By Brenda NorrellCensored News
FLAGSTAFF, Ariz. -- UN Special Rapporteur James Anaya submitted a report to the UN Human Rights Council stating alleged human rights violations of indigenous peoples around the world. In the US, the report includes the plan to violate sacred San Francisco Peaks with snow made from wastewater. The report also includes the case of imprisoned Leonard Peltier and the protection of sacred Sogorea Te (Glen Cove in Calif.)
The international cases of human rights abuses include the Wixarika (Huicholes) in Mexico struggling to protect their sacred lands from mining, along with cases from indigenous peoples in Guatemala, Chile, Israel, Ethiopia, Costa Rica, Malaysia and Thailand, in Anaya's Aug. 22 report.
Anaya urged the US to review the need to protect sacred San Francisco Peaks from the plan to use recycled wastewater for snowmaking by the private corporation Arizona Snowbowl. Further, Anaya urged the US to carry out consultation with American Indian Nations as required by US law and in accordance with international human rights obligations.
Anaya, pointing out the sacred nature of San Francisco Peaks to area Indian Nations, said, "To them, the sacredness of the San Francisco Peaks depends on the purity of the water and plant life in the area, which allegedly will be contaminated if wastewater is introduced into the Peaks through the planned artificial snowmaking."
Anaya states San Francisco Peaks is sacred to 13 area American Indian Nations and points out the specifics of the connections of Hopi and Navajo to the sacred mountain.
In his recommendations to the UN Human Rights Council, Anaya said the US should give serious consideration to suspending the permit for the Arizona Snowbowl.
"In this connection, the Government should reinitiate or continue consultations with the tribes whose religions practices are affected by the ski operations on the San Francisco Peaks and endeavor to reach agreement with them on the development of the ski area. The Government should give serious consideration to suspending the permit for the modifications of Snowbowl until such agreement can be achieved or until, in the absence of such an agreement, a written determination is made by a competent government authority that the final decision about the ski area modifications is in accordance with the United States’ international human rights obligations."
Annex X
United States of America: Situation of the Native Americans
in relation to artificial snowmaking from recycled wastewater
in the San Francisco Peaks
USA 1/2011
1. In a communication of 10 January 2011, the Special Rapporteur on the rights of
indigenous peoples, James Anaya, called the attention of the Government of the United
States of America to information received relating to the proposed use of recycled
wastewater for a commercial ski operation the San Francisco Peaks (or the “Peaks”), a
mountainous area that is sacred to several Native American tribes. The full text of this
communication can be accessed from the electronic version of the joint communications
report (A/HRC/18/51), which is available on the web site of the Human Rights Council. In
his communication the Special Rapporteur requested a response within 60 days. He regrets
that there is no record of a response in the files of the Office of the High Commissioner for
Human Rights at the time of finalization of this report. In the absence of a response, the
Special Rapporteur developed the observations below, which include an evaluation of the
situation and recommendations to the Government of the United States. These observations
were transmitted to the Government on 6 July 2011.
Background
2. The San Francisco Peaks are located north of the city of Flagstaff, Arizona within
land that is administered by the United States Forest Service as part of the Coconino
National Forest. According to information received, the Arizona Snowbowl Resort Limited
Partnership (“Snowbowl”) owns and operates a commercial ski operation in the western
flank of the San Francisco Peaks, under a 777-acre special use permit issued by the Forest
Service. In 2002 Snowbowl filed an application for expansion of its facilities, including a
request for approval to make snow from treated sewage effluent. In February 2005, the
Forest Service issued its Final Environmental Impact Statement and Record of Decision
approving the proposed artificial snowmaking from recycled waste wastewater, the
construction of a pipeline from Flagstaff to carry the treated effluent from Flagstaff and
improvement of guest service facilities. Several Native American tribes and organizations
have vigorously opposed the Forest Service’s decision. To them, according to sources, the
sacredness of the San Francisco Peaks depends on the purity of the water and plant life in
the area, which allegedly will be contaminated if wastewater is introduced into the Peaks
through the planned artificial snowmaking. However, their federal court lawsuit to
challenge the approval of artificial snowmaking on, inter alia, religious freedom grounds
was unsuccessful.
1
Observations of the Special Rapporteur
3. On the basis of information he has received and gathered on this situation, which he
considers to be in material respects undisputed, the Special Rapporteur offers the following
1
See Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129
S.Ct. 2763 (2009).
A/HRC/18/35/Add.1
44
observations, in the hope that they will serve to promote appropriate action by the United
States to address the human rights matters raised.
4. The extensive documentation by the Government and federal courts in relevant
proceedings makes clear that the San Francisco Peaks are sacred to several Native
American tribes, and that the presence of the ski operation and now the initiative to make
artificial snow from recycled wastewater on the Peaks offend the religious beliefs and
practices of members of these tribes. Apart from the provisions of domestic law that have
been applied by the courts to examine this situation, international standards, including those
based on human rights treaties to which the United States is a party to and the Declaration
on the Rights of Indigenous Peoples, require adequate consultation and close scrutiny for
any action that affects the sacred sites and religious practices of indigenous peoples. The
United States should engage in a comprehensive review of its relevant policies and actions
to ensure that they are in compliance with these international standards in relation to the
San Francisco Peaks and other sacred sites of Native Americans, and should take
appropriate remedial action. In the paragraphs below, the Special Rapporteur elaborates
upon these points.
The effects of the planned snowmaking on Native American religion
5. The Special Rapporteur is aware that the development of the Snowbowl ski area and
the recent plans for expanding its facilities, including for artificial snowmaking with
recycled wastewater, have proceeded with extensive examination and documentation by the
Government and federal courts of the impacts on Native American culture and religion.
Required environmental impact studies and the legal challenges to the federal permits for
Snowbowl’s expansion on the San Francisco Peaks have prompted this examination and
documentation, which make abundantly clear the sacred character of the Peaks to the tribes,
the affront on their religious beliefs and the tribes’ opposition to the planned snowmaking.
6. The Final Environmental Impact Statement compiled by the U.S. Forest Service to
assess the proposal for artificial snowmaking and other additions to Snowbowl’s operations
on the Peaks included the following observations:
The San Francisco Peaks are sacred to at least 13 formally recognized tribes that are
still actively using the Peaks in cultural, historic, and religious contexts. A central
underlying concept to all tribes for whom the Peaks are especially important is the
recognition that the San Francisco Peaks are a source of water in the form of rain,
springs, and snow. It is believed that the Peaks were put there for the people and it is
therefore the peoples’ duty to protect it for the benefit of the world… [N]ine
significant qualities… characterize the Peaks for the tribes. These qualities include:
• They are the abode of deities and other spirit beings.
• They are the focus of prayers and songs whereby humans
communicate with the supernatural.
• They contain shrines and other places where ceremonies and prayers
are performed.
• They are the source of water.
• They are the source of soil, plant, and animal resources that are used
for ceremonial and traditional purposes.
• They mark the boundaries of traditional or ancestral lands.
• They form a calendar that is used to delineate and recognize the
ceremonial season.
A/HRC/18/35/Add.1
45
• They contain places that relate to legends and stories concerning the
origins, clans, traditions, and ceremonies of various Southwestern
tribes.
• They contain sites and places that are significant in the history and
culture of various tribes.
Two examples of the cultural significance of the San Francisco Peaks are the Hopi
and Navajo peoples’ religious and spiritual connections to the Peaks, as discussed
below.
