Update: Will SCOTUS Save the Peaks?
The answer to will SCOTUS save the San Francisco Peaks (from having treated waste-water snow sprayed on what several Native American tribes consider holy ground) is apparently “no”.
“The U.S. Supreme Court today denied certiorari in Navajo Nation v. Forest Service, (Docket No. 08-846). (Order List.) The 9th Circuit in the case held in an 8-3 en banc decision, that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona’s Snowbowl ski resort, which operates on federal land.”
The Save the Peaks coalition have released a statement on the decision.
“The Supreme Court’s denial of certiorari in the Navajo Nation case is unfortunate to say the least.” Stated Jack Trope of the Association on American Indian Affairs who is working together with DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “It means that the San Francisco Peaks, sacred to so many tribes, will continue to be at great risk from the development approved by the Forest Service that allows treated sewage water to be used for snowmaking. It also means that the Ninth Circuit’s narrow interpretation of the Religious Freedom Restoration Act (RFRA) – an interpretation which in practice will make that law virtually unavailable to protect sacred lands in the states covered by the Ninth Circuit – will stand.”
This is a big deal. It means that questions of how we approach issues of religious freedom and religious rights on land that is a traditional cultural property under U.S. law are dramatically altered (within 9th Circuit jurisdiction). Perhaps the Forest Service have been intentionally dragging their feet in getting the San Francisco Peaks on the National Register because they didn’t want tribal considerations interfering with their sweetheart deals involving the Snowbowl resort?
“The San Francisco Peaks are recognized as a Traditional Cultural Property, although the Forest Service began the designation process several years ago, it has not yet been finished. The Peaks have also been determined eligible for listing on the National Register of Historic Places, yet the FS has done nothing to finish the process.”
At this point, nothing short of direct intervention from the Obama administration can halt the planned development (which includes clear-cutting 74 acres of rare alpine ecosystem & creating a 14.8 mile long pipeline up the San Francisco Peaks to a 10 million gallon storage pond). In the meantime, there is a chance this issue could come to SCOTUS again, due to different Federal Circuit Courts having different interpretations on the limits of the the Religious Freedom Restoration Act.
“This is a setback, but it is not the end. The Obama Administration still has the authority to stop this development and develop policies to ensure that future decisions are more respectful of sacred sites.” stated Jack F. Trope, Executive Director, Association on American Indian Affairs. “Moreover, other circuits like the Tenth Circuit have interpreted RFRA more broadly and efforts to use that law to protect other sacred places will continue. Finally, the struggle over the San Francisco Peaks and the failure of RFRA to protect this sacred place ought to send the message to Congress that it is time for the lawmakers to approve legislation that would strengthen applicable law so that it will better protect Native American sacred places across the country.”
From a moral and religious standpoint, the question remains, how much responsibility does the Federal government have towards protecting and maintaining sacred lands they have seized from Native tribes? It is an issue we need to wrestle with, because if the government and courts rejects pantheist religious views as valid when considering development, we may lose the right to protect other places from desecration in the future. As for the San Francisco Peaks issue, don’t expect the tribes to go quietly now that judicial recourse has been denied them.
“Our way of life is in peril. We will continue to pray and struggle to safeguard mother earth for our cultural survival.”
I doubt this will be the last time I’ll have to report on this matter.
9 responses so far
I have some waste water here. There's a nearby Catholic Church. Oh and a synagog thing. Guess I'll go dump it on their altars; see how they like it.
i'm not surprised- american settlers have been stealing land and doing with it whatever they want from natives for a long, long time.
Now it's time to take the law into our own hands.
Dave
Flagstaff native
For some reason I hear the Gary Owen March in the background.
It was a good decision. Frankly, it is the only decision that could be made. Public lands are to be shared. To me skiing is a religious experience. I look forward to many great days of skiing at Snowbowl. I look forward to teaching my kids to ski there. This is a great day for residents of Flagstaff and the residents of Arizona. We are extatic!
Brian-excellent point. I've never been skiing, but I could certainly see it as a type of spiritual experience, even a magical outlet.
Exactly.
Oh yes, FAR more spiritual than kachina ceremonies.
[...] past Summer the Supreme Court of the United States denied certiorari in the case of Navajo Nation v. Forest Serv…. This action meant that a long battle over whether an Arizona ski resort could clear-cut 74 acres [...]