Navajo Nation seeks support for sacred site case

Monday, December 3, 2007  

Leaders of the Navajo Nation on Friday rallied for support as a federal appeals court takes on a sacred site case.

A full panel of the 9th Circuit Court of Appeals will consider whether a ski area in the sacred San Francisco Peaks can expand. At issue is the use of reclaimed sewage to make snow for the Arizona Snowbowl.

The Navajo Nation, the Hopi Tribe and other tribes in the Southwest say the use of treated wastewater will desecrate the peaks. Medicine men from the tribes go to the area to pray, hold ceremonies and gather herbs and plants.

"It is very unfortunate that this case is being reconsidered," Navajo Nation President Joe Shirley Jr. and Navajo Nation Council Speaker Lawrence T. Morgan said in a joint statement on Friday. "We will continue to stand strong and unified to protect our religious and cultural convictions to protect our sacred mountain of the west."

The hearing takes place next Tuesday, December 11, in Pasadena, California, at 3pm Pacific time. The Save the Peaks Coalition, a volunteer group of Indian and non-Indian supporters, is organizing a caravan to the federal courthouse.

For those who can't attend, the coalition is holding a vigil in Flagstaff, Arizona, at the same time of the hearing. The Navajo Nation is also asking people to pray as the court hears the case.

In March, a three-judge panel of the 9th Circuit sided with the tribes. The court said the U.S. Forest Service violated tribal religious rights by approving the expansion of the Snowbowl, which is located on federal land in the Coconino National Forest.

But the Bush administration and the owner of the Snowbowl asked for a reconsideration. In October, the court agreed to rehear the case, which affects tribal rights under the Religious Freedom Restoration Act, the National Environmental Protection Act and the National Historic Preservation Act.

The major issue is 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 say the expansion meets both tests. They say the treated sewage will not harm the areas used by tribal medicine men and will only affect a small part of the 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.

Relevant Documents:
Court Order on Rehearing | Petitions on Rehearing

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