6/13/2012 Navajo Hopi Observer: 2 More Hopi Villages, Bacavi and Shungopavi join Hotevilla in opposing water rights settlement
10/13/2011 ALERT: McCain Bill Will Open 1 Million Grand Canyon Acres to Uranium Mining – Take Action
10/13/2011 Center for Biological Diversity ALERT: Take action to tell your senators to oppose all provisions blocking a drilling ban. Today GOP lawmakers led by Senator John McCain (R-AZ) and Rep. Paul Gosar (R-AZ) announced legislation that would open one million acres of public lands forming Grand Canyon National Park’s watershed to new uranium mining. The bill would overturn an existing moratorium on new mining and mining claims. “It is unconscionable that Senator McCain and Representatives Flake and Franks are seeking to undermine protections for Grand Canyon and its watershed and showing so little regard for the people of Arizona, including all of those who expressed strong support for protecting these lands from uranium mining and the pollution it produces,” said Sandy Bahr, chapter director, Sierra Club – Grand Canyon Chapter.
The Grand Canyon and four corners region still suffer the pollution legacy of past mining. American Indian tribes in the region – Havasupai, Hualapai, Kaibab-Paiute, Navajo, and Hopi – have banned uranium mining on their lands. Water in Horn Creek, located in Grand Canyon National Park just below the old Orphan uranium mine, exhibits dissolved uranium concentrations over 10 times the health-based standards established by the Environmental Protection Agency for drinking water, while groundwater sumps below old mines north of Grand Canyon have measured dissolved uranium more than 1000 times allowable for drinking water standards. “Neither mining corporations, lawmakers nor public agencies can guarantee that uranium mining wouldn’t further contaminate aquifers feeding Grand Canyon’s springs and creeks. Such pollution—as we see in Horn Creek today–would be impossible to clean up,” said Taylor McKinnon with the Center for Biological Diversity. “A decade ago Senator McCain was a defender of Grand Canyon. Today he’s one its greatest threats.”
10/13/2011 Center for Biological Diversity Take Action: McCain Bill Would Open 1 Million Grand Canyon Acres to Uranium Mining:The world-famous Grand Canyon is under attack again — this time from politicians in Arizona. Republican lawmakers led by Sen. John McCain (R-Ariz.) and Rep. Paul Gosar (R-Ariz.) proposed legislation Wednesday to open 1 million acres of public lands around Grand Canyon to new uranium mining. The bill would overturn a temporary ban on new uranium mining — a ban the Center for Biological Diversity’s been fighting to extend — and block Interior Secretary Ken Salazar’s recent proposal to keep the ban in place for the next 20 years.
Despite widespread public support for the ban and more than 100,000 comments from Center supporters this summer, McCain and his friends in the mining industry want to allow the damaging plunder of the iconic Grand Canyon landscape for uranium. Sadly, the region still suffers the pollution legacy of past mining. The Havasupai, Hualapai, Kaibab-Paiute, Navajo and Hopi have all banned uranium mining on their lands, and for good reason: Groundwater below old mines north of the Canyon has measured dissolved uranium at more than 1,000 times what’s allowable for drinking-water standards.
We’re gearing up to fight McCain and his cronies to make sure the Grand Canyon’s future is focused on pristine landscapes, not polluted ones.
9/17/2011 Gallup Independent: Options discussed to save the Peaks from reclaimed water use at Snowbowl
9/17/2011 Gallup Independent: Options discussed to save the Peaks from reclaimed water use at Snowbowl By Kathy Helms, Dine Bureau: WINDOW ROCK – Navajo Nation President Ben Shelly will travel to Geneva, Switzerland, next week to hear U.N. Special Rapporteur James Anaya’s report to the U.N. Human Rights Council on the protection of sacred sites. On the home front, efforts will continue to ensure reclaimed water is not used to desecrate the sacred San Francisco Peaks. Some present and former Navajo Nation Council members and a representative of Dine Hataalii Association met in August with officials from the Arizona Snowbowl ski resort to discuss options to stop the use of reclaimed water for artificial snow-making at the resort.
A preferred alternative would be to support amending the U.S. Forest Service permit to allow the use of well water drawn from land at the base of the mountain owned by the Snowbowl. A water source that does not rely on Flagstaff’s water treatment plant and is not connected to the city system would ensure reclaimed water is not used.
Ivan Gamble of LeChee, who does not work for any of the entities involved and said he has never skied at the Snowbowl, has been trying to facilitate discussions between Navajo, Hopi and Snowbowl owners.
