Mystery skull found in Wenatchee garage is likely remains from ancient Anasazi
By Jay Patrick
World staff writer
Posted August 20, 2008
WENATCHEE — Experts say part of a skull found in a Wenatchee home is likely a 700- to 1,110-year-old specimen from the American Southwest.
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STORY: Skull found in garage appears to be remains of American Indian
A portion of a skull and part of a palate were discovered May 27 in a paper bag in a garage by relatives who were cleaning an elderly woman's home in the 1100 block of Pershing Street. Also found were seven pottery shards. The woman who lived at the house had moved to an assisted-living facility and was unable to provide information about the origin of the items.
Chelan County Coroner Wayne Harris first sent pictures of the skull and pottery shards to the state anthropologist, who in turn sent them to Guy Tasa, the state physical anthropologist — a newly created position dealing specifically with the identification, preservation, excavation and repatriation of Native American remains.
Tasa consulted with American Indian experts at the University of Oregon and Brigham Young University, who both surmised that the pottery came from the Anasazi people, once located in the Four Corners region of southeastern Utah, southwestern Colorado, northeastern Arizona and northwestern New Mexico. Designs etched on the pottery shards led to the conclusions. The wear on the remaining teeth in the skull — indicating a person who ate primarily grains — helped experts decide that the skull was that of a Native American from the Southwest.
Tasa picked up the remains and pottery in Wenatchee on Tuesday and took them to the King County Medical Examiner's Office for further analysis. Upon an initial examination, he said the flattened top of the skull is indicative of Southwestern Indians.
Tasa said he will notify local tribes of the find as required by state law. If further study confirms that the objects are Anasazi, they could be returned to descendants of that culture, which disappeared by the year 1300, possibly due to changing environmental conditions that spurred an exodus to other regions.
The culture dates as far back as 1500 B.C., according to a synopsis on the Colorado Bureau of Land Management Web site at www.blm.gov/co/st/en/fo/ahc/who_were_the_anasazi.html#who. Today's Pueblo people, located in about 20 communities in New Mexico and Arizona, are considered descendants of the Anasazi.
Jay Patrick: 664-7155
patrick@wenworld.com
http://wenatcheeworld.com:80/apps/pbcs.dll/article?AID=/20080820/NEWS04/67027/1005
Saturday, August 23, 2008
Burial mounds may halt SCE plan
Burial mounds may halt SCE plan
BY GERALD CARROLL • gcarroll@visalia.gannett.com • August 14, 2008
According to geographic and historical research submitted to the California Public Utilities Commission.
Burial grounds
And if the findings are right, they could delay or even stop the electrical towers from being installed along the route.
George McEwen thinks it's right.
An Exeter-based citrus grower who stands to lose 60 acres of citrus trees in the path of the proposed power lines — called the "San Joaquin Cross Valley Loop" — McEwen said his own research confirms the findings of Lemoncove-area resident and historian Mary Gorden, who formally protested the lines' route May 30.
"We have hiked throughout that area, southeast of Lemoncove, and discovered ample evidence of Indian habitation," McEwen said.
Gorden, who is in Australia this week and unavailable for comment, filed a detailed report with the state PUC, which is considering Edison's preferred zig-zag route along with three alternate routes.
The $60 million power lines project is needed to accommodate Visalia's expected growth and resultant needs for electricity in future years, Edison officials say. The preferred route is the cheapest, the company insists.
However, hundreds of people who own property along Edison's preferred route have expressed outrage that it would cut through prime agricultural land — some north of Exeter — and cut through crucial acreage on which Farmersville was to develop a business park.
McEwen told the Tulare County Board of Supervisors during their meeting Tuesday that property owners affected along the route —called "Route 1" — have urged the PUC to have Edison place its new power lines and 140- to 160-foot-tall towers much farther north, an option called "Route 3."
The PUC's Jensen Uchida, the agency's manager for the project, told the supervisors Tuesday that the PUC has started a comprehensive environmental-impact report and that San Francisco-based Environmental Science Associates will prepare it.
Uchida could not be immediately reached for further comment Wednesday.
Doug Cover, ESA's vice president and energy-practice director who will oversee preparation of the environmental report, also was unavailable for comment.
McEwen said Uchida and other PUC officials were "very interested" in Gorden's claims.
Such information will be critical in what route the PUC allows.
A decision is expected by the PUC no sooner than early 2009.
"They [the PUC] want information from the people from that area who have the most up-to-date and accurate information about historic and archeological aspects of the proposed power-line path," McEwen said.
And, according to Gorden's letter to the PUC, the state agency didn't get a clear picture from Edison on the historic value of portions of the 19-mile route that would be cleared for the towers.
"Edison has submitted an unacceptable summary of the potential cultural and natural-resource impacts of the proposed [power lines] project," Gorden wrote on May 30. "Consultation with local Native Americans, the Tulare County Historical Society and the Southern Sierra Archeological Society would have helped provide a better understanding of the areas along the three proposed routes."
