Circuit Court overturns peaks ruling

By Karen Francis
Diné Bureau

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 court.

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 their religion.”

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 said.

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 Peaks.
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.’ ”