Tag Archives: San Francisco Peaks

5/4/2012 Statement of the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, upon conclusion of his visit to the United States

5/4/2012 Statement of the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, upon conclusion of his visit to the United States: Statement of the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya,
upon conclusion of his visit to the United States 4 May 2012: Washington, D.C.– “In my capacity as United Nations Special Rapporteur on the Rights of Indigenous Peoples, I am concluding my official visit to the United States of America, which I have been carrying out over the past twelve days. During my mission, I have held consultations with indigenous peoples, tribes, and nations in Washington, D.C.; Arizona; Alaska; Oregon; Washington State; South Dakota; and Oklahoma, both in Indian Country and in urban areas. I also had a series of meetings with representatives of the executive branch of the federal government and with state government officials. I regret that my efforts to meet with members of the U.S. Congress were unsuccessful, especially given the prominent role of Congress in defining the status and rights of indigenous peoples within the United States.

I would like to thank the U.S. Department of State and other parts of the government administration for the cooperation they have provided for the mission. I would also like to express my deep gratitude to representatives of indigenous nations and peoples whose assistance in planning and carrying out of this visit has been indispensible. I am honored to have been welcomed into their communities and am humbled by the hospitality I received. I am grateful that they shared their still vibrant cultures and stories, and also their concerns with me.

My mission has been carried out against the backdrop of the United States’ endorsement of the United Nations Declaration on the Rights of Indigenous Peoples in December 2010. Over the past twelve days, I have collected a significant amount of information from indigenous peoples and Government representatives across the country, with a view to assessing how the standards of the Declaration are reflected in United States law, policy and programs at both the state and federal levels, and to identify needed reforms as well as good practices.

In the following weeks, I will be reviewing the extensive information I have received during the visit in order to develop a report to evaluate the situation of indigenous peoples in the United States and to make a series of recommendations. This report will be made public, and will be presented to the United Nations Human Rights Council, most likely at its plenary session in September. I hope that that this report will be of use to Native American, Alaska Native and Hawaiian peoples, as well as to the Government of the United States, to help find solutions to ongoing challenges that indigenous peoples in the country face, and to advance their rights in accordance with the Declaration on the Rights of Indigenous Peoples.

Over the past twelve days, I have heard stories that make evident the profound hurt that indigenous peoples continue to feel because of the history of oppression they have faced. This history—as is widely known but often forgotten—includes the dispossession of the vast majority of their lands and resources, the removal of children from their families and communities, the breakdown of their traditional structures, the loss of their languages, the breaking of treaties, and numerous instances of outrights brutality, all grounded on racial discrimination.

It is clear that this history does not just blemish the past, but translates into present day disadvantage for indigenous peoples in the country. The intergenerational trauma suffered by indigenous societies is deeply felt and manifested in deep social ills that afflict indigenous Americans in ways not experienced by others.

I have heard countless accounts of the ongoing problems that indigenous peoples face as a result of historical injustices, problems of deeply troubling economic, health, education, and development disparities. In all my consultations with indigenous peoples in the places I visited it was impressed upon me that the sense of loss, alienation and indignity is pervasive throughout Indian country. It is evident that there have still not been adequate measures of reconciliation to overcome the persistent legacies of the history of oppression, and that there is still much healing that needs to be done.

I believe that an important step in the still needed process of reconciliation is the statement of support of the Government of the United States for the Declaration on the Rights of Indigenous Peoples, and the United States should be commended for joining the rest of the countries of the world in its support for this instrument. The Declaration affirms fundamental human rights in relation to the particular historical and contemporary circumstances of indigenous peoples. It echoes fundamental values, embraced by the American constitutional tradition, of self-determination, equality, local decision-making and secure property, and respect for cultural identity. The United States must also ensure that international relations and laws governing corporate activities affecting indigenous peoples in other countries are consistent with, and promote, the application of the Declaration.

I have also heard about initiatives the Federal Government has taken in recent years to improve the conditions of indigenous peoples, which can be seen as advances towards the implementation of some provisions of the Declaration. These include initiatives to develop consultation policies and open spaces of dialogue with tribes; to settle outstanding claims; to increase funding for federal programs; and to improve education, economic development, and law and order in Indian Country. These initiatives build on some already important recognition of, and in some cases exemplary laws, policies, and programs that promote the rights of indigenous peoples in the country. I will continue to study these and other initiatives and will be reflecting positive developments in further detail in my report.