Gorden then cited 12 sensitive historic Indian sites that would be severely affected by power line towers.
"There's no way to get around these findings," McEwen said. "The PUC wants to know even more about this."
http://www.visaliatimesdelta.com:80/apps/pbcs.dll/article?AID=/20080814/NEWS01/808140315
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?"
BY GERALD CARROLL • gcarroll@visalia.gannett.com • August 14, 2008
According to geographic and historical research submitted to the California Public Utilities Commission.
Burial grounds
And if the findings are right, they could delay or even stop the electrical towers from being installed along the route.
George McEwen thinks it's right.
An Exeter-based citrus grower who stands to lose 60 acres of citrus trees in the path of the proposed power lines — called the "San Joaquin Cross Valley Loop" — McEwen said his own research confirms the findings of Lemoncove-area resident and historian Mary Gorden, who formally protested the lines' route May 30.
"We have hiked throughout that area, southeast of Lemoncove, and discovered ample evidence of Indian habitation," McEwen said.
Gorden, who is in Australia this week and unavailable for comment, filed a detailed report with the state PUC, which is considering Edison's preferred zig-zag route along with three alternate routes.
The $60 million power lines project is needed to accommodate Visalia's expected growth and resultant needs for electricity in future years, Edison officials say. The preferred route is the cheapest, the company insists.
However, hundreds of people who own property along Edison's preferred route have expressed outrage that it would cut through prime agricultural land — some north of Exeter — and cut through crucial acreage on which Farmersville was to develop a business park.
McEwen told the Tulare County Board of Supervisors during their meeting Tuesday that property owners affected along the route —called "Route 1" — have urged the PUC to have Edison place its new power lines and 140- to 160-foot-tall towers much farther north, an option called "Route 3."
The PUC's Jensen Uchida, the agency's manager for the project, told the supervisors Tuesday that the PUC has started a comprehensive environmental-impact report and that San Francisco-based Environmental Science Associates will prepare it.
Uchida could not be immediately reached for further comment Wednesday.
Doug Cover, ESA's vice president and energy-practice director who will oversee preparation of the environmental report, also was unavailable for comment.
McEwen said Uchida and other PUC officials were "very interested" in Gorden's claims.
Such information will be critical in what route the PUC allows.
A decision is expected by the PUC no sooner than early 2009.
"They [the PUC] want information from the people from that area who have the most up-to-date and accurate information about historic and archeological aspects of the proposed power-line path," McEwen said.
And, according to Gorden's letter to the PUC, the state agency didn't get a clear picture from Edison on the historic value of portions of the 19-mile route that would be cleared for the towers.
"Edison has submitted an unacceptable summary of the potential cultural and natural-resource impacts of the proposed [power lines] project," Gorden wrote on May 30. "Consultation with local Native Americans, the Tulare County Historical Society and the Southern Sierra Archeological Society would have helped provide a better understanding of the areas along the three proposed routes."
Gorden then cited 12 sensitive historic Indian sites that would be severely affected by power line towers.
"There's no way to get around these findings," McEwen said. "The PUC wants to know even more about this."
http://www.visaliatimesdelta.com:80/apps/pbcs.dll/article?AID=/20080814/NEWS01/808140315
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?"
NAGPRA officials defend program management
NAGPRA officials defend program management
Posted: August 22, 2008
by: Rob Capriccioso
Tribes confused by national agency actions; GAO study requested
WASHINGTON - A new report finds several problems with the management of the Native American Graves Protection and Repatriation Act, but the top manager who administers the program says many issues are already largely accounted for and that the research is misleading in some of its conclusions. Still, tribal officials say that the hands of officials at the national NAGPRA office are not clean, and that congressional action should be taken.
The report, issued jointly by the National Association of Tribal Historic Preservation Officers and the Makah Nation of Washington Aug. 14, found that the National Park Service used more than $3 million in tribal grants since 1999 for purposes other than supporting museums and American Indians to participate in the repatriation process.
The report also found that ''the National Park Service ... is one such agency that has the remains of hundreds of Native Americans in storage because the service has withdrawn the public notices that tie the remains and objects to contemporary Native Americans.''
Those two findings are especially controversial, since NPS oversees the national NAGPRA office, which was established in 1990 when Congress passed the law - a law that created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.
NPS, an agency of the U.S. Department of the Interior, funded the NATHPO/Makah study via a grant issued in 2006.
Sherry Hutt, the national NAGPRA program manager, called the report ''ambitious'' and said it did a positive job at drawing attention to the reasons behind the law, but she believes it contains several shortcomings and mistaken information.
Hutt said the report's attention to NPS and withdrawn notices is ''old news'' - at least to officials in the federal government. Since 2004, the NAGPRA office has sent hundreds of letters to agencies, colleges and museums, including NPS, asking them to publish finalized notices of remains eligible for repatriation under the law that they sent to the office in earlier days of the law's existence. Otherwise, according to the letters, the draft notices would be withdrawn.
