The Navajo Nation is seeking international help to protect its sacred San Francisco Peaks from reclaimed sewage water being used by the Arizona Snowbowl ski resort.
The Nation has filed a complaint against the United States with the Inter-American Commission on Human Rights, alleging violations of the Navajo people’s rights to practice their religion and culture. If heard, the complaint would be addressed by commissioners representing countries throughout the western hemisphere and tasked with protecting fundamental human rights.
“We want people to take another look at this issue through the lens of international human rights law,” said Robert Williams, the E. Thomas Sullivan professor of law and faculty co-chair of the University of Arizona’s Indigenous Peoples Law and Policy program. The program is representing the Navajo Nation in the international arena.
The Inter-American Commission on Human Rights, created in 1959 by the Organization of American States, devotes special attention to populations historically targeted by discrimination. Although its findings are not legally binding, the commission’s work can help sway public opinion and persuade policymakers to rethink their strategies.
“We want an independent body to take a critical look, make an independent assessment,” Williams said. “If we reframe Indian rights issues into a human rights paradigm, we can transform conscience. We can open perspectives.”
The San Francisco Peaks, a volcanic mountain range near Flagstaff, Arizona, is one of the Navajo people’s four sacred mountains. With elevations topping 12,000 feet, the peaks are, quite literally, the place where earth meets heaven, and at least 13 additional tribes also consider them sacred.
The Nation’s complaint, filed March 2, states that artificial snowmaking is “incompatible with the sacred character and ecology of the mountain.”
“The San Francisco Peaks are one of the four most sacred places to the Navajo people, a traditional boundary marker of their ancestral territory and a source of soil, plant and other natural resources used for ceremonial and traditional purposes,” the complaint states. “When one of these mountains and its elements is desecrated, it throws the Navajo Life Way out of balance.”
The complaint is the latest action in a controversial battle for the peaks that has spanned nearly eight decades – since commercial ski operations opened on the peaks in the 1930s.
When the Forest Service approved an expansion and upgrade of the ski area in the early 1980s, the Navajo and Hopi tribes filed a lawsuit opposing the decision. Although the court determined the expansion would cause “spiritual disquiet” to tribal members, it upheld the decision.
In 2005, the Navajo and Hopi filed another lawsuit challenging the ski resort’s proposed use of recycled wastewater to make snow, claiming it violated the Religious Freedom Restoration Act. The court initially agreed with tribes, but in 2007 reversed its decision because the Forest Service had not coerced the tribe or penalized them for practicing their religion.
The Ninth Circuit Court of Appeals ultimately upheld the lower court’s dismissal of the lawsuit, and in June 2009, the U.S. Supreme Court denied the tribes’ petition to review the decision. Then last year, the city of Flagstaff and Snowbowl entered into a new agreement to increase the amount of reclaimed water used and to extend an existing five-year agreement to 20 years.
Having exhausted all avenues of domestic recourse, the Navajo Nation turned to the Inter-American Commission on Human Rights.
“U.S. law was not written to protect Indian religion,” Williams said. “Navajo lost at the federal court level because no one wanted to consider whether recreation was important enough to interfere with Navajo religion, but international law uses a different standard.”
By appealing to an international audience, the Nation is hoping for better protection of indigenous rights, said Leonard Gorman, executive director of the Navajo Nation Human Rights Commission. Calling the peaks “perfect in their purity,” Gorman said the U.S. has historically ignored Navajo rights to culture, tradition, religion and sacred sites.
“Navajo people believe there is purity in the existence of nature that must be maintained at a pristine level, and we have the right to that level of distinction,” he said. “When you have encroachment that desecrates that purity or the integrity of the mountain and how we define that mountain, it impedes on Navajo belief system.”
The Inter-American Commission on Human Rights could hear the complaint within 12-18 months, Williams said. Although a ruling in favor of the Navajo Nation won’t force Snowbowl, Flagstaff or the federal government to revise policy, it may get people to reconsider their actions.
“No government ever changes its policy because an international body says to,” he said. “The Navajo know very well that the U.S. doesn’t have to listen to the report, but we hope that it feels obligated to change its conduct.”