Do Native Americans Have First Amendment Rights?

Wednesday 20 August 2008

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

The San Francisco Peaks are visible from many parts of the Southwest's Four Corners and have been sacred to at least 13 recognized Native American tribes for at least as long as Europeans have been in the country. Northern Arizona University Professor Miguel Vasquez described the argument that only a part of the Peaks are affected by the planned spraying of up to 1.5 million gallons a day of effluent for snowmaking as "equivalent to saying it's O.K. to piss in St. Peter's as long as you only do it in one corner." (Photo: Calvin Johnson / Save the Peaks Coalition)

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.

Continued . . .