Since the letters went out, many draft notices have been automatically withdrawn, sometimes resulting in Indian remains and artifacts being left in storage for more than a dozen years and counting, as the report notes.
Some tribal officials who've reviewed the report are especially concerned about these withdrawn notices because they see these situations as a sort of loophole whereby agencies can say they are continuing to consult with tribes without taking meaningful action under NAGPRA.
''Nothing has come across my desk about how and why these withdrawn notices came about,'' said Reno Franklin, a member of the Kashia Pomo Tribal Council and a historic preservation officer. ''It's news to me.''
Franklin believes tribes have been ''left in the dark'' on the issue and that the action taken by the national NAGPRA office to default several draft notices as withdrawn ends up hurting tribes' abilities to get their rightful remains and artifacts back.
''These withdrawn notices haven't been explained to tribes. What exactly is the motive of the national NAGPRA office?''
Hutt noted that just because a draft notice has been withdrawn doesn't automatically mean a tribe has lost its claim to the objects in question. In many instances involving withdrawn notices, she said, new notices have been presented that better state an agreement between a tribe and agency after further consultation.
Still, as a result of the withdrawn notice situation, remains originally filed as affiliated with a particular tribe have now been changed by some agencies to be listed as ''unaffiliated.'' The report's authors note this as a big problem that they say shows agencies are not acting in the spirit of the law.
As for the current notice situation, there is expected to be a 70 percent increase in published notices this year over last year, and there has already been a 40 - 50 percent increase in the number of submitted draft notices this year so far over last year. All of which means that more tribes could be seeing increased numbers of remains and artifacts repatriated in the coming years.
As to perhaps the most scathing charge resulting from the report - that NPS has improperly used more than $3 million since 1999 intended for grants to tribes and museums to help them utilize NAGPRA - Hutt said simply, ''That's not true.''
''All of the money that Congress puts into the grant allotment has gone for NAGRPA purposes, except for one time, in 2005, when the Department of the Interior moved funds to pay for attorney's fees [related to the Bonnichsen v. United States court case],'' Hutt said. The case involved sovereignty, cultural and anthropological issues centered on the famous Kennewick Man. Interior designated $680,000 from the tribal grant program to pay for a portion of the federal government's legal fees.
The rest of the $3 million noted in the report has gone toward funding ''statutorily mandated NAGPRA functions,'' such as the publication of notices, running the review committee, maintaining databases and doing training, Hutt said. ''There are no other funds'' to perform these functions, she said.
In past meetings, however, members of the law's review committee and other attendees have asked why NPS and Interior aren't doing a better job of getting more money appropriated from Congress to cover non-grant NAGPRA functions, so as not to have to poach into the tribal and museum grant money pot.
Hutt said she did not believe the report would lead to congressional investigations of NAGPRA management because ''there's no new information in there that brings something to light that hasn't already been dealt with.''
''The report doesn't actually come to the point of saying, 'This is the data that indicates a problem.'''
She noted what it actually does is present statements from several tribal officials with various concerns.
Anecdotal data, she said, is crucial in telling the story of NAGPRA and many other Native-focused programs, but she said she and other agency officials would have liked to have seen these concerns presented in a data set that would allow agency officials to review their progress, or lack thereof, under NAGPRA.
Specifically, Hutt said she and others would have liked to have seen in the report how many individuals in federal agency collections were listed in inventories as ''culturally affiliated'' to a particular tribe, but have not yet been listed in a public notice. Knowing that number, she said, would have provided ''an immediate homework assignment'' for federal NAGPRA officers in terms of what they should be doing to be better accountable to tribes.
''What I look for in a study such as this is a simple matrix of the numbers, so that a federal agency could look at that matrix and determine where they are in relation to other agencies and others in their own agency. You would be giving clear guidance to the agency as to what has worked and what needs work.''
If such research were conducted, more tribes that want action taken by agencies might see their needs addressed if agencies adjusted the number of officials working on NAGPRA issues, depending on their statistical situations. Agencies that got little done could also be held better accountable by tribal leaders.
Officials with the national NAGPRA office are currently in the process of beginning a study that will develop a matrix of the type Hutt described. A similar study focused on museum collections is already in process.
Despite Hutt's issues with the NATHPO/Makah report, NAGPRA officials noted there is room for improvement in processes involving the complex law. In fact, the seven-member review committee of NAGPRA is currently mulling an official call for a report by the U.S. Government Accountability Office on ways to improve the program's implementation.
''We'd like to see a [GAO] study looking specifically at how well the government agencies are complying with the law,'' said Colin Kippen, a Native Hawaiian who serves on the committee. ''I would hope that GAO could use the [NATHPO/Makah] study as a floor, and move upwards from it.''
