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Tribes, individuals struggle to protect sacred sites

SAN FRANCISCO, Ca. – A 9th Circuit Court of Appeals ruling emblematized the disregard for indigenous religion held by some in the dominant society.

In August, the court overturned a previous ruling that prevented an Arizona ski resort from using recycled sewage water to make artificial snow on the San Francisco Peaks, a mountain held sacred by 13 American Indian nations.

The U.S. Forest Service manages the San Francisco Peaks as public land and, since approving the site for development in 2005, has faced multiple lawsuits from the Navajo Nation, the Hopi, White Mountain Apache, Yavapai Apache and Hualapai and Havasupai tribes.

The tribes argued under the Religious Freedom Restoration Act, that they regard the mountain as “an indivisible living entity. … home to deities and other spirit beings.”

A circuit panel led by Judge William Fletcher took their side, but the case went en banc and in an 8-3 ruling in August, the court gave the ski owner the go ahead, saying the tribes had failed to establish a violation of the RFRA “because the presence of recycled wastewater on the ski area would not coerce the tribes to act contrary to their religious beliefs.”

Writing for the majority, Judge Carlos Bea held that Congress did not mean to hamstring the government when it passed the RFRA. So when analyzing whether the government’s actions “substantially burden” a religious practice, the plaintiffs should have to demonstrate a certain kind of impact.

“The use of recycled wastewater on a ski area that covers one percent of the peaks,” Bea wrote, “does not force the plaintiffs to choose between following the tenets of their religion and receiving a governmental benefit. … The use of recycled wastewater to make artificial snow also does not coerce the plaintiffs to act contrary to their religion under the threat of civil or criminal sanctions.”

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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 justices said.

But you don’t have to be Indian or even spiritual to have a yuck response to the idea of spraying recycled human waste on a mountain. Environmental groups including Sierra Club, Flagstaff Activist Network and Center of Biological Diversity also objected.

The “decision not only places these ways of life in peril, but sets the stage for an ecological and public health catastrophe,” said Jeneda Benally, member of the Save the Peaks Coalition, in a release.

The National Congress of American Indians’ Tribal Supreme Court Project is working with the plaintiff to prepare a petition to the U.S. Supreme Court and the development of an amicus strategy in support of the petition.

San Francisco Peaks was the most spectacular example of an endangered sacred site, but efforts to protect other sites occurred across the country, including:

In June the Hopi Nation, Navajo Nation, and the Zuni, Laguna and Acoma pueblos formed the first steps in forcing a dialogue with mining companies in an effort to safeguard Mount Taylor from potential uranium mining.

In July, the Great Plains Tribal Chiefs Association, which represents 16 nations, signed a resolution drawn up by Tamra Brennan, founder/director of the grass-roots organization Protect Sacred Sites Indigenous People, One Nation, to protect Bear Butte, known as Mato Paha to the Sioux, and sacred areas listed in the 40 Laramie treaties of 1851 and 1868.

In September, Brian Spirit Bear Michaud, a Pennacook/Micmac man representing a small group of unrecognized American Indians in northern New Hampshire and southern Maine, fought local authorities in York, Maine, to protect an ancient stone mound on Mount Agamenticus that memorializes the 17th century Pennacook Chief Sachem Passaconaway. The group comprises some of the surviving descendants of eastern woodlands tribes that were wiped out by the wars, diseases and assimilation of the 17th, 18th and 19th centuries.