Circuit Court overturns peaks ruling
By Karen Francis, Diné Bureau,
Gallup Independent, AUGUST 11, 2008
WINDOW ROCK — In a long awaited 100-page
decision, the 9th Circuit Court of Appeals ruled that
using treated wastewater on the San Francisco Peaks in
Arizona to make artificial snow does not violate the Religious
Freedom Restoration Act and overturned a previous ruling
that would have protected the mountain that is sacred
to at least 13 Indian tribes.
The Navajo Nation v. U.S. Forest Services
was heard by an en banc court on Dec. 11, and the latest
ruling was issued Aug. 8.
The court’s majority opinion states,
“The only effect of the proposed upgrades is on the
Plaintiffs’ subjective, emotional religious experience.”
The court found that there was no substantial
burden on the free exercise of religion using the Supreme
Court precedence of Sherber v. Verner and Wisconsin
v. Yoder. The court also stated that the plaintiffs
“cannot dictate the decisions that government makes
in managing ‘what is, after all, its land.’”
Because there was no substantial burden, the compelling
interest standard cannot be applied, according to the
Navajo officials and their attorney
quickly issued statements that the effort to protect
the sacred mountain will continue.
Navajo Nation President Joe Shirley
released a statement on Friday that the Nation would
consider appealing to the U.S. Supreme Court.
He said that the decision is one more
example of federal decisions chipping away at Native
American cultures and ways of life.
“We witness the erosion of our way of
life and our culture daily with the continual encroachment
of the dominant society into our homeland,” Shirley
said. “Again with this decision, the federal government
misses an opportunity to help us continue with our way
of life in order to benefit skiers and developers.”
Howard Shanker is the attorney representing
the Navajo Nation, Havasupai Tribe, White Mountain Apache
Nation, Yavapai-Apache Nation, Sierra Club, Center for
Biological Diversity and the Flagstaff Activist Network.
He called the opinion unfortunate and wrong.
“The Court places itself in the position
of judging the legitimacy of Native American beliefs
and practices. It becomes the arbiter of religion which
is not the proper role for the courts,” Shanker said.
“The evidence clearly shows that the Peaks are important
to 13 of the Tribes in the southwestern United States
and that using sewer water to make snow on them constitutes
a significant burden on the Tribes’ ability to practice
Shanker, who is running for Congress
in Arizona congressional district 1, said that in this
country Native Americans have no First Amendment rights
when it comes to government land use decisions.
“The federal government likely holds
thousands of acres of land that Tribes hold sacred.
This case was the last, best chance for the Tribes to
be able to provide some legal protection to those lands.
In a nation that prides itself on religious liberty,
it is unconscionable that Native American beliefs are
not respected under the law or the Constitution,” he
Shanker also added that the plaintiffs
anticipate petitioning the U.S. Supreme Court for review.
Navajo Nation Council Speaker Lawrence
T. Morgan added to the call to continue the effort to
protect the peaks. He said, “If we stop here, we are
shortchanging ourselves. We have to stand our ground
and continue the fight for our sacred sites.”
Klee Benally from the Save The Peaks
Coalition said that the decision was “an affirmation
of the lack of protection for religious freedom for
Native Americans in this country.”
Benally added that the precedence-setting
case will have implications far beyond the San Francisco
Two judges — Harry Pregerson and Raymond C. Fisher —
joined Circuit Judge William A. Fletcher in his dissent,
which stated that the majority misstates the evidence
and the law under RFRA and “misunderstands the very
nature of religion.”
“Congress enacted RFRA, directing the
federal courts to ‘restore’ the ‘compelling interest
test’ that had been applied in Sherbert and Yoder ‘in
all cases where free exercise of religion is substantially
burdened,’” the dissent states.
Using Christianity as an example, the
dissent states, “For example, I do not think that the
majority would accept that the burden on a Christian’s
exercise of religion would be insubstantial, if the
government permitted only treated sewage effluent for
use as baptismal water, based on an argument that no
physical harm would result and any adverse effect would
merely be on the Christian’s ‘subjective spiritual experience.’”
The dissent also states that the
use of treated effluence would prevent the Hopi and
Navajo “‘from engaging in (religious) conduct or having
a religious experience’ and that this interference is
‘more than an inconvenience.’ ”