By Kevin Heade
What do you hold sacred? How would you feel if what you held sacred was covered with the remnants of urine and feces? Can you imagine the Wailing Wall getting sprayed with weekend-party collection found in the reservoir of an outhouse? What would happen if the Holy Water at your parish was replaced with offerings from the priest’s urinal?
Such analogies are not lost on the Navajo Nation, Havasupai Tribe, Rex Tilousi, White Mountain Apache Nation, Yavapai-Apache Nation, Hualapai Tribe; Norris Nez, and the Hopi Tribe. Those tribes recently lost a case in the Ninth Circuit where they had combined forces to try to prevent Snowbowl Ski Resort from manufacturing snow out of recycled wastewater. [1]
Every weekend, it happens; skiers flock to Flagstaff for fun in fluffy, “fresh” powder. The Snowbowl Resort, in the San Francisco Peaks, would seem like a perfect winter wonderland designed specifically for the pleasure of modern Phoenicians and their neighbors. The only thing that has impeded the success of Arizona Snowbowl Resort (hereafter A.S.R.) has been Mother Nature.
In peak years, Snowbowl sees over 150,000 skiers and more than 450 inches of snow.[2] During years of low precipitation, the numbers can drop to less than 3,000 skiers and less than 90 inches of snow. This economic incentive, combined with the Ninth Circuit’s approval for the use of wastewater, has encouraged A.S.R. to become the first ski resort in the nation to use 100 percent “reclaimed” wastewater to make snow.[3]
The first legal claim against Snowbowl, in 1983, alleged that the ski resort violated the tribes’ First Amendment religious rights.[4]The tribes lost that claim when the court found that operation of the ski resort did not hinder access to the sacred mountains for spiritual ceremonies. [5] Since that 1983 case, the Religious Freedom Restoration Act[6] (RFRA) was passed and Executive Order Number 13007[7] was announced by President Clinton. On paper, the RFRA and Executive Order 13007 appeared to indicate that the United States government was committed to protecting the religious heritage of Native Americans. In practice though, these laws have done nothing to stand in the way of allowing Phoenicians to ski on frozen fecal matter, literally urinating on the spiritual beliefs held by indigenous peoples for centuries.
While the Ninth Circuit recognizes the beliefs of the tribes are “sincere,”[8] it has not found that transforming a sacred mountain’s unique ecosystem into hundreds of cleared acres covered with frozen wastewater snow (known to contain quantifiable amounts of fecal matter and pharmaceutical chemicals) “substantially burden[s]” the religious practices of the tribes.[9] When Snowbowl went forward with plans to turn old sewage water into snow for skiing, the tribes attempted to stop the desecration for two reasons: 1.) that action violated their religious freedom under RFRA [10] and 2.) it created public health concerns.[11]
The Ninth Circuit rejected their claims and ruled that the tribes could not block the use of contaminated wastewater snow because such use did not restrict their access to the mountain.[12] In order to prevail, the petitioners in the Navajo Nation case needed to prove that the wastewater snow “substantially burdened” the free exercise of their religious practices at Snowbowl. [13] The definition of what actions “substantially burden” religious practices has been reduced to actions that force individuals to choose between “following the tenets if their religion” and “receiving a government benefit.”[14]
This is yet another example of the US declaring to support the “sovereignty” of native peoples while using Western conceptions to define how that sovereignty is exercised. [15]
As the Ninth Circuit determines whether it should hear an appeal on the public health dangers posed by Snowbowl’s wastewater snow project,[16] we should all consider the cost our entertainment is having on the legitimate, sacred beliefs of the respective tribes.
Boycott Snowbowl, Save the Peaks!
[1] Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1106 (9th Cir. 2008) (Fletcher, J., dissenting)
[2] Id. at 1082.
[3] See Id.
[4] See generally Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983)(where a claim arguing that a lease of federal lands to A.S.R. to operate a ski resort would violate the Free Exercise clause of the 1st Amendment because it would deny access to a sacred site for religious purposes was denied.)
[5] Id. at 760.
[6] Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000(b)(b) (2006), invalidated as applied to states by City of Boerne v. Flores, 521 U.S. 507 (1997).
[7] Exec. Order No. 13,007, 61 Fed. Reg. 26, 771 (May 24, 1996) (where “Federal lands” managed by the Executive Branch shall “accommodate access to ceremonial use of Indian sacred sites . . . and . . .avoid adversely affecting the physical integrity of such sacred sites.”)
[8] Id. at 1068.
[9] See Navajo Nation, supra note 1, at 1064, 1073.
[10] Id. at 1073.
