Will Peaks become religious monument? The Arizona Daily Sun welcomes letters to the editor. Letters should be no longer than 250 words and addressed to the editor, Arizona Daily Sun, P.O. Box 1849, Flagstaff 86002. Our fax number is 774-4790. Our e-mail address is azdsopinion@azdailysun.com . Two years ago, Alabama Chief Justice Roy Moore was fired for refusing to remove a 2Ö-ton monument of the Ten Commandments from a courthouse The debate over Moore's religious marker provided a lightning rod for believers and non-believers alike, with daily tears, demonstrations and prayers. And while Moore's position as a judge was unique, the constitutional questions it raised about religious rights in public spaces were not. Now Native American tribes of the Southwest have their own version of the Ten Commandments case, but the monument in this case is earthen and a mountain high. Several mountains, actually. Activists and Native American tribes across the country are watching the lawsuit over snowmaking on the San Francisco Peaks to see whether the tribes' religious rights trump the Forest Service's ability to allow Snowbowl to make snow there with reclaimed wastewater. If the tribes' religious rights trump the Forest Service's ability to determine land use, that would potentially give more than 550 tribes across the U.S. the right to tell federal agencies how to manage the Grand Canyon, Rainbow Bridge, Bill Williams Mountain, Mount Rushmore and thousands of other sites deemed sacred, Snowbowl argued in legal briefs. "Millions of acres of federal land across the country are at stake here," Snowbowl attorney Janice Schneider told U.S. District Court Judge Paul Rosenblatt on Thursday. Tribal lawyers argued that the people of the Forest Service couldn't really understand the magnitude of how it would harm the tribes if snowmaking were allowed. For the Hualapai, the Peaks are the site of their creation story, their Garden of Eden. For the Hopis, attorney A. Scott Canty argued, knowledge of the mountains and the kachinas that live there are one of the few traditions common among every member of the tribe older than age 8. "The mountain is part of Hopi land, even though it's 86 miles or so from the villages," Canty told the court. For the Navajos who gather medicinal plants on the Peaks, the whole area would essentially be poisoned if what they deemed wastewater were spread on it, even with snowmaking on as little as 1 percent of the mountains. Those Navajos' ability to relate to others in their tribe would be impacted forever. The non-profit Native American Rights Fund, of Colorado, is watching this case. "Almost all the sacred sites that tribes have, almost all of them are on federal land," Rights Fund officer Ray Ramirez said. "These issues are very, very important in Indian Country... spirituality is one of the only things we have left and slowly that's being chipped away by occurrences like this." The National Congress of American Indians is tracking it, too, as is a California advocacy group for Native Americans. WAS PRECEDENT ALREADY SET? The Navajo Nation and Hopi Tribe lost the battle against the ski area's development in a court case that ended in 1983. The federal courts found that a rudimentary ski area already existed and that tribes' religious rights weren't "substantially burdened" by development because Native Americans could practice their religious beliefs elsewhere on the Peaks. As long as the site now known as Snowbowl wasn't the only place Native Americans could practice their beliefs, the tribes would lose. And they did. This week's case is identical to that one, and the tribes should lose again on the same basis, Snowbowl's Schneider argued. Anything else would be equal to allowing religious beliefs to control the public's use of entire mountains of public property, she said. Or, in other words, allowing the tribes' religion to determine Forest Service policy makes the San Francisco Peaks into a religious monument. The federal government can neither establish religion, nor prohibit religious practices under the First Amendment. But Congress has passed other laws respecting religious beliefs since then, attorneys for the other side argue. The Religious Freedom Restoration Act can be interpreted to mean Native Americans only have to prove that snowmaking on Snowbowl would impact their religion to have a chance of winning the case. "It is clear this (snowmaking) places a substantial burden on the way plaintiffs practice their religious beliefs," said Howard Shanker, who is representing the Navajo Nation, Sierra Club and some of the other plaintiffs. Even if there is no one particular shrine or monument inside Snowbowl's area that's vital to Native American beliefs, the whole mountain still could be considered a religious site under the act. This is the first time the religious rights law has been applied to tribal sacred sites. University of California in Los Angeles Law Professor Eugene Volokh specializes in religion and government law. Given only the arguments about religion, and not including other arguments in the case, he predicted Snowbowl stands a better chance of victory. "If their only objection is this is blasphemous (and) you are using your property in ways that undermine the sacredness," Volokh said, "... that is an argument that will likely lose." Cyndy Cole can be reached at ccole@azdailysun.com or at 913-8607. http://www.azdailysun.com/non_sec/nav_includes/story.cfm?storyID=116915 |