indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439   fax: 202 318 2182
Kill The Tobacco Master Settlement Agreement
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court to rehear sacred site case
Thursday, October 18, 2007
Filed Under: Environment | Law

A federal appeals court dealt a setback to a coalition of tribes on Wednesday when it agreed to rehear a sacred site case.

In March, the 9th Circuit Court of Appeals blocked a ski resort from using treated sewage to make snow in the sacred San Francisco Peaks. The ruling said the Bush administration violated the religious rights of tribes by approving the project.

But the victory is in doubt now that a full panel of the appeals court will hear the case all over again. The U.S. Forest Service and the Arizona Snowbowl resort asked for a rehearing, which was granted in a short order yesterday.

Tribal advocates expressed hope that the court will upheld their rights a second time. "Why in 2007 do we as America's first people have no guarantee for protection of our religious freedom?" said Jeneda Benally, a member of the Navajo Nation who volunteers for the Save the Peaks Coalition.

The coalition's efforts are backed by the Navajo Nation, the Hopi Tribe, the Hualapai Tribe, the White Mountain Apache Tribe, the Yavapai-Apache Tribe and environmental groups. They say the use of reclaimed wastewater violates the sanctity of the San Francisco Peaks.

The peaks are home to spiritual beings and are used to gather important plants and medicinal herbs. In court testimony, tribal elders were able to show that their religious practices would be harmed by the ski resort's plans

"We conclude that [the tribes] have shown that the use of treated sewage effluent on the Peaks would impose a substantial burden on their exercise of religion," Judge William A. Fletcher wrote in the 64-page decision that was issued in March. "This showing is particularly strong for the Navajo and the Hopi."

Howard Shanker, an attorney for some of the plaintiffs, said it was "regrettable" that the court has decided to rehear the case. But he placed the blame on the Bush administration and the operators of the ski resort.

"[O]ur federal government seems to place the profitability of a privately owned, non-destination ski area, that operates on federal land, over the deeply held religious and cultural convictions of hundreds of thousands of Native Americans living in the southwestern United States," said Shanker, who is running for Congress to represent a district that includes the peaks and parts of the Navajo Nation and some Apache reservations.

The case centers over the interpretation of the Religious Freedom Restoration Act. The law was passed in response to a U.S. Supreme Court decision that allowed the state of Oregon to bring charges against Native American Church practitioners for using peyote, a hallucinogenic.

The law bars government agencies from taking actions that "substantially" burden a person's exercise of religion without a "compelling governmental interest." Agencies must further demonstrate that they are taking such action by the "least restrictive means" possible.

The Forest Service and the Arizona Snowbowl have defended the plan to create snow. They say the treated sewage will not harm the areas used by tribal medicine men and will only affect a small part of the entire peaks.

Navajo, Hopi and Hualapai elders testified to the contrary and said the reclaimed wastewater would "ruin" their medicine and violate the sanctity of the spiritual beings who live in the peaks. The evidence was cited extensively in the 9th Circuit's earlier opinion.

Sacred sites have been litigated several times in the 9th Circuit over the past several years and every case has gone in favor of tribal interests. The court has upheld a policy in Arizona that prevents the state from buying material that were mined from a sacred site.

In another case, the court said the Hoopa Valley Tribe of California has the authority to block a non-Indian from logging near a sacred site. The 9th Circuit heard the case twice before siding with the tribe.

Court Order:
Navajo Nation v. US Forest Service (October 17, 2007)

Earlier Decision:
Navajo Nation v. US Forest Service (March 12, 2007)

Listen to Oral Arguments:
Navajo Nation v. Forest Service (September 14, 2006)

Appeals Court Documents:
Opening Brief [Word DOC] | Reply Brief [Word DOC]

Lower Court Decision:
Navajo Nation v. US Forest Service (January 11, 2006)

Approval Documents:
Final Environmental Impact Statement for Arizona Snowbowl Facilities Improvement | Forest Service Approves Snowmaking at Arizona Snowbowl

Relevant Links:
Save the Peaks Coalition - http://www.savethepeaks.org
Coconino National Forest - http://www.fs.fed.us/r3/coconino/index.shtml

