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Snowbowl and the sacred mountains
I just though I would mention this, since it seems relevent to our discussions here.
It appears the Snowbowl Ski Resort is embroiled in a legal controversy with a group of Native American tribes over planned improvements to its facilities. The resort, which is located in the San Franciso Peaks mountain range around Flagstaff, Arizona, has suffered from diminished snowfall in recent years.
The owners have come up with a plan to use artificial snow made from treated wastewater on the slopes. They also have other improvements planned as well, but the use of the artificial snow has become the big bone of contention. The Arizona departments of health and environmental regulation have signed off on the plan, according to news reports.
The Navajo and other tribes have sued to prevent application of the artificial snow on the grounds that the mountains are sacred in their religion and are critical to their religion.
One judge had found in favor of the resort, saying that areas of the mountain range are still accessible to the tribes in question and are available for any religious observances. The peaks are not part of any reservation or tribal lands.
However, that finding was overturned by a 3-judge panel of the 9th U.S. Circuit Court of Appeals who found on behalf of the tribes, citing RFRA (the Religious Freedom Restoration Act).
I haven't been able to find a cite for the actual ruling.
Call me a cynic, but I can't help wondering if the tribes filing the suit may have a resort or casino in the area that is in competition with Snowbowl. At any rate the resorts plans are blocked, pending an appeal. Coincidentally, or maybe not, the attorney representing the native Americans, Howard Shanker, is running for Congress in 2008.
Hmmmm
George
"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."
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Snowbowl and the sacred mountains
George, you're probably right. Something doesn't add up. And even if the tribes are being completely honest and they really would experience some sort of religious impact with the use of artificial snow...too bad. This is a prime example of how one persons "innocent beliefs" can bleed over and harm another person.
"...areas of the mountain range are still accessible to the tribes in question and are available for any religious observances. The peaks are not part of any reservation or tribal lands."
So they don't even own the land? And they are using their religious beliefs to tell other people what to do with their land?
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Re: Snowbowl and the sacred mountains
Chris: So they don't even own the land? And they are using their religious beliefs to tell other people what to do with their land?
That does appear to be the case. What's more bothersome is that a panel of judges apparently agrees. This application of RFRA (which I think was bad law from the outset) seems very problematic to me. Ultimately, I think the reversal will be reversed on appeal, but it's an expensive, time-consuming process.
George
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Re: Snowbowl and the sacred mountains
This looks like it might be an interesting case to keep track of, George. Thanks for the link. BTW, I found a copy of the 9th Circuit Opinion from March, which is now up for reconsideration, if you're interested. I haven't read any of this yet. Navajo Nation, et al. v. United States Forest Service, et al.
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Re: Snowbowl and the sacred mountains
Rosemary,
Thanks for the link to the opinion. I prefer to read these things myself than to trust a reporter's understanding of the case. Some reporters tend to fix on the most sensational aspect of a case and ignore the more important elements of a ruling.
George
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Re: Snowbowl and the sacred mountains
garicker: I prefer to read these things myself than to trust a reporter's understanding of the case.
ABSOLUTELY!!! No problem finding the case. I've actually really enjoyed searching for this stuff for free online. Usually, when I run across a case like this, I just find the Opinion on Lexis Nexis, but the people on this board couldn't then use that link. (Without a password that is.) I've been really amazed, and happy, to see that you can get most of this stuff for free online. It's really very neat--as I said in another thread the democritization of information. What can I say, I'm corny.
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Re: Snowbowl and the sacred mountains
Chris: So they don't even own the land?
Correct me if I'm wrong here, but didn't Europeans come over and take the land by force?
The question that seems most pertinent to me is, to what extent is Snowbowl extending its operation? Adding artificial snow presumably lengthens the annual period of time during which they're operational. Is that encroaching on the Navaho "religious season"? Or is Snowbowl also increasing the amount of space that it occupies on the mountain? (Maybe I should go read the damn article instead of asking rhetorical questions.)
