Here are the materials in the pending motion to dismiss:
UPDATE (8/16/12): Hopi Reply
The opinion and other materials in Dish Network’s motion for a preliminary injunction in a similar case out of North Dakota are here.
Hopi Tribe
Federal Court Claim re: Hopi Secretarial Election Stayed under Tribal Court Exhaustion Doctrine
Here are the materials in Sekayumptewa v. Salazar (D. Ariz.):
ICT Article on Hopi Constitutional Reform and Village Sovereignty
Voting on a proposed revision to the Hopi Constitution could violate village sovereignty and the results might create an ill-conceived fourth branch of government, according to a former Hopi Tribal Court chief judge.
“The Hopi Constitution was a historical agreement between the villages and Hopi central government,” Gary LaRance said.
In Hopi there are two separate governments – the central government, termed “the Hopi Tribe,” and the Hopi villages with their own inherent sovereignty. Each village is to determine for itself its own organization, he said.
About 75 years ago, at the time of the Indian Reorganization Act, Hopi and Tewa villages in northeastern Arizona decided that they wanted the Hopi central government to be their voice to the outside world but that they wanted to remain apart from it internally, he said.
LaRance is among those calling for a halt to a vote requested by the tribal council and scheduled by the BIA for Jan. 27, 2011. A delay is sought to provide more time to consider what amendments should be made to the IRA-era constitution that over the years has posed problems in the villages’ relationship to the central government.
LA Times on the Bennett Freeze at Navajo/Hopi
From the LA Times:
Reporting from Cameron, Ariz. – This is the land where Larry Gordy was destined to live, until it was made unlivable.
The Navajo believe that a person will always be tied to the place where his or her umbilical cord is buried. When Gordy was born in 1968, his father put his in this rust-colored dirt. It was here on the family’s ranch on the edge of the Painted Desert that his father dreamed of one day building homes for his children, and of tilling a field where watermelon and corn could grow.
But the Gordys were forced to put their dreams on hold. In 1966, the commissioner of Indian Affairs, Robert Bennett, halted development on 1.6 million acres of tribal land in northeastern Arizona that was claimed by both the Navajo nation and the Hopi tribe. Bennett imposed the ban to stop either tribe from taking advantage of the other while they negotiated ownership.
The ban became known as the Bennett Freeze. It meant the Gordys and the 8,000 or so other Navajos living on the land couldn’t erect homes, open businesses or even repair their roofs. No roads or schools were built, no electric, gas or water lines were permitted.
The land dispute dragged on for 40 years, paralyzing residents in a state of poverty rarely seen in America. Because few Hopis lived on the disputed territory, the ban affected mostly Navajos like the Gordys, who deserted their ranch after it fell into disrepair.
ICT: Indians v. Enviros at Hopi/Navajo
From ICT:
KYKOTSMOVI, Ariz. – The battle waged against a major coal company by Hopi and Navajo activists and against large environmental groups by tribal officials has, at least temporarily, intensified the conflict playing out in northern Arizona over the control, preservation and use of cultural and natural resources.
“I never thought I would see the day when being ‘Hopi’ meant being anti-environment, pro-big corporate energy, and actually promoting pollution and global warming in favor of ‘the almighty dollar,’” Alph Secakuku said.
In addition to being Sipaulovi Village representative on the tribal council, he is president of Hopi Organizational Political Initiative, a grassroots group believed to be among those ousted from Hopi tribal land for being perceived allies of the Sierra Club and other large groups that have opposed Peabody Western Coal Company’s role in expanded strip mining.
On Sept. 28 the Hopi tribal council – its legitimacy challenged in political infighting – said the Sierra Club,National Resources Defense Council, National Parks Conservation Association, Grand Canyon Trust, and “on-reservation organizations sponsored by or affiliated with the groups, are no longer welcome on the reservation.” Continue reading
Arizona Bar Journal Article on DV in Tribal Courts
Sylvia Struss, a DNA attorney, published “DV Cases in Tribal Court” in the October 2009 issue of Arizona Attorney.
Article on Peabody Coal, Black Mesa, and the Bush Administration
From CounterPunch:
Two days before Christmas, officials from the U.S. Office of Surface Mining (OSM) have granted a permit to Peabody Coal Company to expand their mining operations on Navajo and Hopi lands, despite opposition from local communities and problems with the permitting process including lack of adequate time for public comment on a significant revision to the permit, insufficient environmental review, and instability in the Hopi government preventing their legitimate participation in the process. OSM’s “Record of Decision” (ROD) is the final stage of the permitting process for the proposed “Black Mesa Project,” which would grant Peabody Coal Company a life-of-mine permit for the “Black Mesa Complex” in northern Arizona.
Davis and Washburn on Sex Offender Registration in Indian Country
Virginia Davis (NCAI) and Kevin Washburn (Arizona) have posted “Sex Offender Registration in Indian Country,” forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:
Congress was first confronted with the issue of sex offender registration following an incident at a BIA Indian school on the Hopi reservation after a BIA school teacher was convicted of molesting 142 Indian boys during a six-year period in the 1980s. The case, which resulted in a criminal conviction and a $50 million civil settlement, left a scar on the national consciousness. Despite this history, Congress all but ignored the needs of Indian victims and Indian tribes when it enacted the Sex Offender Registration and Notification Act as part of the Adam Walsh Act, mandating sex offender registration nationally. This essay criticizes this legislation and the undeliberative and unconsultative process that produced it. It concludes that the legislation might have been far more effective in dealing with sex crimes victimization on Indian reservations if Congress had embraced tribes as equal partners with states in implementing the law’s provisions. In the end, the law is likely to help least the very people who suffer from sex crimes the most. This tragedy could have been averted with a more thoughtful approach and greater recognition of the nuances of jurisdiction and insititutional capacity in Indian country.