“We used to have a very good working relationship with the tribes back in the mid-’90s when we supplied a lot of logs for reconstruction of the villages and the kivas,” Eric Borowsky, Snowbowl general partner, said Friday. “Then once we started the upgrade proposal, the Forest Service said we could no longer have direct communication with the tribes, it all had to be government to government.”
Borowsky said he has been trying to come up with an alternative water source. “We do have permission to use reclaimed water, but I know the tribes would like a different source of water. I’m very happy to work with them to try to come up with an alternate solution and to return to the days when we had a very good working relationship.”
The possibility of drilling wells has been mentioned, he said, but whether to move forward on that option would be up to the tribes. “They have to take a formal position on this matter and then we’ll have to work together to try to make it happen.”
Jerry Honawa, 74, of Hotevilla, a member of the Tobacco Clan and the Pure Moon Society, has started a petition to obtain signatures of traditional practitioners from various villages and kivas at Hopi.
San Francisco Peaks, or Nuvatukyaovi in Hopi, is considered the “Temple of the Gods,” Honawa said Friday. “From what we are taught about our migration, this is one of the farthest northern temples from the migration from way down South America somewhere. They left temples along the way, and this is the last one on this continent.”
Honawa does not condone the string of protests which have been taking place in Flagstaff and Albuquerque. “The way it is done does not signify anything that a practitioner or a medicine man would be doing.” The proper way would be dialog across the table, he said, “rather than on the street corner yelling my lungs out. This is the way I believe and this is the way I was raised.”
Honawa does not speak for the kikmongwis, or traditional village chiefs, because Hotevilla doesn’t have a kikmongwi anymore. “They’re kind of extinct,” he said. “But we do have acting people that are kind of like the leaders within the village.”
In addition, each kiva has a person they look to as their leader for whichever clan is responsible for that kiva, he said. “We have six of them here. Out of the six, three are the responsibility of the Snake Clan and the Sand Clan, one is the Badger/Butterfly, one of them is the Sun Clan, and the other is the Spider/Bluebird.”
As the Tobacco Clan patriarch, Honawa visits most of the kivas, he said. “Tobacco is at every kiva and I go to each one of them at certain periods of time. I am also a member of the Pure Moon Society, and that is where the smoke hazing of the Katsinam (Hopi ancestral spirits) is prevalent. That’s the kiva of the Badger Clan People, where the Pure Moon Society has their headquarters, basically.”
The Hopi believe that the Katsinam are responsible for moisture and that the installation of snow-making technology within the 777-acre special use permit area would alter the natural processes of the San Francisco Peaks and the responsibilities of the Katsinam. The use of reclaimed water, especially, would contaminate the natural resources needed to perform the required ceremonies that are the basis of Hopi cultural identity.
Hopis often are asked why they aren’t seen when they make their pilgrimages to Nuvatukyaovi. The reason is “a lot of this is done in a sacred way to where it is not for the public eye,” Honawa said.
“One of my first experiences, when my grandfather was still with us, I took him there; and when we saw these people, he said, ‘Act like we’re not doing anything special.’ We acted like tourists, and then when the people were gone, then we continued. These are some of the things that they practice and they asked us to carry it like that.”
Honawa’s petition states that the signers do not support artificial snow-making. “This issue has gone on too long, has been fought in the wrong places. We support the compromise being fashioned between the various entities and hope they are able to secure a compromise based on good faith and mutual understanding.”
A focus group from Navajo District 5, which is comprised of elders from Birdsprings, Leupp and Tolani Lake, said it would be less offensive to use well water on the mountain, known to Navajo as Dook’o’oosliid, rather than reclaimed water. Dine Hataalii Association reportedly is weighing the option and has not issued an outright objection.
9/7/2011 CENSORED NEWS: Special Rapporteur reports on San Francisco Peaks to UN Human Rights Council
9/7/2011 CENSORED NEWS: Special Rapporteur reports on San Francisco Peaks to UN Human Rights Council By Brenda Norrell FLAGSTAFF, Ariz. — UN Special Rapporteur James Anaya submitted a report to the UN Human Rights Council stating alleged human rights violations of indigenous peoples around the world. In the US, the report includes the plan to violate sacred San Francisco Peaks with snow made from wastewater. The report also includes the case of imprisoned Leonard Peltier and the protection of sacred Sogorea Te (Glen Cove in Calif.) The international cases of human rights abuses include the Wixarika (Huicholes) in Mexico struggling to protect their sacred lands from mining, along with cases from indigenous peoples in Guatemala, Chile, Israel, Ethiopia, Costa Rica, Malaysia and Thailand, in Anaya’s Aug. 22 report.
Anaya urged the US to review the need to protect sacred San Francisco Peaks from the plan to use recycled wastewater for snowmaking by the private corporation Arizona Snowbowl. Further, Anaya urged the US to carry out consultation with American Indian Nations as required by US law and in accordance with international human rights obligations.
