Leslie Thatcher of Truthout interviews Howard Shanker, an attorney and Congressional candidate who represents the Navajo Nation in the San Francisco Peaks case. A full panel of the 9th Circuit Court of Appeals ruled that the use of reclaimed sewage at the sacred site would not infringe on tribal religious rights.

Q: "Howard, what do you consider the most important issues in the Snowbowl case to be?"

A: "The San Francisco Peaks are federal land and the government has documented for years that the Peaks - especially Humphreys where Snowbowl is located - are sacred to local tribes. Nonetheless, the Feds issued a special use permit to operate a ski resort there that was unsuccessfully challenged in the 1970's. Most recently, the Forest Service ruled that the resort could pipe up to 1.5 million gallons of treated sewage effluent to the resort for snowmaking in winters when natural snowfall is inadequate. The tribes have appealed that ruling.

"The central issue that's going on and that's really important is that Native tribes have no First Amendment rights when it comes to government land-use decisions. And the federal government holds thousands of acres of land across the country that the tribes hold sacred. Up until we used the Religious Freedom Restoration Act [RFRA] successfully, there was no way for the tribes to challenge federal use of sacred lands. Now, they have to show there is a compelling government interest and that they are using the least restrictive means of furthering that compelling government interest when government action substantially burdens the exercise of religion.

"The current ruling is that there is no substantial burden on the exercise of religion. The judges have said there is no objective evidence of impact on religious belief and practice.

"Short of producing God in the courtroom, there's no way to produce "objective" evidence. A Navajo elder testified that putting effluent on the mountain would be like raping his mother. Other testimonies - the sincerity of which were never challenged - described the disruptions to the spiritual world and contamination of the ritual purity of materials essential to Native ceremonies that spraying the effluent would result in.

"The en banc court adopted a very restrictive reading of "Sherbet and Yoder" that does not seem to speak to the statute. In any event, spraying the Peaks can certainly be interpreted as a form of punishment or coercion."

Get the Story:
Do Native Americans Have First Amendment Rights? (Truthout 8/20)

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

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