Kippen said he and other members of the committee are ''very open'' to ''increasing the accountability and transparency'' of the law's implementation. He called the NATHPO/Makah study a ''positive development'' toward that goal. He added that he's especially supportive of one of the report's top recommendations: Increasing the training and capacity of tribes and agencies to better implement NAGPRA.
He said, too, that the report's charges involving the alleged misspent $3 million by NPS is an area he'd like to see investigated further to determine whether the spent monies best served the implementation of NAGPRA. He said he would have more questions for the report's authors about this topic and other areas when they are expected to attend the next review committee meeting in October.
''This is a program that requires additional funding; but, at the same time, we want to be evaluating whether we are spending our money in a way that is most effective,'' Kippen said. Congress appropriated $2.4 million for NAGPRA grants in fiscal year 2008.
Beyond its criticisms of the national NAGPRA office and NPS, the report also found in some instances that agencies have withheld or changed information about the objects or human remains in their possession, ''in blatant disregard of the law.''
Its authors also note that the federal government neither assures compliance with nor enforcement of the law.
http://www.indiancountry.com/content.cfm?id=1096418029
Posted: August 22, 2008
by: Rob Capriccioso
Tribes confused by national agency actions; GAO study requested
WASHINGTON - A new report finds several problems with the management of the Native American Graves Protection and Repatriation Act, but the top manager who administers the program says many issues are already largely accounted for and that the research is misleading in some of its conclusions. Still, tribal officials say that the hands of officials at the national NAGPRA office are not clean, and that congressional action should be taken.
The report, issued jointly by the National Association of Tribal Historic Preservation Officers and the Makah Nation of Washington Aug. 14, found that the National Park Service used more than $3 million in tribal grants since 1999 for purposes other than supporting museums and American Indians to participate in the repatriation process.
The report also found that ''the National Park Service ... is one such agency that has the remains of hundreds of Native Americans in storage because the service has withdrawn the public notices that tie the remains and objects to contemporary Native Americans.''
Those two findings are especially controversial, since NPS oversees the national NAGPRA office, which was established in 1990 when Congress passed the law - a law that created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.
NPS, an agency of the U.S. Department of the Interior, funded the NATHPO/Makah study via a grant issued in 2006.
Sherry Hutt, the national NAGPRA program manager, called the report ''ambitious'' and said it did a positive job at drawing attention to the reasons behind the law, but she believes it contains several shortcomings and mistaken information.
Hutt said the report's attention to NPS and withdrawn notices is ''old news'' - at least to officials in the federal government. Since 2004, the NAGPRA office has sent hundreds of letters to agencies, colleges and museums, including NPS, asking them to publish finalized notices of remains eligible for repatriation under the law that they sent to the office in earlier days of the law's existence. Otherwise, according to the letters, the draft notices would be withdrawn.
Since the letters went out, many draft notices have been automatically withdrawn, sometimes resulting in Indian remains and artifacts being left in storage for more than a dozen years and counting, as the report notes.
Some tribal officials who've reviewed the report are especially concerned about these withdrawn notices because they see these situations as a sort of loophole whereby agencies can say they are continuing to consult with tribes without taking meaningful action under NAGPRA.
''Nothing has come across my desk about how and why these withdrawn notices came about,'' said Reno Franklin, a member of the Kashia Pomo Tribal Council and a historic preservation officer. ''It's news to me.''
Franklin believes tribes have been ''left in the dark'' on the issue and that the action taken by the national NAGPRA office to default several draft notices as withdrawn ends up hurting tribes' abilities to get their rightful remains and artifacts back.
''These withdrawn notices haven't been explained to tribes. What exactly is the motive of the national NAGPRA office?''
Hutt noted that just because a draft notice has been withdrawn doesn't automatically mean a tribe has lost its claim to the objects in question. In many instances involving withdrawn notices, she said, new notices have been presented that better state an agreement between a tribe and agency after further consultation.
Still, as a result of the withdrawn notice situation, remains originally filed as affiliated with a particular tribe have now been changed by some agencies to be listed as ''unaffiliated.'' The report's authors note this as a big problem that they say shows agencies are not acting in the spirit of the law.
As for the current notice situation, there is expected to be a 70 percent increase in published notices this year over last year, and there has already been a 40 - 50 percent increase in the number of submitted draft notices this year so far over last year. All of which means that more tribes could be seeing increased numbers of remains and artifacts repatriated in the coming years.
As to perhaps the most scathing charge resulting from the report - that NPS has improperly used more than $3 million since 1999 intended for grants to tribes and museums to help them utilize NAGPRA - Hutt said simply, ''That's not true.''
''All of the money that Congress puts into the grant allotment has gone for NAGRPA purposes, except for one time, in 2005, when the Department of the Interior moved funds to pay for attorney's fees [related to the Bonnichsen v. United States court case],'' Hutt said. The case involved sovereignty, cultural and anthropological issues centered on the famous Kennewick Man. Interior designated $680,000 from the tribal grant program to pay for a portion of the federal government's legal fees.