However, from the information that I have gathered, it is evident that more robust measures are needed to address the serious issues affecting Native American, Alaska Native and Hawaiian peoples in the United States, issues that are rooted in a dark and complex history whose legacies are not easy to overcome. Continued and concerted measures are needed to develop new initiatives and reform existing ones, in consultation and in real partnership with indigenous peoples, to conform to the Declaration, with a goal towards strengthening indigenous peoples’ own self-determination and decision-making over their affairs at all levels. The Declaration provides a new grounding for understanding the status and rights of indigenous peoples, upon which the legal doctrines of conquest and discovery must be discarded as a basis for decision-making by judicial and other authorities.

I have seen that many tribes across the country have capable institutions of self-governance and tribal courts, self-administered social and economic development programs, which have demonstrated significant successes and, with an understanding and knowledge of tribal realities, function at the same time to promote and consolidate indigenous cultures and values. During my visit, I heard almost universal calls from indigenous nations and tribes across the country that the Government respect tribal sovereignty, that indigenous peoples’ ability to control their own affairs be strengthened, and that the many existing barriers to the effective exercise of self-determination be removed. It should be noted that the Violence Against Women Act, which is currently pending reauthorization before Congress, contains important provisions recognizing the jurisdiction of tribes to prosecute perpetrators of violence against Indian women and to hold them accountable for their crimes, which is a good step towards addressing this distressing problem. Also, adequate funding should be provided to ensure the welfare of indigenous Americans in accordance with historical obligations, especially in areas of health, housing, and education.

I cannot conclude without providing some brief comments on issues I have heard related to the lands and resources of indigenous peoples across America. The widespread loss of indigenous peoples’ lands and resources is well-documented. The negative effects of this loss are compounded by past and ongoing activities that diminish or threaten the remaining lands and resources upon which indigenous peoples depend. Across America, past uncontrolled and irresponsible extractive activities, including uranium mining in the Southwest, have resulted in the contamination of indigenous peoples’ water sources and other resources, and in numerous documented negative health effects among Native Americans.

In Alaska and the Pacific Northwest especially, I heard about how Native peoples continue to depend upon hunting and gathering wildlife, and fishing marine resources, and how the maintenance of these subsistence activities is essential for both their physical and their cultural survival, especially in isolated areas. However, indigenous peoples informed me that they face ever-greater threats to their subsistence activities due to a growing surge of competing interests, and in some cases incompatible extractive activities, over these lands and resources. In Alaska, indigenous peoples complain about a complex and overly restrictive state regulatory apparatus that impedes their access to subsistence resources.

I also heard many stories about the significance of places that are sacred to indigenous peoples, places like the San Francisco Peaks in Arizona and the Black Hills in South Dakota, which hold profound religious and cultural significance to tribes. During my visit, indigenous peoples reported to me that they have too little control over what happens in these places, and that activities carried out around them at times affront their values and beliefs.

It is important to note, in this regard, that securing the rights of indigenous peoples to their lands is of central importance to indigenous peoples’ socio-economic development, self-determination, and cultural integrity. Continued efforts to resolve, clarify, and strengthen the protection of indigenous lands, resources, and sacred sites should be made.

I look forward to developing more detailed observations and recommendations beyond these initial comments in my report to the Human Rights Council. As I noted, my observations and recommendations will be aimed at identifying good practices and needed reforms in line with the Declaration on the Rights of Indigenous Peoples. I hope that this process will contribute to ensuring that the first Americans can continue to thrive and maintain their distinct ways of life as they have done for generations despite significant challenges, preserving this fundamental part of American history and enriching American society for the benefit of all.”

***

5/4/2012 Yahoo News: U.S. must heal native peoples' wounds, return lands

5/4/2012 Yahoo News: U.S. must heal native peoples’ wounds, return landsUNITED NATIONS (Reuters) – The United States must do more to heal the wounds of indigenous peoples caused by more than a century of oppression, including restoring control over lands Native Americans consider to be sacred, a U.N. human rights investigator said on Friday.

James Anaya, the U.N. special rapporteur on the rights of indigenous peoples, just completed a 12-day visit to the United States where he met with representatives of indigenous peoples in the District of Columbia, Arizona, Alaska, Oregon, Washington State, South Dakota, and Oklahoma. He also met with U.S. government officials.

“I have heard stories that make evident the profound hurt that indigenous peoples continue to feel because of the history of oppression they have faced,” Anaya said in a statement issued by the U.N. human rights office in Geneva.

That oppression, he said, has included the seizure of lands and resources, the removal of children from their families and communities, the loss of languages, violation of treaties, and brutality, all grounded in racial discrimination.

Anaya welcomed the U.S. decision to endorse the U.N. Declaration on the Rights of Indigenous Peoples in 2010 and other steps the government has taken, but said more was needed. His findings will be included in a final report submitted to the U.N. Human Rights Council. While not binding, the recommendations carry moral weight that can influence governments.

