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.

California’s New CEQA Protections for Tribal Cultural Resources and the Requirement to Consult with Native American Tribes

By: Kevin M. Davis | Attorney | kevin.davis@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

On September 25, 2014, Governor Brown signed Assembly Bill No. 52 (AB 52), which seeks to provide greater protection for many Native American sacred sites in California. The bill is a step in the right direction, but it is only one step with quite a trail ahead. At the end of the trail, we would expect to see adequately protected Native American sacred sites in this State through meaningful consultations between lead agencies, project proponents and any of the affected Native American Tribes or Tribal Governments (“Tribes”). The important first steps that AB 52 has taken are discussed below along with the next steps that the State will need to take in order to continue down this trail.

AB 52 amends the California Environmental Quality Act (CEQA) to: (1) define an adverse change to a “Tribal Cultural Resource” as a “significant impact;” and, (2) require consultation with affected “California Native American Tribes” prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project. This is an important first step toward protection of Tribal Cultural Resources because CEQA now requires that Native American Tribes have a voice in protecting Tribal Cultural Resources. However, this first step occurs late in the process because these documents are released well after a project is planned and sited. The better process (and next step?) to protect Tribal Cultural Resources would be to involve the Tribes earlier in the process – when the Tribes would have an opportunity to consult on meaningful project decisions in the planning and siting phases.

The “Tribal Cultural Resources” identified by CEQA include “sites, features, places, cultural landscapes, sacred places, and objects with a cultural value to a California Native American Tribe” that are included or eligible for inclusion in the California Register of Historical Resources, or in a local register of historical resources. “Tribal Cultural Resources” also include cultural landscapes, historical resources and non-unique archaeological resources that meet these criteria. A lead agency has discretion to designate a resource as a “Tribal Cultural Resource.” By limiting the definition of a “Tribal Cultural Resource,” the statute limits protections to only registered resources or resources designated under the lead agency’s discretion. Further down the trail the State should take the next step towards protecting these important resources by broadening the statute’s definition or providing the affected Tribes some discretion over what constitutes such a resource.

When a Tribal Cultural Resource exists in a project area, a lead agency must consult with Native American Tribes that are: (1) located in California; (2) traditionally and culturally affiliated with the proposed project’s geographic area; and, (3) registered on the National American Heritage Commission’s contact list. A lead agency therefore may not be required to consult with all Tribes that could be affected by a proposed project (if a Tribe does not meet these criteria). Furthermore, in order to trigger the consultation under AB 52, the onus is on the Tribe to: (1) request in writing that the lead agency inform the Tribe of proposed projects in the geographic area; and, (2) request a consultation in writing within 30 days of such notification of a project. While the Native American Heritage Commission is tasked with assisting the lead agencies to identify Tribes affiliated with the project area, the burden is ultimately placed on the Tribes to pursue the consultation. Logically, the next step would be to remove these significant procedural burdens placed on the Tribes so they do not lose the opportunity to consult with the lead agency.

The consultation includes an opportunity for a qualified Tribe to propose mitigation measures that avoid or lessen potentially significant impacts to the “Tribal Cultural Resource.” For many Tribes, however this consultation may be a dead end or short trail. Any mitigation measures arising from the consultation are only recommended for inclusion in the environmental document and the adopted mitigation monitoring and reporting program. If included by the lead agency as a requirement of project approval, only then would the measures become fully enforceable under CEQA.

The mitigation measures suggested to avoid or minimize significant adverse impacts to “Tribal Cultural Resources” include: (1) avoidance and preservation of the resource; (2) treating the resource with culturally appropriate dignity; (3) permanent conservation easements; and (4) protecting the resource. However, no examples were provided, so the commitment to protect these resources is vague at best. This trail needs better markers. Further, the consultation would occur late in the CEQA review process so it is difficult to determine how the measures may be implemented when the location and scope of the project has already been established. As a next step, this statute needs to provide projects earlier direction and clarification in order to be effective. The lead agency should consult with Tribal representatives at the planning and siting stages to develop appropriate mitigation measures. Only then will we be able to walk down this trail with a clear direction.

Finally, AB 52 provides that a Tribe may request that the information provided through the consultation process be maintained in a confidential appendix to the environmental document. This would hopefully protect confidential Tribal information from public review, but this protection is subject to the lead agency’s diligence in preserving the confidentiality of such information. This open-ended protection from a lead agency may not be sufficient for Tribes to risk disclosing confidential information about their most sacred sites, which undermines the effectiveness of these CEQA amendments.

By enacting AB 52, California has taken a first step towards protecting many Native American sacred sites in the State. However, the trail ahead must be more clearly marked and there are many steps left to be taken. A copy of AB 52 is available here. For more information, please contact Kevin Davis at (619) 515-3293 or kevin.davis@procopio.com. Kevin Davis is a member of Procopio’s Native American practice group, who advises public agencies, Native American Tribes, and private entities on environmental and land use matters.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Medicine Bluffs: Sacred Spaces, Healing Ceremony

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

I was recently invited to the sacred Summer Solstice Prayer Ceremony with the Comanche Nation. It took place on Medicine Bluffs on their traditional lands – a place surrounded by sage, a serene vista and on a bluff that allowed me to see for miles in the four directions. Elders shared with me that Medicine Bluffs is considered a place of puhu. In their Native language puhu means ‘medicine’ or ‘power.’ We had three generations of Native women there for a healing ceremony. It was incredibly peaceful. Until the sounds of artillery fire began…

You see – Medicine Bluffs is on federal land at Fort Sill, Oklahoma. And, despite this sacred time and ceremony for the Comanche people, the Army continued to detonate ordnances nearby. Sacred sites are not places of the past—they are of the present and the future, and must to be treated with the respect that recognizes this is true for churches, mosques and holy places worldwide.

This experience empowered me to intimately understand the necessity of protecting sacred sites. Since 2008 this land has been involved in a protracted legal battle with the federal government.  The U.S. Army attempted to construct a warehouse on Medicine Bluffs. The cultural and religious significance of Medicine Bluffs to area tribes, especially the Comanche Nation and their citizens, has been well known by the Army for approximately 130 years, Comanche Chairman Wallace Coffey said in media statements. Had the Army been successful in its expansion plan and constructed the warehouse it would have unduly burdened the exercise of religious ceremonies of its citizens.  The site was spared from physical damage, though it appears that the Army hasn’t quite come to grips with its sanctity during ceremonies.

Still, I was blessed to experience the puhu that day. And I am thankful to those who ensured its sacredness – and other critical spaces – for this generation and beyond.

http://indiancountrytodaymedianetwork.com/2008/09/22/fort-sill-project-threatens-sacred-site-80524

http://www.kswo.com/story/8763155/comanche-nation-battling-fort-sill-over-rights-to-medicine-bluff

http://www.narf.org/nill/bulletins/dct/documents/comanchenationok.pdf

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.