The rest of the $3 million noted in the report has gone toward funding ''statutorily mandated NAGPRA functions,'' such as the publication of notices, running the review committee, maintaining databases and doing training, Hutt said. ''There are no other funds'' to perform these functions, she said.
In past meetings, however, members of the law's review committee and other attendees have asked why NPS and Interior aren't doing a better job of getting more money appropriated from Congress to cover non-grant NAGPRA functions, so as not to have to poach into the tribal and museum grant money pot.
Hutt said she did not believe the report would lead to congressional investigations of NAGPRA management because ''there's no new information in there that brings something to light that hasn't already been dealt with.''
''The report doesn't actually come to the point of saying, 'This is the data that indicates a problem.'''
She noted what it actually does is present statements from several tribal officials with various concerns.
Anecdotal data, she said, is crucial in telling the story of NAGPRA and many other Native-focused programs, but she said she and other agency officials would have liked to have seen these concerns presented in a data set that would allow agency officials to review their progress, or lack thereof, under NAGPRA.
Specifically, Hutt said she and others would have liked to have seen in the report how many individuals in federal agency collections were listed in inventories as ''culturally affiliated'' to a particular tribe, but have not yet been listed in a public notice. Knowing that number, she said, would have provided ''an immediate homework assignment'' for federal NAGPRA officers in terms of what they should be doing to be better accountable to tribes.
''What I look for in a study such as this is a simple matrix of the numbers, so that a federal agency could look at that matrix and determine where they are in relation to other agencies and others in their own agency. You would be giving clear guidance to the agency as to what has worked and what needs work.''
If such research were conducted, more tribes that want action taken by agencies might see their needs addressed if agencies adjusted the number of officials working on NAGPRA issues, depending on their statistical situations. Agencies that got little done could also be held better accountable by tribal leaders.
Officials with the national NAGPRA office are currently in the process of beginning a study that will develop a matrix of the type Hutt described. A similar study focused on museum collections is already in process.
Despite Hutt's issues with the NATHPO/Makah report, NAGPRA officials noted there is room for improvement in processes involving the complex law. In fact, the seven-member review committee of NAGPRA is currently mulling an official call for a report by the U.S. Government Accountability Office on ways to improve the program's implementation.
''We'd like to see a [GAO] study looking specifically at how well the government agencies are complying with the law,'' said Colin Kippen, a Native Hawaiian who serves on the committee. ''I would hope that GAO could use the [NATHPO/Makah] study as a floor, and move upwards from it.''
Kippen said he and other members of the committee are ''very open'' to ''increasing the accountability and transparency'' of the law's implementation. He called the NATHPO/Makah study a ''positive development'' toward that goal. He added that he's especially supportive of one of the report's top recommendations: Increasing the training and capacity of tribes and agencies to better implement NAGPRA.
He said, too, that the report's charges involving the alleged misspent $3 million by NPS is an area he'd like to see investigated further to determine whether the spent monies best served the implementation of NAGPRA. He said he would have more questions for the report's authors about this topic and other areas when they are expected to attend the next review committee meeting in October.
''This is a program that requires additional funding; but, at the same time, we want to be evaluating whether we are spending our money in a way that is most effective,'' Kippen said. Congress appropriated $2.4 million for NAGPRA grants in fiscal year 2008.
Beyond its criticisms of the national NAGPRA office and NPS, the report also found in some instances that agencies have withheld or changed information about the objects or human remains in their possession, ''in blatant disregard of the law.''
Its authors also note that the federal government neither assures compliance with nor enforcement of the law.
http://www.indiancountry.com/content.cfm?id=1096418029
Solar farm proposed for Valmont Butte
Solar farm proposed for Valmont Butte
But controversial property’s future still unclear
By Ryan Morgan (Contact)
Friday, August 22, 2008
Someday soon, the sun may shine on Valmont Butte — and, under a new proposal for the troubled piece of property that city leaders are kicking around, it could actually produce as much as six megawatts of electricity by shining down on a solar farm.
That idea for Valmont Butte came up Friday at a panel discussion hosted by PLAN-Boulder County. Boulder City Councilman Matt Appelbaum, who raised the possibility, called the solar farm notion “a draft of a draft of an idea.”
“It’s a south-facing, sunny location,” he said. “It’s a great location for a demonstration solar project of some sort. It has the added advantage of being across the street from a very large parcel of land that Xcel (Energy) owns. Conceptually, it’s a great location for this kind of thing.”
But the solar farm idea won’t take off — if it ever happens at all — until some big questions about the butte get answered, including who should own it. Historic preservationists, neighbors, American Indian activists and others have different ideas about what its future should look like. The City Council will likely take up the issue in late summer or this fall, but a date hasn’t been set.
The butte, a northeastern Boulder landmark at Valmont Road and 61st Street, is home to a cemetery that holds the remains of some of the 19th century’s first settlers. American Indians consider it a sacred site, and tribes have used it for rites and rituals. The site also holds a historic fluorspar and gold mill built in the 1930s.
