Sacred peaks case before federal judge

By Kathy Helms
Diné Bureau

WINDOW ROCK — Navajo Nation President Joe Shirley Jr. is expected to testify this week in federal court in Prescott on a case which tests the rights of Native Americans to religious freedom.

The San Francisco Peaks are at the center of a legal battle between Coconino National Forest and six of 13 Arizona tribes which hold the mountains sacred: Navajo, Hopi, Havasupai, Hualapai, White Mountain Apache, and Yavapai Apache.

The Sierra Club lead appellant in the lawsuit against the Forest Service was joined by the tribes, several conservation groups, Din Medicine Men's Association and a Hopi traditionalist in a test case of the Religious Freedom and Restoration Act (RFRA).

Tempe attorney Howard Shanker argued in his appeal of the Forest Service decision regarding Arizona Snowbowl facilities improvements that the Religious Freedom act "provides that governmental activity may not substantially burden a person's free exercise of religion unless the activity is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest."

Shanker contends that the Forest Service failed to consider the Religious Freedom act when it approved Snowbowl development and the use of reclaimed wastewater from the City of Flagstaff to make artificial snow at the ski resort.

Making snow from reclaimed wastewater will substantially burden the exercise of religion by traditional Navajos, he argued, specifically participation in various healing and protection ceremonies such as Blessingway, Night Chant, Enemy Way, Protection Way, and in the puberty ceremony for young Navajo women, known as the Kinaalda.

"The healing ceremonies are a vibrant and vital part of Navajo life in the present day," Shanker said. "The Enemy Way ceremony, in particular, has proven effective in healing the psychological illnesses of Navajo soldiers returning from war ... "

Shanker said the purpose of Blessingway is to restore harmony and positive thinking to a patient that has fallen out of harmony in his relations or with his surroundings.

"If the sacred mountain is desecrated by the deposit of reclaimed water on the mountain, the healing powers of the sacred soil and various herbs, water and sacred objects from the mountain will be diminished or destroyed, and the Blessingway ceremony will not achieve its purposes," he argued.

In light of the burdens on religious practices, the government does not have a compelling interest in allowing the Snowbowl expansion, Shanker said.

Court precedents
U.S. District Court rulings involving Rainbow Bridge in Utah and Devil's Tower in Wyoming have afforded some degree of protection for those sacred sites. Also, in a Ninth Circuit Court of Appeals case in Arizona, a three-judge panel ruled against a gravel pit owner in a case involving land considered sacred by Navajo, Hopi and Zuni.

Judge Betty Fletcher wrote that the Establishment Clause of the First Amendment "does not require governments to ignore the historical value of religious sites. Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites ... "

The Native American Rights Fund in 1997 filed a legal brief to defend the National Park Service's Climbing Management Plan at Devils Tower National Monument or Mato Tipila (Bear Lodge) in Wyoming.

Professional climbers challenged the feds' ability to voluntarily accommodate free exercise of religion by members of the Eastern Shoshone, Kiowa, Crow, Cheyenne, Arapaho, and Lakota nations, according to NARF.

As many as 23 tribes had been identified as culturally affiliated with Bear Lodge and had practiced their religious and cultural ceremonies there for centuries. The voluntary climbing ban was instituted in 1995 "to balance the competing interests of Indians and rock climbers, and to encourage tolerance and respect for Indian religious practices."

NARF argued that when reviewing challenges to federal action protecting Native American interests, courts do not follow usual legal tests. Instead, they apply tests such as the Indian trust doctrine.

"Because preservation of Native American culture, including traditional religious practices, is a legitimate government objective ... such preservation is fundamental to the federal government's trust relationship with tribal Native Americans," NARF said.

The Park Service's action "represents the government's protection of the culture of quasi-sovereign Native American tribes and as such, does not represent an establishment of religion in contravention of the First Amendment."

NARF also argued that it is appropriate that the federal Indian trust relationship include cultural and religious protection, "because these dimensions of Indian life play a critical role in the overall sovereignty of Indian nations."

An affront
The Navajo Kinaalda ceremony celebrates the transition of a girl to a woman. San Francisco Peak is the mountain where Changing Woman completed the Kinaalda and left it as a gift to Navajo women. "Defiling the mountain by governmental action defiles the Kinaalda ceremony and is an affront to the religious sensibilities of every Navajo," Shanker argues in his appeal.

He said the Final Environmental Impact Statement and the Record of Decision consistently acknowledge the devastating effects the Forest Service decision would have on Native religion, culture, and traditions for 13 tribes but that there was only marginal effort to contact tribes other than Navajo and Hopi.

Also, he claims the reports are "conspicuously silent" on the concerns of the Kaibab Paiute, San Juan Southern Paiute and Laguna.

Wastewater study
In a March 2004 report by the City of Flagstaff Utilities Department to the Water Commission, researchers reported that wastewater-treated animals developed significantly more quickly than did animals in control groups.

"These results suggest that something in the wastewater is either acting like thyroid hormone on the amphibian tissues, or it is stimulating the frog's own thyroid system earlier than normal. ... This test should be repeated to determine whether it is a function of the single sample of wastewater or a consistent phenomenon with respect to the water coming out of the Rio de Flag Plant," they said.

Researchers also found that the wastewater affected the frogs' feeding success. "Although WW-treated animals tried as many times as controls to capture prey, they succeeded significantly less often ... "

In another study on the effect of wastewater on mosquitofish, water that was not aerated induced death after two weeks, "possibly because of lower levels of dissolved oxygen in the water."

The researchers said recent studies also showed that wastewater potentially could affect plant growth.