“It is clear that this history does not just blemish the past, but translates into present day disadvantage for indigenous peoples in the country,” Anaya said.

“There have still not been adequate measures of reconciliation to overcome the persistent legacies of the history of oppression, and that there is still much healing that needs to be done,” he said.

In Alaska and the Pacific Northwest, where some Native Americans depend on hunting and fishing, Anaya said tribes face “ever-greater threats … due to a growing surge of competing interests, and in some cases incompatible extractive activities, over these lands and resources.”

“In Alaska, indigenous peoples complain about a complex and overly restrictive state regulatory apparatus that impedes their access to subsistence resources (fish and wildlife),” he said.

SACRED LANDS

Mining for natural resources in parts of the country has also caused serious problems for indigenous peoples.

“Past uncontrolled and irresponsible extractive activities, including uranium mining in the Southwest, have resulted in the contamination of indigenous peoples’ water sources and other resources, and in numerous documented negative health effects among Native Americans,” he said.

He said indigenous peoples feel they have too little control over geographic regions considered sacred to them, like the San Francisco Peaks in Arizona and the Black Hills in South Dakota. Anaya suggested such lands should be returned to Native peoples.

“Securing the rights of indigenous peoples to their lands is of central importance to indigenous peoples’ socioeconomic development, self-determination, and cultural integrity,” Anaya said.

“Continued efforts to resolve, clarify, and strengthen the protection of indigenous lands, resources, and sacred sites should be made,” he added.

Mount Rushmore, a popular tourist attraction, is located in the Black Hills, which the Sioux tribe consider to be sacred and have territorial claims to based on an 1868 treaty. Shortly after that treaty was signed, gold was discovered in the region. U.S. Congress eventually passed a law taking over the land.

The U.S. Supreme Court ruled in 1980 that the seizure of the land was illegal and ordered the government to pay compensation. But the Sioux rejected the money and has continued to demand the return of the now public lands.

Anaya said he will make specific recommendations on these and other issues in a full report later this year.

(Editing by Cynthia Osterman)

12/21/2011 NNHRC opposes groundwater use for artificial snowmaking on Dook’o’osliid

The council needs to reject this proposed legislation [No. 0420-11],” said Navajo Nation Human Rights Commission Chairperson Duane H. Yazzie. … “The central question of the issue is our argument that the Snowbowl Ski enterprise and the U.S. Forest Service are infringing on the religious freedom rights of 13 indigenous nations of Arizona. We continue to argue that position and that position must remain at the forefront and not take away from it by discussing what water should be used to make artificial snow.”

FOR IMMEDIATE RELEASE: December 21, 2011: NNHRC opposes groundwater use for artificial snowmaking on Dook’o’osliid: ST. MICHAELS, Ariz.—The heart of the issue is the infringement of indigenous human rights in the matter of religious freedom stated a Navajo human rights official about the off- course legislation set for a vote by the Navajo Nation on Thursday, December 22, 2011, in Window Rock, Navajo Nation.

The Navajo Nation Human Rights Commission opposed Honorable Walter Phelps’ Legislation No. 0420-11, 3-0, on November 4, 2011, to send a responsible consistent message to the Navajo Nation to protect the integrity of Dook’o’osliid from irreversible adverse effects.

“The [Navajo Nation Human Rights] Commission hereby opposes Legislation No. 0420-11 which supports the use of groundwater to be used to produce artificial snow on the San Francisco Peaks for recreational and economic purposes,” according to NNHRCNOV-09-11 legislation. “The [Navajo Nation Human Rights] Commission further recommends that the Navajo Nation Council continue to support the Special Rapporteur report regarding the San Francisco Peaks and that true consultation – in the context of free, prior and informed consent—occur through procedures of dialogue aimed at a consensus on protecting the San Francisco Peaks from further desecration.”

Hon. Walter Phelps introduced the “groundwater legislation” on October 6, 2011, and it was assigned to the Resources and Development Committee where members narrowly opposed it on October 25, 2011, and to the Náabik’iyáti’ Committee of the 22ndNavajo Nation Council set to address it on Thursday, December 22, 2011.

The upcoming groundwater legislation, which has received written public scrutiny, states, “The Navajo Nation believes it is in the best interest of the Navajo People that groundwater rather than reclaimed or recovered-reclaimed water be used to make artificial snow thereby preventing Dook’o’osliid from being desecrated by reclaimed or recovered-reclaimed water.”