Hopi
Hopi clans migrated through the San Francisco Peaks (called
Nuvatukyaovi, “High
Place of Snow”), made settlements nearby, and placed shrines on the Peaks. All of
the religious ceremonies focus on
Nuvatukyaovi and demonstrate the sacred
relationship of the Peaks to the Hopi people. The history of clan migrations through
the area continue to be related, discussed, and passed on from generation to
generation. The Peaks contain clan and society shrines, and gathering areas for
medicinal and religious use. Hopi religious leaders visit the Peaks annually. The San
Francisco Peaks are the spiritual essence of what Hopis consider the most sacred
landscapes in Hopi religion. They are the spiritual home of the
Katsinam, significant
religious beings that all Hopis believe in, and are therefore, sacred. The ceremonies
associated with the Peaks, the plants and herbs gathered on the Peaks, and the
shrines and ancestral dwellings located in the vicinity of the Peaks are of central
importance to the religious beliefs and traditions that are the core of Hopi culture....
Navajo
The Navajo people believe that the Creator placed them on land between four sacred
mountains: Blanca Peak in Colorado, Mount Taylor in New Mexico, the San
Francisco Peaks in Arizona, and Hesperus Peak in Colorado. According to their own
history, the Navajos have always lived between these mountains. Each of the four
mountains is associated with a cardinal direction, symbolizing the boundaries of the
Navajo homeland. For the Navajo, the Peaks are the sacred mountain of the west,
Doko’oo’sliid,
“Shining on Top,” a key boundary marker and a place where
medicine men collect soil for their medicine bundles and herbs for healing
ceremonies. Navajo traditions tell that San Francisco Peak was adorned with
Diichilí
, Abalone Shell, Black Clouds, Male Rain, and all animals, besides being the
home of
Haashch’éélt’i’í (Talking God), Naada’algaii ‘Ashkii (White Corn Boy),
and
Naadá ‘Altsoii ‘At’ééd (Yellow Corn Girl). The sacred name of the Peaks is
Diichilí Dzil
– (Abalone Shell Mountain). The Navajo people have been instructed
by the Creator never to leave their sacred homeland.
Dook’o’osliid and the other
three sacred mountains are the source of curing powers. They are perceived as a
single unit, such as the wall of a hogan, or as a particular time of a single day.
Dook’o’osliid
is seen as a wall made of abalone shell and stone, with mixed yellow
and white bands....
Environmental Consequences
The 1975 Hopi Tribal Resolution noted that there are numerous medicinal herbs and
other plants at several levels of the Peaks that are used to treat the ailments of the
Hopi people. The Forest Service is unaware of any plants or other natural resource
material used by the Hopi within the Snowbowl … area; however, the addition of
new trails, increased parking, and the potential for additional annual visitation within
the … area and the San Francisco Peak themselves causes concern among the Hopi
and other tribes that their areas of traditional use would be impacted. Specifically,
A/HRC/18/35/Add.1
46
the Hopi make pilgrimages to shrines and use the Peaks for religious reasons such as
gathering evergreens and herbs and delivering prayer feathers.
Although the reclaimed water proposed for use in snowmaking fully meets both the
Federal and Arizona state water quality standards, it is believed that trace levels of
unregulated residual constituents within reclaimed water (e.g., pathogens,
pharmaceuticals, hormones, etc.) could negatively impact the spiritual and medicinal
purity of resident flora on the Peaks. Several specific concerns have been raised
about the impact of snowmaking on the spiritual values of the Peaks.
An additional concern is that some of the reclaimed water once passed through
hospitals or mortuaries could carry the spirits of the dead with it. Those spirits, as
part of the water draining from the Peaks, would then infiltrate plants, thus affecting
their ritual purity.
From both a Hopi and Navajo perspective, any plants that would come into contact
with reclaimed water would be contaminated for medicinal purposes, as well as for
use in ceremonies needed to perpetuate their cultural values….
The Hopi believe that the
Katsinam are responsible for moisture and that the
installation of snowmaking technology within the SUP [special use permit] area
would alter the natural processes of the San Francisco Peaks and the responsibilities
of the
Katsinam.
The Hopi, Navajo, and other tribes have existed in the region of the San Francisco
Peaks for thousands of years and have developed their cultures and religious
institutions around the natural and cultural landscape of the San Francisco Peaks.
Traditions, responsibilities, and beliefs that delineate who they are as a people, and
as a culture, are based on conducting ritual ceremonies they are obligated to perform
as keepers of the land. These obligatory activities focus on the Peaks, which are a
physical and spiritual microcosm of their cultures, beliefs, and values. Snowmaking
and expansion of facilities, especially the use of reclaimed water, would contaminate
the natural resources needed to perform the required ceremonies that have been, and
continue to be, the basis for the cultural identity for many of these tribes.
2
7. The records of the proceedings in federal court litigation concerning Snowbowl’s ski
operations on the San Francisco Peaks reinforce the above assessment of the sacred
character of the Peaks, and of the effects on Native American religion of the planned
snowmaking and other modifications, on top of the effects of the existing ski facilities.
3
Even while holding that the Government’s approval of the Snowbowl modifications did not
violate federal law, the Ninth Circuit Court of Appeals, sitting en banc, acknowledged the
sacred character of the San Francisco Peaks and that “[t]o the [tribes], the [presence of
recycled wastewater] will desecrate a sacred mountain and will decrease the spiritual
fulfillment they get from practicing their religion on the mountain”.
4
8. Despite such acknowledgment, the federal appellate court held that this impact on
religion is not of the kind that could lead to finding a violation of the federal Religious
2
USDA Forest Service, Arizona Snowbowl Facilities Improvements Final Environmental Impact
Statement, Vol. 1 (2005), pp. 3-7 to 3-11, 3-16 to 3-18 (hereinafter “FEIS”).
3
See Navajo Nation v. United States Forest Service, 408 F. Supp. 2d 866 (D. Ariz., 2006), aff’d in part
and rev’d in part, 479 F.3 1024 (9
th Cir. 2008); aff’d on rehearing, 535 F.3d 1058 (9th Cir. 2008), cert.
denied, 129 S.Ct. 2763 (2009);
Wilson v. Block, 708 F.2d 735 (D.C. Court of Appeals, 1983), cert.
denied 463 U.S. 958 (1983).
4
Navajo Nation v. United States Forest Service, 535 F. 3d 1058, 1070 (9th Cir. 2008) (en banc), cert.
denied, 129 S.Ct. 2763 (2009).
A/HRC/18/35/Add.1
47
Freedom Restoration Act (RFRA). For the Ninth Circuit Court of Appeals, RFRA only
protects against government action that actively coerces Native American religious
practitioners into violating their religious beliefs or that penalizes their religious activity
with loss or threat loss of government benefits. Along with finding the absence of such
conditions, the court pointed to the lower court determination that in fact no plants or
religious shrines would be physically affected by the snowmaking and that practitioners
would continue to have access to the mountain, including the ski area, to conduct religious
activities.
5 Neither the appellate nor lower court questioned, however, that for Native
American religious practitioners from several tribes, snowmaking with recycled wastewater
in Snowbowl would be a desecration of a sacred mountain, even if federal and state
environmental standards are met and they continue to have access to the mountain along
with skiers.
9. It is not the purpose of the Special Rapporteur to review or challenge the application
of domestic law by the United States judicial system. Rather, the Special Rapporteur means
to draw attention to the relevant international standards that bind the United States and that
should guide action by Government actors, even when certain decisions may be permissible
under domestic law. The Special Rapporteur respectfully reminds the United States that the
judicial applications and interpretations of the legal protections for Native American
religion available under domestic law do not pose any legal barrier to Government action in
accordance with a higher standard.