Related Stories:
Bush administration appeals sacred site case (6/4)
Viewpoints: 9th Circuit ruling on sacred site (03/26)
Editorial: Court 'misguided' on sacred site case (3/21)
Hopi Tribe humbled by court victory on sacred site (3/15)
Letter: Hualapai Tribe hypocritical on sacred (3/15)
Tribes welcome court decision on San Francisco Peaks (3/14)
9th Circuit blocks snowmaking at sacred peaks (3/12)
Ruling awaited on snowmaking in sacred peaks (02/01)
Confrontation over ceremony at sacred peaks (1/31)
Southwest tribes to continue fight for sacred site (11/14)
Tribes hopeful after court hears sacred site case (09/19)
9th Circuit hears from tribes in sacred site case (9/15)
Tribes press sacred site case before 9th Circuit (9/14)
9th Circuit to hear sacred site case on Thursday (9/13)
Southwest tribes go to court for sacred site (9/6)
Navajo Nation appeals court ruling on snowmaking (02/28)
Tribal coalition to appeal ruling on sacred peaks (1/13)
Judge allows snowmaking in sacred Arizona peaks (1/12)

Copyright © Indianz.Com
More headlines...
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Website tracks missing and murdered women (7/30)
Native Sun News: AmeriCorps expands efforts in Indian Country (7/30)
House Natural Resources Committee markup on four tribal bills (7/30)
Mark Begich: A permanent fix for tribal contract support costs (7/30)
Paul Moorehead: Let's get back to promoting self-government (7/30)
Tanya Lee: Violence against Native women a national disgrace (7/30)
Rep. Markwayne Mullin named one of 50 Most Beautiful on Hill (7/30)
Tribes criticize veto provisions in BIA federal recognition rule (7/30)
Great Plains tribes hold conference to safeguard water rights (7/30)
Yurok Tribe wraps up marijuana raids with nearly 13K plants (7/30)
Law Article: Tribal lenders fight federal agency investigation (7/30)
Editorial: Muscogee Nation paves the way for college's future (7/30)
NPR: Relying on social media to keep Native languages alive (7/30)
Opinion: EPA exploits tribes by recognizing their sovereignty (7/30)
Mescalero Apache Nation man sentenced for meth trafficking (7/30)
BIA won't commit to timeline on Mashpee Wampanoag casino (7/30)
Employees at Graton Rancheria casino to negotiate labor deal (7/30)
Tohono O'odham Nation blasts bill to bar off-reservation casino (7/30)
Opposition group sues to block gaming referendum in Nebraska (7/30)
Native Sun News: Native nations unite on uranium mine cleanup (7/29)
Audio from House subcommittee hearing on five tribal measures (7/29)
House Subcommittee on Indian and Alaska Native Affairs hearing (7/29)
Witness List: SCIA hearing on natural disasters in Indian Country (7/29)
Gyasi Ross: Tribes put principle over profit in banning Ted Nugent (7/29)
Steven Newcomb: UN perpetuates dominance of Native peoples (7/29)
Megan Red Shirt-Shaw: Music festival outlaws faux headdresses (7/29)
BIA holds final in-person meeting on federal recognition reform (7/29)
'Caucasians' t-shirt sees boost in popularity thanks to Native DJ (7/29)
WyoFile: Tribes depend on Medicaid funding for health services (7/29)
Another member of Miccosukee Tribe killed in fatal car accident (7/29)
Former employee sentenced for theft from Chippewa Cree Tribe (7/29)
Editorial: Washington team's 'racial slur' has no place in society (7/29)
Review: 'Unreal City' exploits coal from Hopi and Navajo tribes (7/29)
Senate bill introduced to kill Tohono O'odham Nation casino bid (7/29)
Mohegan Tribe reports declines in gaming revenues and profits (7/29)
Muscogee Nation adds steakhouse to $335M casino expansion (7/29)
Editorial: Proposed Pojoaque Pueblo compact hurts New Mexico (7/29)
Tim Giago: Lakota and Pueblo Indians on Pine Ridge Reservation (7/28)
Native Sun News: President of Oglala Sioux Tribe dodges bullets (7/28)
Puyallup fashion designer competes for prize in Project Runway (7/28)
Senate Indian Affairs Committee sets business meeting on bills (7/28)
NIEA heads to Capitol Hill to advocate for Native language bills (7/28)
Obama signs Pascua Yaqui and Hoonah Indian Association bills (7/28)
Ho-Chunk Inc executive Lance Morgan receives business honor (7/28)
Charles Roessel: BIE reform plan includes teacher certification (7/28)
Troy Eid: Marijuana experiment in Colorado hurts Indian youth (7/28)
BIA hosts scoping meeting on Paiute Tribe land-into-trust bid (7/28)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.