“The council needs to reject this proposed legislation [No. 0420-11],” said Navajo Nation Human Rights Commission Chairperson Duane H. Yazzie. “If it were to approve the legislation, it would send a mixed signal and demonstrate to the world that the Náabik’iyáti’ Committee is taking a position that is adverse to the established position of the Navajo Nation Human Rights Commission, the Diné medicine groups, the Hopi Nation, the 10 other Arizona tribes and concerned citizen groups.”

Yazzie continued, “The central question of the issue is our argument that the Snowbowl Ski enterprise and the U.S. Forest Service are infringing on the religious freedom rights of 13 indigenous nations of Arizona. We continue to argue that position and that position must remain at the forefront and not take away from it by discussing what water should be used to make artificial snow.”

“It is also a basic premise that ‘making’ snow is not within the domain of human kind,” said Yazzie. “Instead that is a power reserved by the Creator and we, as Christians or traditional believers to infringe on that power or support it, is a desecration in itself of the highest order.”

###

Rachelle Todea, Public Information Officer

Navajo Nation Human Rights Commission

P.O. Box 1689

Window Rock, Navajo Nation (AZ)  86515

Phone: (928) 871-7436

Fax: (928) 871-7437

rtodea@navajo-nsn.gov

www.nnhrc.navajo-nsn.gov

“Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development,” according to Article 3 of the U.N. Declaration on the Rights of Indigenous Peoples.

United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc A/RES/295 (Sept. 13, 2007), 46 I.L.M 1013 (2007).

10/13/2011 Gallup Independent: Tribe: Public lands threatened by copper, uranium mining

10/13/2011 Tribe: Public lands threatened by copper, uranium mining By Kathy Helms, Dine Bureau, Gallup Independent: WINDOW ROCK – Representatives of the San Carlos Apache Tribe received support Tuesday from Navajo Nation Council delegates in their opposition to a bill which would allow a subsidiary of foreign mining giants Rio Tinto and BHP Billiton to acquire more than 2,400 acres in Tonto National Forest for a massive underground copper mine. U.S. Rep. Paul Gosar, R-Ariz.-1, is sponsor of H.R. 1904: Southeast Arizona Land Exchange and Conservation Act of 2011. The land exchange would require Congress to lift a decades old mining ban within the 760 acres of federal lands known as Oak Flat, which were set aside from mining in 1955 by executive order of the Eisenhower administration.

Impacts from the mining operation will result in the “wholesale desecration of the sacred site and traditional cultural property that is encompassed by the Oak Flat, Apache Leap, and Gaan Canyon area,” San Carlos Apache Chairman Terry Rambler stated in written testimony submitted in June to the Subcommittee on National Parks, Forests and Public Lands.

“Chich’il Bildagoteel,” or Oak Flat, is home to all powerful Mountain Spirits, or Gaan, and a place of ancient settlements and burial sites. Because the Apache people’s relationship to the land is intertwined with their religious and cultural identity, it is believed “the potential harms to be visited upon this holy place threaten the cultural extinction of the Apache.”

Steve Titla, San Carlos general counsel, and Susan B. Montgomery, special legal counsel to the tribe, presented Chairman Rambler’s concerns to the Nabik’iyati’ Committee. Rambler was in D.C. to meet with Sen. Jeff Bingaman, D-N.M., on the mining issue to ask him not to hold a hearing on the bill when it comes to his committee, Montgomery said.

“We should be sending a strong message to Representative Gosar, saying, ‘You’re not going to have our vote if you continue pursuing this bill,’” Shiprock Delegate Russell Begaye said. He suggested that Navajo and other Arizona tribes make that same proclamation. “I think those types of action are in order.”

Gosar also drew criticism Wednesday when he and Sen. John McCain along with other Arizona and Utah congressional leaders introduced the Northern Arizona Mining Continuity Act of 2011, which would bar the Department of the Interior from withdrawing approximately 1 million acres surrounding the Grand Canyon from mining consideration for the next 20 years, as proposed by Interior Secretary Ken Salazar in June.

The effect of the bill would be to allow uranium and other mining operations to go forward as soon as possible.

“Senator McCain and Congressman Gosar have turned their backs on thousands of constituents living in northern Arizona who oppose uranium mining,” Roger Clark of Grand Canyon Trust said.

“Havasupai object to their sole source of water being contaminated. All five of the Native nations surrounding the Grand Canyon have banned uranium mining due to its lethal history in the region. And hundreds of businesses, local governments, ranchers, and sporting groups support Secretary Salazar’s proposed ban on new claims because it protects their livelihoods. Who are these elected representatives protecting, other than foreign-owned nuclear industries?” he said.

