Do Native Americans Have First Amendment Rights?

http://www.truthout.org/article/do-native-americans-have-first-
amendment-rights

Do Native Americans Have First Amendment Rights?
Wednesday 20 August 2008

by: Leslie Thatcher, t r u t h o u t | Interview

Ninth Circuit rules effluent does not defile sacred space. Forest
Service argued skiing on treated sewage "a compelling government
interest."

The San Francisco Peaks of Northern Arizona "are sacred to at
least 13 formally recognized Indian tribes ... and this religious
significance is of centuries duration."(1) In February 2005, the US
Forest Service issued a Final Environmental Impact Statement and
Record of Decision approving a proposal to make artificial snow using
treated sewage effluent at the Snowbowl Resort located on Humphrey's
Peak, the highest and - to the tribes - most holy of the San
Francisco Peaks. That decision was appealed by the Navajo Nation, the
Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-
Apache Nation and the White Mountain Apache Nation. The Circuit Court
ruled for the Forest Service. In February 2007, a three-judge panel
of the Ninth Circuit Court unanimously overturned the lower court's
decision. On Friday, August 8, 2008, the en banc majority of the
Ninth Circuit Court ruled that "using treated sewage effluent to make
artificial snow on the most sacred mountain of southwestern Indian
tribes does not violate the Religious Freedom Restoration Act
('RFRA'). It also holds that a supposed pleading mistake prevents the
tribes from arguing under the National Environmental Act ('NEPA')
that the Forest Service failed to consider the likelihood that
children and others would ingest snow made from the effluent."(2)

On August 18, Leslie Thatcher, of Truthout, spoke with the Navajo
Nation's lead attorney in the case, Howard Shanker, who is also
running in the Democratic primary for Arizona Congressional District
One, the seat currently held by retiring Representative Rick Renzi (R-
Arizona), presently under indictment for extortion, wire fraud, money
laundering, and other charges related to an Arizona land deal.

Leslie Thatcher, for Truthout: Howard, what do you consider the
most important issues in the Snowbowl case to be?

The San Francisco Peaks are federal land and the government has
documented for years that the Peaks - especially Humphreys where
Snowbowl is located - are sacred to local tribes. Nonetheless, the
Feds issued a special use permit to operate a ski resort there that
was unsuccessfully challenged in the 1970's. Most recently, the
Forest Service ruled that the resort could pipe up to 1.5 million
gallons of treated sewage effluent to the resort for snowmaking in
winters when natural snowfall is inadequate. The tribes have appealed
that ruling.

The central issue that's going on and that's really important is
that Native tribes have no First Amendment rights when it comes to
government land-use decisions. And the federal government holds
thousands of acres of land across the country that the tribes hold
sacred. Up until we used the Religious Freedom Restoration Act [RFRA]
successfully, there was no way for the tribes to challenge federal
use of sacred lands. Now, they have to show there is a compelling
government interest and that they are using the least restrictive
means of furthering that compelling government interest when
government action substantially burdens the exercise of religion.

The current ruling is that there is no substantial burden on the
exercise of religion. The judges have said there is no objective
evidence of impact on religious belief and practice.

Short of producing God in the courtroom, there's no way to
produce "objective" evidence. A Navajo elder testified that putting
effluent on the mountain would be like raping his mother. Other
testimonies - the sincerity of which were never challenged -
described the disruptions to the spiritual world and contamination of
the ritual purity of materials essential to Native ceremonies that
spraying the effluent would result in.

The en banc court adopted a very restrictive reading of "Sherbet
and Yoder" that does not seem to speak to the statute. In any event,
spraying the Peaks can certainly be interpreted as a form of
punishment or coercion.

The tribes appealed the Forest Service decision under the
Religious Freedom Restoration Act (RFRA) rather than the First
Amendment to the US Constitution. Can you explain how the RFRA
differs from the First Amendment and why Congress passed the act?

In "Smith," the Supreme Court said laws of general application
can't constitute a general burden under the Constitution. So then,
Congress passed RFRA to say that even though a law may be of general
applicability, if it results in a substantial burden to the exercise
of religion, you have to do this balancing of interests. Then in
2003, Congress passed the Religious Land Use and Institutionalized
Persons Act [RLUIPA] amending and broadening RFRA's definition
of "exercise of religion."

The Ninth Circuit Court dissent, written by Judge Fletcher,
joined by Judges Pregerson and Fisher, notes that "Under our prior
case law, a 'substantial burden' on the 'exercise of religion' exists
where government action prevents an individual 'from engaging in
[religious] conduct or having a religious experience' and the
interference is 'more than an inconvenience.'" Can you explain how
spraying up to 1.5 million gallons of effluent a day on the sacred
mountains burdens the various plaintiff tribes' exercise of religion?