[11] The claim that the wastewater snow posed health threats to those who ingest the snow was determined to be improperly raised in the Navajo Nation decision and barred by the doctrine of laches in a subsequent case brought by the “Save the Peaks Coalition.” See Save the Peaks Coalition v. U.S. Forest Serv., No. CV 09-8163-PCT-MHM, slip. op. at 17 (D. Ariz. Dec. 1, 2010).
[12] Navajo Nation, supra note 1, at 1071,1080.
[13] Id. at 1071.
[14] Id.
[15] See generally Alex Tallchief Skibine, Culture Talk or Culture War in Federal Indian Law?, 45 Tulsa L. Rev. 89 (2009); Allison Dussia, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. (773).
[16] Associated Press, Group, Others Appeal Ruling in Fake-Snow Suit, The Arizona Republic (Jan. 09, 2011), http://www.azcentral.com/arizonarepublic/local/articles/2011/01/09/20110109fake-snow-save-the-peaks.html.
Law Journal for Social Justice 
I don’t see how this is an issue of Indian sovereignty? As far as I know, the ski resort is on private property that is not within Indian country. Therefore, its really only a question of religious freedom. If that is the case, the tribes must show that the plan impinges on their religious freedom in order to successfully block its implementation. I may be missing it, but I’m not seeing an argument on this point. Any other arguments related to the plan’s effect on the sacredness of the site are entirely off-point. If “is it sacred?” was the standard, private property rights would be severely curtailed. For example, I would likely be able to stop you from re-modeling your kitchen simply by claiming that it was sacred to me.
I’d have to agreed with Justin, and not just because I grew up with him. For all my liberal beliefs, I couldn’t bring myself to see this as a religious rights issue. For one, we regularly use grey water for irrigation of parks. No problem there. So then, it’s because it’s the sacred mountain? Last time I hiked that, I peed twice and im pretty sure my friend went number 2. And I’ll bet quite a few natives have as well. So, that’s down. In native culture, pretty much everything is sacred. The earth itself is our mother. Lastly, I wonder how this applies to paintings of Jesus covered in feces. Is it art or infringement on Christianity?
As a resident of Fountain Hills, I support the use of grey water for our world-famous fountain and the surrounding park. It is environmentally friendly and makes sense in the dessert.
Justin, I am sorry for not making it clear in my article, but Snowbowl is on federal land managed by the US Forest Service. You are correct that religious protections cannot prevent the desecration of sacred sites located on private land in many circumstances, though there are situations where arguments may be made. However, because Snowbowl is on federal land, the Constitution, federal statutes, and the directives of the President (Executive Orders) apply.
Joshua, I don’t know many Christians who hold pictures of Jesus to be sacred. Thanks for reading and commenting, though!
Jennis, the issues posed by the use of wastewater at Fountain Hills are much different than the proposed use at Snowbowl, however concerns over water conservation in the desert should be taken seriously. While many people enjoy the fountain for aesthetic purposes, “ther people interpret the fountain in Fountain Hills as a different kind of symbol. Viewing it as water folly on a colossal scale, they believe the fountain symbolizes an arrogant disregard for the natural conditions of the desert. ” ( “Fountains–Water wasters or Works of Art?” http://ag.arizona.edu/azwater/arroyo/073fount.html) The article quoted actually supports fountains for artistic purposes and calls those concerned with water conservation at places like Fountain Hills, which loses more water than 35-40 acres of irrigated cotton farm land, “puritans”. However, as more people move to the South West, we can’t expect to import the comforts of other ecosystems by unwisely using water resources. This is evident at Lake Mead and Lake Powell, where the low water levels have raised the possibility of using only one reservoir because of the extraordinary amount of water lost due to evaporation. This issue is connected to indigenous rights, as States are looking to pump water from the extensive underground water aquifers found on the Navajo Nation rather than look seriously at addressing the unsustainable nature of our existing water use in the desert.
Also, Justin, your comment about stopping you from re-modeling your kitchen “simply by claiming it was sacred” demonstrates perfectly the perspective that I am attempting to address with this piece. Sacred sites are more than photocopies of Jesus or kitchen cabinets. They have been recognized for thousands of years by the peoples who lived on this land as sacred. We all should attempt to broaden our horizons and understand perspectives central to the cultures of the native people whose lands we occupy. If we can extend just this small amount of respect and appreciation by not spraying frozen piss and shit all over sacred places, I think the world will be a better place because it will be one where solidarity trumps selfishness and greed.