In respect to copper mine, Begaye said since the Navajo Nation deals with BHP Billiton, they should send the company a resolution or letter to say, “We are opposing your desecration mining in this area.” The bill allows for the company to voluntarily withdraw from the land exchange, effectively terminating the land withdrawal, he said.

According to the Congressional Budget Office, the Forest Service would convey the 2,400 acres to Resolution Copper in exchange for company-owned land of an equivalent value. Of the company land, about 1,200 acres would become part of the National Forest System while about 4,200 acres would be administered by the Bureau of Land Management.

The bill also directs the Forest Service to sell around 550 acres to the town of Superior, Ariz. Proceeds from the sale, estimated at roughly $1 million, would be spent to acquire other lands. Begaye said purchase of the land by the Nations could deter part of the proposed action.

Resolution Copper has circulated various job figures related to the mining project, however, “The job number changes as often as I change my suit,” Montgomery said. “We do think the jobs would be minimal at the location and minimal for the residents of Arizona.”

Montgomery said it is speculated that Resolution will employ a fully automated “mine of the future” technology, similar to what Rio Tinto recently launched in Australia, which allows it to control 11 mines with robotized drilling, automated haul trucks and driverless ore trains from an operations center 800 miles away.

“We are speculating because they keep a lot of this very close to the vest,” she said. “It will probably be run out of somewhere in Utah where Rio Tinto’s operations are. This is not going to be jobs to benefit the local people very much.”

In the same vein, Arizona Rep. Raúl Grijalva challenged Gosar, McCain and other Arizona mining bill co-sponsors “to explain why they support polluting the Grand Canyon area for the sake of mining company profits that rarely stay in Arizona and in some cases flow directly overseas.”

“The only people who support this are mining industry lobbyists and a handful of lawmakers ready to carry their water,” Grijalva said. “It’s cynical to tell the people of Arizona in a down economy that this bill will help them when we all know these jobs won’t be local, the profits will go out of state or overseas, and the uranium will be exported to the highest bidder.”

Titla said Begaye’s idea of sending a message to Gosar was a great idea. “I think that we can make a renewed effort to tribes to send that kind of message to Representative Gosar because in the recent redistricting, the San Carlos Tribe stood with all the other tribes in the state legislative district. I think that if those maps are passed by the Department of Justice … once we get that done we can stand together and send that kind of message.”

Thirteen tribes in addition to Navajo oppose H.R. 1904 or its predecessor bills, including Hopi, Zuni, Hualapai, Jicarilla and White Mountain Apache nations. Resolution has sought passage of the bill since around 2005.

Navajo Nation Council Speaker Johnny Naize, who was asked to sponsor a supporting resolution, said, “This issue is very, very important to us. As you heard, we are also fighting for the San Francisco Peaks, Dooko’oo’sliid … We stand on what we believe, and we believe in all our sacred sites.”

9/29/2011 Navajo Times: Peaks protesters cite rights violations

9/29/2011 Navajo Times: Peaks protesters cite rights violationsBy Alastair Lee Bitsoi: Over 130 people turned out for a hearing held by the Navajo Nation Human Rights Commission in Flagstaff on Sept. 23, which focused mostly on human rights violations rather than the sanctity of Dook’o’oosliid. The hearing was another chapter in the ongoing controversy over the use of wastewater to make snow for the Snowbowl ski resort.

“We would make the respectful request that we don’t go through that discussion again,” said Duane H. Yazzie, chair for the commission. “Very obviously, it was those testimonies we heard through public hearings, where we brought the issue to where it is today.”

“The main reason why we’re organized is to respond on acts of discrimination of Navajo people in border towns or whenever,” Yazzie said.

Rodney Tahe, the commission’s policy analyst, said the purpose of the public hearing is to gather new information from current issues surrounding the Peaks.

Tahe said the testimony from the hearing would be used for a new report, which will be submitted to the U.N.’s Special Rapporteur, Professor James Anaya.

On Sept. 21, Anaya presented his report – Report by the Special Rapporteur on the Rights of Indigenous Peoples – to the 18th session of the U.N. Human Rights Council in Geneva, Switzerland.

Anaya’s report included the testimony of the Navajo Nation and Hopi Tribe on the San Francisco Peaks – a mountain both tribes consider sacred.

“We are not here to hear again the significant religious premise, beliefs as related to the Peaks,” Commissioner Steve Darden said before testimony began.

Darden also said those individuals testifying need strong evidence to back up their claims of any human rights violations.

In total, 20 Navajos and non-Navajos provided testimony about criminalizing protests and issues regarding property, health, environment, policy and indigenous human rights.

