Petition to Supreme Court to protect San Francisco Peaks

Tribes & Environmental Groups Petition Supreme Court in Appeal to Protect Religious Freedom & Environmental Integrity of Sacred Mountain

By Klee Benally
indigenousaction@gmail.com
http://www.savethepeaks.org/
Photo by Chuck Seiverd

FLAGSTAFF, AZ – On Monday, January 5th 2009, Tribes & environmental groups in Arizona filed a unified petition for the U.S. Supreme Court to hear appeals in a precedent setting legal battle to protect religious freedom and the ecological integrity of the holy San Francisco Peaks.

The slopes of the holy San Francisco Peaks, located in Northern Arizona, have been at the center of a historical and lengthy battle that has pitted economic interests on public lands against environmental integrity, public health and cultural survival. Arizona Snowbowl, a small private ski business that leases land from the U.S. Forest Service, is attempting to expand current development and use millions of gallons of recycled sewage water to make fake snow.

“This is an important case for the Supreme Court to hear. The Supreme Court, in a split decision, previously deprived Native Americans of First Amendment rights vis-à-vis sacred sites under the control of the federal government.” said Howard Shanker, who represents Navajo Nation, Havasupai Tribe, White Mountain Apache Nation, Yavapai-Apache Nation, Sierra Club, Center for Biological Diversity, and the Flagstaff Activist Network. “This case represents the last, best chance for Native Americans to have some substantive protection of sites that they hold holy or sacred through application of existing law.” stated Shanker.
”In a country that supposedly values the free exercise and accommodation of all religion, it is unconscionable that Native American religious and cultural beliefs have essentially been relegated to second-class status by the federal government. The Supreme Court now has an opportunity to right this wrong.” Shanker said.

Tribes' primary arguments have focused on religious freedom issues by utilizing the Religious Freedom Restoration Act (RFRA), which they had hoped would provide the necessary legal protection where other laws such as the American Indian Religious Freedom Act have failed.

“The proposed development at Snowbowl, particularly the use of treated sewage effluent for snowmaking, would have profound effects upon the ability of several tribes to engage in vitally important religious practices at the sacred San Francisco Peaks.” said Jack Trope of the Association on American Indian Affairs who is working together with DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “The en banc panel of the Ninth Circuit’s narrow interpretation of the Religious Freedom Restoration Act in this case, which rejected the claims of the tribal plaintiffs, conflicts with the intent of Congress and the interpretation of the law by other Circuits. For these reasons, we have asked the Supreme Court to review this case in order to clarify the law and interpret it in a manner that would require the government to show a compelling interest in this case (and similar cases) before it can implement its land management decision. We do not believe that the government can show that approval of the Snowbowl development is in fulfillment of a compelling governmental interest.” Trope said.

The Forest Service manages the San Francisco Peaks as public land and has faced multiple lawsuits by the Navajo Nation, Hopi, White Mountain Apache, Yavapai Apache, Hualapai, and Havasupai tribes, as well as the Sierra Club, Flagstaff Activist Network, Center of Biological Diversity, and others after it initially approved the proposed ski area development in 2005.

In a recent ruling, a 9th Circuit Court “en banc” panel overturned another 9th Circuit decision protecting the holy place. The divided en banc panel found that using recycled sewer water to make snow for skiing on an admittedly sacred site posed no 'substantial burden' on the Plaintiffs' exercise of religion in this case. According to the Court, the "only effect of the proposed upgrades is on the Plaintiffs' subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs' religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a 'substantial burden' on the free exercise of religion." The Court dismissed Plaintiffs' religious beliefs as calling them mere "damaged spiritual feelings."

It is not clear on when the Supreme Court will decide whether it will hear the case or not.
Pending a decision, Snowbowl is legally barred from development on the holy mountain.

While the current appeal focuses on RFRA, many citizens and environmental organizations continue to be concerned with potential health implications of the use of recycled sewage water upon the fragile mountain ecosystem and the untested impacts that would occur if humans ingested the artificial effluent snow.

“This case should concern everyone who values religious freedom, human rights, public health and environmental integrity.” said Klee Benally, a volunteer with the Save the Peaks Coalition. “This issue also isn't just about one mountain, there are a number of sacred places located on public lands that are being threatened by development right now; Mt. Tenabo in Nevada, Medicine Lake in Northern California, Bear Butte in South Dakota, Mt. Taylor in New Mexico, for example. We are asking for everyone to call their Congressional representatives to hold hearings and to enact new legislation that guarantees protection for Native American sacred places.”

The City of Flagstaff still maintains a contract with the ski area to sell up to 180 million gallons of treated sewage effluent during the winter seasons. Without the contract for the treated sewage effluent, it would not be possible for the business owners of Snowbowl to attempt their desecration.

“A ski area should know better than to attempt to make fake snow from treated sewage effluent and dominate Mother Nature in the high desert, especially in the face of global warming. It's not only unsustainable, it's insane.” said Rachel Tso, a volunteer with the Save the Peaks Coalition.
“The question is, what do we value more: a healthy community, ecological integrity and the cultural survival of more than 13 Indigenous Nations, or the interests of a single for profit private ski business?”