Anaya, pointing out the sacred nature of San Francisco Peaks to area Indian Nations, said, “To them, the sacredness of the San Francisco Peaks depends on the purity of the water and plant life in the area, which allegedly will be contaminated if wastewater is introduced into the Peaks through the planned artificial snowmaking.”
Anaya states San Francisco Peaks is sacred to 13 area American Indian Nations and points out the specifics of the connections of Hopi and Navajo to the sacred mountain.
In his recommendations to the UN Human Rights Council, Anaya said the US should give serious consideration to suspending the permit for the Arizona Snowbowl.
“In this connection, the Government should reinitiate or continue consultations with the tribes whose religions practices are affected by the ski operations on the San Francisco Peaks and endeavor to reach agreement with them on the development of the ski area. The Government should give serious consideration to suspending the permit for the modifications of Snowbowl until such agreement can be achieved or until, in the absence of such an agreement, a written determination is made by a competent government authority that the final decision about the ski area modifications is in accordance with the United States’ international human rights obligations.”
Annex X United States of America: Situation of the Native Americans in relation to artificial snowmaking from recycled wastewater in the San Francisco Peaks USA 1/2011
1. In a communication of 10 January 2011, the Special Rapporteur on the rights of indigenous peoples, James Anaya, called the attention of the Government of the United States of America to information received relating to the proposed use of recycled wastewater for a commercial ski operation the San Francisco Peaks (or the “Peaks”), a mountainous area that is sacred to several Native American tribes. The full text of this communication can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council. In his communication the Special Rapporteur requested a response within 60 days. He regrets that there is no record of a response in the files of the Office of the High Commissioner for Human Rights at the time of finalization of this report. In the absence of a response, the Special Rapporteur developed the observations below, which include an evaluation of the situation and recommendations to the Government of the United States. These observations were transmitted to the government on 6 July 2011.
2. The San Francisco Peaks are located north of the city of Flagstaff, Arizona within land that is administered by the United States Forest Service as part of the Coconino National Forest. According to information received, the Arizona Snowbowl Resort Limited Partnership (“Snowbowl”) owns and operates a commercial ski operation in the western flank of the San Francisco Peaks, under a 777-acre special use permit issued by the Forest Service. In 2002 Snowbowl filed an application for expansion of its facilities, including a request for approval to make snow from treated sewage effluent. In February 2005, the Forest Service issued its Final Environmental Impact Statement and Record of Decision approving the proposed artificial snowmaking from recycled waste wastewater, the construction of a pipeline from Flagstaff to carry the treated effluent from Flagstaff and improvement of guest service facilities. Several Native American tribes and organizations have vigorously opposed the Forest Service’s decision. To them, according to sources, the sacredness of the San Francisco Peaks depends on the purity of the water and plant life in the area, which allegedly will be contaminated if wastewater is introduced into the Peaks through the planned artificial snowmaking. However, their federal court lawsuit to challenge the approval of artificial snowmaking on, inter alia, religious freedom grounds was unsuccessful. 1
Observations of the Special Rapporteur
3. On the basis of information he has received and gathered on this situation, which he considers to be in material respects undisputed, the Special Rapporteur offers the following 1 See Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S.Ct. 2763 (2009). A/HRC/18/35/Add.1 44 observations, in the hope that they will serve to promote appropriate action by the United States to address the human rights matters raised.
4. The extensive documentation by the Government and federal courts in relevant proceedings makes clear that the San Francisco Peaks are sacred to several Native American tribes, and that the presence of the ski operation and now the initiative to make artificial snow from recycled wastewater on the Peaks offend the religious beliefs and practices of members of these tribes. Apart from the provisions of domestic law that have been applied by the courts to examine this situation, international standards, including those based on human rights treaties to which the United States is a party to and the Declaration on the Rights of Indigenous Peoples, require adequate consultation and close scrutiny for any action that affects the sacred sites and religious practices of indigenous peoples. The United States should engage in a comprehensive review of its relevant policies and actions to ensure that they are in compliance with these international standards in relation to the San Francisco Peaks and other sacred sites of Native Americans, and should take appropriate remedial action. In the paragraphs below, the Special Rapporteur elaborates upon these points. The effects of the planned snowmaking on Native American religion
5. The Special Rapporteur is aware that the development of the Snowbowl ski area and the recent plans for expanding its facilities, including for artificial snowmaking with recycled wastewater, have proceeded with extensive examination and documentation by the Government and federal courts of the impacts on Native American culture and religion. Required environmental impact studies and the legal challenges to the federal permits for Snowbowl’s expansion on the San Francisco Peaks have prompted this examination and documentation, which make abundantly clear the sacred character of the Peaks to the tribes, the affront on their religious beliefs and the tribes’ opposition to the planned snowmaking.
