I am somewhat torn by the decision on June 8, 2009, by the U. S. Supreme Court to deny cert in the case of Navajo Nation v U. S. Forest Service. Denying cert simply means that the Court has determined not to hear the appeal by the Navajo Nation. What this means in the real world is that Snowbowl will now be allowed to make snow using Class A+ reclaimed water.
I have been following the current saga since it began in 2002. At that time, Snowbowl presented the U. S. Forest Service with a propsal that included the making of artificial snow from reclaimed water. There was an immediate outcry from several tribes that in so doing, their sacred mountains would be desecrated and that the practice of their centuries old religious beliefs would be significantly impaired. For those of you who have read some of my historical summaries of Native culture, you know my feelings about the treatment afforded to the Indians by the white man. I was instantly outraged by the intusion of the white man, yet again, into the Indian’s spiritual practices. I continue to feel that way today. But before I sat down to write this and express my indignation, my old law school training told me to check out the case from a legal point of view.
A brief history may be helpful. There has been skiing in the area of Snowbowl since 1938. In 1979 Snowbowl submitted a proposal to the U. S. Forest Service to expand the area and to implement improvements. After approval of the proposal in 1981, the Indians filed suit. The case, Wilson v Block, claimed the improvements would “seriously impair their ability to pray and conduct ceremonies on the Peaks”. The Indians contended that this constitued an unconstitutional burden on their exercise of religion under the Free Exercise Clause of the First Amendment. In the end, this case was denied cert by the U. S. Supreme Court, and the Indians had lost.
The case that was denied cert a month ago began in 2005 after a series of administrative reviews and the publication of an environmental impact statement. This case was brought under a number of statutes, but ended up being decided only under the Religious Freedom Restoration Act due to certain procedural errors on the part of the Indian’s attorneys. The Ninth Circuit Court of Appeals rendered one opinion in 2006, which can be viewed here, and a second opinion in 2008. It was after this second opinion was issued, that the case was appealed to the U. S. Supreme Court on January 5, 2009. The brief to the Supreme Court for the NFS can be read here and the brief for the Navajo Nation here. These opinions and briefs set the stage for the denial of cert.
As mentioned above, my feelings are mixed. On one hand, the continued 500 year oppression of Native Americans is inexcusable and outrageous. On the other, the legal case, when studied, is a classic example of a Free Excercise of Religion case. The history of these cases involve many, many different religions, not just Native Americans. While there was a dissent in the Ninth Circuit, it appears the Supreme Court felt the legal reasoning of the majority was correct. If you read the opinions, it is clear the courts recognize and acknowledge the significance of the San Francisco Peaks to the Indians. But this is a country of laws and, as in all cases before this one, legal reasoning must find for one side or the other; there are no court ordered compromises.
In the end, the outcome on both hands saddens me.