Tribes, individuals struggle to protect sacred sites
San Francisco Peaks ruling evokes negative response from many
By
Gale Courey Toensing
Story Published:
Feb 6, 2009
Story Updated:
Feb 6, 2009
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.”
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.
Friday, Mar 6 at 12:33 AM Sandi wrote ...
Christy needs to learn that the Native Americans have every right to feel the way they do about THEIR land, not OUR land. We have treated the Native Americans badly and continue to do so because of people like you.....SO YOU DEAL WITH IT!!!!!!
17603851Saturday, Feb 28 at 10:45 PM Christy wrote ...
By "America" I am taking that to mean any person that is not of Native American heritage? If "America" leaves, who will be left to play black jack and sit for hours loading a slot machine with coins! We (meaning every race and religion) are here and all have the same rights so deal with it! I was born in America and intend to stay and when I die my body will decay in American soil! You sound bitter and hateful, and leaning on your beliefs like a crutch and will never be anything more!
17290072Friday, Feb 20 at 8:47 PM David wrote ...
While I am not Native and can in no way relate to what a sacred site would mean to you, it is relevant to know that we all drink recycled waste water. After waste water is cleaned and filtered by municipalities, it is sent into our freshwater rivers, streams and lakes. This water is then reused by us all. It is estimated that every glass of water including bottled that we now drink has been used at least seven times before. This is something to think on.
16869617Thursday, Feb 19 at 3:41 PM j bordeaux wrote ...
ho my brothers sisters let stand in wind together on this mother earth she is crying out to her people to let them know she can;t take this abuse any more she is showing sign;s let;s pray togther as one for the next genration the people of turtle island must try repair her with our prayers my people oytate tispoye hi-ho all realtion's
16778557Wednesday, Feb 11 at 11:01 AM Jill A Slaymaker wrote ...
Would most white communities approve of spreading treated waste water on their sacred sites? I believe the word "desecration" of graves would resound.
16332737Tuesday, Feb 10 at 4:47 AM Jim Z wrote ...
America needs to realize that this is not their home and to respect the land totally and entirely...and Leave!
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