6. The Final Environmental Impact Statement compiled by the U.S. Forest Service to assess the proposal for artificial snowmaking and other additions to Snowbowl’s operations on the Peaks included the following observations: The San Francisco Peaks are sacred to at least 13 formally recognized tribes that are still actively using the Peaks in cultural, historic, and religious contexts. A central underlying concept to all tribes for whom the Peaks are especially important is the recognition that the San Francisco Peaks are a source of water in the form of rain, springs, and snow. It is believed that the Peaks were put there for the people and it is therefore the peoples’ duty to protect it for the benefit of the world… [N]ine
significant qualities… characterize the Peaks for the tribes.
These qualities include:
• They are the abode of deities and other spirit beings.
• They are the focus of prayers and songs whereby humans communicate with the supernatural.
• They contain shrines and other places where ceremonies and prayers are performed.
• They are the source of water.
• They are the source of soil, plant, and animal resources that are used for ceremonial and traditional purposes.
• They mark the boundaries of traditional or ancestral lands.
• They form a calendar that is used to delineate and recognize the ceremonial season. A/HRC/18/35/Add.1 45
• They contain places that relate to legends and stories concerning the origins, clans, traditions, and ceremonies of various Southwestern tribes.
• They contain sites and places that are significant in the history and culture of various tribes.
Two examples of the cultural significance of the San Francisco Peaks are the Hopi and Navajo peoples’ religious and spiritual connections to the Peaks, as discussed below.
Hopi clans migrated through the San Francisco Peaks (called Nuvatukyaovi, “High Place of Snow”), made settlements nearby, and placed shrines on the Peaks. All of the religious ceremonies focus on Nuvatukyaovi and demonstrate the sacred relationship of the Peaks to the Hopi people. The history of clan migrations through the area continue to be related, discussed, and passed on from generation to generation. The Peaks contain clan and society shrines, and gathering areas for medicinal and religious use. Hopi religious leaders visit the Peaks annually. The San Francisco Peaks are the spiritual essence of what Hopis consider the most sacred landscapes in Hopi religion. They are the spiritual home of the Katsinam, significant religious beings that all Hopis believe in, and are therefore, sacred. The ceremonies associated with the Peaks, the plants and herbs gathered on the Peaks, and the shrines and ancestral dwellings located in the vicinity of the Peaks are of central importance to the religious beliefs and traditions that are the core of Hopi culture….
The Navajo people believe that the Creator placed them on land between four sacred mountains: Blanca Peak in Colorado, Mount Taylor in New Mexico, the San Francisco Peaks in Arizona, and Hesperus Peak in Colorado. According to their own
history, the Navajos have always lived between these mountains. Each of the four mountains is associated with a cardinal direction, symbolizing the boundaries of the Navajo homeland. For the Navajo, the Peaks are the sacred mountain of the west, Doko’oo’sliid, “Shining on Top,” a key boundary marker and a place where medicine men collect soil for their medicine bundles and herbs for healing ceremonies. Navajo traditions tell that San Francisco Peak was adorned with Diichilí, Abalone Shell, Black Clouds, Male Rain, and all animals, besides being the home of Haashch’éélt’i’í (Talking God), Naada’algaii ‘Ashkii (White Corn Boy), and Naadá ‘Altsoii ‘At’ééd (Yellow Corn Girl). The sacred name of the Peaks is Diichilí Dzil – (Abalone Shell Mountain). The Navajo people have been instructed by the Creator never to leave their sacred homeland. Dook’o’osliid and the other three sacred mountains are the source of curing powers. They are perceived as a single unit, such as the wall of a hogan, or as a particular time of a single day. Dook’o’osliid is seen as a wall made of abalone shell and stone, with mixed yellow and white bands….
The 1975 Hopi Tribal Resolution noted that there are numerous medicinal herbs and other plants at several levels of the Peaks that are used to treat the ailments of the Hopi people. The Forest Service is unaware of any plants or other natural resource material used by the Hopi within the Snowbowl … area; however, the addition of new trails, increased parking, and the potential for additional annual visitation within the … area and the San Francisco Peak themselves causes concern among the Hopi and other tribes that their areas of traditional use would be impacted. Specifically, A/HRC/18/35/Add.1 46 the Hopi make pilgrimages to shrines and use the Peaks for religious reasons such as gathering evergreens and herbs and delivering prayer feathers. Although the reclaimed water proposed for use in snowmaking fully meets both the Federal and Arizona state water quality standards, it is believed that trace levels of unregulated residual constituents within reclaimed water (e.g., pathogens, pharmaceuticals, hormones, etc.) could negatively impact the spiritual and medicinal purity of resident flora on the Peaks. Several specific concerns have been raised about the impact of snowmaking on the spiritual values of the Peaks.