Actually, I suspect that (at least some of) the Navahos involved are taking advantage of a change in the situation in order to initiate a new line of attack on a problem that historically precedes the establishment of Native American casinos and fun parks. They've probably fought for this site before, were decided against, and needed a new precedent on which to reapply their case.
As for Chris' argument that their religious use of the mountain should be, from a legal standpoint, immaterial, I think it helps to look at the matter through a different lens. Dennett mentioned the claim some Mohawk tribes have made to Ellis and Liberty Islands, and Dennett, as I recall, took much the same stance -- so what if the island is sacred to them? Their claim is premised on ideas that the rest of us don't recognize, so why should we accomodate them?
But I suspect that all of us, Dennett included, would change our minds if the situation were reversed. If Hong Kong developers purchased Ellis Island and announced their plans to build a mall there, I think most of us would balk. And if there were some legal avenue for fighting their plans, I think we'd be in favor of suing. The situation is analogous in that both sites have historical and symbollic value for a particular group. We just feel more inclined to recognize and accomodate for the value of the latter because more of us relate to it. Religion is not the only system of subjective values that people feel a just society should accomodate for, and I think we need to look for a consistently applicable way of accomodating for a broad range of subjective values.
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Re: Snowbowl and the sacred mountains
Mad: Religion is not the only system of subjective values that people feel a just society should accomodate for, and I think we need to look for a consistently applicable way of accomodating for a broad range of subjective values.
That's all well and good, but, as the judge who originally heard the case indicated, Snowbowl's plans don't prevent any of the tribes from continuing their religious observances or from having access to the portion of the peaks -- the largest part by far -- that isn't impacted by the resort's plan.
The U.S. Forest Service had signed off on the resort's plans, including the use of the artificial snow.
I have no problem recognizing that the Indian's make use of the mountains for their religious observances and accommodating that usage in a reasonable manner. However, I don't think it ought to trump all other considerations.
It will be interesting to see how this plays out in the courts.
George
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Re: Snowbowl and the sacred mountains
Having done a quick scan on the matter, it looks to me as though the issue for most of the Native Americans involved is that of desecration, rather than that of sharing the mountain. The issue seems to be that the artificial snow is made from recycled sewage. The Snowbowl would, in effect, be spreading sewage over what the tribes regard as a sacred emblem. Bear in mind that most Native American religion is centered around the veneration of nature. In other words, they regard it in much the same way that, say, a pious Muslim might regard attempts to install a Victoria's Secret billboard on the front of a mosque. The issue, for the Native Americans, isn't usage, but rather the treatment of the mountain itself. To a certain degree, their concern is conservationist, although that doesn't provide any additional legal protections, and to whatever degree the state of the mountain really is integral to their religious beliefs, this case really does cut to the heart of how much we're willing to accomodate beliefs that differ from our own.
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Re: Snowbowl and the sacred mountains
Yes, Mad, the issue certainly seems to be the "treated sewage effluent" (ewwww). My problem isn't really with plaintiffs' claim, it's with RFRA. If the plaintiffs had raised this under normal First Amendment proceedings (assuming RFRA didn't exist), I wouldn't have any problems with the case--of course then they wouldn't have a chance of winning, either. The problem with RFRA, and this is very thoroughly spelled out in the Opinion, is that it provides, in my mind, too great a protection on free religious expression. It goes well beyond constitutional requirements that protect against the prohibition of free religious exercise, and places a heavy burden on the government to demonstrate cause, according to the debilitating and relatively unconstitutional terms of the statute.
