Master of Jurisprudence in Indian Law - University of Tulsa College of Law
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Law
Appeals court says sacred sites worthy of protection


A government policy discouraging development of a sacred site does not violate the U.S. Constitution, a federal appeals court ruled last week.

In a victory for the state of Arizona, the 9th Circuit Court of Appeals upheld the state's protections for Woodruff Butte, held sacred by the Hopi Tribe, the Zuni Tribe and the Navajo Nation. Worried about the exploitation of the site, the tribes convinced the state Department of Transportation not to use any mined materials from the site for construction projects.

The policy led to the state to deny a "commercial source number" to a non-Indian man who owned land within the Butte. Without the number, Dale McKinnon could not sell mined materials to the state.

McKinnon took the dispute to court argued that the state's policy violated the Constitution's First Amendment. He said the state was promoting Native religious beliefs.

But rather than advancing any particular religion, safeguarding Native sites "has historical value for the nation as a whole," the 9th Circuit Court of Appeals said on September 1. "Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites," Judge Betty B. Fletcher wrote.

The decision won't stop McKinnon and his Cholla Ready Mix company from using his property for private purposes. But the Mountain States Legal Foundation, a conservative legal group the argued the case, said he has lost all other buyers of the mined material as a result of the tribes' lobbying.

"We are disappointed with the ruling by the Ninth Circuit because the court failed to do what it is required to do, that is, decide whether sufficient facts had been alleged to put Arizona on notice that we believe it violated the constitutional rights of Mr. McKinnon and his company," said William Perry Pendley, the group's president.

To the tribes, the destruction of Woodruff Butte has been particularly heartwrenching. Mining by McKinnon and the site's previous owner has resulted in the destruction of Hopi religious shrines.

"We literally saw one Hopi shrine bulldozed before our presence there," said Leigh Kuwanwisiwma, a tribal member, in the documentary film In the Light of Reverence.

According to the tribe, McKinnon offered to sell Woodruff Butte for $3 million. The tribe refused to consider buying the land for fear of putting a price on a sacred site.

Woodruff Butte is eligible for inclusion on the National Register of Historic Places. Although it hasn't been listed, Arizona's policy requires anyone desiring a commercial source number to submit an environmental assessment that considers adverse effects on a potential NRHP site.

The requirement is just one of many ways state and federal governments are employing in hopes of protecting sacred sites. Throughout the country, different approaches have been taken.

In Utah, the National Park Service urges people not to approach the Rainbow Bridge in Rainbow Bridge National Monument out of respect for the Hopi, Navajo and other tribes. In Nevada, the U.S. Forest Service is proposing to ban climbing at Cave Rock, held sacred by the Washoe Tribe.

Mountain States and other conservative groups have challenged several of these safeguards but have not won many cases so far. In one significant case, the 9th Circuit ruled that a tribal ordinance protecting a sacred site on the Hoopa Valley Reservation in California was "ratified" by the federal government in order to allow jurisdiction over non-Indians. The U.S. Supreme Court refused an appeal of the ruling.

Mountain States formerly employed Interior Secretary Gale Norton but she cut ties to the organization upon joining the Bush administration in 2001. While working for the group, she argued against Alaska Native subsistence rights.

Get the Decision:
CHOLLA READY-MIX, INC. v. MENDEZ (September 1, 2004)

Relevant Documents:
Case Background: CHOLLA READY-MIX, INC. v. MENDEZ (Mountain States Legal Foundation) | Construction at Woodruff Butte (Advisory Council on Historic Preservation)

Relevant Links:
Mountain States Legal Foundation - http://www.mountainstateslegal.org
Sacred Land Film Project - http://www.sacredland.org