The lack of indigenous agreement or consent to artificial snowmaking on a sacred
mountain
10. In its Record of Decision to permit snowmaking from recycled wastewater and other
modifications to the ski operation on the San Francisco Peaks, the United States Forest
Service acknowledged that “[o]ver the years the tribes have continued to state their
opposition to development at Snowbowl”, as they did in 1979 when the Forest Service was
considering the option of closing down the ski operation but decided instead to allow it to
expand.
6 The Forest Service reported extensive consultations with the tribes about the most
recent plans for Snowbowl enhancements. “In all 200 phone calls were made, 41 meetings
were held, and 245 letters were sent to Tribal officials, tribal historic preservation offices,
traditional tribal leaders/practitioners, and the general tribal public”.
7
11. The Forest Service confirms that “[a]s with the decision in 1979, the proposal to
improve the facilities at the Snowbowl has been met with adamant opposition from the
tribes, even though there have been changes in laws, improvements in working
relationships and successes in working together on other projects …”.
8 Despite this
adamant opposition by the tribes based on their religious practices and beliefs, the Forest
Service decided to approve the artificial snowmaking and other ski area modifications,
bringing into question the United States’ adherence to international standards to which it
has expressed its commitment.
Article 19 of the Declaration on the Rights of Indigenous Peoples provides:
States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free
5
See Ibid., pp. 1063, 1070.
6
USDA Forest Service, Record of Decision – Arizona Snowbowl Facilities Improvements Final
Environmental Impact Statement and Forest Management Plan #21 (February 2005), p.3 (hereinafter
“FEIS-Record of Decision”).
7
Ibid., p. 9.
8
Ibid., p. 3.
A/HRC/18/35/Add.1
48
prior and informed consent before adopting and implementing any legislative
measure that affects them.
12. This standard of consultation and consent is a corollary of the right to selfdetermination
and the cultural rights of minorities that are affirmed, respectively, in articles
1 and 27 of the International Covenant on Civil and Political Rights, as manifested by the
jurisprudence of the Human Rights Committee.
9 Additionally, it is instrumental to
implementing the principles of non-discrimination found in the International Convention on
the Elimination of All Forms of Racial Discrimination, as instructed by the Committee on
the Elimination of Racial Discrimination (CERD).
10 In its General Recommendation 23,
CERD calls upon State parties to “[e]nsure that members of indigenous peoples have equal
rights in respect of effective participation in public life and that no decisions directly
relating to their rights and interests are taken without their informed consent ...”.
11
13. Under the cited human rights treaties, to which the United States is a party, and the
Declaration on the Rights of Indigenous Peoples, which the United States has endorsed,
consultations should take place with the objective of achieving agreement or consent by
indigenous peoples to decisions that may directly affect them in significant ways, such as
decisions affecting their sacred sites. Simply providing indigenous peoples with
information about a proposed decision and gathering and taking into account their points of
view is not sufficient in this context. Consultation must occur through procedures of
dialogue aimed at arriving at a consensus.
12
14. It is far from clear that the consultations with the tribes about the artificial
snowmaking and other ski area modifications were undertaken through procedures
involving negotiations toward an agreed-upon outcome. It appears instead that the
consultations were more in the nature of dissemination of information about the Snowbowl
development plans and gathering of views about those plans, within a process of
government decision making that did not depend on agreement or consent on the part of the
tribes.
13 In any case, it is beyond question that the tribes have not agreed or consented to the
Snowbowl modifications; indeed they have actively opposed them.
15. In the absence of consent by indigenous peoples to decisions that affect them, States
should act with great caution. At a minimum, States should ensure that any such decision
does not infringe indigenous peoples’ internationally-protected collective or individual
rights, including the right to maintain and practice religion in relation to sacred sites. It is
9
See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, A/HRC/12/34 (15 July 2009), paras. 40- 41 (hereinafter “2009
annual report of the Special Rapporteur”).
10
Ibid., para. 40.
11
A/52/18, annex V at para. 4(d).
12
For a discussion of the duty of States to consult with indigenous peoples affecting them, see 2009
annual report of the Special Rapporteur, supra, paras. 36-74.
13
The Forest Service did develop a Memorandum of Agreement (MOA) related to adverse effects of the
proposed ski area modifications, as a result of the nomination of the San Francisco Peaks for
inclusion in the National Register of Historic Places, and it invited the tribes to sign the MOA as
concurring parties. The Forest Service reported that four of the affected tribes did sign, while the
others (including Navajo and Hopi) declined to do so or did not respond. FEIS-Record of Decision,
pp. 26-27. The MOA does not embody or propose agreement to the ski area modifications but rather
provides for a series of measures calculated to mitigate adverse effects of the development of the ski
area and to protect the cultural values associated with the San Francisco Peaks. See FEIS, Appendix
D. While most of the affected tribes did not sign the MOA, it is not clear that any of them were
involved in developing its terms, other than indirectly through the consultations reported by the Forest
Service.
A/HRC/18/35/Add.1
49
therefore necessary in this case to assess the nature of the right of Native Americans to
practice their religious traditions under international human rights standards and the scope
of permissible restriction of the right.
International standards protecting the right of Native Americans to maintain and practice
their religious traditions
16. Under relevant sources of international law, the United States has a duty to respect
and protect Native American religion, a duty that goes beyond not coercing or penalizing
Native American religious practitioners. The right of indigenous peoples to maintain and
practice their distinctive religions, including in relation to sacred areas, is protected by the
International Covenant on Civil and Political Rights and the International Convention on
the Elimination of All Forms of Racial Discrimination. Further, it is recognized specifically
by the United Nations Declaration on the Rights of Indigenous Peoples, which provides an
authoritative statement of standards that States should follow in keeping with their
obligations under these and other human rights treaties, as well as under the human rights
clauses of the United Nations Charter. Any restriction on the right of indigenous peoples to
maintain and practice their religious traditions, not just those involving active coercion or
penalties, is subject to the most exacting scrutiny under these international instruments.
17. The right to practice or manifest religion or belief is protected under Article 18(1) of
the International Covenant on Civil and Political Rights, which states that “[e]veryone shall
have the right to freedom of thought, conscience and religion [which includes] freedom …
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.” State parties have a duty
to take the measures necessary to ensure the effective enjoyment of this and other rights
recognized the Covenant (Art. 2(2)). In its Article 27, which is also of relevance to
indigenous peoples, the Covenant gives special consideration to the rights of minorities
whose cultural and religious traditions differ from those of the majority. Article 27 states,
“Persons belonging to minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practise their own
religion …”. In its interpretation of State parties’ obligations under Article 27, the Human
Rights Committee, in its General Comment 23 affirmed that “positive measures by States
may also be necessary to protect the identity of a minority and the rights of its members to
enjoy and develop their culture and language and to practise their religion, in community
with other members of the group”.
14
18. Article 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination provides that State parties are to “guarantee the right of everyone … to
equality before the law, notably in the enjoyment of …[t]he right to freedom of thought,
conscience and religion.” In interpreting and applying this Convention, CERD has observed
the need to take into account the particular characteristics of groups in order to achieving
effective equality in the enjoyment of their human rights. Otherwise, “[t]o treat in an equal
manner persons or groups whose situations are objectively different will constitute
discrimination in effect, as will the unequal treatment of persons whose situations are
objectively the same.”
15 Accordingly, in its General Recommendation 23, CERD has noted
the distinctive characteristics of indigenous peoples in light of their histories and cultures,
and has called upon States to take particular measures to protect their rights, including
14
CCPR/C/21/Rev.1/Add.5, para. 6(2).
15
CERD General Recommendation 32: Special Measures, para. 8.
A/HRC/18/35/Add.1
50
measures to “[e]nsure that indigenous communities can exercise their rights to practise and
revitalize their cultural traditions and customs …”.
