Tuesday, September 7, 2004
Indianz.Com. In Print.
A government policy discouraging development of a sacred site does not
violate the U.S. Constitution, a federal appeals court ruled last week.
In a victory for the state of Arizona, the 9th Circuit Court of Appeals
upheld the state's protections for Woodruff Butte, held sacred by the Hopi
Tribe, the Zuni Tribe and the Navajo Nation. Worried about the exploitation
of the site, the tribes convinced the state Department of ransportation not
to use any mined materials from the site for construction projects.
The policy led to the state to deny a "commercial source number" to a
non-Indian man who owned land within the Butte. Without the number, Dale
McKinnon could not sell mined materials to the state.
McKinnon took the dispute to court argued that the state's policy violated
the Constitution's First Amendment. He said the state was promoting Native
religious beliefs.
But rather than advancing any particular religion, safeguarding Native sites
"has historical value for the nation as a whole," the 9th Circuit Court of
Appeals said on September 1. "Native American sacred sites of historical
value are entitled to the same protection as the many Judeo-Christian
religious sites," Judge Betty B. Fletcher wrote.
The decision won't stop McKinnon and his Cholla Ready Mix company from using
his property for private purposes. But the Mountain States Legal Foundation,
a conservative legal group the argued the case, said he has lost all other
buyers of the mined material as a result of the tribes' lobbying.
"We are disappointed with the ruling by the Ninth Circuit because the court
failed to do what it is required to do, that is, decide whether sufficient
facts had been alleged to put Arizona on notice that we believe it violated
the constitutional rights of Mr. McKinnon and his company," said William
Perry Pendley, the group's president.
To the tribes, the destruction of Woodruff Butte has been particularly
heartwrenching. Mining by McKinnon and the site's previous owner has
resulted in the destruction of Hopi religious shrines.
"We literally saw one Hopi shrine bulldozed before our presence there," said
Leigh Kuwanwisiwma, a tribal member, in the documentary film In the Light of
Reverence.
According to the tribe, McKinnon offered to sell Woodruff Butte for $3
million. The tribe refused to consider buying the land for fear of putting a
price on a sacred site.
Woodruff Butte is eligible for inclusion on the National Register of
Historic Places. Although it hasn't been listed, Arizona's policy requires
anyone desiring a commercial source number to submit an environmental
assessment that considers adverse effects on a potential NRHP site.
The requirement is just one of many ways state and federal governments are
employing in hopes of protecting sacred sites. Throughout the country,
different approaches have been taken.
In Utah, the National Park Service urges people not to approach the Rainbow
Bridge in Rainbow Bridge National Monument out of respect for the Hopi,
Navajo and other tribes. In Nevada, the U.S. Forest Service is proposing to
ban climbing at Cave Rock, held sacred by the Washoe Tribe.
Mountain States and other conservative groups have challenged several of
these safeguards but have not won many cases so far. In one significant
case, the 9th Circuit ruled that a tribal ordinance protecting a sacred site
on the Hoopa Valley Reservation in California was "ratified" by the federal
government in order to allow jurisdiction over non-Indians. The U.S. Supreme
Court refused an appeal of the ruling.
Mountain States formerly employed Interior Secretary Gale Norton but she cut
ties to the organization upon joining the Bush administration in 2001. While
working for the group, she argued against Alaska Native subsistence rights.