The Opinion states that Plaintiffs presented "evidence" on a wide array of "beliefways" in which the Peaks are an essential element of their belief system, including sweat lodges to expunge spirits, medicine bundles with healing properties, and roaming spirits, Katsinam, that require the purity of the mountains for their residence. Yet when the state presented their case--additionally hampered by the statute's requirements that they show a "compelling interest" for their proposed changes, and that those changes represent the "least restrictive means" to execute their plans--the court suddenly adopted a more restrictive definition of "evidence." (Be reminded this is all required for the government to use their own land--and no I'm not getting into a debate on American Indian land rights here, that wasn't at issue in the case.) Though the government demonstrated how the community would be better served by a reliable cover coat of snow to be placed at the beginning of the snow season to ensure safe and consistent skiing conditions, the court found that closing the ski resort for all but a handful of days for the normally occurring dry winters, would not necessarily permanently shut down the facility. The court writes: "But the evidence in the record does not support a conclusion that the Snowbowl will necessarily go out of business if it is required to continue to rely on natural snow and to remain a relatively small, low-key resort." But, the Court, not ten pages before, has no problem accepting the testimony of Larry Foster, a Navajo medicine man in training, who states that, were the treated sewage effluent used, "he would no longer be able to go on the pilgrimages to the Peaks that are necessary to rejuvenate the medicine bundles, which are, in turn, a part of every Navajo healing ceremony." And just a statement from an actual Navajo medicine man, Norris Nez, that "the presence of treated sewage effluent would 'ruin' his medicine" was enough to constitute evidence of "burden." Oh and my favorite "burden" accepted by the court came from Roland Manakaja from the Havasupai who claimed that "he was 'concerned' that the water's perceived impurity might cause the sweat lodge ceremony to die out altogether, if tribal members fear 'breathing the organisms or the chemicals that may come off the steam.'" Now, just the fear of a "perceived impurity" constitutes "evidence" of substantial burden on religious expression, while the government's more fact-based case demonstrating numbers of skiers in wet compared to dry seasons is dismissed because they can't show that the ski resort would permanently shut down. RFRA is a serious problem, and it needs to be addressed. And I think it has very little to do with "how much we're willing to accommodate beliefs that differ from our own." I think it's about navigating around judicial decisions and making allowances for religion that the Constitution never intended.
Hey, I'm all for the federal government losing land-use cases against local communities. I'm also not a big fan of how ski slopes alter beautiful mountains and recognize the burden ski slopes can be on the surrounding natural community. (In the interest of full disclosure I am a recreational skier.) Disallowing "treated sewage effluent" (ewwwww) doesn't bother me, doing so under RFRA offends me.
This will be an incredibly interesting case to follow, I'm grateful you brought it to my attention, George. I'm not sure how it missed my radar screen, but there's just so much out there to keep track of.
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Re: Snowbowl and the sacred mountains
Mad: ... this case really does cut to the heart of how much we're willing to accomodate beliefs that differ from our own.
But doesn't this go way beyond mere accommodation?
In my view it's accommodation that the various tribes are allowed to erect religious shrines and conduct religious services on public lands. It's accommodation that we, as a society, recognize the importance of these mountains to their religions.
However, the notion that, because something someone else does on a particular part of a particular mountain may offend their religious sensibilities, the tribes get a veto on religious grounds stretches the idea of religious accommodation into a whole new area.
Using treated effluent might well raise health and environmental concerns, and certainly those ought to be thoroughly explored. It also might cause potential customers to think twice about coming there because of concerns, whether warranted or not, about skiing on artificial snow make from such a source.
But, assuming the health and environmental questions have been satisfactorily dealt with, the notion that using the artificial snow desecrates a "sacred" place should have no relevance in a court of law. What is "sacred" only has relevance within a given religious context. It is hardly binding on the rest of society.
Certainly we may make note of religious conventions and try to avoid giving offense to others -- I'm sure that's something most of us do quite often, but, as I said earlier, I don't think religious considerations can or should trump all others.
George
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Re: Snowbowl and the sacred mountains
Rose: The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
Right; and part of what I'm getting at is that the structure of our civilization and the structure of our government may well make that impossible.
