What Burdens Religion? Musings on Two Recent Cases Interpreting the Religious Freedom Restoration Act (RFRA)
Thomas F. King, 13 Great Plains Nat. Resources J. 1 (2010)
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In Navajo Nation, at issue was the proposed use of treated sewage effluent to make artificial snow at the Arizona Snowbowl, a ski facility on the San Francisco Peaks in Arizona. As the district court acknowledged, to traditional Navajo, the Peaks are the “Mother of the Navajo people,” and comprise one of “the holiest of Navajo shrines.” The Hopi, Havasupai, Yavapai, Hualapai, and White Mountain Apache Tribes have different beliefs about the Peaks, but each regards them in its own way as holy ground. The tribes and other plaintiffs sought to block the snowmaking, charging that it would pollute the sanctity of the Peaks and hence burden their practices of religion in violation of RFRA. The district court rejected the plaintiffs’ claims and dismissed the case. On appeal, a panel of the Ninth Circuit reversed the district court decision, finding for the plaintiffs. The Ninth Circuit then reconsidered the case en banc, and, over the thoughtful dissent of Judge William Fletcher, found that the snowmaking would not burden the tribes’ religious practices. On August 8, 2008 the court dismissed the case.
Comanche Nation has not proceeded nearly as far through the courts as has Navajo Nation. On September 23, 2008, the District Court for the Western District of Oklahoma issued a preliminary injunction halting the U.S. Army’s construction of a training support center at Fort Sill in Oklahoma. The construction site of the proposed support center is about 1600 feet south of Medicine Bluffs, a stone-faced prominence that is and long has been a place of spiritual practice in traditional Comanche religion. The Comanche Nation sought to halt the construction because the new facility would interfere with views of and from the Bluffs, whose unsullied natural character is important to Comanche religious experience. The ultimate disposition of the case remains to be determined, but the District Court’s interpretation of RFRA is interesting for its sharp contrast with that of the Ninth Circuit in Navajo Nation.