For the Hopi, the Mountain is where the Katsina live; that's
their only sacred mountain; the Katsina are responsible for making
the moisture that is essential to Hopi life. It was on Mt. Humphreys
that the Hopi had their revelation and they return there for
pilgrimages.

For the Navajo, it's one of four sacred mountains, but it is
essential to all blessing way ceremonies which depend on ritually
pure materials gathered from the mountain.

The tribes see the Peaks as a single living entity; this is a
living being. You can't poison just one part of it without poisoning
the whole.

One man testified that current ski runs are like a scar on the
body, something the body can live with, but that putting effluent on
the Peaks is like a toxic injection.

For the Apache, the mountain is where souls go after death; the
transfer station of souls to Heaven and the spraying will interfere
with that operation.

For both the Hualapai and the Navajo, the mountain is their
Garden of Eden, where life started.

The government has never questioned the specific special holiness
of these mountains to the Native tribes. In fact, in the very
beginning, the National Historic Preservation Act uses the Peaks as
an example of a sacred space.

Do I understand correctly that the Forest Service essentially
admitted the burden to the tribes' exercise of their religion, but
argued there was a "compelling government interest" in allowing
snowmaking? What interest is that?

The lower court found that we didn't show substantial burden, but
it also found that the federal government had compelling interest in
skier safety. That makes no sense since the best way of eliminating
the possibility of accidents would be to ban skiing entirely. The
lower court found there was a compelling government interest - you
have to understand, compelling government interest is a very heavy-
duty term, the kind of thing they wield to prevent epidemics - in
government land management, although the Forest Service specifically
said that the absence of snowmaking would not prevent recreational
land use. Finally, the lower court ruled that there was a compelling
interest because NOT spraying artificial snow would create "religious
servitude," as though failing to injure a religion created religious
servitude.

In the dissent, Judge Fletcher writes, "The Majority's
misunderstanding of the nature of religious belief and exercise as
merely 'subjective' is an excuse for refusing to accept the Indians'
religion as worthy of protection under the RFRA." Can you explain the
difference in the three-judge panel understanding of what religion is
versus that of the en banc majority?

I don't know; is that the difference between Democrats and
Republicans? Seriously, the majority of the en banc panel becomes
arbiters of religion, whereas what they're supposed to do is make a
determination that a religion is sincere and then rule in accord with
the law. The last thing we want is for our judges to become arbiters
of religion.

The majority ruled that the use of effluent on the Peaks would
change only the tribes' "subjective spiritual experience." In the
dissent, Judge Fletcher suggested a thought experiment: What if the
government ordered that all water in baptismal fonts had to be this
same treated sewage effluent? How can non-Native people be sensitized
to the Peaks' position as Sinai, Jerusalem, the sole source of living
waters, the home of the deities for the plaintiff tribes?

I don't know the answer, but that's exactly right; that's what
needs to happen. I'm outraged; I get all choked up when I talk about
it or think about it.

As a nation where we pay lip service to and pride ourselves on
religious freedom and religious diversity, it's outrageous that we
designate Native Americans and their religious beliefs for lesser
treatment, and that's one reason I'm running for Congress.

I understand that all across the United States, the Snowbowl case
is a primary concern of Native Americans in their dealings with the
United States government and its agencies. What possible
repercussions does this case have locally and nationally?

Native Americans have no First Amendment rights and can't protect
their sacred sites. Of course they're upset about it. It's a
politically charged issue.

In the end, you have a for-profit, private, federal government
bailout for a private corporation doomed by global warming at the
cost of desecrating land sacred to hundreds of thousands of people.

The majority also disallowed a pleading in violation of NEPA for
technical legal reasons. What specific issues did the NEPA fail to
address?

The Environmental Impact Study did not address the probability of
children and others eating the snow.

The court ruled against us on all our environmental issues.

The first panel ruled in our favor on the NEPA issue that no
analysis had been conducted on snow eating, so the en banc Ninth
Circuit concocted a procedural irregularity rather than ruling. We
had also pleaded that the NEPA never considered the impact of
withdrawing the present daily discharge into the Rio de Flag versus
spraying it on the mountain. The other NEPA issue was that there was
no adequate response to the report by Dr. Paul Torrence on endocrine-
disrupting and other chemical residues in the treated effluent.

After the sewage is treated, what chemicals, bacteria and viruses
remain in the effluent that will be used to make snow?

Detectable levels of enteric bacteria, viruses and protozoa,
including Cryptosporidium and Giardia.

There's not only a host of what they call endocrine-disruptors,
which feminize amphibians, but also traces of birth control drugs,
Viagra, Prozac, Valium, Claritin and other pharmaceuticals. There is
Triclosan, which breaks down to become dioxin, the active agent in
Agent Orange, and a number of other chemicals.