Thank you Kevin for that explanation of the law. From a cultural standpoint, I am not a Christian, but I practice an Indigenous religion known as the “Sundance.” The Sun Dance has been part of my Cheyenne culture for hundreds of thousands of years. Like all Indigenous religions, we rely on specific places that are geographically significant to our creation physically and culturally, which in turn becomes a spiritual reliance to our existence. What that really comes down to is that Indigenous people practice a “space-based” religion, while Christian people practice a “time-based” religion. For example, Indigenous culture can tell you where (Bear Butte for Cheyenne people) creation took place not when. Christian culture can tell you when (7 days) creation took place, but not where. This was an ingenious method of the colonization of Indigenous people. A time based religion can be everyone’s religion but a space based religion can be only those in the geographic region that have a direct and spiritual relationship to the place holding cultural significance. This time based perception of reality is proven by pointing out it is the year 2011. That is 2011 years after Christ died! This time based perception of spirituality allows the harvesting and exploitation of these sacred places. For those indigenous people who never become Christian, the degradation, such of a sacred site, such as spraying sewage on it, is so disrespectful that the ceremonial practitioners will no longer perform ceremonies necessary to the existence of the indigenous culture. In other words, the degradation causes a belief that the deities of higher power will not answer the prayers as they are weakened and disrespected by this ecological degradation……and for what? So a few over privileged individuals from phoenix can ski?
This is an issue of Indian Sovereignty because this is land that was historically owned by the Indigenous Tribes filing suit to protect this sacred site. While the Supreme Court Justice Marshall, in Johnson v. McIntosh, compared us to wildlife and called us savages in his opinion; he also held that we could not have title to our land. The federal colonial case law has only continued to erode our inherent sovereignty. For example, Congress passed the Religious Freedom Restoration Act (RFRA) in 1994 to try and preserve the inherent sovereignty of Tribes to practice their religions. The 9th Circuit has reduced the RFRA to First Amendment rights in their recent decision. The Supreme Court, and now the 9th circuit, continues to hold that it doesn’t matter if the Sacred Site is bull dozed, harvested, or polluted as long as Indians aren’t physically restrained from accessing the site; that is perfectly acceptable. Maybe from a Christian/Western perspective this seems OK, but this degrading of sacred sites is absolutely an erosion of the inherent right to practice religious rights of Tribal Nations.
Kevin, great article. I think you bring to light certain issues that people may never think about. It’s the kind of questions you ask that may at least get SOME to stop wondering “what’s the big deal?” and instead have a thoughtful conversation with themselves and see the issues that are plaguing tribes not only in this state, but across the country.
As for the comment about Christianity being a time-based religion, I find it an interesting one. I’m not sure if it’s anything new, but interesting nonetheless and you list some great examples explaining why this is so. However, I would hesitate to say that Christianity, or any of the Abrahamic religions for that matter, are strictly, or merely, time-based religions. I know this is not what is being said, but that may be improperly implied from the comment. One example is the city ofJerusalem. It is considered holy to three of the four Abrahamic religions and, right or wrong, its streets are covered in blood simply because of a question as to who it belonged to the most. Christians can point to it and say “this is where Jesus Christ was crucified.” Jews would tell you that is where King David established the Israelite monarchy. And Muslims can say it is where Muhammed took his physical and spiritual Night Journey.
Generally speaking, you may be correct. But as a matter of fact, I do not believe it is entirely true.
Great discussion here. I think Kevin summarizes the issue best : “Can you imagine the Wailing Wall getting sprayed with weekend-party collection found in the reservoir of an outhouse?”
In my opinion, this should not even be a discussion. The only reason why this is even a debate is because American society, and in particular, the Supreme Court, cannot seem to wrap its head around the fact that Sacred Sites are just as sacred to Native religion as other sites, e.g., Dome of the Rock, Mecca, the Wailing Wall, the Vatican etc., are to monotheistic religions. Why should Native religions and Sacred Sites be viewed/treated any differently? Further, how can anyone argue that recycled wastewater (while environmentally efficient) does not place an undue burden on Indian tribes when it literally takes a dump (cite person who may have “went number 2”) on their Sacred Sites? The use of wastewater should be saved for golf courses, fountains, etc. but not Sacred Sites.
I agree with you, however, it’s an opinion expressed by Mr. Kinkaide, not Kevin Heade. Just thought I’d give credit where credit is due. And thank you for the information on Jerusalem.
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Bravo, Mr. Kinkaide. Well said. Interesting theory on the time v. space based religion. Takes me back to my days as a star Sunday school student at the non-denominational church they put on our reservation. One day I asked Brother Light what happened to my ancestors when they died. He told me they hadn’t been cleansed by the blood of the Lamb of God… So they went to hell? I don’t think so. That ended my run of gold stars at Sunday school.
We all have our Creation stories; not one is the ‘right’ or the ‘correct’ one. It’s what we believe in and what we choose to embrace as our higher power.