Commentary on Snowbowl Case
From Truthout:
Ninth Circuit rules effluent does not defile sacred space. Forest Service argued skiing on treated sewage “a compelling government interest.”
The San Francisco Peaks of Northern Arizona “are sacred to at least 13 formally recognized Indian tribes … and this religious significance is of centuries duration.”(1) In February 2005, the US Forest Service issued a Final Environmental Impact Statement and Record of Decision approving a proposal to make artificial snow using treated sewage effluent at the Snowbowl Resort located on Humphrey’s Peak, the highest and – to the tribes – most holy of the San Francisco Peaks. That decision was appealed by the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache Nation and the White Mountain Apache Nation. The Circuit Court ruled for the Forest Service. In February 2007, a three-judge panel of the Ninth Circuit Court unanimously overturned the lower court’s decision. On Friday, August 8, 2008, the en banc majority of the Ninth Circuit Court ruled that “using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (‘RFRA’). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Act (‘NEPA’) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent.”(2)
On August 18, Leslie Thatcher, of Truthout, spoke with the Navajo Nation’s lead attorney in the case, Howard Shanker, who is also running in the Democratic primary for Arizona Congressional District One, the seat currently held by retiring Representative Rick Renzi (R-Arizona), presently under indictment for extortion, wire fraud, money laundering, and other charges related to an Arizona land deal.
Leslie Thatcher, for Truthout: Howard, what do you consider the most important issues in the Snowbowl case to be?
The San Francisco Peaks are federal land and the government has documented for years that the Peaks – especially Humphreys where Snowbowl is located – are sacred to local tribes. Nonetheless, the Feds issued a special use permit to operate a ski resort there that was unsuccessfully challenged in the 1970’s. Most recently, the Forest Service ruled that the resort could pipe up to 1.5 million gallons of treated sewage effluent to the resort for snowmaking in winters when natural snowfall is inadequate. The tribes have appealed that ruling.
The central issue that’s going on and that’s really important is that Native tribes have no First Amendment rights when it comes to government land-use decisions. And the federal government holds thousands of acres of land across the country that the tribes hold sacred. Up until we used the Religious Freedom Restoration Act [RFRA] successfully, there was no way for the tribes to challenge federal use of sacred lands. Now, they have to show there is a compelling government interest and that they are using the least restrictive means of furthering that compelling government interest when government action substantially burdens the exercise of religion.
The current ruling is that there is no substantial burden on the exercise of religion. The judges have said there is no objective evidence of impact on religious belief and practice.
Short of producing God in the courtroom, there’s no way to produce “objective” evidence. A Navajo elder testified that putting effluent on the mountain would be like raping his mother. Other testimonies – the sincerity of which were never challenged – described the disruptions to the spiritual world and contamination of the ritual purity of materials essential to Native ceremonies that spraying the effluent would result in.
The en banc court adopted a very restrictive reading of “Sherbet and Yoder” that does not seem to speak to the statute. In any event, spraying the Peaks can certainly be interpreted as a form of punishment or coercion.
The tribes appealed the Forest Service decision under the Religious Freedom Restoration Act (RFRA) rather than the First Amendment to the US Constitution. Can you explain how the RFRA differs from the First Amendment and why Congress passed the act?
In “Smith,” the Supreme Court said laws of general application can’t constitute a general burden under the Constitution. So then, Congress passed RFRA to say that even though a law may be of general applicability, if it results in a substantial burden to the exercise of religion, you have to do this balancing of interests. Then in 2003, Congress passed the Religious Land Use and Institutionalized Persons Act [RLUIPA] amending and broadening RFRA’s definition of “exercise of religion.”
The Ninth Circuit Court dissent, written by Judge Fletcher, joined by Judges Pregerson and Fisher, notes that “Under our prior case law, a ‘substantial burden’ on the ‘exercise of religion’ exists where government action prevents an individual ‘from engaging in [religious] conduct or having a religious experience’ and the interference is ‘more than an inconvenience.'” Can you explain how spraying up to 1.5 million gallons of effluent a day on the sacred mountains burdens the various plaintiff tribes’ exercise of religion?
For the Hopi, the Mountain is where the Katsina live; that’s their only sacred mountain; the Katsina are responsible for making the moisture that is essential to Hopi life. It was on Mt. Humphreys that the Hopi had their revelation and they return there for pilgrimages.
For the Navajo, it’s one of four sacred mountains, but it is essential to all blessing way ceremonies which depend on ritually pure materials gathered from the mountain.
The tribes see the Peaks as a single living entity; this is a living being. You can’t poison just one part of it without poisoning the whole.
One man testified that current ski runs are like a scar on the body, something the body can live with, but that putting effluent on the Peaks is like a toxic injection.
For the Apache, the mountain is where souls go after death; the transfer station of souls to Heaven and the spraying will interfere with that operation.
For both the Hualapai and the Navajo, the mountain is their Garden of Eden, where life started.
The government has never questioned the specific special holiness of these mountains to the Native tribes. In fact, in the very beginning, the National Historic Preservation Act uses the Peaks as an example of a sacred space.
Turtle Talk 
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