16
19. The Declaration on the Rights of Indigenous Peoples, which reinforces the call to
ensure for indigenous peoples the enjoyment of fundamental human rights historically
denied to them, for its part affirms that “[i]ndigenous peoples have the right to manifest,
practice, develop and teach their spiritual and religious traditions, customs and ceremonies;
the rights to maintain, protect, and have access in privacy to their religious and cultural
sites” (Art. 12). Additionally, Article 25 of the Declaration provides that indigenous
peoples’ right to “maintain and strengthen their distinctive spiritual relationship with their
traditionally owned or otherwise occupied and used lands, territories … and to uphold their
responsibilities to future generations in this regard.” The Declaration thus recognizes that,
for indigenous peoples, the ability to effectively practice and manifest their religion and
beliefs depends many times on the protection of and access to sites of particular religious
and cultural significance. Consequently, the duty of States to ensure on an equal basis the
right to the free exercise of religion includes that duty to adopt safeguards for the exercise
of indigenous religious traditions in connection with sacred sites.
Permissible limitations on the right to maintain and practice religion
20. The international law duty of States to ensure the exercise by indigenous peoples of
their religious traditions extends to safeguarding against any meaningful limitations to that
exercise, not just limitations that entail coercion to act against one’s religious beliefs or
penalties for doing so. Under Article 18(3) of the Covenant on Civil and Political Rights,
“Freedom to manifest one’s religion or beliefs may be subject only to such limitations as
prescribed by law and are necessary to protect public safety, order, health or morals, or the
fundamental rights and freedoms of others.” With this standard there is no qualification on
the kind of limitation or restriction that must undergo examination for justification on the
basis of the stated purposes. Under the plain language of Article 18 of the Covenant,
any
clearly observable limitation that makes for a meaningful restriction on the exercise of
religion is subject to scrutiny.
21. The process of snowmaking from reclaimed sewage water on the San Francisco
Peaks undoubtedly constitutes a palpable limitation on religious freedom and belief, as
clearly indicated by the U.S. Forest Service’s Final Environmental Impact Statement. This
limitation exists even assuming minimal physical environmental degradation as a result of
the snowmaking. It bears remembering that the Ninth Circuit Court of Appeals
acknowledged that the effect of the proposed use of reclaimed wastewater would constitute
a desecration of the affected indigenous peoples’ religion.
17 The religious freedom at stake
is not simply about maintaining ceremonial or medicinal plants free from adverse physical
environmental conditions or about physical access to shrines within the Peaks. More
comprehensively, it is about the integrity of entire religious belief systems and the critical
place of the Peaks and its myriad qualities within those belief systems.
Is the limitation on Native American religion necessary to achieve a valid public purpose
or protect the human rights of others?
22. It may be concluded without much difficulty that the limitation on Native American
religion resulting from the decision of the U.S. Forest Service to permit the artificial
snowmaking is “prescribed by law”, in the sense that it is pursuant to the Forest Service’s
authority and legally prescribed procedures for managing the lands around the San
16
CERD/C/51/Misc.13/Rev.4, para. 4(d)(e)).
17
See Navajo Nation, 535 F. 3d at 1070.
A/HRC/18/35/Add.1
51
Francisco Peaks. The question remains, however, whether the limitation from that decision
is “necessary to protect public safety, order, health or morals, or the fundamental rights and
freedoms of others”, as stipulated by Article 18(3) of the International Covenant on Civil
and Political Rights. This question in turn entails two inquires: first, whether an adequate
purpose is being pursued and, second, whether the limitation on Native American religion
is necessary to achieve that purpose.
23. As to the first question, whether there is a sufficient purpose within the terms of
article 18(3) of the Covenant, the Human Rights Committee in its General
Recommendation 22 has explained that this provision “is to be strictly interpreted:
restrictions are not allowed on grounds not specified there... Limitations may be applied
only for those purposes for which they were prescribed”.
18 It is far from apparent how the
decision to permit snowmaking by a private recreational ski facility is in furtherance of one
of the specified public purposes – public safety, order, health or morals – or the human
rights of others. In its Record of Decision on the artificial snowmaking and other
modifications to the ski area, the Forest Service explained that “[d]ownhill skiing is an
important component of the recreation opportunities offered by National Forests, and the
Forest Service and the ski industry have forged a partnership to provide recreational
opportunities on [National Forest Service] lands.”
19 In the view of the Forest Service, “the
overall benefits of providing stable winter recreational opportunities for the public and the
community… merits [the] selection” of the proposed use of recycled wastewater for
snowmaking operations.
20 In this connection, the Forest Service considered the financial
viability of Snowbowl to be a factor: “Snowbowl’s ability to maintain or improve its
current level of service and endure the business conditions caused by unreliable snowfall is
questionable… [Therefore] the installation and operation of snowmaking infrastructure…
will enable a reliable and consistent operating season, thereby helping to stabilize the
Snowbowl’s viability”.
21
24. Even assuming that a sufficient purpose could be discerned, it is left to be
determined whether the limitation on religion arising from the artificial snowmaking is
necessary for that purpose, necessity being in significant part a function of proportionality.
As stated by the Human Rights Committee, “[l]imitations … must be directly related and
proportionate to the specific need on which they are predicated”.
22 An assessment of
necessity and proportionality requires examination of the nature and severity of the
limitation on religion, in relation to the identified valid purpose and the manner in which
the purpose is being pursued. In this respect as well, it is far from readily apparent how the
limitation on Native American religion imposed by the planned snowmaking can be
justified.
25. In determining necessity and proportionality, there must be due regard for the
significance of the San Francisco Peaks in the religious traditions of the tribes, the
desecration that the artificial snowmaking signifies, and the cumulative effect of that
desecration. The artificial snowmaking simply builds on what already was an affront to
religious sensibilities: the installation of the ski area in the first place and its gradual
expansion. In its Final Environmental Impact Statement, the Forest Service noted the past,
present and potential future cumulative effects of the ski operation, with its expansion and
upgrades, on the cultural resources in the area.
23 The cumulative effects on Native
18
CCPR/C/21/Rev.1/Add.4, para. 8.
19
FEIS-Record of Decision, p. 23.
20
Ibid.
21
Ibid., p. 24.
22
CCPR/C/21/Rev.1/Add.4, para. 8.
23
FEIS, supra, at 3-25.
A/HRC/18/35/Add.1
52
American religion of the expansions and upgrades of the ski operation, and not just the
added effects of the snowmaking, must be found necessary and proportionate in relation to
some sufficient purpose. It is highly questionable that the effects on Native American
religion can be justified under a reasonable assessment of necessity and proportionality, if
the purpose behind the Government decision to permit the enhancements to the ski
operation is none other than to promote recreation.
Recommendations
26. On the basis of the foregoing, the Special Rapporteur respectfully recommends that
the United States Government engage in a comprehensive review of its relevant policies
and actions to ensure that they are in compliance with international standards in relation to
the San Francisco Peaks and other Native American sacred sites, and that it take appropriate
remedial action.
27. In this connection, the Government should reinitiate or continue consultations with
the tribes whose religions practices are affected by the ski operations on the San Francisco
Peaks and endeavor to reach agreement with them on the development of the ski area. The
Government should give serious consideration to suspending the permit for the
modifications of Snowbowl until such agreement can be achieved or until, in the absence of
such an agreement, a written determination is made by a competent government authority
that the final decision about the ski area modifications is in accordance with the United
States’ international human rights obligations.
28. The Special Rapporteur wishes to stress the need to ensure that actions or decisions
by Government agencies are in accordance with, not just domestic law, but also
international standards that protect the right of Native American to practice and maintain
their religious traditions. The Special Rapporteur is aware of existing government programs
account their religious traditions in
government decision-making with respect to sacred sites. The Special Rapporteur urges the
Government to build on these programs and policies to conform to international standards
and by doing so to establish a good practice and become a world leader that it can in
protecting the rights of indigenous peoples.
