by Daniel Kraker
American Indian tribes win some, lose some, on federal land
FLAGSTAFF, Arizona — When the U.S. Forest Service recently approved a controversial plan to use treated wastewater to make artificial snow at a ski resort north of Flagstaff, Navajo Nation President Joe Shirley Jr. wasn’t pleased. "To Native Americans," he proclaimed, "desecrating the San Francisco Peaks with wastewater is like flushing the Koran down the toilet."
Long before skiers flocked to the Peaks, American Indians journeyed there to gather herbs and pray. To the Navajo, the San Francisco Peaks are one of the four sacred mountains that mark the boundaries of their homeland and represent the pillars of their universe. The Hopi consider them home to the sacred Kachina spirits, who bring moisture and well-being. At least 11 other Southwestern tribes consider the Peaks culturally or spiritually significant (HCN, 2/21/05: Snowmaking on sacred slopes stirs controversy).
Five tribes and several environmental groups have sued the agency, arguing that using wastewater for snowmaking would severely restrict American Indians’ religious freedom. A decision is expected early next year.
The case joins dozens of other fights across the West over sacred sites on federal land. New Mexico tribes are battling the construction of a new road through Petroglyph National Monument (HCN, 6/27/05: Suburbia blasts through a national monument). The Fort Mojave Tribe is fighting a proposed water treatment plant near the Topock Maze, ancient lines carved into the California desert. Utah tribes oppose a plan to drill hundreds of natural gas wells near Nine Mile Canyon, home to the country’s largest concentration of petroglyphs. And the Winnemem Wintu of Northern California are protesting the proposed raising of Shasta Dam, which would flood most of their remaining sacred sites.
Indian tribes may win some of these battles, but it’s unlikely that one or even several victories will bring greater protection to sacred sites as a whole. Such blanket protection will require action from Congress, and that may be many years away.
Can federal lands still be sacred?Indian tribes often struggle to explain the significance of their sacred places in terms an outsider can understand and the legal system can process. The usual comparison to churches ignores one key distinction: A church, or a mosque, or a synagogue, is private property, where believers are free to practice their religion without interference. But many Indian sacred sites, like the San Francisco Peaks, are on federal land. The government officials who manage them can’t legally endorse any religion, and must balance competing environmental, economic and recreational interests.
"We have perspectives all the way from a religious and spiritual viewpoint, to the skier, to the hiker, all the other thousands of people who want to use the Peaks," says Gene Waldrip, district ranger for the Coconino National Forest.
Tribes thought they had the law they needed when Congress passed the American Indian Religious Freedom Act (AIRFA) in 1978. A decade later, tribes used AIRFA to sue the Forest Service over a planned road through a sacred vision quest area in an old-growth forest in Northern California. They won in district court and the court of appeals.
But the U.S. Supreme Court overturned those decisions in 1988, noting that road construction would not prohibit the tribes from practicing their religion. According to Chris Peters, one of the plaintiffs in the case and currently director of the Seventh Generation Fund, an Indian advocacy organization, that decision created a climate in which "sacred lands could be logged, eroded, bulldozed, mined and destroyed."
Sensitive managementTribes have tried to use other laws that don’t specifically address sacred sites, including the National Environmental Policy Act (NEPA), the Endangered Species Act, and the National Historic Preservation Act. They’ve also developed relationships with local land managers, who, since 1994, have followed an executive order signed by President Clinton, which says sacred sites must be managed in a "sensitive manner respectful of tribal rights and sovereignty."
Although it’s often been an uphill battle, tribes have won a few victories. In January, the Forest Service banned rock climbers from Cave Rock, a Washoe sacred site near Lake Tahoe; however, The Access Fund, a climbers’ advocacy group, has filed an appeal in federal court. In October, the agency and the federal Bureau of Land Management put on hold plans for two geothermal plants that Calpine had slated for Northern California’s Medicine Lake area, sacred to several area tribes.
The National Park Service has found some middle ground. Superintendents at Wyoming’s Devils Tower have asked climbers to voluntarily stay off the monument during June, when the majority of Lakota ceremonies are held. And signs at Utah’s Rainbow Bridge National Monument ask visitors to refrain from walking under the famous arch, sacred to the Navajo. Federal courts have upheld challenges to both policies.
As the courts and federal land managers struggle to balance protecting sacred sites with endorsing a specific religion, politicians have entered the fray. Last year, California Governor Arnold Schwarzenegger, R, signed a bill requiring cities and counties to consult with tribes about development plans that might impact sacred sites. And Rep. Nick Rahall, D-W.V., is pushing a bill in Congress that would give Indian tribes some legal leverage to halt developments they feel would desecrate a sacred site.
The leaders of the fight to protect tribal sacred sites, though, aren’t holding their breath for the bill’s passage. Last year, it never made it out of committee. "We think it’s going to take 10, 20, 30 years," says Christopher McLeod, director of the nonprofit Sacred Land Film Project, which makes films about Indian holy sites. "This is a long-term battle."