Three of those testifying included Klee Benally, 36, of Black Mesa, Ariz., Lyneia Begay, 21, of Flagstaff, and Marlena Garcia, 17, also of Flagstaff.

When Benally spoke most in the crowd raised their hands when he asked if they felt their human rights were violated during their recent protests and encampment on the Peaks.

“I’m here before the NNHRC to address specific violations and request for immediate relief from those violations,” Benally said.

To date, Benally has been arrested twice and faces a total of three charges: obstruction to a public thoroughfare during an Aug. 7 march and disorderly conduct and trespassing from Aug. 13 protest.

Benally showed video footage of an incident when he was asked to leave the Snowbowl premises on the opening day of the ski resort’s winter season.

Benally said Snowbowl security officials interfered with prayer gatherings and his group has been singled out and harassed by local police and he has experienced racism, among other violations.

Benally also said the Arizona Daily Sun has been biased in its news coverage. The Navajo Times and other papers covering tribal communities have largely ignored the issue, he said.

Benally recommended the commissioners visit areas being desecrated and witness what many of the young Native and non-Native protestors have faced when being arrested.

“The time for inaction has far been over,” he said. “If it is true, what has been taught to me, what I have heard countless times at ceremonies, in sweat lodges, at flea markets, if it is true that our cultural survival is at stake, then declare a state of cultural crisis and take action accordingly.”

In her testimony Begay said she has experienced racism and hatred for being a strong advocate for the preservation and protection of Dook’o’oosliid.

“Go get a life,” “return to your teepee on the reservation,” and “there goes the squaw” are some of the racial remarks Begay said she has heard while living in Flagstaff.

“It’s time we take care of our youth,” Begay said, “before it’s too late. Which begs the question, when is too late? Right now, you’re asking for documentation, evidence, a bureaucratic process that emulates the very justice system that has made it impossible to prosecute non-Natives who rape Native women. Do you see the correlation? I hope so.”

Marlena Garcia, 17, also of Flagstaff, said Coconino County sheriffs nearly choked her to death when she was arrested during a June 16 protest against the Snowbowl’s construction of pipelines.

“I told police officers they were choking me and they told me I was fine,” Garcia said. “It was not until I started to lose consciousness that they let me go. The officers denied everything. Within hours, I had bruises and was really sore.”

Flagstaff Mayor Sara Presler attended the hearing and said she’s looking forward to receiving a report and to share the testimony with the city council and other community leaders.

Vice Mayor Celia Barotz was also present but no members of the city council attended the hearing.

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.

Background
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

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….

Navajo
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….

Environmental Consequences
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.

Recommendations
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.

8/22/2011 CENSORED NEWS: Hopi file lawsuit over recycled wastewater on San Francisco Peaks

8/22/2011 CENSORED NEWS: Hopi File Lawsuit over Sewage Effluent Contract By Hopi Tribe: The Hopi Tribe Initiates Litigation against the City of Flagstaff to Enjoin the Illegal Contract for the Sale of Reclaimed Wastewater to the Snowbowl. KYKOTSMOVI, Ariz. – On Friday, August 19, 2011, the Hopi Tribe filed a lawsuit against the City of Flagstaff in Arizona Superior Court in Coconino County challenging the City’s decision in September 2010 not to amend or cancel the contract for the sale of reclaimed wastewater to the Arizona Snowbowl ski resort (“Snowbowl”) for snowmaking.

The lawsuit states that the City’s contract to sell 1.5 million gallons of reclaimed wastewater per day to Snowbowl is illegal because it violates several Arizona laws that govern the proper use of reclaimed wastewater. The contract provides for the use of reclaimed wastewater in a mountain setting where runoff and overspray cannot be prevented, as Arizona law requires. Additionally, restrictions on limiting human contact with wastewater cannot be met, and harm to the unique alpine environment in the area, including rare animals and plants, cannot be prevented.

The contract is also illegal under Arizona law because it will result in unreasonable environmental degradation and will further deplete limited drinking water resources. As stated in the complaint, the use of reclaimed wastewater for snowmaking will unreasonably harm the environment, create a public nuisance, and infringe upon the public’s, including the Hopi Tribe’s, use and enjoyment of the area around Snowbowl as well as infringe on the Hopi Tribe’s reserved water rights.

The City’s sale of reclaimed wastewater to the Snowbowl will cover a portion of the San Francisco Peaks with artificial snow made from reclaimed wastewater. The San Francisco Peaks, and in particular Snowbowl, is ecologically unique and contains rare types of habitat and species. The City’s illegal contract allows wastewater to run off and spray into wilderness areas specifically used by the Hopi Tribe and others, impeding and infringing on the use and enjoyment of these areas by the Hopi Tribe and others.

