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
Fredericks Peebles & Morgan LLP
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...
Stay Connected:
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Cobell settlement checks landing in Indian Country mailboxes (9/18)
Sen. Walsh welcomes arrival of last Cobell settlement payout (9/18)
Rep. Daines praises House action on tribal general welfare bill (9/18)
Winnebago attorney joins BIA as a deputy assistant secretary (9/18)
Norbert Hill: It's past time to drop the Washington NFL mascot (9/18)
Peter d'Errico: Connecting mascots to racism and termination (9/18)
Opinion: Eliminating NFL team's racist mascot is just the start (9/18)
Student newspaper punished over refusal to print the R-word (9/18)
9th Circuit rules against Chemehuevi Tribe in land deed case (9/18)
Mashable: Oglala Sioux man still pushing MazaCoin currency (9/18)
City won't allow vote on Tohono O'odham Nation casino plan (9/18)
9th Circuit poses tough questions in Big Lagoon casino case (9/18)
North Fork Rancheria banks on voter approval of casino deal (9/18)
KBIC judge dismisses lawsuit challenging plan for new casino (9/18)
Oneida Nation concerned about location of commercial casino (9/18)
Mashantucket Tribe's gaming executive to resign next month (9/18)
Column: Time for Mohegan Tribe to show its hand over casino (9/18)
Native Sun News: Cheyenne River Sioux Tribe honors veterans (9/17)
Mark Trahant: Is independence in the future for tribal nations? (9/17)
Audio: SCIA takes up bill to bar Tohono O'odham Nation casino (9/17)
House approves bill to address tribal general welfare programs (9/17)
House Natural Resources Committee sets markup on tribal bills (9/17)
House subcommittee to hold hearing on bill for Hualapai Tribe (9/17)
9th Circuit takes up Big Lagoon Rancheria gaming land dispute (9/17)
House passes bill to shield Gun Lake Tribe casino from litigation (9/17)
Andre Cramblit: Enjoying life at Dartmouth as a Native student (9/17)
Dina Gilio-Whitaker: Tribes need to lead climate change reform (9/17)
Sarah Deer wins genius grant for work to protect Native women (9/17)
Tex Hall loses bid for another term as chair of North Dakota tribe (9/17)
Group starts dragging of river in search of missing Native women (9/17)
Appeal filed over Navajo language ability of presidential hopeful (9/17)
Trial delayed for leader of Muscogee Nation accused in theft case (9/17)
Editorial: Pass bill to extend federal recognition to Virginia tribes (9/17)
NLRB reaffirms jurisdiction over Little River Band gaming facility (9/17)
Chumash Tribe to use labor unions for all work on casino project (9/17)
Student arrested over theft at Saginaw Chippewa Tribe's casino (9/17)
Native Sun News: Homeless students find support in Rapid City (9/16)
Checks from final payment of Cobell settlement put in the mail (9/16)
DOI offers $9.4M for Cobell buy-backs on Umatilla Reservation (9/16)
House takes up bill to address tribal general welfare programs (9/16)
Tribal leaders headed to Capitol Hill to push legislative priorities (9/16)
NMAI hosts symposium on treaties to coincide with new exhibit (9/16)
Witnesses: Hearing on bill to bar Tohono O'odham Nation casino (9/16)
Rival tribes spend $13M to block Tohono O'odham Nation casino (9/16)
Mark Charles: Trail of Tears sign points to much deeper problem (9/16)
Donna Ennis: Don't let ethnic imposters take away our identity (9/16)
Serial killer sentenced to life term for murder of Native woman (9/16)
Civil rights complaint filed over repeated denial of honor song (9/16)
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.