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. 
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. 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.
The first legal claim against Snowbowl, in 1983, alleged that the ski resort violated the tribes’ First Amendment religious rights.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.  Since that 1983 case, the Religious Freedom Restoration Act (RFRA) was passed and Executive Order Number 13007 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,” 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. 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  and 2.) it created public health concerns.
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. 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.  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.”
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. 
As the Ninth Circuit determines whether it should hear an appeal on the public health dangers posed by Snowbowl’s wastewater snow project, we should all consider the cost our entertainment is having on the legitimate, sacred beliefs of the respective tribes.
Boycott Snowbowl, Save the Peaks!
 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1106 (9th Cir. 2008) (Fletcher, J., dissenting)
 Id. at 1082.
 See Id.
 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.)
 Id. at 760.
 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).
 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.”)
 Id. at 1068.
 See Navajo Nation, supra note 1, at 1064, 1073.
 Id. at 1073.
 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).
 Navajo Nation, supra note 1, at 1071,1080.
 Id. at 1071.
 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).
 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.