Reclaimed wastewater is water that has been used and processed through the City’s wastewater system. Snowmelt from artificial snow made from reclaimed wastewater will be environmentally harmful because it contains chemicals including endocrine disruptors, which can interfere with natural hormone levels and processes in humans and animals. Negative impacts of endocrine disrupters include aberrant sexual development, behavioral and reproductive problems. Key species in the San Francisco Peaks ecosystem, such as frogs, are particularly susceptible to these harmful effects.

The Hopi Tribe will show that the illegal contract for the sale and use of reclaimed wastewater at Snowbowl will result in a very large net economic loss for the San Francisco Peaks community. The small increase in profits anticipated by the Snowbowl and minimal economic benefits to the area are far outweighed by much higher costs, including environmental damage, for the San Francisco Peaks’ community, including the Hopi Tribe.

The effects of the reclaimed wastewater cannot be confined to the ski area and, therefore, users of the Peaks in the vital and accessible areas around Snowbowl will be harmed if the illegal contract is allowed to stand. The Hopi Tribe seeks a judicial order prohibiting performance on this contract to sell reclaimed wastewater to Snowbowl, as the contract is for an illegal purpose and contrary to public policy.

The Hopi Tribe Chairman Leroy Shingoitewa stressed the importance of the case to the Hopi Tribe. “The health and safety of the Hopi people is indistinguishable from the health and safety of the environment — protection of the environment on the San Francisco Peaks is central to the Tribe’s existence. The use of reclaimed sewage on the San Francisco Peaks as planned by the City of Flagstaff and Snowbowl will have a direct negative impact on the Hopi Tribe’s frequent and vital uses of the Peaks.”

For more information, contact (928) 734-3107.

CENSORED NEWS: Arizona Daily Sun's pitiful explanation for censorship

CENSORED NEWS: Arizona Daily Sun’s pitiful explanation for censorship By Brenda Norrell: Today, the Arizona Daily Sun in Flagstaff makes a pitiful explanation for its censorship of news coverage of the protests of Protect the Peaks and the 19 arrests in the past nine days. First the Arizona Daily Sun whines about not having enough reporters, but of course the reporters they do have are out covering other stories. Then, the Arizona Daily Sun attempts to defame Native Americans struggling to protect their sacred San Francisco Peaks, and insults them.

When all else fails, the Arizona Daily Sun just dismisses the whole thing by saying, “there doesn’t appear to be a lot of new news on the horizon.”

Well, this may be the most pathetic excuse for censorship in history. It may also be the most pathetic coverup of protecting and cheerleading for the business desecrating the sacred San Francisco Peaks, the Arizona Snowbowl ski resort, and its owner, Eric Borowsky, who lives in Scottsdale, not Flagstaff.

Besides covering up for the profiteering Snowbowl, the Arizona Daily Sun covered up for Flagstaff police who targeted organizers in a peaceful march last Sunday, and dragged them out into the street to arrest them.

The pathetic note, in a series of notes, in today’s Arizona Daily Sun can be translated this way: “We aren’t going to cover this breaking news, and 19 arrests by sending out a reporter and photographer, because we are a white elitist newspaper and focus on white people and money-making profiteers. We can always come up with an excuse to censor, and cover our backs, because we are the ones publishing this newspaper and no one can force us to abide by the ethics of journalism. We don’t really care what local Native Americans have to say because we give priority to white people, and people who are exploiting the natural resources, profiteering from other peoples misery and profiteering from the desecration of their sacred places.”

— Brenda Norrell
(Brenda Norrell, publisher of Censored News, is a former reporter for the Arizona Daily Sun and AP.)

Read more of the Arizona Daily Sun coverup

NOTE: The reporters were even spoonfed with press statements, video and photos from people on the scene. There is no excuse for this. There was no travel invovled for Arizona Daily Sun reporters to go downtown to the protests. They could have ridden a bicycle. The reporters could even sit in their easy chairs, like many other armchair reporters, publish the press statements, quote from the video, post the free photos, and there you have it, almost a news story.

And of course, there’s always the phone call. Along with a free photo, the phone call interview is the perfect reporter’s coverup for not being there.
–Brenda Norrell

8/10/2011 CENSORED NEWS: Blockade halts ski resort destruction and desecration of Holy Mountain

8/10/2011 CENSORED NEWS: Blockade halts ski resort destruction and desecration of Holy Mountain By Protect the Peaks Press statement Censored News: FLAGSTAFF, Ariz. — (August 8th, 2011) Nine people took direct action at 5:00 AM on Monday morning, blockading the ongoing destruction and desecration of the Holy San Francisco Peaks. Nine individuals directly confronted the ecocidal actions of Arizona Snowbowl, halting their daily clear-cutting and pipeline excavation plans for eight hours.