The international cases of human rights abuses include the Wixarika (Huicholes) in Mexico struggling to protect their sacred lands from mining, along with cases from indigenous peoples in Guatemala, Chile, Israel, Ethiopia, Costa Rica, Malaysia and Thailand, in Anaya's Aug. 22 report.
Anaya urged the US to review the need to protect sacred San Francisco Peaks from the plan to use recycled wastewater for snowmaking by the private corporation Arizona Snowbowl. Further, Anaya urged the US to carry out consultation with American Indian Nations as required by US law and in accordance with international human rights obligations.
Anaya, pointing out the sacred nature of San Francisco Peaks to area Indian Nations, said, "To them, the sacredness of the San Francisco Peaks depends on the purity of the water and plant life in the area, which allegedly will be contaminated if wastewater is introduced into the Peaks through the planned artificial snowmaking."
Anaya states San Francisco Peaks is sacred to 13 area American Indian Nations and points out the specifics of the connections of Hopi and Navajo to the sacred mountain.
In his recommendations to the UN Human Rights Council, Anaya said the US should give serious consideration to suspending the permit for the Arizona Snowbowl.
"In this connection, the Government should reinitiate or continue consultations with the tribes whose religions practices are affected by the ski operations on the San Francisco Peaks and endeavor to reach agreement with them on the development of the ski area. The Government should give serious consideration to suspending the permit for the modifications of Snowbowl until such agreement can be achieved or until, in the absence of such an agreement, a written determination is made by a competent government authority that the final decision about the ski area modifications is in accordance with the United States’ international human rights obligations."
Annex X
United States of America: Situation of the Native Americans
in relation to artificial snowmaking from recycled wastewater
in the San Francisco Peaks
USA 1/2011
1. In a communication of 10 January 2011, the Special Rapporteur on the rights of
indigenous peoples, James Anaya, called the attention of the Government of the United
States of America to information received relating to the proposed use of recycled
wastewater for a commercial ski operation the San Francisco Peaks (or the “Peaks”), a
mountainous area that is sacred to several Native American tribes. The full text of this
communication can be accessed from the electronic version of the joint communications
report (A/HRC/18/51), which is available on the web site of the Human Rights Council. In
his communication the Special Rapporteur requested a response within 60 days. He regrets
that there is no record of a response in the files of the Office of the High Commissioner for
Human Rights at the time of finalization of this report. In the absence of a response, the
Special Rapporteur developed the observations below, which include an evaluation of the
situation and recommendations to the Government of the United States. These observations
were transmitted to the Government on 6 July 2011.
Background
2. The San Francisco Peaks are located north of the city of Flagstaff, Arizona within
land that is administered by the United States Forest Service as part of the Coconino
National Forest. According to information received, the Arizona Snowbowl Resort Limited
Partnership (“Snowbowl”) owns and operates a commercial ski operation in the western
flank of the San Francisco Peaks, under a 777-acre special use permit issued by the Forest
Service. In 2002 Snowbowl filed an application for expansion of its facilities, including a
request for approval to make snow from treated sewage effluent. In February 2005, the
Forest Service issued its Final Environmental Impact Statement and Record of Decision
approving the proposed artificial snowmaking from recycled waste wastewater, the
construction of a pipeline from Flagstaff to carry the treated effluent from Flagstaff and
improvement of guest service facilities. Several Native American tribes and organizations
have vigorously opposed the Forest Service’s decision. To them, according to sources, the
sacredness of the San Francisco Peaks depends on the purity of the water and plant life in
the area, which allegedly will be contaminated if wastewater is introduced into the Peaks
through the planned artificial snowmaking. However, their federal court lawsuit to
challenge the approval of artificial snowmaking on, inter alia, religious freedom grounds
was unsuccessful.
1
Observations of the Special Rapporteur
3. On the basis of information he has received and gathered on this situation, which he
considers to be in material respects undisputed, the Special Rapporteur offers the following
1
See Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129
S.Ct. 2763 (2009).
A/HRC/18/35/Add.1
44
observations, in the hope that they will serve to promote appropriate action by the United
States to address the human rights matters raised.
4. The extensive documentation by the Government and federal courts in relevant
proceedings makes clear that the San Francisco Peaks are sacred to several Native
American tribes, and that the presence of the ski operation and now the initiative to make
artificial snow from recycled wastewater on the Peaks offend the religious beliefs and
practices of members of these tribes. Apart from the provisions of domestic law that have
been applied by the courts to examine this situation, international standards, including those
based on human rights treaties to which the United States is a party to and the Declaration
on the Rights of Indigenous Peoples, require adequate consultation and close scrutiny for
any action that affects the sacred sites and religious practices of indigenous peoples. The
United States should engage in a comprehensive review of its relevant policies and actions
to ensure that they are in compliance with these international standards in relation to the
San Francisco Peaks and other sacred sites of Native Americans, and should take
appropriate remedial action. In the paragraphs below, the Special Rapporteur elaborates
upon these points.
The effects of the planned snowmaking on Native American religion
5. The Special Rapporteur is aware that the development of the Snowbowl ski area and
the recent plans for expanding its facilities, including for artificial snowmaking with
recycled wastewater, have proceeded with extensive examination and documentation by the
Government and federal courts of the impacts on Native American culture and religion.
Required environmental impact studies and the legal challenges to the federal permits for
Snowbowl’s expansion on the San Francisco Peaks have prompted this examination and
documentation, which make abundantly clear the sacred character of the Peaks to the tribes,
the affront on their religious beliefs and the tribes’ opposition to the planned snowmaking.
6. The Final Environmental Impact Statement compiled by the U.S. Forest Service to
assess the proposal for artificial snowmaking and other additions to Snowbowl’s operations
on the Peaks included the following observations:
The San Francisco Peaks are sacred to at least 13 formally recognized tribes that are
still actively using the Peaks in cultural, historic, and religious contexts. A central
underlying concept to all tribes for whom the Peaks are especially important is the
recognition that the San Francisco Peaks are a source of water in the form of rain,
springs, and snow. It is believed that the Peaks were put there for the people and it is
therefore the peoples’ duty to protect it for the benefit of the world… [N]ine
significant qualities… characterize the Peaks for the tribes. These qualities include:
• They are the abode of deities and other spirit beings.
• They are the focus of prayers and songs whereby humans
communicate with the supernatural.
• They contain shrines and other places where ceremonies and prayers
are performed.
• They are the source of water.
• They are the source of soil, plant, and animal resources that are used
for ceremonial and traditional purposes.
• They mark the boundaries of traditional or ancestral lands.
• They form a calendar that is used to delineate and recognize the
ceremonial season.
A/HRC/18/35/Add.1
45
• They contain places that relate to legends and stories concerning the
origins, clans, traditions, and ceremonies of various Southwestern
tribes.
• They contain sites and places that are significant in the history and
culture of various tribes.
Two examples of the cultural significance of the San Francisco Peaks are the Hopi
and Navajo peoples’ religious and spiritual connections to the Peaks, as discussed
below.
