Obama response awaited in sacred site case

Environment | Law

Monday, March 23, 2009

Tribes around the country, backed by religious groups, have submitted their views in a sacred site case up for consideration by the U.S. Supreme Court but one important voice has been missing from the debate.

The new administration of President Barack Obama was supposed to submit a brief in Navajo Nation v. U.S. Forest Service on February 6. But the high court has granted two extensions to the Department of Justice, delaying the response until April 8.

The move gives Obama's new Solicitor General -- the official responsible for Supreme Court litigation on behalf of the government -- more time to develop a position on the case. Elena Kagan, the former dean of Harvard Law School, was just confirmed to the post last Thursday and was formally introduced to the court this morning, SCOTUSBlog reported.

At issue is whether the U.S. Forest Service violated the religious rights of tribes by allowing a private ski resort to use reclaimed wastewater to make snow in the San Francisco Peaks of Arizona. Tribes say the presence of the former sewage will desecrate one of their most important sites.

An en banc panel of the 9th Circuit Court of Appeals disagreed with the tribes in an 8-3 decision last August. The court said the presence of the fake snow doesn't impose a "substantial burden" on tribal religious practices.

"This case should concern everyone who values religious freedom, human rights, public health and environmental integrity," Klee Benally, a member of the Navajo Nation who volunteers with the Save the Peaks Coalition, said in January.

The plaintiffs in the case are Navajo Nation, the Hopi Tribe, the Hualapai Tribe, the White Mountain Apache Tribe, the Yavapai-Apache Nation, individual tribal members and environmental groups. They filed a petition with the Supreme Court on January 6.

The petition argues that the 9th Circuit got it wrong regarding the meaning of "substantial burden" under the Religious Freedom Restoration Act, a law that was passed after the Supreme Court ruled against Native interests in 1990. Nearly two decades later, the tribes say there is no clear standard for determining how to protect their religious beliefs from government actions.

"RFRA is too important a statute to allow the lower courts to continue floundering in a state of confusion and disarray," the petition sates.

The National Congress of American Indians, the largest inter-tribal organization, filed a brief in support of the petitioners on February 6, when the Obama administration's response was due. A coalition of religions organizations -- including the Friends Committee on National Legislation, the lobbying arm of the Quakers -- and group of religious law scholars are also urging the high court to take the case.

So far, no groups have filed briefs supporting the government or Arizona Snowbowl, the operators of a ski resort in San Francisco Peaks. The Snowbowl's response is due April 8.

Kagan, who attended law school with Obama at Harvard, does not have much experience in Indian matters although she served on the board of American Indian Empowerment Fund, a charitable initiative created by the Oneida Nation of New York. She has never argued a case before the Supreme Court.

During the campaign, Obama vowed to help tribes protect sacred sites. "Native American sacred places and site-specific ceremonies are under threat from development, pollution, and vandalism," his platform stated. "Barack Obama supports legal protections for sacred places and cultural traditions, including Native ancestors' burial grounds and churches."

The Obama administration's stance in the case will serve as a first test of his promises on the issue. Tribes want to know whether he will change course from the Bush era, when officials rejected stronger protections for sacred sites.

9th Circuit Decision:
Navajo Nation v. US Forest Service (August 8, 2008)