An additional concern is that some of the reclaimed water once passed through hospitals or mortuaries could carry the spirits of the dead with it. Those spirits, as part of the water draining from the Peaks, would then infiltrate plants, thus affecting their ritual purity.
From both a Hopi and Navajo perspective, any plants that would come into contact with reclaimed water would be contaminated for medicinal purposes, as well as for use in ceremonies needed to perpetuate their cultural values…. The Hopi believe that the Katsinam are responsible for moisture and that the installation of snowmaking technology within the SUP [special use permit] area would alter the natural processes of the San Francisco Peaks and the responsibilities of the Katsinam.
The Hopi, Navajo, and other tribes have existed in the region of the San Francisco Peaks for thousands of years and have developed their cultures and religious institutions around the natural and cultural landscape of the San Francisco Peaks. Traditions, responsibilities, and beliefs that delineate who they are as a people, and as a culture, are based on conducting ritual ceremonies they are obligated to perform as keepers of the land. These obligatory activities focus on the Peaks, which are a physical and spiritual microcosm of their cultures, beliefs, and values. Snowmaking and expansion of facilities, especially the use of reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of these tribes. 2
7. The records of the proceedings in federal court litigation concerning Snowbowl’s ski operations on the San Francisco Peaks reinforce the above assessment of the sacred character of the Peaks, and of the effects on Native American religion of the planned snowmaking and other modifications, on top of the effects of the existing ski facilities. 3 Even while holding that the Government’s approval of the Snowbowl modifications did not violate federal law, the Ninth Circuit Court of Appeals, sitting en banc, acknowledged the sacred character of the San Francisco Peaks and that “[t]o the [tribes], the [presence of recycled wastewater] will desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain”. 4
8. Despite such acknowledgment, the federal appellate court held that this impact on religion is not of the kind that could lead to finding a violation of the federal Religious 2 USDA Forest Service, Arizona Snowbowl Facilities Improvements Final Environmental Impact Statement, Vol. 1 (2005), pp. 3-7 to 3-11, 3-16 to 3-18 (hereinafter “FEIS”). 3 See Navajo Nation v. United States Forest Service, 408 F. Supp. 2d 866 (D. Ariz., 2006), aff’d in part and rev’d in part, 479 F.3 1024 (9th Cir. 2008); aff’d on rehearing, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S.Ct. 2763 (2009); Wilson v. Block, 708 F.2d 735 (D.C. Court of Appeals, 1983), cert. denied 463 U.S. 958 (1983). 4 Navajo Nation v. United States Forest Service, 535 F. 3d 1058, 1070 (9th Cir. 2008) (en banc), cert. denied, 129 S.Ct. 2763 (2009). A/HRC/18/35/Add.1 47 Freedom Restoration Act (RFRA). For the Ninth Circuit Court of Appeals, RFRA only protects against government action that actively coerces Native American religious practitioners into violating their religious beliefs or that penalizes their religious activity with loss or threat loss of government benefits. Along with finding the absence of such conditions, the court pointed to the lower court determination that in fact no plants or religious shrines would be physically affected by the snowmaking and that practitioners would continue to have access to the mountain, including the ski area, to conduct religious activities. 5 Neither the appellate nor lower court questioned, however, that for Native American religious practitioners from several tribes, snowmaking with recycled wastewater in Snowbowl would be a desecration of a sacred mountain, even if federal and state environmental standards are met and they continue to have access to the mountain along with skiers.