Hopi
Hopi clans migrated through the San Francisco Peaks (called
Nuvatukyaovi, “High
Place of Snow”), made settlements nearby, and placed shrines on the Peaks. All of
the religious ceremonies focus on
Nuvatukyaovi and demonstrate the sacred
relationship of the Peaks to the Hopi people. The history of clan migrations through
the area continue to be related, discussed, and passed on from generation to
generation. The Peaks contain clan and society shrines, and gathering areas for
medicinal and religious use. Hopi religious leaders visit the Peaks annually. The San
Francisco Peaks are the spiritual essence of what Hopis consider the most sacred
landscapes in Hopi religion. They are the spiritual home of the
Katsinam, significant
religious beings that all Hopis believe in, and are therefore, sacred. The ceremonies
associated with the Peaks, the plants and herbs gathered on the Peaks, and the
shrines and ancestral dwellings located in the vicinity of the Peaks are of central
importance to the religious beliefs and traditions that are the core of Hopi culture....
Navajo
The Navajo people believe that the Creator placed them on land between four sacred
mountains: Blanca Peak in Colorado, Mount Taylor in New Mexico, the San
Francisco Peaks in Arizona, and Hesperus Peak in Colorado. According to their own
history, the Navajos have always lived between these mountains. Each of the four
mountains is associated with a cardinal direction, symbolizing the boundaries of the
Navajo homeland. For the Navajo, the Peaks are the sacred mountain of the west,
Doko’oo’sliid,
“Shining on Top,” a key boundary marker and a place where
medicine men collect soil for their medicine bundles and herbs for healing
ceremonies. Navajo traditions tell that San Francisco Peak was adorned with
Diichilí
, Abalone Shell, Black Clouds, Male Rain, and all animals, besides being the
home of
Haashch’éélt’i’í (Talking God), Naada’algaii ‘Ashkii (White Corn Boy),
and
Naadá ‘Altsoii ‘At’ééd (Yellow Corn Girl). The sacred name of the Peaks is
Diichilí Dzil
– (Abalone Shell Mountain). The Navajo people have been instructed
by the Creator never to leave their sacred homeland.
Dook’o’osliid and the other
three sacred mountains are the source of curing powers. They are perceived as a
single unit, such as the wall of a hogan, or as a particular time of a single day.
Dook’o’osliid
is seen as a wall made of abalone shell and stone, with mixed yellow
and white bands....
Environmental Consequences
The 1975 Hopi Tribal Resolution noted that there are numerous medicinal herbs and
other plants at several levels of the Peaks that are used to treat the ailments of the
Hopi people. The Forest Service is unaware of any plants or other natural resource
material used by the Hopi within the Snowbowl … area; however, the addition of
new trails, increased parking, and the potential for additional annual visitation within
the … area and the San Francisco Peak themselves causes concern among the Hopi
and other tribes that their areas of traditional use would be impacted. Specifically,
A/HRC/18/35/Add.1
46
the Hopi make pilgrimages to shrines and use the Peaks for religious reasons such as
gathering evergreens and herbs and delivering prayer feathers.
Although the reclaimed water proposed for use in snowmaking fully meets both the
Federal and Arizona state water quality standards, it is believed that trace levels of
unregulated residual constituents within reclaimed water (e.g., pathogens,
pharmaceuticals, hormones, etc.) could negatively impact the spiritual and medicinal
purity of resident flora on the Peaks. Several specific concerns have been raised
about the impact of snowmaking on the spiritual values of the Peaks.
An additional concern is that some of the reclaimed water once passed through
hospitals or mortuaries could carry the spirits of the dead with it. Those spirits, as
part of the water draining from the Peaks, would then infiltrate plants, thus affecting
their ritual purity.
From both a Hopi and Navajo perspective, any plants that would come into contact
with reclaimed water would be contaminated for medicinal purposes, as well as for
use in ceremonies needed to perpetuate their cultural values….
The Hopi believe that the
Katsinam are responsible for moisture and that the
installation of snowmaking technology within the SUP [special use permit] area
would alter the natural processes of the San Francisco Peaks and the responsibilities
of the
Katsinam.
The Hopi, Navajo, and other tribes have existed in the region of the San Francisco
Peaks for thousands of years and have developed their cultures and religious
institutions around the natural and cultural landscape of the San Francisco Peaks.
Traditions, responsibilities, and beliefs that delineate who they are as a people, and
as a culture, are based on conducting ritual ceremonies they are obligated to perform
as keepers of the land. These obligatory activities focus on the Peaks, which are a
physical and spiritual microcosm of their cultures, beliefs, and values. Snowmaking
and expansion of facilities, especially the use of reclaimed water, would contaminate
the natural resources needed to perform the required ceremonies that have been, and
continue to be, the basis for the cultural identity for many of these tribes.
2
7. The records of the proceedings in federal court litigation concerning Snowbowl’s ski
operations on the San Francisco Peaks reinforce the above assessment of the sacred
character of the Peaks, and of the effects on Native American religion of the planned
snowmaking and other modifications, on top of the effects of the existing ski facilities.
3
Even while holding that the Government’s approval of the Snowbowl modifications did not
violate federal law, the Ninth Circuit Court of Appeals, sitting en banc, acknowledged the
sacred character of the San Francisco Peaks and that “[t]o the [tribes], the [presence of
recycled wastewater] will desecrate a sacred mountain and will decrease the spiritual
fulfillment they get from practicing their religion on the mountain”.
4
8. Despite such acknowledgment, the federal appellate court held that this impact on
religion is not of the kind that could lead to finding a violation of the federal Religious
2
USDA Forest Service, Arizona Snowbowl Facilities Improvements Final Environmental Impact
Statement, Vol. 1 (2005), pp. 3-7 to 3-11, 3-16 to 3-18 (hereinafter “FEIS”).
3
See Navajo Nation v. United States Forest Service, 408 F. Supp. 2d 866 (D. Ariz., 2006), aff’d in part
and rev’d in part, 479 F.3 1024 (9
th Cir. 2008); aff’d on rehearing, 535 F.3d 1058 (9th Cir. 2008), cert.
denied, 129 S.Ct. 2763 (2009);
Wilson v. Block, 708 F.2d 735 (D.C. Court of Appeals, 1983), cert.
denied 463 U.S. 958 (1983).
4
Navajo Nation v. United States Forest Service, 535 F. 3d 1058, 1070 (9th Cir. 2008) (en banc), cert.
denied, 129 S.Ct. 2763 (2009).
A/HRC/18/35/Add.1
47
Freedom Restoration Act (RFRA). For the Ninth Circuit Court of Appeals, RFRA only
protects against government action that actively coerces Native American religious
practitioners into violating their religious beliefs or that penalizes their religious activity
with loss or threat loss of government benefits. Along with finding the absence of such
conditions, the court pointed to the lower court determination that in fact no plants or
religious shrines would be physically affected by the snowmaking and that practitioners
would continue to have access to the mountain, including the ski area, to conduct religious
activities.
5 Neither the appellate nor lower court questioned, however, that for Native
American religious practitioners from several tribes, snowmaking with recycled wastewater
in Snowbowl would be a desecration of a sacred mountain, even if federal and state
environmental standards are met and they continue to have access to the mountain along
with skiers.
9. It is not the purpose of the Special Rapporteur to review or challenge the application
of domestic law by the United States judicial system. Rather, the Special Rapporteur means
to draw attention to the relevant international standards that bind the United States and that
should guide action by Government actors, even when certain decisions may be permissible
under domestic law. The Special Rapporteur respectfully reminds the United States that the
judicial applications and interpretations of the legal protections for Native American
religion available under domestic law do not pose any legal barrier to Government action in
accordance with a higher standard.
The lack of indigenous agreement or consent to artificial snowmaking on a sacred
mountain
10. In its Record of Decision to permit snowmaking from recycled wastewater and other
modifications to the ski operation on the San Francisco Peaks, the United States Forest
Service acknowledged that “[o]ver the years the tribes have continued to state their
opposition to development at Snowbowl”, as they did in 1979 when the Forest Service was
considering the option of closing down the ski operation but decided instead to allow it to
expand.
