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Do Native Americans Have First Amendment Rights?

Do Native Americans Have First Amendment Rights?

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?


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.