Boulder bought the property in 2000 for $2.57 million, intending to make it the home of a firefighter-training center and a biosolids treatment facility, along with a strip of open space. But the City Council canceled those plans in 2006 after an outcry from historic preservationists and American Indian tribes.
For the past 18 months, the city has been in talks with the nonprofit Trust for Public Lands about purchasing the site, but those discussions haven’t yet borne fruit. Appelbaum — who was speaking only for himself, and not for the City Council — said he’s doubtful the group can raise the necessary money.
Efforts to clean up the butte from years of milling operations are ongoing. But some activists — including members of the Valmont Butte Heritage Alliance, representatives of the Native American Rights Fund and others — think state and federal regulators are underestimating the potential for groundwater pollution and other environmental problems at the site.
Steve Moore, staff attorney for the Native American Rights Fund, said he wants the city’s help in pushing the federal Environmental Protection Agency to release records he says are being kept secret.
“We have been stopped in our efforts to get records from EPA,” he said. “I would like to see the city demand the 300 sets of records and files that they ... won’t reveal to us. They should make all the records available.”
Carol Affleck of Valmont Butte Heritage Alliance said she doesn’t want to see anybody buy the land. Instead, she said, the city should mount a more extensive cleanup effort.
“We do not feel this property should be sold to anybody right now,” she said. “Polluters should be helping pay for the cleanup. ... We want it preserved for all people and all people’s history.”
http://www.dailycamera.com:80/news/2008/aug/22/solar-farm-proposed-valmont-butte/
But controversial property’s future still unclear
By Ryan Morgan (Contact)
Friday, August 22, 2008
Someday soon, the sun may shine on Valmont Butte — and, under a new proposal for the troubled piece of property that city leaders are kicking around, it could actually produce as much as six megawatts of electricity by shining down on a solar farm.
That idea for Valmont Butte came up Friday at a panel discussion hosted by PLAN-Boulder County. Boulder City Councilman Matt Appelbaum, who raised the possibility, called the solar farm notion “a draft of a draft of an idea.”
“It’s a south-facing, sunny location,” he said. “It’s a great location for a demonstration solar project of some sort. It has the added advantage of being across the street from a very large parcel of land that Xcel (Energy) owns. Conceptually, it’s a great location for this kind of thing.”
But the solar farm idea won’t take off — if it ever happens at all — until some big questions about the butte get answered, including who should own it. Historic preservationists, neighbors, American Indian activists and others have different ideas about what its future should look like. The City Council will likely take up the issue in late summer or this fall, but a date hasn’t been set.
The butte, a northeastern Boulder landmark at Valmont Road and 61st Street, is home to a cemetery that holds the remains of some of the 19th century’s first settlers. American Indians consider it a sacred site, and tribes have used it for rites and rituals. The site also holds a historic fluorspar and gold mill built in the 1930s.
Boulder bought the property in 2000 for $2.57 million, intending to make it the home of a firefighter-training center and a biosolids treatment facility, along with a strip of open space. But the City Council canceled those plans in 2006 after an outcry from historic preservationists and American Indian tribes.
For the past 18 months, the city has been in talks with the nonprofit Trust for Public Lands about purchasing the site, but those discussions haven’t yet borne fruit. Appelbaum — who was speaking only for himself, and not for the City Council — said he’s doubtful the group can raise the necessary money.
Efforts to clean up the butte from years of milling operations are ongoing. But some activists — including members of the Valmont Butte Heritage Alliance, representatives of the Native American Rights Fund and others — think state and federal regulators are underestimating the potential for groundwater pollution and other environmental problems at the site.
Steve Moore, staff attorney for the Native American Rights Fund, said he wants the city’s help in pushing the federal Environmental Protection Agency to release records he says are being kept secret.
“We have been stopped in our efforts to get records from EPA,” he said. “I would like to see the city demand the 300 sets of records and files that they ... won’t reveal to us. They should make all the records available.”
Carol Affleck of Valmont Butte Heritage Alliance said she doesn’t want to see anybody buy the land. Instead, she said, the city should mount a more extensive cleanup effort.
“We do not feel this property should be sold to anybody right now,” she said. “Polluters should be helping pay for the cleanup. ... We want it preserved for all people and all people’s history.”
http://www.dailycamera.com:80/news/2008/aug/22/solar-farm-proposed-valmont-butte/
Thursday, August 21, 2008
Peru suspends rights in jungle protest regions
Peru suspends rights in jungle protest regions
By CARLA SALAZAR, Associated Press Writer
LIMA, Peru - Peru's government declared a state of emergency Monday
in remote jungle regions where Indian groups are blocking highways
and oil and gas installations to protest a law that makes it easier
to sell their lands.
The 30-day decree published in the official gazette suspends rights
to public gatherings and free transit in three northern provinces.