6 The Forest Service reported extensive consultations with the tribes about the most
recent plans for Snowbowl enhancements. “In all 200 phone calls were made, 41 meetings
were held, and 245 letters were sent to Tribal officials, tribal historic preservation offices,
traditional tribal leaders/practitioners, and the general tribal public”.
7
11. The Forest Service confirms that “[a]s with the decision in 1979, the proposal to
improve the facilities at the Snowbowl has been met with adamant opposition from the
tribes, even though there have been changes in laws, improvements in working
relationships and successes in working together on other projects …”.
8 Despite this
adamant opposition by the tribes based on their religious practices and beliefs, the Forest
Service decided to approve the artificial snowmaking and other ski area modifications,
bringing into question the United States’ adherence to international standards to which it
has expressed its commitment.
Article 19 of the Declaration on the Rights of Indigenous Peoples provides:
States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free
5
See Ibid., pp. 1063, 1070.
6
USDA Forest Service, Record of Decision – Arizona Snowbowl Facilities Improvements Final
Environmental Impact Statement and Forest Management Plan #21 (February 2005), p.3 (hereinafter
“FEIS-Record of Decision”).
7
Ibid., p. 9.
8
Ibid., p. 3.
A/HRC/18/35/Add.1
48
prior and informed consent before adopting and implementing any legislative
measure that affects them.
12. This standard of consultation and consent is a corollary of the right to selfdetermination
and the cultural rights of minorities that are affirmed, respectively, in articles
1 and 27 of the International Covenant on Civil and Political Rights, as manifested by the
jurisprudence of the Human Rights Committee.
9 Additionally, it is instrumental to
implementing the principles of non-discrimination found in the International Convention on
the Elimination of All Forms of Racial Discrimination, as instructed by the Committee on
the Elimination of Racial Discrimination (CERD).
10 In its General Recommendation 23,
CERD calls upon State parties to “[e]nsure that members of indigenous peoples have equal
rights in respect of effective participation in public life and that no decisions directly
relating to their rights and interests are taken without their informed consent ...”.
11
13. Under the cited human rights treaties, to which the United States is a party, and the
Declaration on the Rights of Indigenous Peoples, which the United States has endorsed,
consultations should take place with the objective of achieving agreement or consent by
indigenous peoples to decisions that may directly affect them in significant ways, such as
decisions affecting their sacred sites. Simply providing indigenous peoples with
information about a proposed decision and gathering and taking into account their points of
view is not sufficient in this context. Consultation must occur through procedures of
dialogue aimed at arriving at a consensus.
12
14. It is far from clear that the consultations with the tribes about the artificial
snowmaking and other ski area modifications were undertaken through procedures
involving negotiations toward an agreed-upon outcome. It appears instead that the
consultations were more in the nature of dissemination of information about the Snowbowl
development plans and gathering of views about those plans, within a process of
government decision making that did not depend on agreement or consent on the part of the
tribes.
13 In any case, it is beyond question that the tribes have not agreed or consented to the
Snowbowl modifications; indeed they have actively opposed them.
15. In the absence of consent by indigenous peoples to decisions that affect them, States
should act with great caution. At a minimum, States should ensure that any such decision
does not infringe indigenous peoples’ internationally-protected collective or individual
rights, including the right to maintain and practice religion in relation to sacred sites. It is
9
See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, A/HRC/12/34 (15 July 2009), paras. 40- 41 (hereinafter “2009
annual report of the Special Rapporteur”).
10
Ibid., para. 40.
11
A/52/18, annex V at para. 4(d).
12
For a discussion of the duty of States to consult with indigenous peoples affecting them, see 2009
annual report of the Special Rapporteur, supra, paras. 36-74.
13
The Forest Service did develop a Memorandum of Agreement (MOA) related to adverse effects of the
proposed ski area modifications, as a result of the nomination of the San Francisco Peaks for
inclusion in the National Register of Historic Places, and it invited the tribes to sign the MOA as
concurring parties. The Forest Service reported that four of the affected tribes did sign, while the
others (including Navajo and Hopi) declined to do so or did not respond. FEIS-Record of Decision,
pp. 26-27. The MOA does not embody or propose agreement to the ski area modifications but rather
provides for a series of measures calculated to mitigate adverse effects of the development of the ski
area and to protect the cultural values associated with the San Francisco Peaks. See FEIS, Appendix
D. While most of the affected tribes did not sign the MOA, it is not clear that any of them were
involved in developing its terms, other than indirectly through the consultations reported by the Forest
Service.
A/HRC/18/35/Add.1
49
therefore necessary in this case to assess the nature of the right of Native Americans to
practice their religious traditions under international human rights standards and the scope
of permissible restriction of the right.
International standards protecting the right of Native Americans to maintain and practice
their religious traditions
16. Under relevant sources of international law, the United States has a duty to respect
and protect Native American religion, a duty that goes beyond not coercing or penalizing
Native American religious practitioners. The right of indigenous peoples to maintain and
practice their distinctive religions, including in relation to sacred areas, is protected by the
International Covenant on Civil and Political Rights and the International Convention on
the Elimination of All Forms of Racial Discrimination. Further, it is recognized specifically
by the United Nations Declaration on the Rights of Indigenous Peoples, which provides an
authoritative statement of standards that States should follow in keeping with their
obligations under these and other human rights treaties, as well as under the human rights
clauses of the United Nations Charter. Any restriction on the right of indigenous peoples to
maintain and practice their religious traditions, not just those involving active coercion or
penalties, is subject to the most exacting scrutiny under these international instruments.
17. The right to practice or manifest religion or belief is protected under Article 18(1) of
the International Covenant on Civil and Political Rights, which states that “[e]veryone shall
have the right to freedom of thought, conscience and religion [which includes] freedom …
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.” State parties have a duty
to take the measures necessary to ensure the effective enjoyment of this and other rights
recognized the Covenant (Art. 2(2)). In its Article 27, which is also of relevance to
indigenous peoples, the Covenant gives special consideration to the rights of minorities
whose cultural and religious traditions differ from those of the majority. Article 27 states,
“Persons belonging to minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practise their own
religion …”. In its interpretation of State parties’ obligations under Article 27, the Human
Rights Committee, in its General Comment 23 affirmed that “positive measures by States
may also be necessary to protect the identity of a minority and the rights of its members to
enjoy and develop their culture and language and to practise their religion, in community
with other members of the group”.
14
18. Article 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination provides that State parties are to “guarantee the right of everyone … to
equality before the law, notably in the enjoyment of …[t]he right to freedom of thought,
conscience and religion.” In interpreting and applying this Convention, CERD has observed
the need to take into account the particular characteristics of groups in order to achieving
effective equality in the enjoyment of their human rights. Otherwise, “[t]o treat in an equal
manner persons or groups whose situations are objectively different will constitute
discrimination in effect, as will the unequal treatment of persons whose situations are
objectively the same.”
15 Accordingly, in its General Recommendation 23, CERD has noted
the distinctive characteristics of indigenous peoples in light of their histories and cultures,
and has called upon States to take particular measures to protect their rights, including
14
CCPR/C/21/Rev.1/Add.5, para. 6(2).
15
CERD General Recommendation 32: Special Measures, para. 8.
A/HRC/18/35/Add.1
50
measures to “[e]nsure that indigenous communities can exercise their rights to practise and
revitalize their cultural traditions and customs …”.
