries such as Canada and China. It is believed that the pollutants enter the atmosphere and are carried by the jet stream and fall to the ground in the form of precipitation, and are slowly accumulating in the Park’s lakes and sediments. The pollutants are then able to enter the plants and animals via the food chain. One researcher discovered a fish in a high alpine lake within the Park that contained such high levels of a particular pesticide, long banned in the U.S. that the fish would pose a health hazard to the person or animal that ate it.[16]

Not only do these pollutants endanger the stability and health of the Park ecosystem, the millions of people relying on the water emanating from the parks headwaters are also at risk. Currently pollution levels downstream from the park generally fall within federal guidelines but it is alarming that even the “pure” waters at the source, within the headwaters, begin their long journey already polluted. Other stakeholders to consider are certainly those using the pesticides and other chemicals that find their way into the natural environment. To date this controversy is at the early stages of study and no direct correlations have been made tying specific culprits to the pollutants discovered within the park.

 

Native American Claims to the Parklands

Native American occupation of the land within Glacier is documented in the archaeological record, dating back thousands of years.[17] Although the Shoshone and Cheyenne once inhabited the area of the park, the region was later dominated by the Flathead on the west side of the mountain range within the park and the Blackfeet occupying the eastern slopes and the plains to the immediate east of the park.[18] The mountain in the park known as Chief Mountain is sacred to the Blackfeet and the area was frequented during vision quests.[19] The creation of the Blackfoot Indian Reservation in 1885 included the land in the present eastern half of the park up to the Continental Divide.

The root of the modern controversy originated with the sale of 800,000 acres of land on the Blackfoot reservation to the U.S. Government in 1895, for $1.5 million.[20] As part of the sale, the U.S. Government promised the Blackfeet tribe that they would retain access to the ceded land for hunting and other activities previously conducted by the tribe. This transaction established the present-day boundary between the western edge of the park and the Blackfoot Indian Reservation. The enabling act of the Glacier National Park does not mention any Native American usage rights whatsoever. It is the position of the U.S. Government that the Act supersedes all prior treaties and contracts and quiets title in the land to the U.S. government for purposes of the public welfare.[21] Modern Blackfeet argue that their rights still exist, and that the U.S. Government is illegally ignoring the previous agreement. Unfortunately for the Blackfeet, a U.S. Court of Claims upheld the government position in a 1935 ruling.[22] Over the ensuing years, several armed standoffs between Blackfoot tribe members and authorities have been narrowly averted.[23]

 

Property Clause

The United States Constitution, Article IV, Section 3, states that “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States[.]”[24] Property clause jurisprudence defines land such as that within Glacier National Park, as withdrawn from disposal. Additionally, this withdrawn land has been reserved by an act of Congress, acting under its Constitutional authority within the act that created Glacier national park, to dispose of public lands. The Blackfoot tribe alleges a failure of the U.S. Government to observe a term of a sales agreement negotiated while the land was under tribal control. The issue is whether the U.S. Government could claim title to the land, prior to the good faith sales agreement negotiated with the Blackfoot tribe.

In Johnson v. McIntosh 21 U.S. 543 (1823), a dispute over title to a parcel of land was litigated and appealed to the U.S. Supreme Court. One of the litigants claimed title as descended from a transaction acquiring title from a Native American tribe, as original possessors of the land.  The opponent argued that the United States government held the original title and that chain of title passed to him from the Government. The Supreme Court held that the United States wrested title, if title even existed in the first place, by conquest. The Court reasoned that property rights are defined by the society in which they are at issue. Property is socially-contingent and that a conquering society wrests title from the conquered society. Adherence to this view must offer a rationale for why the U.S. Government paid the Blackfoot Indian tribe for the land in the first place. It can only be speculation that the U.S. Government was attempting to ensure a degree of equity and fairness at that particular point in time, when dealing with the Blackfoot tribe.

The issue of whether the land was appropriated as reserved land with Constitutional authority need not be reached, because of McIntosh. Even if the Blackfoot tribe had title to the land, it passed to the U.S. Government via the transaction of 1835, and the land formally became public land, and later reserved land by the creation of Glacier National Park.

The failure of the United States Government to honor the promise to allow the tribe to continue traditional uses of the land unabated, is best analyzed under the Minnesota v. Block test, which is used to determine whether Congress exceeded its Constitutional authority concerning public land regulation. The test considers the land use in question, that of the Blackfoot tribe, and whether that use is in conflict with the federal purpose of the lands, which are the preservation of wilderness as an heritage and treasure of the citizens of the United States. If the fishing, hunting, and utilization of other natural resources by the tribe members, would interfere with the public use of the park, the tribe’s use of the park resources would be in conflict with Congress’ exercise of it’s authority under the Property Clause, and therefore the prior agreement must necessarily be revoked.

However, there should be some degree of compensation to the tribe under principles of estoppel, for this action inasmuch as the tribe has relied on the agreement to their detriment. If the tribe could demonstrate that they have suffered some degree of detrimental reliance, then they should be awarded additional compensation for the loss of their rights to use the land.

 

 

 


[1] 16 U.S.C. 1a-1

[2] 16 U.S.C. 1

[3] National Park Service,  “A Brief History of the National Park Service; Extension of Duties” site: http://www.nps.gov/history/history/online_books/kieley/kieley6.htm, accessed November 1, 2009.

[4] 16 U.S.C 161.

[5] http://www.nps.gov/glac/historyculture/index.htm, accessed November 1, 2009.

[6] http://en.wikipedia.org/wiki/Glacier_National_Park_(U.S.), accessed November 1, 2009, citing Mark David Spence: Crown of the Continent, Backbone of the World – The American Wilderness Ideal and Blackfeet Exclusion from Glacier National Park. In: Environmental History, Vol. 1, No. 3 (July 1996), page 35.

[7] Id.

[8] http://www.nps.gov/glac/historyculture/index.htm, accessed November 1, 2009.

[9] http://www.nps.gov/glac/naturescience/index.htm, accessed November 1, 2009.

[10] Id.

[11] Id.

[12] Id.

[13] http://www.santafenewmexican.com/Pasatiempo/The-taming-of-the-national-park-Frank-Clifford-For-The-New-Mexi, accessed November 1, 2009.

[14] Myrna H. P. Hall and Daniel B. Fagre, 2003. Modeled Climate-Induced Glacier Change in Glacier National Park, 1850- 2100. BioScience 53: 131-140;

http://www.nrmsc.usgs.gov/research/glacier_model.htm, accessed on November 1, 2009.

[15] http://www.nps.gov/archive/glac/pphtml/subenvironmentalfactors22.html, accessed November 1, 2009.

[16] http://ehsc.oregonstate.edu/Spotlight4, accessed November 1, 2009.

[17] http://en.wikipedia.org/wiki/Glacier_National_Park_(U.S.), accessed November 1, 2009.

[18] Id.

[19] Id.

[20] Id., citing Mark David Spence. Dispossessing the Wilderness. Oxford University Press.

[21] http://en.wikipedia.org/wiki/Glacier_National_Park_(U.S.) , citing Mark David Spence: Crown of the Continent, Backbone of the World – The American Wilderness Ideal and Blackfeet Exclusion from Glacier National Park. In: Environmental History, Vol. 1, No. 3 (July 1996), page 40/41.

[22] Id.

[23] Id.

[24] U.S. Constitution, Article IV, Section 3, para. 2.

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