The decision by a full panel of the 9th U.S. Circuit Court of Appeals in San Francisco clears Arizona Snowbowl to expand their 777-acre resort. Owners want to add snowmaking equipment, a fifth chair lift and plan to cut away 100 acres of surrounding forest for more room.
The full panel disagreed. It concluded the tribes will still have full use of the mountain for their ceremonies and the snowmaking would not affect that. No plants would be harmed, no ceremonies would be physically affected and no places of worship would be made inaccessible.
"The sole effect of the artificial snow is on the (tribes') subjective spiritual experience," Judge Carlos T. Bea wrote for the majority of the 11-judge panel. "A government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a substantial burden ... on the free exercise of religious freedom."
"In this country Native Americans have no First Amendment rights when it comes to government land use decisions," stated Howard Shanker, who is also running for Congress in Arizona's Congressional District 1. "The federal government likely holds thousands of acres of land that Tribes hold sacred. This case was the last, best chance for the Tribes to be able to provide some legal protection to those lands. In a nation that prides itself on religious liberty, it is unconscionable that Native American beliefs are not respected under the law or the Constitution. We anticipate petitioning the U.S. Supreme Court for review of this matter," said Shanker.
"This ruling sets a negative precedent that impacts the future of Native American religious practice," said Francis Tso of the Save the Peaks Coalition. "We will seek to reverse this appalling decision."
The three dissenting Judges from the en banc Court argued that, "Religious exercise, invariably, and centrally, involves a 'subjective' spiritual experience." The dissenting judges further provided that, "The majority's misunderstanding of the nature of religious beliefs and exercise as merely 'subjective' is an excuse for refusing to accept the Indians' religion as worthy of protection under RFRA." As noted by the dissent, "RFRA was passed to protect the exercise of all religions, including the religions of American Indians. If Indians' land-based exercise of religion is not protected by RFRA in this case, I cannot imagine a case in which it will be. I am truly sorry that the majority has effectively read American Indians out of RFRA."
Rather, the decision shows what happens when voters stupidly elect conservatives such as George W. Bush and John McCain. The elected conservatives then appoint judges who rule for the majority against the minority.
For more on the subject, see "Primitive" Indian Religions.