indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court reverses course on sacred site in Arizona
Monday, August 11, 2008
Filed Under: Environment | Law

A lawsuit over a sacred site in Arizona appears to be headed towards the U.S. Supreme Court after tribes and Indian activists lost a major decision on Friday.

More than a dozen tribes in the Southwest are suing the Bush administration to stop the expansion of a ski resort in the sacred San Francisco Peaks. The tribes say the use of recycled sewage to make snow at the resort infringes on their religious beliefs.

The 9th Circuit Court of Appeals, however, said the tribes failed to show how their rights are being violated under the Religious Freedom Restoration Act (RFRA). The presence of artificial snow does not impose a "substantial burden" on tribal religious practices, Judge Carlos T. Bea, a nominee of President Bush, wrote for the 8-3 majority.

According to the majority, RFRA comes into play when the government forces people to violate their beliefs under the threat of punishment. The law also comes into play when people are forced to choose between following the tenets of their religions or receiving a government benefit, the court said.

Neither condition was demonstrated by the tribes, according to the decision. Tribes can continue to access the San Francisco Peaks for prayers, ceremonies and other activities despite the presence of recycled snow, the court said.

According to the court, the artificial snow merely impacts the tribes' "feelings" about their religion and the "fervor" in which tribal members practice their religion. A footnote in the 37-page majority opinion was particularly frank in its description of the dispute.

"For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the plaintiffs as damaged spiritual feelings," Bea wrote in a footnote. "Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not 'substantially burden' religion."

The decision drew a swift reaction in Indian Country and talk immediately centered on an appeal to the Supreme Court. The justices haven't taken on a tribal religious rights case since 1990, when a negative ruling against practitioners of the Native American Church prompted Congress to write the RFRA.

"This ruling sets a negative precedent that impacts the future of Native American religious practice," said Francis Tso, a member of the Navajo Nation who is part of the Save the Peaks Coalition, an activist group whose members are part of the lawsuit. "We will seek to reverse this appalling decision."

Leaders of the Navajo Nation, one of the tribal plaintiffs, also spoke about an appeal. The tribe considers the San Francisco Peaks to be a living being, comparable to a parent or a grandparent.

"The Navajo people are trying to do everything we can to save self, and the Peaks is one of our strengths," said President Joe Shirley Jr. "When you contaminate it with reclaimed wastewater, with filth, to make snow, that doesn't help Native people's way of life."

But the Arizona Snowbowl, the operators of the ski resort, welcomed the decision, describing it as "great news" for the 71-year-old operation. The resort is located on public land within the Coconino National Forest.

"We are very excited the court ruled in favor for Snowbowl and the multiple use of public land," said general manager J.R. Murray. "This ensures the future of skiing in Arizona."

Given the controversial nature of the case and the three dissenting judges on the 9th Circuit, an appeal is likely to be accepted by the Supreme Court. The justices considered a significant religious rights case during their 2005-2006 session and ruled against the government in Gonzales v. UDV.

In March 2007, a three-judge panel of the 9th Circuit cited UDV in ruling against the government in the San Francisco Peaks case. Judge William A. Fletcher, a nominee of former President Bill Clinton, wrote the unanimous opinion at the time and wrote the dissenting opinion on Friday that disputed the majority's interpretation of the RFRA.

"The San Francisco Peaks have been at the center of religious beliefs and practices of Indian tribes of the Southwest since time out of mind," Fletcher wrote. "Humphrey’s Peak, the holiest of the San Francisco Peaks, will from this time forward be desecrated and spiritually impure."

"The United States government took this land from the Indians by force," Fletcher continued. "The majority now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians' holy mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their religion."

Only two judges joined Fletcher's dissent but counting the other two judges who sided with him in March 2007, the split over the RFRA appears to be much closer than the 8-3 vote suggested.

Of the eight judges who were part of the majority on Friday, seven were nominated by Republican presidents. All three of the dissenting judges were nominated by Democratic presidents.