It follows nine days of protests by members of 65 Indian tribes and a
clash Saturday in northern Peru between police and hundreds of spear-
carrying Indians with painted faces. Lima newspaper El Comercio
reported eight officers and four protesters were injured.
Environment Minister Antonio Brack said protesters have closed a
bridge and highway "and threatened to cut the supply of oil via the
oil pipeline and gas through the Camisea gas pipeline."
Alberto Pizango, president of an Indian rights group speaking for the
protesters, warned the government to be "very careful" as it attempts
to bring order to the affected regions.
The protests began when the Indians blocked an important natural gas
installation and oil pipeline in northern Peru. The Camisea natural
gas installation is operated by a consortium led by Pluspetrol Peru
Corporation SA and including Hunt Oil Company of Peru L.L.C.
The Indians are protesting a law that would let half of those
attending a community assembly approve the sale of communal lands.
Previously, two-thirds of the local community, whether they attended
a meeting or not, had to approve any sale.
http://news.yahoo.com/s/ap/20080819/ap_on_re_la_am_ca/peru_indian_prot
est
By CARLA SALAZAR, Associated Press Writer
LIMA, Peru - Peru's government declared a state of emergency Monday
in remote jungle regions where Indian groups are blocking highways
and oil and gas installations to protest a law that makes it easier
to sell their lands.
The 30-day decree published in the official gazette suspends rights
to public gatherings and free transit in three northern provinces.
It follows nine days of protests by members of 65 Indian tribes and a
clash Saturday in northern Peru between police and hundreds of spear-
carrying Indians with painted faces. Lima newspaper El Comercio
reported eight officers and four protesters were injured.
Environment Minister Antonio Brack said protesters have closed a
bridge and highway "and threatened to cut the supply of oil via the
oil pipeline and gas through the Camisea gas pipeline."
Alberto Pizango, president of an Indian rights group speaking for the
protesters, warned the government to be "very careful" as it attempts
to bring order to the affected regions.
The protests began when the Indians blocked an important natural gas
installation and oil pipeline in northern Peru. The Camisea natural
gas installation is operated by a consortium led by Pluspetrol Peru
Corporation SA and including Hunt Oil Company of Peru L.L.C.
The Indians are protesting a law that would let half of those
attending a community assembly approve the sale of communal lands.
Previously, two-thirds of the local community, whether they attended
a meeting or not, had to approve any sale.
http://news.yahoo.com/s/ap/20080819/ap_on_re_la_am_ca/peru_indian_prot
est
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.
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.
Monday, August 18, 2008
Study Finds Native Americans Excluded From Repatriation Process
Study Finds Native Americans Excluded From Repatriation Process; More Work Needed on Improving NAGPRA
Last update: 5:28 p.m. EDT Aug. 14, 2008
WASHINGTON, Aug 14, 2008 /PRNewswire-USNewswire via COMTEX/ -- The federal government neither assures compliance with nor enforcement of a federal law enacted to protect American Indian remains and funerary objects and to reunite them with their families and homelands. In some instances, agencies have withheld or changed information about the objects or human remains in their possession, in blatant disregard of the law, according to a new report studying the implementation of the act.
While some federal agencies have good working relationships with Native Americans, many Indian tribes say federal agencies rarely made good-faith efforts in contacting them about their collections. Tribes also have discovered that some of the federal agencies' official notices of cultural determinations have been withdrawn for unknown reasons and without consulting the tribes, according to a new report assessing the implementation of the 1990 Native American Graves Protection and Repatriation Act or NAGPRA released today.
"For decades... the human remains of thousands of Native Americans were lodged in federal repositories, museums, and scientific institutions," Sen. Daniel K. Inouye (D-HI) stated in the report's foreword. "It required an act of the Congress to ensure that their loved ones are accorded the proper respect in death that they enjoyed in life."
But researchers in the study say much more work remains to be done on NAGPRA. The law instituted a systematic approach of working with Native Americans to return human remains and funerary objects with which they are affiliated. Federal agencies and museums were required to take inventory and notify Native Americans about their collections and thus work in collaboration with Native Americans in determining a cultural link to the remains or objects. But researchers in the study say some federal agencies have refused to do so, which has resulted in more than 118,000 Native Americans being left in storage in federal repositories and museums across the nation.
The National Park Service, which both participates in and oversees the NAGPRA process, is one such agency that has the remains of hundreds of Native Americans in storage because the Service has withdrawn the public notices that tie the remains and objects to contemporary Native Americans. Most of these notices have been pending publication since 1995.
"Makah people have always lived in this area, and over the past 150 years a lot of our important cultural items have been improperly removed from here and are located in museums throughout the country," said Janine Bowechop, executive director of the Makah Cultural and Research Center that is operated by the Makah Tribe. "NAGPRA gave hope to all Indian people that we could legally seek return of our cultural objects and for many, this promise has been realized. If we had the resources, we would make a bigger push to bring our objects home, where they belong." The Makah museum houses one of the country's largest collections of pre-contact, northwest coast artifacts.