I am Sicangu Lakota, and we too participate in the Sun Dance and other ceremonies to better the lives of our people. I’m not at all surprised by the comments belonging to the two friends Justin and Joshua; it’s typical of non-Natives (just an assumption on my part as to their nationality, of course) to want to take an argument apart that makes perfect sense to a Native American, in a feeble attempt at, what is that, humor? Trust me, you’re not funny. In our culture, urinating and defecating just anywhere is something that babies do. But they’re babies – what’s your excuse?
We believe that everything has a spirit. That mountain has a spirit, and what’s happening there is akin to a respected elder getting sprayed with body waste and not being able to EVER wash it off. I don’t expect anyone of their same opinion to understand that, and it’s just indicative of some members of society today.
Nice job on the rebuttals, Kevin. Notice they didn’t comment again. That speaks volumes!
Kevin, I didn’t know that about the federal land, thank you. Also, I did not mean to imply that views regarding the sacredness of the mountain were in any way silly or illegitimate. I was merely trying to suggest that such a standard (is it sacred to someone other than the property owner?) would be difficult to reconcile with traditional property rights. That said, I understand that many natives would laugh at the use of the phrase traditional property rights in light of the way this mountain ended up becoming federal land.
I appreciate your attempt to create understanding. To be honest, I know very little about why this particular mountain is sacred, or what “sacred” actually means. I also do not know how those who view it as sacred use the mountain. For example, is it something to look at, to worship on, or to leave untouched? The answer to those questions would be helpful. The answers to others would further illuminate the issue. For instance, is the fact that people ski on the mountain a problem? Or is the plan to make snow from reclaimed water the only problem here? Is there a threshold of waste allowed on the mountain, before it becomes a problem? Clearly animals (and possibly even humans) that live on the mountain have added waste to the mountain. Is that ok? If it is, is it because that waste is part of the natural ecosystem, and not caused by outside forces? If so, why should that distinction matter? I think it detracts from the issue when people say, as you did above, that the resort just wants to spray “frozen piss and shit all over sacred places.” That greatly overstates what is really going on. Furthermore, it implies a level of malice that does not exist. Lets discuss this issue with reference to the real plan, i.e. the creation of artificial snow with reclaimed wastewater.
Michelle, you are correct in your assumption. I am non-native. But, the comment I left earlier did not flow out of some innate, non-native tendency to “want to” argue with Native Americans. I was simply trying to engage in a discussion, the goal of which was to help me understand the issue in a clearer way. Your fourth paragraph helps, thank you. See my reply above for additional questions I would like to have resolved. Despite your belief that anyone who takes a contrary position to your own is incapable of understanding your position, I hope you will at least give me the opportunity to try. Thank you.
Also, you should refrain from deriving any meaning from the simple fact that a person does not immediately respond to an internet comment thread.
Justin, I would like to thank you for trying to understand this issue, even though it may be beyond the scope of your experiences or your personal beliefs. Also, thank you Michelle and Patrick for explaining the spiritual perspective of you and your peoples. I really believe that if the dominant society understood the importance of these beliefs to the preservation of native cultures, that sacred sites may be protected, regardless of the economic and recreational incentives promoting their desecration.
Mr. Scorza: Good evening. It must be in your nature to respond to a comment that you construe as one that is belittling toward you. Typical.
The truth is, you may never understand just how important these sacred sites are to us because you don’t worship as we do. This Earth is our altar. She provides everything we need to sustain us; we don’t have to build a church and get down on our knees to pray to our higher power. The mountain is sacred to the native people there because it is ‘wakan’, or filled with a great mystery, which can be FELT and is respected simply because it is beautiful, majestic, and worthy of honor and respect. It’s not just a mountain.
We are running out of sacred places to hold our ceremonies. On our reservation, we have very few places left to ‘hanbleceya’, one of our ceremonies which is more commonly known as the ‘vision quest’ because more houses are being built all over the once desolate lands we’ve been assigned to. It’s necessary for the man seeking a vision to be totally alone out in country. There can be no distractions, i.e., no man-made objects, anywhere within sight or hearing.
In the pre-reservation era, our people didn’t have material wealth. Everything we used came from Mother Earth and went back to Mother Earth. When the buffalo herds were decimated, the white man effectively cut our ties with our old way of life. Attempts to assimilate us into mainstream society proved to be the worst thing the government could have done. It’s evident today by fractionation of our trust lands, the mismanagement of IIM accounts of thousands of land holders, and the rampant poverty and alcoholism on almost every reservation I’ve ever seen. That’s not the way it should have been.
All we have today is our pride and the knowledge that these places are special to us. But the almighty dollar is more important to the dominant culture and continues to produce people who think nothing of finding a way to make a profit at someone else’s expense.