Responding sheriffs deputies immediately arrested the group’s police liaison, who was ensuring the safety of demonstrators. More than 50 law enforcement officials used industrial saws and a jack hammer to forcefully break apart the blockade.

“The action we took today is one part of a series of events with the intent to stop Snowbowl, the US Forest Service, and other corporations from further desecrating the Holy San Francisco Peaks,” stated Haley Coles after being released from jail. “The pipeline will not be tolerated. Spewed waste water turned into artificial snow will not be tolerated. Clear cuts, slash piles, and burning of hundred-year old trees will not be tolerated. The Holy mountain will be defended, and the desecration will be stopped; at whatever cost. We have the mountain on our side,” said Coles.

Stephen Zavodynik, also arrested during Monday’s blockade, stated, “Today, a small group of people decided that they had enough of wealthy investors, cultural genocide, and privileged white people who are indifferent to the destructive impacts of their recreational activities. We decided to take matters into our own hands and you can too. Whatever you feel is sacred, defend it with all your heart and take a risk, because our future generations will not forgive inaction.”

“As a snowboarder, I support an immediate reversal of all construction related to the expansion and spreading of treated sewage on the sacred San Francisco Peaks. It is our obligation to act immediately to prevent ongoing cultural genocide and environmental destruction just miles from where we live, where old growth forest is culled using slash and burn foresting techniques while huge, diesel-powered machines cut into the earth in preparation for the import of hormones, carcinogenic chemical compounds, and fecal matter onto the highest reaches of the San Francisco peaks.

Allowing Arizona Snowbowl to buy treated sewage from the City of Flagstaff is an absolute failure of our elected representatives to protect the civil rights of indigenous members of the Flagstaff community. I will continue to use any means necessary to protect the peaks and support my friends and community members.” stated Kennedy.

Jenna Tomasello, who was also part of the action, stated that “Almost all of our options have been exhausted. The US Supreme Court failed to protect religious freedoms of Native peoples. The Flagstaff City Council has failed to meaningfully listen to its constituents who have consistently vocalized their opposition to Arizona Snowbowl development for decades. And the US Forest Service has failed to protect the public from the environmental impacts of treated sewage effluent. It is time for more people, wherever you are, to open your eyes. Respect the land of which we are dependent on and the people that the land has been stolen from. The only choice for us is to take action against those who threaten Indigenous cultures, the environment and our future. It’s frustrating that we had to do this in order to make this point clear.” stated Tomasello.

“For those of us who have chosen to fight the colonial strongholds, we have also chosen to fight for the minds that hold this power. If harmony is to prevail, all beliefs attempting to control nature must be liberated. We belong to the Earth; the Earth does not belong to us.” stated Tom Lang, who was part of the action.

All 10 arrested were released within hours due to strong outpouring of community support. 17 people have been arrested during a community “Week of Action to Protect the Peaks.” 23 arrests have been made since June 16, when 6 people locked themselves to Snowbowl excavators and inside sewage pipeline trenches.

“This was an autonomous action planned by those who took part. It was beautiful and powerful and very responsible. We took every measure to ensure our safety. Nobody was unwillingly put in the way.” stated Rudy Preston, the arrested police liason for the group. “The Civil Disobedience roadblock on the mountain was not a family event or publicized with the rest of the legal actions planned for the ‘Week of Action.'” stated Preston.

Since May 25, 2011, the owners of Arizona Snowbowl, with the support of the U.S. Forest Service and the Flagstaff City Council, have laid over five miles of a 14.8 mile wastewater pipeline and have clearcut over 40 acres of rare alpine forest. A current lawsuit against the Forest Service focusing on the human health impacts of wastewater snowmaking is still under appeal in the 9th Circuit Court. The individuals involved in today’s action are separate from the Coalition involved in the lawsuit.

The San Francisco Peaks are Holy to more than 13 Indigenous Nations.

They are a place of worship, a place where deities reside, a place where offerings are made, where herbs are gathered, where emergence has occurred, and a location where other sacred religious practices take place .

Monday’s blockade to protect the Peaks joins four decades of sustained resistance to desecration of the Holy Peaks. Over the past three weeks since Snowbowl began clear-cutting, dozens of protest camps have been established on the mountain and solidarity actions have occurred in Phoenix and Los Angeles.

CONTACT: (928) 600-0856
protectpeaks@gmail.com
www.truesnow.org