Also according to the report, since 1999 more than $3 million has been used by the National NAGPRA program for purposes other than the grants program, which was created by the act to support museums and Native Americans to participate in the repatriation process.
But federal officials also have their frustrations. Many say they could benefit from training on the repatriation process, but they have inadequate resources, according to the report. Federal officials also cited confusion on who or which tribe to consult with. Federal officials agreed with tribes and cited concern with looting on federal lands.
In addition to the two national surveys of federal agencies and Native Americans, researchers reviewed the documentation process required by NAGPRA, Interior Department databases, legal records, and other public information provided by federal agencies and tribes. The study was funded by a National Park Service grant.
Specific recommendations in the report address the law, regulations, and federal oversight and enforcement, as well as creating and improving databases, and devising more or improved tribal and federal consultation policies to improve relations.
The report, Federal Agency Implementation of the Native American Graves Protection and Repatriation Act, is available from NATHPO based in Washington, D.C. To view the report, go to www.nathpo.org.
SOURCE National Association of Tribal Historic Preservation Officers (NATHPO)
http://www.nathpo.org
http://www.marketwatch.com/news/story/study-finds-native-americans-excluded/story.aspx?guid=%7B930CEFFE-B389-4D50-8249-0A9AFB89E302%7D&dist=hppr
Last update: 5:28 p.m. EDT Aug. 14, 2008
WASHINGTON, Aug 14, 2008 /PRNewswire-USNewswire via COMTEX/ -- The federal government neither assures compliance with nor enforcement of a federal law enacted to protect American Indian remains and funerary objects and to reunite them with their families and homelands. In some instances, agencies have withheld or changed information about the objects or human remains in their possession, in blatant disregard of the law, according to a new report studying the implementation of the act.
While some federal agencies have good working relationships with Native Americans, many Indian tribes say federal agencies rarely made good-faith efforts in contacting them about their collections. Tribes also have discovered that some of the federal agencies' official notices of cultural determinations have been withdrawn for unknown reasons and without consulting the tribes, according to a new report assessing the implementation of the 1990 Native American Graves Protection and Repatriation Act or NAGPRA released today.
"For decades... the human remains of thousands of Native Americans were lodged in federal repositories, museums, and scientific institutions," Sen. Daniel K. Inouye (D-HI) stated in the report's foreword. "It required an act of the Congress to ensure that their loved ones are accorded the proper respect in death that they enjoyed in life."
But researchers in the study say much more work remains to be done on NAGPRA. The law instituted a systematic approach of working with Native Americans to return human remains and funerary objects with which they are affiliated. Federal agencies and museums were required to take inventory and notify Native Americans about their collections and thus work in collaboration with Native Americans in determining a cultural link to the remains or objects. But researchers in the study say some federal agencies have refused to do so, which has resulted in more than 118,000 Native Americans being left in storage in federal repositories and museums across the nation.
The National Park Service, which both participates in and oversees the NAGPRA process, is one such agency that has the remains of hundreds of Native Americans in storage because the Service has withdrawn the public notices that tie the remains and objects to contemporary Native Americans. Most of these notices have been pending publication since 1995.
"Makah people have always lived in this area, and over the past 150 years a lot of our important cultural items have been improperly removed from here and are located in museums throughout the country," said Janine Bowechop, executive director of the Makah Cultural and Research Center that is operated by the Makah Tribe. "NAGPRA gave hope to all Indian people that we could legally seek return of our cultural objects and for many, this promise has been realized. If we had the resources, we would make a bigger push to bring our objects home, where they belong." The Makah museum houses one of the country's largest collections of pre-contact, northwest coast artifacts.
Also according to the report, since 1999 more than $3 million has been used by the National NAGPRA program for purposes other than the grants program, which was created by the act to support museums and Native Americans to participate in the repatriation process.
But federal officials also have their frustrations. Many say they could benefit from training on the repatriation process, but they have inadequate resources, according to the report. Federal officials also cited confusion on who or which tribe to consult with. Federal officials agreed with tribes and cited concern with looting on federal lands.
In addition to the two national surveys of federal agencies and Native Americans, researchers reviewed the documentation process required by NAGPRA, Interior Department databases, legal records, and other public information provided by federal agencies and tribes. The study was funded by a National Park Service grant.
Specific recommendations in the report address the law, regulations, and federal oversight and enforcement, as well as creating and improving databases, and devising more or improved tribal and federal consultation policies to improve relations.
The report, Federal Agency Implementation of the Native American Graves Protection and Repatriation Act, is available from NATHPO based in Washington, D.C. To view the report, go to www.nathpo.org.
SOURCE National Association of Tribal Historic Preservation Officers (NATHPO)
http://www.nathpo.org
http://www.marketwatch.com/news/story/study-finds-native-americans-excluded/story.aspx?guid=%7B930CEFFE-B389-4D50-8249-0A9AFB89E302%7D&dist=hppr
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