ARIZONA SUPREME COURT DENIES TRIBAL SACRED AND CULTURAL PRACTICES PROTECTION, EQUATING SUCH PRACTICES WITH A WEEKEND HIKE

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By: Racheal M. White Hawk | Associate | racheal.whitehawk@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

A majority of the Arizona Supreme Court recently held, over a compelling dissent, that the Hopi Tribe has no claim for public nuisance against a ski resort that uses snow made from sewerage on land that the Tribe has used for millennia for ceremonial and religious practices.  See Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship, No. CV-18-0057-PR, 2018 WL 6205003 (Ariz. Nov. 29, 2018).  The decision is the culmination of over a decade and a half of litigation between tribes in northern Arizona and the Arizona Snowbowl ski resort.

Nearly sixteen years ago, the ski resort planned to purchase sewage subjected to limited treatment from the City of Flagstaff to make snow and accommodate more skiers at the resort on the San Francisco Peaks, an area sacred to several tribes.  The Peaks are located on federal land in the Coconino National Forest.  After the federal government approved the use of the sewer snow on the Peaks, tribes and environmental groups sued, alleging violations of various environmental and religious freedom laws.  The tribes and environmental groups ultimately lost in federal court.  See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc).

This case was brought in Arizona state court by the Hopi Tribe, asserting that the use of sewer snow causes a public nuisance.  Members of the Hopi Tribe go to the Peaks to pray each month, collecting water, herbs, and greens there for use in ceremonial and religious practices.  The Peaks have been recognized by the U.S. Forest Service as a Traditional Cultural Property and are eligible for the National Register of Historic Places.

Court documents showed that the sewer snow used on the Peaks by the ski resort contains contaminants from Flagstaff’s sewer system, including waste, legal and illicit drugs, hormones, insecticides, chemicals that interfere with the biological processes of wildlife, and elevated nitrogen levels that may increase the presence of invasive plant species and destroy native flora and fauna as well as negatively impact the overall ecosystem and endangered species of the area.  The sewer snow damages the Hopi Tribe’s use of the Peaks in particular by contaminating sacred land, shrines, springs, and other natural resources used in traditional Hopi ceremonial practices, turning “formerly pure ceremonial locations into a secondary sewer,” as the dissent put it.

In rejecting the Tribe’s public nuisance claim, the majority of the Arizona Supreme Court held that the Tribe’s injury was no different than, as the dissent stated, “a weekend hiker or concerned environmentalist.”  The majority failed to appreciate, as the dissent said, “that the wastewater will affect the Hopi’s use and enjoyment of ancestral lands that have played a central role in Hopi culture and religion since before the Coconino National Forest was of concern to the broader public.”  Instead, the majority held that the Tribe’s injury from the ski resort was the same as the general public’s harm, even though only tribes have claimed to use the land for such purposes.

The majority went on to hold that as a matter of law the Hopi Tribe could not assert a public nuisance claim because it did not have a property or pecuniary interest in the land or resources at issue.  As the dissent recognized, the majority unduly limited the state’s public nuisance law to protect only material interests, denying protection for religious traditions and practices manifested since before recorded history and recognized by federal law, which requires that Indians have access to national forests for traditional and cultural purposes.  See 25 U.S.C. § 3054.

In denying the Hopi Tribe’s public nuisance claim, the majority embraced an “ownership model” of property law, relying on the heavily criticized U.S. Supreme Court decision Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).  See, e.g., Cohen’s Handbook of Federal Indian Law § 14.03[2][c][ii][B], at 968–71 (Nell Jessup Newton ed., 2012) (citing scholarly criticisms of Lyng and executive and legislative branch actions in response to Lyng to protect Indian sacred sites).  Indeed, scholars assert that this narrow ownership model of property law that courts, including the majority in this Hopi Tribe case, have used to deny Indian religious claims is neither descriptively accurate (because property law has long protected the rights of non-owners) nor normatively desirable (because property law should address the conflicting interests of those with legitimate claims to land and resources).  See, e.g., Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1089 (2005) (citing numerous scholarly works).

Although the Arizona Supreme Court majority rejected the Hopi Tribe’s public nuisance claim in this case, a persuasive dissent was not only written, but included two seemingly ideologically-opposed jurists.  The dissent offers a glimmer of hope for Indian sacred site protection in the future.  Moreover, perhaps Indian country will see better sacred site protection in the legislative branch, as one of two Native Americans joining the next Congress, Deb Haaland, included sacred site protection as a priority in her climate and environment platform.

Procopio will continue to monitor laws and cases affecting sacred sites and we are happy to assist tribes in finding ways to ensure sacred site protection.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is an Associate and member of Procopio’s Native American Law Practice Group.  Racheal is a member of the Arizona Bar, and she has passed the California Bar Exam, but she is not licensed to practice in California.  Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

Procopio_Griswold_Theodore_Bio PhotoTed Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.