The lawyers for the other side got up and declared that the
effluent meets drinking water standards, but the fact is that when
they test drinking water, they don't test for the stuff that's in
industrial or other waste water, so that was a completely misleading
statement.

Did the Forest Service evaluate the impact of long-term exposure
to the effluent for humans or the environment?

No.

The NEPA was contracted by the Snowbowl owner to a company that
specializes in the development and construction of ski areas. Did the
case address the inherent conflict of interest of having the
environmental impact assessed by a company reasonably likely to
profit from a specific outcome?

No, that's what they always do. The three-judge panel questioned
the Justice Department lawyer as to whether the Justice Department or
the Forest Service were getting money, but that didn't go anywhere.

What do you think?

I think the whole thing stinks. I think the Forest Service never
should have approved this in the first place. In the lower court, we
also had a number of other allegations. Now we're just talking about
the ones that went up on appeal.

Do you expect the tribes to appeal the current decision to the
Supreme Court?

I do.

Would you expect the Supreme Court to hear the case?

You know, they hear very few cases, but I suspect they might hear
this one.

How do you think it would go?

If we don't think it'll go well, we'd have to talk about whether
to do it or not. But I think my clients are pretty adamant about
appealing. This is really important to them.

Howard how have you been personally affected by arguing this case?

This has been a learning experience for me and a growing
experience for me and I am personally committed to doing whatever it
takes to continue this struggle. The fight for justice didn't begin
today, but it also doesn't end today,

You live and work in Flagstaff. What attitudes characterize non-
Native American locals to the snow-making issue?

It's depends. There are a lot of non-Natives and people of all
walks of life, people of conscience, who support the tribes. There
are some people who are just skiers and that's the beginning and the
end of it for them. Then there are some people who are opposed. The
Flagstaff Chamber of Commerce is collecting money and giving it to
the millionaire's consortium to fight this case.

Flagstaff Chamber of Commerce President Julie Pastrick argues
that the decision will lead to year-round job creation and higher
winter receipts at local businesses. Is that accurate so far as you
know?

The record shows Snowbowl pays no city taxes and accounts for
less than 1 percent of the Bed Board and Beverage taxes collected by
the city. There is literally no correlation between Snowbowl doing
well and local businesses doing well. Studies actually show Flagstaff
does better when streets are clear in the winter since it's a
regional shopping hub. Channel 2 came and asked me about that, and
when I showed them the statistics, they went back to the Chamber of
Commerce and they said the Chamber said, "Shanker should mind his own
business."

You know the Chamber organizes the Fourth of July parade, and
when I signed up to put in a Shanker for Congress float, they put it
last in the parade and told me any money I gave would go to
the "Reclaim the Peaks" campaign.

There's a lot of racially-driven commentary and whispering
campaigns, like, "the Indians really want to keep everybody out,"
which is ridiculous since "everybody" is already there, and that they
want to build a casino on the Peaks, which is even more ridiculous
when you know the parties involved. There's a rumor that Sunrise
Resort in the White Mountains uses reclaimed water, but that mountain
is not sacred; that land is not federal and the water being used is
not sewage.

You are running in the September 2nd primary to become the
Democratic candidate to represent Arizona's First District. What led
you to enter the race?

As I said earlier, this case has been a big factor.

What are the most serious issues facing the District at this
time? How does your approach differ from that of the other Democratic
candidates?

This is the largest geographic district in the nation that's not
one state and it's incredibly diverse. The district comprises the
Navajo Nation and other tribes, Flagstaff and Sedona, the mining
towns of Miami and Globe and a new residential division south of
Phoenix, so there are a lot of different issues facing the different
parts of the District. I've been really honored by some of the
endorsements, like that of the Diné Hataalii Association (Navajo
Medicine Men) who have never endorsed a candidate before. I also
represent the Navajo on uranium contamination issues.

My approach is really not driven by party affiliation or ideology
and I found out it is much more progressive. I've been endorsed by
the Progressive Democrats of America. I'm running as a Democrat, but
I frankly think both the Republicans and the Democrats running have
an interest in maintaining the status quo. And the status quo is
broken.

Thank you, Howard Shanker.

Thank you. And please remind any registered Democrats in
Arizona's District One to vote in the September 2 primary!

End Note: Judge Fletcher concluded his dissent from the majority
opinion:

The San Francisco Peaks have been at the center of religious
beliefs and practices of Indian tribes of the Southwest since time
out of mind. Humphrey's Peak, the holiest of the San Francisco peaks,
will from this time forward be desecrated and spiritually impure. In
part, the majority justifies its holding on the ground that what it
calls "public park land" is land that "belongs to everyone." Maj. op.
at 10042. There is a tragic irony in this justification. The United
States government took this land from the Indians by force. The
majority now uses that forcible deprivation as a justification for
spraying treated sewage effluent on the holiest of the Indians' holy
mountains, and for refusing to recognize this action constitutes a
substantial burden on the Indians' exercise of their religion.