9. It is not the purpose of the Special Rapporteur to review or challenge the application of domestic law by the United States judicial system. Rather, the Special Rapporteur means to draw attention to the relevant international standards that bind the United States and that should guide action by Government actors, even when certain decisions may be permissible under domestic law. The Special Rapporteur respectfully reminds the United States that the judicial applications and interpretations of the legal protections for Native American religion available under domestic law do not pose any legal barrier to Government action in accordance with a higher standard. The lack of indigenous agreement or consent to artificial snowmaking on a sacred mountain
10. In its Record of Decision to permit snowmaking from recycled wastewater and other modifications to the ski operation on the San Francisco Peaks, the United States Forest Service acknowledged that “[o]ver the years the tribes have continued to state their opposition to development at Snowbowl”, as they did in 1979 when the Forest Service was considering the option of closing down the ski operation but decided instead to allow it to expand. 6 The Forest Service reported extensive consultations with the tribes about the most recent plans for Snowbowl enhancements. “In all 200 phone calls were made, 41 meetings were held, and 245 letters were sent to Tribal officials, tribal historic preservation offices, traditional tribal leaders/practitioners, and the general tribal public”. 7
11. The Forest Service confirms that “[a]s with the decision in 1979, the proposal to improve the facilities at the Snowbowl has been met with adamant opposition from the tribes, even though there have been changes in laws, improvements in working relationships and successes in working together on other projects …”. 8 Despite this adamant opposition by the tribes based on their religious practices and beliefs, the Forest Service decided to approve the artificial snowmaking and other ski area modifications, bringing into question the United States’ adherence to international standards to which it has expressed its commitment. Article 19 of the Declaration on the Rights of Indigenous Peoples provides: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free 5 See Ibid., pp. 1063, 1070. 6 USDA Forest Service, Record of Decision – Arizona Snowbowl Facilities Improvements Final Environmental Impact Statement and Forest Management Plan #21 (February 2005), p.3 (hereinafter “FEIS-Record of Decision”). 7 Ibid., p. 9. 8 Ibid., p. 3. A/HRC/18/35/Add.1 48 prior and informed consent before adopting and implementing any legislative measure that affects them.
12. This standard of consultation and consent is a corollary of the right to self determination and the cultural rights of minorities that are affirmed, respectively, in articles 1 and 27 of the International Covenant on Civil and Political Rights, as manifested by the jurisprudence of the Human Rights Committee. 9 Additionally, it is instrumental to implementing the principles of non-discrimination found in the International Convention on the Elimination of All Forms of Racial Discrimination, as instructed by the Committee on the Elimination of Racial Discrimination (CERD). 10 In its General Recommendation 23, CERD calls upon State parties to “[e]nsure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent …”. 11
13. Under the cited human rights treaties, to which the United States is a party, and the Declaration on the Rights of Indigenous Peoples, which the United States has endorsed, consultations should take place with the objective of achieving agreement or consent by indigenous peoples to decisions that may directly affect them in significant ways, such as decisions affecting their sacred sites. Simply providing indigenous peoples with information about a proposed decision and gathering and taking into account their points of view is not sufficient in this context. Consultation must occur through procedures of dialogue aimed at arriving at a consensus. 12
14. It is far from clear that the consultations with the tribes about the artificial snowmaking and other ski area modifications were undertaken through procedures involving negotiations toward an agreed-upon outcome. It appears instead that the
consultations were more in the nature of dissemination of information about the Snowbowl development plans and gathering of views about those plans, within a process of government decision making that did not depend on agreement or consent on the part of the tribes. 13 In any case, it is beyond question that the tribes have not agreed or consented to the
Snowbowl modifications; indeed they have actively opposed them.
15. In the absence of consent by indigenous peoples to decisions that affect them, States should act with great caution. At a minimum, States should ensure that any such decision does not infringe indigenous peoples’ internationally-protected collective or individual rights, including the right to maintain and practice religion in relation to sacred sites. It is 9 See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, A/HRC/12/34 (15 July 2009), paras. 40- 41 (hereinafter “2009 annual report of the Special Rapporteur”). 10 Ibid., para. 40. 11 A/52/18, annex V at para. 4(d). 12 For a discussion of the duty of States to consult with indigenous peoples affecting them, see 2009 annual report of the Special Rapporteur, supra, paras. 36-74. 13 The Forest Service did develop a Memorandum of Agreement (MOA) related to adverse effects of the proposed ski area modifications, as a result of the nomination of the San Francisco Peaks for inclusion in the National Register of Historic Places, and it invited the tribes to sign the MOA as concurring parties. The Forest Service reported that four of the affected tribes did sign, while the others (including Navajo and Hopi) declined to do so or did not respond. FEIS-Record of Decision, pp. 26-27. The MOA does not embody or propose agreement to the ski area modifications but rather provides for a series of measures calculated to mitigate adverse effects of the development of the ski area and to protect the cultural values associated with the San Francisco Peaks. See FEIS, Appendix D. While most of the affected tribes did not sign the MOA, it is not clear that any of them were involved in developing its terms, other than indirectly through the consultations reported by the Forest Service. A/HRC/18/35/Add.1 49 therefore necessary in this case to assess the nature of the right of Native Americans to practice their religious traditions under international human rights standards and the scope of permissible restriction of the right. International standards protecting the right of Native Americans to maintain and practice their religious traditions
16. Under relevant sources of international law, the United States has a duty to respect and protect Native American religion, a duty that goes beyond not coercing or penalizing Native American religious practitioners. The right of indigenous peoples to maintain and practice their distinctive religions, including in relation to sacred areas, is protected by the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Further, it is recognized specifically by the United Nations Declaration on the Rights of Indigenous Peoples, which provides an authoritative statement of standards that States should follow in keeping with their obligations under these and other human rights treaties, as well as under the human rights clauses of the United Nations Charter. Any restriction on the right of indigenous peoples to maintain and practice their religious traditions, not just those involving active coercion or penalties, is subject to the most exacting scrutiny under these international instruments.