9th Circuit Decision:
Navajo Nation v. US Forest Service (August 8, 2008)

Listen to Oral Arguments:
Navajo Nation v. USFS (December 11, 2007)

Relevant Documents:
Court Order on Rehearing | Petitions on Rehearing

Earlier Decisions:
9th Circuit Panel (March 12, 2007) | District Court (January 11, 2006)

Related Stories:
9th Circuit issues rulings on sacred site, compacts (8/8)
Appeals court rehears San Francisco Peaks case (12/12)
9th Circuit to hear San Francisco Peaks case (12/10)
Appeals court to rehear sacred site case next week (12/3)
Appeals court to rehear sacred site case (10/18)
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:
Native Sun News: Harvest the Hope concert unites Keystone foes (10/2)
Mark Trahant: A lot stake for Native voters in Montana this year (10/2)
BIA extends comment period for changes to rights-of-way rule (10/2)
Navajo Nation won't delay election despite presidential dispute (10/2)
Column: Joba Chamberlain shares his life story through tattoos (10/2)
Washington city could turn Columbus Day into Coast Salish Day (10/2)
Cherokee Nation chief apologizes for attending live pigeon shoot (10/1)
Elizabeth Cook-Lynn: Telling the indigenous story with public art (10/1)
DOI puts another $1M from lands sales into Cobell scholarships (10/1)
9th Circuit bars use of tribal conviction in domestic assault case (10/1)
2nd Circuit rebuffs tribal online lenders in dispute with New York (10/1)
Crystal Willcuts: A tribute to my mother who was lost to cancer (10/1)
Seneca Nation man launches campaign for mayor of Salamanca (10/1)
BIA ends comment period on reform to federal recognition rule (10/1)
African-American lawmakers accuse Pamunkey Tribe of racism (10/1)
Officials claim Oklahoma owed $30M in Impact Aid for schools (10/1)
FCC will consider petition to outlaw R-word on public airwaves (10/1)
BLM struggles to manage wild horse population as herds grow (10/1)
Opinion: North Fork Rancheria casino brings boost to economy (10/1)
Report places economic impact of US gaming industry at $240B (10/1)
Shinnecock Nation gaming partner cut $250K monthly payment (10/1)
Column: Seminole Tribe poised for continued growth in gaming (10/1)
Native Sun News: Agency weighs uranium mine near sacred site (9/30)
Jim Abourezk: South Dakota tribes can put Rick Weiland in office (9/30)
Cherokee chief participated in live pigeon shoot for Sen. Inhofe (9/30)
Navajo vice president returns home after near fatal spider bite (9/30)
North Dakota tribe sees big problems as energy industry grows (9/30)
Andre Cramblit: Another year brings challenges for our people (9/30)
Jack Duran: State's 'shocking' attack on Big Lagoon Rancheria (9/30)
Navajo Nation Council to select a new leader after resignation (9/30)
Editorial: Long delayed trust fund settlement for Navajo Nation (9/30)
Keepseagle plaintiffs oppose use of $380M to create foundation (9/30)
Opinion: Working with New Mexico tribes to protect sacred sites (9/30)
Pueblo man chosen as chair of VA minority advisory committee (9/30)
Woman sues over fall at Fallon Paiute Shoshone Tribe business (9/30)
Seminole Tribe makes another attempt to join banking business (9/30)
Mohegan Tribe purchases more wood pellet production facilities (9/30)
Ponca Tribe takes down old headquarters and readies new home (9/30)
Native Mob gang leader sentenced to 43 years in federal prison (9/30)
Three indicted for murder of man from Northern Arapaho Tribe (9/30)
Rivals funded DC trips to oppose Tohono O'odham Nation casino (9/30)
American Gaming Association includes tribes in economic report (9/30)
Editorial: Vote yes to support North Fork Rancheria gaming deal (9/30)
Editorial: Florida shouldn't take a gamble with casino expansion (9/30)
Tim Giago: All Indian people ask is for America to honor treaties (9/29)
Native Sun News: Tribes take on IRS and win battle over taxation (9/29)
Mark Trahant: Indian vote could bring a surprise in South Dakota (9/29)
Tribal General Welfare Exclusion Act signed into law by Obama (9/29)
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.