16
19. The Declaration on the Rights of Indigenous Peoples, which reinforces the call to
ensure for indigenous peoples the enjoyment of fundamental human rights historically
denied to them, for its part affirms that “[i]ndigenous peoples have the right to manifest,
practice, develop and teach their spiritual and religious traditions, customs and ceremonies;
the rights to maintain, protect, and have access in privacy to their religious and cultural
sites” (Art. 12). Additionally, Article 25 of the Declaration provides that indigenous
peoples’ right to “maintain and strengthen their distinctive spiritual relationship with their
traditionally owned or otherwise occupied and used lands, territories … and to uphold their
responsibilities to future generations in this regard.” The Declaration thus recognizes that,
for indigenous peoples, the ability to effectively practice and manifest their religion and
beliefs depends many times on the protection of and access to sites of particular religious
and cultural significance. Consequently, the duty of States to ensure on an equal basis the
right to the free exercise of religion includes that duty to adopt safeguards for the exercise
of indigenous religious traditions in connection with sacred sites.
Permissible limitations on the right to maintain and practice religion
20. The international law duty of States to ensure the exercise by indigenous peoples of
their religious traditions extends to safeguarding against any meaningful limitations to that
exercise, not just limitations that entail coercion to act against one’s religious beliefs or
penalties for doing so. Under Article 18(3) of the Covenant on Civil and Political Rights,
“Freedom to manifest one’s religion or beliefs may be subject only to such limitations as
prescribed by law and are necessary to protect public safety, order, health or morals, or the
fundamental rights and freedoms of others.” With this standard there is no qualification on
the kind of limitation or restriction that must undergo examination for justification on the
basis of the stated purposes. Under the plain language of Article 18 of the Covenant,
any
clearly observable limitation that makes for a meaningful restriction on the exercise of
religion is subject to scrutiny.
21. The process of snowmaking from reclaimed sewage water on the San Francisco
Peaks undoubtedly constitutes a palpable limitation on religious freedom and belief, as
clearly indicated by the U.S. Forest Service’s Final Environmental Impact Statement. This
limitation exists even assuming minimal physical environmental degradation as a result of
the snowmaking. It bears remembering that the Ninth Circuit Court of Appeals
acknowledged that the effect of the proposed use of reclaimed wastewater would constitute
a desecration of the affected indigenous peoples’ religion.
17 The religious freedom at stake
is not simply about maintaining ceremonial or medicinal plants free from adverse physical
environmental conditions or about physical access to shrines within the Peaks. More
comprehensively, it is about the integrity of entire religious belief systems and the critical
place of the Peaks and its myriad qualities within those belief systems.
Is the limitation on Native American religion necessary to achieve a valid public purpose
or protect the human rights of others?
22. It may be concluded without much difficulty that the limitation on Native American
religion resulting from the decision of the U.S. Forest Service to permit the artificial
snowmaking is “prescribed by law”, in the sense that it is pursuant to the Forest Service’s
authority and legally prescribed procedures for managing the lands around the San
16
CERD/C/51/Misc.13/Rev.4, para. 4(d)(e)).
17
See Navajo Nation, 535 F. 3d at 1070.
A/HRC/18/35/Add.1
51
Francisco Peaks. The question remains, however, whether the limitation from that decision
is “necessary to protect public safety, order, health or morals, or the fundamental rights and
freedoms of others”, as stipulated by Article 18(3) of the International Covenant on Civil
and Political Rights. This question in turn entails two inquires: first, whether an adequate
purpose is being pursued and, second, whether the limitation on Native American religion
is necessary to achieve that purpose.
23. As to the first question, whether there is a sufficient purpose within the terms of
article 18(3) of the Covenant, the Human Rights Committee in its General
Recommendation 22 has explained that this provision “is to be strictly interpreted:
restrictions are not allowed on grounds not specified there... Limitations may be applied
only for those purposes for which they were prescribed”.
18 It is far from apparent how the
decision to permit snowmaking by a private recreational ski facility is in furtherance of one
of the specified public purposes – public safety, order, health or morals – or the human
rights of others. In its Record of Decision on the artificial snowmaking and other
modifications to the ski area, the Forest Service explained that “[d]ownhill skiing is an
important component of the recreation opportunities offered by National Forests, and the
Forest Service and the ski industry have forged a partnership to provide recreational
opportunities on [National Forest Service] lands.”
19 In the view of the Forest Service, “the
overall benefits of providing stable winter recreational opportunities for the public and the
community… merits [the] selection” of the proposed use of recycled wastewater for
snowmaking operations.
20 In this connection, the Forest Service considered the financial
viability of Snowbowl to be a factor: “Snowbowl’s ability to maintain or improve its
current level of service and endure the business conditions caused by unreliable snowfall is
questionable… [Therefore] the installation and operation of snowmaking infrastructure…
will enable a reliable and consistent operating season, thereby helping to stabilize the
Snowbowl’s viability”.
21
24. Even assuming that a sufficient purpose could be discerned, it is left to be
determined whether the limitation on religion arising from the artificial snowmaking is
necessary for that purpose, necessity being in significant part a function of proportionality.
As stated by the Human Rights Committee, “[l]imitations … must be directly related and
proportionate to the specific need on which they are predicated”.
22 An assessment of
necessity and proportionality requires examination of the nature and severity of the
limitation on religion, in relation to the identified valid purpose and the manner in which
the purpose is being pursued. In this respect as well, it is far from readily apparent how the
limitation on Native American religion imposed by the planned snowmaking can be
justified.
25. In determining necessity and proportionality, there must be due regard for the
significance of the San Francisco Peaks in the religious traditions of the tribes, the
desecration that the artificial snowmaking signifies, and the cumulative effect of that
desecration. The artificial snowmaking simply builds on what already was an affront to
religious sensibilities: the installation of the ski area in the first place and its gradual
expansion. In its Final Environmental Impact Statement, the Forest Service noted the past,
present and potential future cumulative effects of the ski operation, with its expansion and
upgrades, on the cultural resources in the area.
23 The cumulative effects on Native
18
CCPR/C/21/Rev.1/Add.4, para. 8.
19
FEIS-Record of Decision, p. 23.
20
Ibid.
21
Ibid., p. 24.
22
CCPR/C/21/Rev.1/Add.4, para. 8.
23
FEIS, supra, at 3-25.
A/HRC/18/35/Add.1
52
American religion of the expansions and upgrades of the ski operation, and not just the
added effects of the snowmaking, must be found necessary and proportionate in relation to
some sufficient purpose. It is highly questionable that the effects on Native American
religion can be justified under a reasonable assessment of necessity and proportionality, if
the purpose behind the Government decision to permit the enhancements to the ski
operation is none other than to promote recreation.
Recommendations
26. On the basis of the foregoing, the Special Rapporteur respectfully recommends that
the United States Government engage in a comprehensive review of its relevant policies
and actions to ensure that they are in compliance with international standards in relation to
the San Francisco Peaks and other Native American sacred sites, and that it take appropriate
remedial action.
27. In this connection, the Government should reinitiate or continue consultations with
the tribes whose religions practices are affected by the ski operations on the San Francisco
Peaks and endeavor to reach agreement with them on the development of the ski area. The
Government should give serious consideration to suspending the permit for the
modifications of Snowbowl until such agreement can be achieved or until, in the absence of
such an agreement, a written determination is made by a competent government authority
that the final decision about the ski area modifications is in accordance with the United
States’ international human rights obligations.
28. The Special Rapporteur wishes to stress the need to ensure that actions or decisions
by Government agencies are in accordance with, not just domestic law, but also
international standards that protect the right of Native American to practice and maintain
their religious traditions. The Special Rapporteur is aware of existing government programs
account their religious traditions in
government decision-making with respect to sacred sites. The Special Rapporteur urges the
Government to build on these programs and policies to conform to international standards
and by doing so to establish a good practice and become a world leader that it can in
protecting the rights of indigenous peoples.
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