17. The right to practice or manifest religion or belief is protected under Article 18(1) of the International Covenant on Civil and Political Rights, which states that “[e]veryone shall have the right to freedom of thought, conscience and religion [which includes] freedom … either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” State parties have a duty to take the measures necessary to ensure the effective enjoyment of this and other rights recognized the Covenant (Art. 2(2)). In its Article 27, which is also of relevance to indigenous peoples, the Covenant gives special consideration to the rights of minorities whose cultural and religious traditions differ from those of the majority. Article 27 states, “Persons belonging to minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own
religion …”. In its interpretation of State parties’ obligations under Article 27, the Human Rights Committee, in its General Comment 23 affirmed that “positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with other members of the group”. 14
18. Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that State parties are to “guarantee the right of everyone … to equality before the law, notably in the enjoyment of …[t]he right to freedom of thought, conscience and religion.” In interpreting and applying this Convention, CERD has observed the need to take into account the particular characteristics of groups in order to achieving effective equality in the enjoyment of their human rights. Otherwise, “[t]o treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.” 15 Accordingly, in its General Recommendation 23, CERD has noted the distinctive characteristics of indigenous peoples in light of their histories and cultures, and has called upon States to take particular measures to protect their rights, including 14 CCPR/C/21/Rev.1/Add.5, para. 6(2). 15 CERD General Recommendation 32: Special Measures, para. 8. A/HRC/18 35/Add.1 50 measures to “[e]nsure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs …”. 16
19. The Declaration on the Rights of Indigenous Peoples, which reinforces the call to ensure for indigenous peoples the enjoyment of fundamental human rights historically denied to them, for its part affirms that “[i]ndigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the rights to maintain, protect, and have access in privacy to their religious and cultural sites” (Art. 12). Additionally, Article 25 of the Declaration provides that indigenous peoples’ right to “maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories … and to uphold their responsibilities to future generations in this regard.” The Declaration thus recognizes that, for indigenous peoples, the ability to effectively practice and manifest their religion and beliefs depends many times on the protection of and access to sites of particular religious
and cultural significance. Consequently, the duty of States to ensure on an equal basis the right to the free exercise of religion includes that duty to adopt safeguards for the exercise of indigenous religious traditions in connection with sacred sites. Permissible limitations on the right to maintain and practice religion
20. The international law duty of States to ensure the exercise by indigenous peoples of their religious traditions extends to safeguarding against any meaningful limitations to that exercise, not just limitations that entail coercion to act against one’s religious beliefs or penalties for doing so. Under Article 18(3) of the Covenant on Civil and Political Rights, “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” With this standard there is no qualification on the kind of limitation or restriction that must undergo examination for justification on the basis of the stated purposes. Under the plain language of Article 18 of the Covenant, any clearly observable limitation that makes for a meaningful restriction on the exercise of religion is subject to scrutiny.
21. The process of snowmaking from reclaimed sewage water on the San Francisco Peaks undoubtedly constitutes a palpable limitation on religious freedom and belief, as clearly indicated by the U.S. Forest Service’s Final Environmental Impact Statement. This limitation exists even assuming minimal physical environmental degradation as a result of the snowmaking. It bears remembering that the Ninth Circuit Court of Appeals acknowledged that the effect of the proposed use of reclaimed wastewater would constitute a desecration of the affected indigenous peoples’ religion. 17 The religious freedom at stake is not simply about maintaining ceremonial or medicinal plants free from adverse physical environmental conditions or about physical access to shrines within the Peaks. More comprehensively, it is about the integrity of entire religious belief systems and the critical place of the Peaks and its myriad qualities within those belief systems. Is the limitation on Native American religion necessary to achieve a valid public purpose or protect the human rights of others?
22. It may be concluded without much difficulty that the limitation on Native American religion resulting from the decision of the U.S. Forest Service to permit the artificial snowmaking is “prescribed by law”, in the sense that it is pursuant to the Forest Service’s authority and legally prescribed procedures for managing the lands around the San 16 CERD/C/51/Misc.13/Rev.4, para. 4(d)(e)). 17 See Navajo Nation, 535 F. 3d at 1070. A/HRC/18/35/Add.1 51 Francisco Peaks. The question remains, however, whether the limitation from that decision is “necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others”, as stipulated by Article 18(3) of the International Covenant on Civil
and Political Rights. This question in turn entails two inquires: first, whether an adequate purpose is being pursued and, second, whether the limitation on Native American religion is necessary to achieve that purpose.
