Sacred mountain
Navajo Nation speaker unhappy with San Francisco Peaks decision

The San Francisco Peaks near Flagstaff, Ariz. loom in a shroud of rain-heavy cloud in this May 22 photo. — © 2009 Gallup Independent / Brian Leddy

Copyright © 2009
Gallup Independent
By Kathy Helms
Diné Bureau

WINDOW ROCK — Navajo Nation Council Speaker Lawrence T. Morgan is disappointed with the U.S. Supreme Court’s decision not to hear an appeal of a case that would protect the sacred Dook’o’ooslid, or San Francisco Peaks from further development and the use of reclaimed waste water to make artificial snow.

The petition of certiorari, filed Jan. 5 on behalf of the Navajo Nation, other Arizona tribes and environmental groups, called for the Supreme Court to hear the precedent setting case, Navajo Nation v. United States Forest Service, which would protect religious freedom and preserve the ecological integrity of the San Francisco Peaks.

In 2008, the 9th U.S. Circuit Court of Appeals unanimously passed the issue in favor of the Navajo Nation. However, the decision was later overturned in an en banc decision which found that the proposal did not place a substantial burden on the tribes’ exercise of religion under the Religious Freedom Restoration Act.

The lawsuit seeks to prevent the expansion of the Arizona Snowbowl and the use of reclaimed sewer water to make artificial snow at the ski resort, located on the mountain held sacred by 13 Arizona tribes.

The San Francisco Peaks have been the center of Navajo and other Southwest tribes’ spiritual religious practices since time immemorial. The Navajo believe the Holy People reside within the peaks and that any desecration to the site would be disrespectful. The Hopi Katsinas also are believed to reside on the sacred mountain.

“The Navajo Nation cannot express enough disappointment and disapproval. Navajo people understand Dook’o’ooslid, the San Francisco Peaks, to be a significant relative that we attribute value, concern and meaning to as anyone else would to a mother, father or grandparent,” Morgan said in a statement released minutes after the Supreme Court’s denial on Monday.

“It is very unfortunate that our non-Native relatives do not realize the seriousness of their decisions.

“If we stop here, we are shortchanging ourselves. We have to stand our ground and continue the fight for the protection of our sacred sites,” he added. “We cannot allow the flood gates to open even further. It is extremely important to seek all means of legal remedies. These decisions will impact future generations. It is imperative that we seek a decision in our favor.”

Howard Shanker, an attorney for the Navajo Nation, said the Supreme Court’s refusal to hear the case “leaves bad law in place in the 9th Circuit. Under current law, Native American’s have no way to substantively protect sites that are sacred or holy, like the San Francisco Peaks.”

Shanker echoed Morgan’s resolve when he committed “to continue to fight to save the peaks and other holy places.”

On April 22, the Navajo Nation Council passed a resolution urging the Obama Administration to support the possibility of settling the San Francisco Peaks case in favor of the Navajo Nation. At the time, Delegate Ervin Keeswood said there are instruments of international law to which the Nation could resort.

“I believe that it’s time to start quoting and also remind the United States’ government of these actions internationally. At some point in time ... we may have to go to the international community for resolution of some of these matters if they’re not heard as we wish in the United States government,” he said.

Rachel Tso of the Sierra Club Plateau Group Executive Committee also expressed disappointment that the Supreme Court chose not to hear the case.

“We continue to advocate for the protection of this important mountain and will continue to use every available means to keep reclaimed sewage from polluting this pristine mountain and Flagstaff’s watershed for the economic benefit of a non-Flagstaff-based business,” Tso said.

The Sierra Club has worked with tribal partners on this ongoing case since 1999 and will continue to work toward a solution that does not impair the unique cultural and ecological values that the San Francisco Peaks represent, said Andy Bessler of Sierra in Flagstaff.

Sierra Club has been active in several campaigns involving the peaks, including the closure of the White Vulcan Pumice Mine on the northern side of the mountain and the Save the Peaks efforts to limit Arizona Snowbowl’s development since the 1970s.