Environmentalism, Sacred Native Land, and the Failure of the First Amendment

by Kenny Richards

American Indians have had serious trouble winning religious freedom cases in the high courts of this country.  Felix Cohen, a legal scholar who set much of the groundwork for practicing federal Indian law, once remarked that we should watch closely what happens in the federal courts when American Indians are involved, as these cases often act as canaries in the coal mine.  If what Cohen warns is true, then these canaries fell to the bottom of their cages a long time ago.  The persistent failure of the American government to protect the right to the free exercise of religion for American Indians suggests that this government is enforcing a particular and biased conception of religion.  In landmark cases such as Employment Division v. Smith, Lyng v. Northwest Indian Cemetery Protective Association, and Navajo Nation v. United States Forest Service, the United States court system has repeatedly shown its aversion to protecting the religious rights of American Indians. 

          

In response to this pattern in high court decisions, different tribal entities have begun arguing for environmental conservation as a way to protect their sacred places from destructive forms of development.  Across the United States, various forms of destructive development, from open-pit mining to energy production are currently threatening the existence and perpetuity of many American Indian sacred places. The shift in legal argumentation from religious freedom into environmental arguments for the protection of American Indian sacred places offers an important opportunity for many to see how, exactly, the court’s interpretation of the First Amendment is failing to protect American Indian religious traditions.  

This past winter, the Snowbowl Ski Resort in Arizona began making snow from recycled human wastewater to spray on their ski runs in the San Francisco Peaks.  This forested and ecologically rich mountain range is a sacred place for many of the Indigenous peoples of the American Southwest.  Klee Benally is a member of the Navajo Nation and an Indigenous and environmental rights activist.  Benally has been working for the protection of the San Francisco Peaks for many years now. As reported by media outlets such as Indian Country Today and The Navajo-Hopi Observer, this past December, Benally participated in a public protest in Flagstaff Arizona where, with a group of other Indian peoples, he argued that snow production violated their human rights, namely their right to the freedom of religion. Benally told Indian Country Today, “what needs to happen is the government needs to afford the same rights to Native Americans that everybody else in this country enjoys.” Not long afterwards, Benally marched with more than a dozen people down to the local U.S. Forest Service headquarters in Cococino National Forest and hand delivered letters of protest addressing the recent promise by the U.S. Department of Agriculture to help protect American sacred places.  With the flair of an activist, Benally poured a 5-gallon bucket of treated sewage effluent, the same water to be used on the mountain for snow-production, in the center of the main entrance to the park headquarters.  The Forest Service promptly called in a Hazardous Materials Response Team, or “HAZMAT” to clean and neutralize this hazardous spill.  Benally was then arrested and now faces a maximum possible sentence of $20,000 in fines and 2 years imprisonment.  In a written statement responding to his arrest, as published in the Navajo-Hopi Observer, Benally wrote, “The irony is that the USFS has authorized to spill more than 1.5 million gallons of treated sewage effluent per day onto a rare and pristine alpine habitat, yet they feel it’s appropriate to call hazmat when a pail of this same wastewater is allegedly poured onto their polished tile floors?  I hold the USFS liable for the environmental poisoning that is set to occur on the peaks right now.”

Step back four years: in 2008, after years of litigation, appeals, district, and federal court decisions the 9th Circuit Court of Appeals ruled that the production of artificial snow on the San Francisco Peaks did not violate the right to the free exercise of religion for several thousand Indian people. The Indian plaintiffs in this argued that the use of treated sewage effluent for snow production at a skiing resort on Mt. Humphrey’s would desecrate one of their sacred mountains, thus destroying their ability to practice their traditional religions. 

After the 9^th Circuit decided the case, Indian peoples continued to protest snow production, alleging human rights infringements in terms of both Indigenous rights and U.S. constitutional rights.  All the while, the Snowbowl Ski Resort continued to put pipes in the ground and make preparations for snow production from recycled sewage effluent.  Since their First Amendment case failed, several groups, including the Hopi Tribe and the Save the Peaks Coalition (an environmentally focused group), have brought lawsuits arguing that the production of snow from treated wastewater will violate certain environmental laws. 

This turn to environmental law for the protection of American Indian sacred places in Arizona is not a singular phenomenon.  Disputes over uranium mining on Mount Taylor in New Mexico, Copper mining from the Pebble Mine in Alaska, and the proper management of the Ka’u Forest Reserve in Hawai’i are all examples of sacred places that are being fought over in environmental terms. Tisa Wenger, a historian of American religions, argues that many American Indians adopted the Euro-American concept of religion as a means of responding to and resisting colonial force.  Not surprisingly, in light of the almost complete failure of American Indian religious freedom cases brought before the U.S. government there is emerging a new adaptation as a way to protect Indigenous ways of life and landscapes. 

Congress and the judiciary must come to terms with their own coercive history and to the limited and unjust definitions of religion that they enforce. The American Indian turn to environmental law in religious freedom cases speaks loudly to the failure of the U.S. government and the First Amendment as protectors of equal rights.   It is high time for the courts, and perhaps Congress, to reassess their definition of religion to include the Indigenous peoples who have not historically fallen under the protection of the First Amendment.