23. As to the first question, whether there is a sufficient purpose within the terms of article 18(3) of the Covenant, the Human Rights Committee in its General Recommendation 22 has explained that this provision “is to be strictly interpreted:
restrictions are not allowed on grounds not specified there… Limitations may be applied only for those purposes for which they were prescribed”. 18 It is far from apparent how the decision to permit snowmaking by a private recreational ski facility is in furtherance of one of the specified public purposes – public safety, order, health or morals – or the human
rights of others. In its Record of Decision on the artificial snowmaking and other modifications to the ski area, the Forest Service explained that “[d]ownhill skiing is an important component of the recreation opportunities offered by National Forests, and the Forest Service and the ski industry have forged a partnership to provide recreational opportunities on [National Forest Service] lands.” 19 In the view of the Forest Service, “the overall benefits of providing stable winter recreational opportunities for the public and the community… merits [the] selection” of the proposed use of recycled wastewater for snowmaking operations. 20 In this connection, the Forest Service considered the financial viability of Snowbowl to be a factor: “Snowbowl’s ability to maintain or improve its current level of service and endure the business conditions caused by unreliable snowfall is questionable… [Therefore] the installation and operation of snowmaking infrastructure… will enable a reliable and consistent operating season, thereby helping to stabilize the Snowbowl’s viability”. 21
24. Even assuming that a sufficient purpose could be discerned, it is left to be determined whether the limitation on religion arising from the artificial snowmaking is necessary for that purpose, necessity being in significant part a function of proportionality. As stated by the Human Rights Committee, “[l]imitations … must be directly related and proportionate to the specific need on which they are predicated”. 22 An assessment of necessity and proportionality requires examination of the nature and severity of the limitation on religion, in relation to the identified valid purpose and the manner in which
the purpose is being pursued. In this respect as well, it is far from readily apparent how the limitation on Native American religion imposed by the planned snowmaking can be justified.
25. In determining necessity and proportionality, there must be due regard for the significance of the San Francisco Peaks in the religious traditions of the tribes, the desecration that the artificial snowmaking signifies, and the cumulative effect of that desecration. The artificial snowmaking simply builds on what already was an affront to religious sensibilities: the installation of the ski area in the first place and its gradual expansion. In its Final Environmental Impact Statement, the Forest Service noted the past, present and potential future cumulative effects of the ski operation, with its expansion and
upgrades, on the cultural resources in the area. 23 The cumulative effects on Native 18 CCPR/C/21/Rev.1/Add.4, para. 8.
19 FEIS-Record of Decision, p. 23. 20 Ibid. 21 Ibid., p. 24. 22 CCPR/C/21/Rev.1/Add.4, para. 8. 23 FEIS, supra, at 3-25.
A/HRC/18/35/Add.1 52 American religion of the expansions and upgrades of the ski operation, and not just the added effects of the snowmaking, must be found necessary and proportionate in relation to some sufficient purpose. It is highly questionable that the effects on Native American religion can be justified under a reasonable assessment of necessity and proportionality, if the purpose behind the Government decision to permit the enhancements to the ski operation is none other than to promote recreation.
26. On the basis of the foregoing, the Special Rapporteur respectfully recommends that the United States Government engage in a comprehensive review of its relevant policies and actions to ensure that they are in compliance with international standards in relation to the San Francisco Peaks and other Native American sacred sites, and that it take appropriate remedial action.
27. In this connection, the Government should reinitiate or continue consultations with the tribes whose religions practices are affected by the ski operations on the San Francisco Peaks and endeavor to reach agreement with them on the development of the ski area. The Government should give serious consideration to suspending the permit for the modifications of Snowbowl until such agreement can be achieved or until, in the absence of such an agreement, a written determination is made by a competent government authority that the final decision about the ski area modifications is in accordance with the United States’ international human rights obligations.
28. The Special Rapporteur wishes to stress the need to ensure that actions or decisions by Government agencies are in accordance with, not just domestic law, but also international standards that protect the right of Native American to practice and maintain their religious traditions. The Special Rapporteur is aware of existing government programs account their religious traditions in government decision-making with respect to sacred sites. The Special Rapporteur urges the Government to build on these programs and policies to conform to international standards and by doing so to establish a good practice and become a world leader that it can in protecting the rights of indigenous peoples.