Reaction to Peaks decision continues
Leaders plan appeal based on AIRFA

By Kathy Helms
Diné Bureau

WINDOW ROCK — In the immortal words of Dr. Martin Luther King Jr., "Injustice anywhere is a threat to justice everywhere." To Save the Peaks Coalition's Jeneda Benally of Flagstaff, injustice has hit home.

"As this nation prepares to celebrate the legacy of Dr. Martin Luther King Jr. and the struggle for Civil Rights, how can we as Native people celebrate when our civil rights, our human rights are being profaned, are being violated?" Benally asks.

She referred to last Wednesday's U.S. District Court decision by Judge Paul Rosenblatt, which gave the go-ahead to the U.S. Forest Service to allow expansion of the Arizona Snowbowl ski resort.

The decision also calls for using 1.5 million gallons of reclaimed wastewater per day, or about 900 gallons per minute, to make a sufficient amount of artificial snow on the west flank of the sacred San Francisco Peaks.

"The Civil Rights movement went to court fighting for their rights and had many wins and losses. This ruling shows that in this day and age there is still injustice in the legal system," Benally said. "We will continue with our prayers, we will continue to oppose the ongoing attempts to violate human rights."

The Navajo Nation and other plaintiffs in the case allege the Forest Service is in breach of its trust responsibilities and in violation of the Religious Freedom Restoration Act.

The court said the Forest Service would be "hard pressed to satisfy the religious beliefs of all Plaintiffs." However, it found that the Snowbowl upgrades "satisfy the government's interest in managing the CNF (Coconino National Forest) for multiple uses ... "

Lack of burden
The court said there was no evidence the decision would exclude tribal practitioners from the Peaks, there would be no inability to collect medicinal or ceremonial plants and other materials, and no prohibition on holding religious ceremonies anywhere on the Peaks. Therefore, the decision would not substantially burden the tribes' exercise of religion.

"If the facts alleged by the Plaintiffs were enough to establish a substantial burden, the Forest Service would be left in a precarious situation as it attempted to manage the millions of acres of public lands in Arizona and elsewhere that are considered sacred to Native American tribes," the judge said.

The court also argued that mining is conducted on Black Mesa although the Navajo Nation and the Hopi Tribe consider it to be sacred. "The Hopi Tribe transferred Hopi water rights in order to provide water for a coal slurry pipeline at Black Mesa," Judge Rosenblatt said.

"Wastes from medical clinics on the reservation are disposed in lagoons or on the ground at the Navajo Reservation, which is considered sacred," the judge added.

In addition, the Yavapai-Apache Nation has used reclaimed water to irrigate the grounds around Cliff Castle Casino in Camp Verde, and the Havasupai have used reclaimed water from an untreated lagoon system to irrigate alfalfa sprout crops in Supai Village, he said.

Flowery words
Navajo Nation Vice President Frank Dayish Jr. on Friday took issue with the court's ruling against the tribes, referring to other acts pertaining to religious freedom and cultural preservation.

Speaking from personal experience, he said,"Back in 1994 we amended the American Indian Religious Freedom Act (AIRFA)," originally issued in 1978. "In there, there's specific language. ... It says that the legislation's intent was the government had a trust responsibility to protect and preserve Indian 'cultures.' They're totally ignoring that.

"It doesn't say what the judge is saying right now, like, they can collect flowers ... It doesn't say anything about that," Dayish said.

If the Nation's lawyers file an appeal and an injunction is issued, "then we have an opportunity to bring AIRFA in again," he said.

"The other thing is the 1993 Religious Freedom Restoration Act reinstated the 'compelling state interest' test. What that says is the feds or anyone must demonstrate the compelling state interest in this case, and they're not doing that.

"So, that's why I'm saying I'm going to use my experience with the American Indian Religious Freedom Act and say, 'OK, what we're going to do is file an injunction and once that's granted, then we're going to stand up and wave the flag of American Indian Religious Freedom Act.'

"And right after that, we're going to say, 'Hey, guys, we have the 1993 Religious Freedom Restoration Act which reinstates the compelling state interest test before they move forward.' "

Dayish said that during his '94 dealings with AIRFA, "When the court said, 'We can't help you,' then we went and looked for relief to Congress and we amended the act that I'm talking about to specifically address the situation that was confronting us."

Section 2 of the American Indian Religious Freedom Act, as amended, states, in part:

"The President shall direct the various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices."

Later, one of the changes in administrative policy and procedure was Executive Order 13007 pertaining to Indian Sacred Sites. The order was signed May 24, 1996, by then-President Bill Clinton.

Sacred sites
Clinton's Executive Order, issued to further protect and preserve Indian religious practices, states that each executive branch agency with statutory or administrative responsibility for the management of federal lands shall "accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners."

The order further states that the responsible agency shall "avoid adversely affecting the physical integrity of such sacred sties. Where appropriate, agencies shall maintain the confidentiality of sacred sites."

"Sacred site" is defined as "any specific, discrete, narrowly delineated location on Federal land that is identifiable by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion" provided that the agency has been informed of the existence of the site.

Judge Rosenblatt ruled that since the Executive Orders cited in the case by the Navajo and Hualapai tribes, including Order 13007, "are not independently enforceable, such claims have no merit." The judge said the Executive Orders "are intended only to improve the internal management of the executive branch" and do not create any trust responsibility or right to judicial review.