For more information and to read the Petition for a Writ of Certiorari, visit: http://www.savethepeaks.org/
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NCAI urges new means of protecting sacred places

By Brenda Norrell
U.N. OBSERVER & International Report

PHOENIX – The National Congress of American Indians urged the US Congress to create a statute that would protect Native American sacred places from the onslaught of development, intrusion and desecration and to strengthen existing laws to protect Native Americans' freedom of religion, in a resolution passed during its 65th annual convention.
The American Indian Religious Freedom Act was enacted into law 30 years ago in 1978 to protect the religious freedom of Native people. However, the Supreme Court ruled 20 years ago that neither the Act, nor the US Constitution, provided for a course of action to truly protect Native Americans right to worship in their traditional manner. The Supreme Court said Congress would need to enact a statute for that purpose. Congress has not done so.
The American Indian Religious Freedom Act states that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."
Native Americans say, however, there is no current mechanism to ensure protection of sacred places or religious rights in court. Further, they say there is too little prosecution of violators of sacred places, burial places and cultural items.
Recently, the Religious Freedom Restoration Act failed to protect two sacred places in court, San Francisco Peaks and Snoqualmie Falls. In the case of San Francisco Peaks, the Ninth Circuit Court of Appeals reversed its earlier decision and ruled that sewage water could be used for snowmaking on the mountain sacred to 13 American Indian Nations. On this sacred mountain, one of Four Sacred Mountains to the Navajo or Dine’, medicine people hold ceremonies and gather healing plants. Hualapai and Hopi spiritual leaders were among those speaking out against the desecration.

Klee Benally, Navajo, with the Save the Peaks Coalition in Arizona said, "The struggle to protect Sacred Places from corporate interests is a critical struggle for a livable planet and our cultural survival as Indigenous Peoples. There are hundreds of threatened Sacred Places located on lands held by Federal Agencies such as the US Forest Service and the Bureau of Land Management. We have no guarantees that these agencies will not allow desecration of Sacred Places because there are no laws that ensure their protection."

Benally saying there is an increasing hostility in the courts.
"Congressional action to protect Sacred Places is necessary because we have no religious freedom when it comes to Federal land management decisions. We keep ending up in courts that are historically hostile towards Indigenous Peoples rights. We have very little options, this is why we must also have a broad-based grassroots movement to take action and address this cultural and environmental crisis," Benally said.
NCAI said, “It is time for Congress to enact a right of action for tribes to defend sacred places. Unless tribes can sustain lawsuits, they will not have a seat at federal negotiation tables and agencies and developers will continue to disregard existing consultation requirements. Meaningful consultation and respectful negotiations can obviate the need for litigation. However, if negotiated accords cannot be reached, tribes must be able to protect their holy places in court.”
The NCAI resolution also pointed out that universities are violating Native American graves, in development and museum content.
The NCAI resolution said, “Burial places are also sacred places. At present, there are entities subverting existing laws designed to protect our burial places and our ancestors. These entities include, for example, prominent universities in the University of California system and other federal and federally-assisted educational institutions, museums and agencies.”
Although the resolution does not name the exact institutions, the resolution follows the action of the University of California-Berkeley which recently desecrated an Ohlone burial ground for development, destroying oaks that were hundreds of years old. UC-Berkeley has also been protested for callously storing thousands of Native American remains in a rodent-filled basement. The Smithsonian Institute is among the museums that have long housed thousands of human remains of Indian people, including Native American skulls collected by bounty hunters in racist studies of intelligence.
NCAI’s resolution fails to point out the recent violation of graves and US federal laws in construction of the US/Mexico border wall. On the western portion of Tohono O’odham land in Arizona, the graves of the ancestors of the Tohono O’odham were dug up by Homeland Security’s contractor Boeing, in secret. The remains were removed from O’odham land, before being returned and reburied. Homeland Security Secretary Michael Chertoff waived all federal laws to construct the border wall.
Across the United States, Native Americans, including the Paiutes struggling to rebury “Spirit Cave Man,” in Nevada, are engaged in lengthy court battles. The desecration at the University of California-Berkeley, the plight of Spirit Cave Man and the threat to sacred San Francisco Peaks were among hundreds of issues brought to the Longest Walk, as Native Americans walked across America in 2008, from Alcatraz to DC, for the protection of sacred places and Mother Earth.
As liquor bars and helicopter rides threaten sacred Bear Butte, Yankton Sioux are faced with a large scale hog farm in the middle of their community in South Dakota. A new wave of profiteering uranium mining threatens Lakotas and Navajos. With power plants, coal mining and oil and gas drilling increasing, and the Arctic ice melting, Native Americans walked across America for five months to signal the nation and the world of the danger, while offering prayers for protection.
While burial places are desecrated across the nation, Native Americans ask, “How would you like it if your grandmother was in a museum? How would you like it if your grandfather’s grave was dug up and robbed?”
On the national level, NCAI said that Native Americans must be involved in the federal consultation processes and serve on boards that govern land use.
Further, NCAI said the Native American Graves Protection Repatriation Act must be strengthened in several ways. First, NAGPRA’s definition of Native American needs to be clarified and state that “Native American” means “of, or relating to, a tribe, people, or culture that is or was indigenous to any geographic area that is now located within the boundaries of the United States.”
NAGPRA needs increased penalties for violations of burials and burial grounds, human remains and cultural items. NAGPRA needs to be specifically strengthened with tools for improved law enforcement and prosecutions, NCAI said in the resolution.
In related resolutions, NCAI passed resolutions supporting a moratorium on exploration and oil and gas drilling in the Galisteo Basin of New Mexico; supporting protection of the Zuni Salt Lake in New Mexico and supporting the United Nations Declaration on the Rights of Indigenous Peoples.

The Declaration on the Rights of Indigenous Peoples was adopted Sept. 13, 2007, by the General Assembly of the United Nations.

In its resolution of support, NCAI said, "the declaration by the United Nations supports and reinforces the respect and protection of full self-determination rights by and on behalf of US Tribal Nations as well as the protection of tribal lands and treaties as a matter of international law and policy and is therefore in the vital interests of all US Tribal Nations."
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NCAI resolutions:
http://www.ncai.org/index.php?id=105&selectpro_resid=41

Photo: Snoqualmie Falls