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 9th 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.