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Re: Snowbowl and the sacred mountains
Me: The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
Mad: Right; and part of what I'm getting at is that the structure of our civilization and the structure of our government may well make that impossible.
The structure of our government does not make the restriction on the prohibition of free religious exercise impossible; it makes the special accommodation for religion that you would like to interpret from the First Amendment impossible. But let me again reiterate that accommodation is not supported by free religious expression clause jurisprudence, nor does it seem evident that it was part of the Framers' intent. You, like the Congress who passed RFRA and the President who signed it into law, seem to think that accommodation for religion should be part of First Amendment jurisprudence, it is not. So can I take it then (since you seem to refuse to answer directly) that you support RFRA's efforts to accommodate religion despite its violation of the establishment clause, and its disregard for the separation of powers?
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Re: Snowbowl and the sacred mountains
Rose: The structure of our government does not make the restriction on the prohibition of free religious exercise impossible; it makes the special accommodation for religion that you would like to interpret from the First Amendment impossible.
Again, you misinterpret my point here. I'm not arguing that the First Amendment should be interpreted to allow for special accomodation. What I'm arguing is, that the restriction against prohibiting free religious exercise is probably impractical given the circumstances of American society. The Snowbowl case gives a shadowy illustration of how those circumstances begin to conflict with genuinely free religious exercise. The Native American plaitiffs are presumably free to exercise their religion because no law prohibits that exercise; however, there are laws in practice that indirectly limit their ability to practice their religion by de facto imposing a foreign set of values on natural features that make up a central part of their religion.
I say "shadowy illustration" because, granted, the obstruction here is fairly roundabout. If you take a different religious tradition, like Haitian Voodoo, the problems become more apparant. Voodoo religious ceremony involves animal sacrafice, and while Voodoo has made some inroads into the American landscape (most notably in New Orleans and New York), it remains very much in the underground, in part because of the legal complications that arise from this particular practice.
What it looks like to me is that, historically speaking, the provision that government should pass no laws prohibiting free religious exercise may have been conceived very broadly, but was designed with Eurocentric religious traditions in mind. Which is all fine and well so long as you can construe all religions as essentially synonymous, but in practice they prove to be otherwise. My current thinking on the matter is that there is no way to guarantee free religious practice; there is always the potential for some obscure religious tradition to develop into religious exercise some ritual that conflicts with what the rest of society considers moral or legal tabu. That is not a failing specific to the American Constitution or the American legal system. All legal systems are probably prone to the same conflict of interests.
What I'm saying, in effect, is that, practically speaking, most governments will ultimately have to pick and choose which religions they'll accomodate -- and by accomodate, I don't mean special accomodation, but the accomodation that arises from the very ways in which they structure the society of the governed. Three hundred years of development has resulted in an American society so structured that there likely is no real place for the Native American veneration of the natural landscape -- our legal system simply does not protect the same set of values, and it's absurd to behave as though the values protected by the EPA are assimilable to the religious values of the Navaho and Hopi on a 1:1 ration.
I've made a big deal out of the matter mostly because I don't think it's healthy for us to kid ourselves on this. Free religious exercise is very likely an unreachable goal, and it strikes me as being little more than realistic to suggest that, for the long term, it would be prudent to consider how facing up to that changes the "American experiment".
So can I take it then (since you seem to refuse to answer directly) that you support RFRA's efforts to accommodate religion despite its violation of the establishment clause, and its disregard for the separation of powers?
I don't know how else to explain this: I know so little about the RFRA that I couldn't say either way. Based on what I've gleaned from reading what you've said about it, I'd say likely not, but that's still an opinion formed only from the barest of second hand information.
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Re: Snowbowl and the sacred mountains
Mad: Again, you misinterpret my point here.
As far as I can see, I'm not misinterpreting your point. You think the First Amendment rendering it unconstitutional for Congress to make laws that prohibit free religious exercise equates to a presumption for the free exercise of religion across the board. I don't know how else to say it. This is certainly not the case
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