American Indians Given Veto Power Over Federal Land

William Perry Pendley

11/30/2007 4:54:09 PM - William Perry Pendley

This month, the entire U.S. Court of Appeals for the Ninth Circuit will hear arguments in its reconsideration of a three-judge panel’s ruling in favor of American Indian religious practitioners. On March 12, 2007, in Navajo Nation v. U.S. Forest Service, the panel ruled that a plan by a ski resort located on federal land to make snow using reclaimed water, thus offending the religious sensitivities of American Indians who believe the resort is situated on sacred land, violated federal law. On June 21, 2007, the ski resort and the U.S. Forest Service urged the Ninth Circuit to rehear the case, petitions that were granted on October 17, 2007.

Arizona Snowbowl is an alpine ski area on Humphrey’s Peak, amid the San Francisco Peaks in the Coconino National Forest, seven miles north of Flagstaff, where organized skiing has existed since 1938. Although the original lodge was destroyed by fire in 1952, it was rebuilt in 1956. Because Snowbowl depends on natural snowfall, in dry years the operating season is short, with few skiable days and few skiers. In 2001–2002, for example, there were only 87 inches of snow, 4 skiable days and 2,857 skiers. By contrast are the wet years, such as 2004–2005, which yielded 460 inches of snow, 139 skiable days, and 191,317 skiers.

In September 2002, Arizona Snowbowl proposed a multi-million dollar improvement project, which included a plan to make artificial snow using reclaimed water purchased from the City of Flagstaff, which would be sent to the resort from November through February via a new 15-mile pipeline. At the beginning of each ski season, during November and December, Snowbowl would cover 205 acres of Humphrey’s Peak with a base of artificial snow; then, for the rest of the season, Snowbowl would use the water to make artificial snow, depending on the amount of natural snow. American Indian religious practitioners objected.

The Arizona federal district court rejected the challenge and thus upheld the decision by the Forest Service to approve the plan. After all, similar objections by American Indian religious practitioners, under the Free Exercise Clause of the First Amendment, to a 1977 plan to expand the Arizona Snowbowl were denied by the U.S. Court of Appeals for the District of Columbia in 1983. Moreover, in 1988, the U.S. Supreme Court rejected demands by American Indians “to exclude all human activity but their own from sacred areas of [a California national forest].” “Whatever rights the Indians may have to the use of the area,” wrote the Court, “those rights do not divest the Government of its right to use what is, after all, its land.”

The Ninth Circuit panel, relying on the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), reversed the district court and invalidated the Forest Service’s decision. After a lengthy discussion of the religious beliefs of various American Indian tribes, the panel held that, by adopting RLUIPA, Congress had expanded the Constitution’s Free Exercise Clause and implicitly overturned earlier court rulings that had rejected similar demands by American Indian religious practitioners. In the panel’s view, using federal land as proposed by Snowbowl and approved by the Forest Service is tantamount to a government edict that Christian “baptisms be carried out with ‘reclaimed water.’”

The panel’s ruling, which gives American Indian religious practitioners a veto power over lawful activities on land that belongs to the American people, is the first use of RLUIPA regarding federal lands, an application never intended by Congress. All other RLUIPA cases have involved local zoning, the practice of religion by prison inmates, and the use of illegal drugs by religious practitioners. Moreover, by placing American Indian religious practitioners in the favored position of determining, on religious grounds, what use may be made of public land, the panel’s ruling violates the Establishment Clause, which necessitates government neutrality regarding religion. No wonder the Ninth Circuit agreed to rehear the case.