RFRA was passed to protect the exercise of all religions,
including the religions of American Indians. If Indians' land-based
exercise of religion is not protected by RFRA in this case, I cannot
imagine a case in which it will be. I am truly sorry the majority has
effectively read American Indians out of RFRA. (1)

(1) Dissent in Navajo Nation v. USFS. pp.10077-78.
(2) Ibid., p. 10076.
(3) Ibid., p. 10137.

---------

Leslie Thatcher is Truthout's French Language Editor.

Court rules Snowbowl can use recycled sewage

Court rules Snowbowl can use recycled sewage
Comments 6| Recommend 0
Howard Fischer, Capitol Media Services
The operators of Snowbowl are entitled to use recycled sewage to make snow on the San Francisco Peaks despite objections from several Native American tribes, the 9th U.S. Circuit Court of Appeals ruled Friday.

In a split decision, the court acknowledged arguments by the tribes that the use of artificial snow will decrease the "spiritual fulfillment" they get from practicing their religion on the mountain. And the land on which the ski resort is located is owned by the federal government.

But Judge Carlos Bea, writing for the majority, said that does not run afoul of the federal Religious Freedom Restoration Act.

"A government action which decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a 'substantial burden' - a term of art chosen by Congress to be defined by reference to Supreme Court precedent - on the free exercise of religion," he said.

And Bea said there is nothing in the decision of the Forest Service to allow the use of treated effluent that requires the tribes to act against their religion.

The ruling drew fire from Judge William Fletcher who wrote a dissent for himself and two other judges. He said the ruling "misunderstands the very nature of religion."

Friday's decision is significant beyond the future of the ski resort.

In overturning a contrary ruling by its own three-judge panel, the full court adopted a much more restrictive reading of the 1993 law that the tribes used in this case. That has implications for others hoping to use claims of religious freedom to block government action.

It is also a defeat for Howard Shanker, who argued the case for the tribes before the court - and who lists his earlier victory before the three-judge panel as one of his "triumphs" that voters should consider in his bid for Congress from the 1st District.

At issue is a plan by the current owners, who bought the resort in 1992, to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from Flagstaff to Humphreys Peak. Plans are to cover about 205 acres with artificial snow at the beginning of the season, with more as necessary.

Various tribes filed suit, citing the 1993 law that requires government agencies to use the "least restrictive" means of interfering with any religious practice when considering projects on federal land.

Shanker said the court got it wrong in concluding that the project does not place a substantial burden on the practices of the tribes he represents. "The court is being the arbiter of religious beliefs, which is not its role," he said.

"The court is supposed to determine whether the religious beliefs at issue are sincerely held, and that's it," Shanker noted. "Once they've made that determination it's not for the court to decide whether or not they agree with the testimony that was presented."

That contention was backed by Fletcher, who said the evidence shows the Indians do not merely require the continued existence of certain plants and shrines, including mountains, but that they be "spiritually pure, undesecrated by treated sewage effluent."

But Bea said the requirement to use the least restrictive means applies only when a government action places a "substantial burden" on religious freedom. He said that can occur in only one of two ways: Individuals are forced to choose between following the tenets of their religion to receive a government benefit, or they are coerced to act contrary to their beliefs under threat of sanctions.

He said neither applies to the tribes' argument that the use of treated effluent will spiritually "desecrate" a sacred mountain and decrease their spiritual fulfillment of practicing their religion on it.

http://www.eastvalleytribune.com:80/story/122614

In peace & solidarity,
Tamra Brennan
Founder/Director
Protect Sacred Sites Indigenous People, One Nation
www.protectsacredsites.org
www.protectbearbutte.com

"Our sacred lands are all that remain keeping us connected to our place on Mother Earth, to our spirituality, our heritage and our lands; what’s left of them. If they take it all away, what will remain except a vague memory of a past so forgotten?"

Forest Service won't OK conveyor at AZ Snowbowl

Forest Service won't OK conveyor at AZ Snowbowl


Associated Press - July 9, 2008 2:04 PM ET

FLAGSTAFF, Ariz. (AP) - The U.S. Forest Service has denied a request from the Arizona Snowbowl ski resort to build a conveyor belt to bring beginning skiers to the top of a practice slope.

A letter from Coconino National Forest supervisor Nora Rasure to the resort says she won't approve the plan unless the courts allow snowmaking and other improvements at Snowbowl.

A suit trying to block the Snowbowl's efforts to add snowmaking using reclaimed wastewater is being considered by the 9th U.S. Circuit Court of Appeals.

Indian tribes sued to block the expansion, saying it would intrude on their ability to worship on the San Francisco Peaks. The appeals court heard arguments in December, but has not issued a decision.


Information from: Arizona Daily Sun, http://www.azdailysun.com/

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.