Sacred land battle moves onto private property

On April 17, 2002, Dale McKinnon and his attorney returned to federal district court in Phoenix, Ariz. Three years earlier, McKinnon had been sued-along with the United States and Arizona Departments of Transportation-by the Hopi Tribe, which asserted that land owned by McKinnon, from which he mines aggregate used in highway construction, is sacred. Thus, because the aggregate was to be used on a federal highway project, the tribe argued that the United States and Arizona had to consult with and get the tribe's permission before they could use McKinnon's aggregate. The Hopi's lawsuit was not McKinnon's first encounter with Native Americans' demands that he be stopped from using his property because of their religious beliefs about the windswept rock pile he owns south of Holbrook in east central Arizona.

In 1990, McKinnon leased and then bought Woodruff Butte, near the wide spot in the road that is Woodruff, which itself fell upon very hard times when Route 66 became Interstate 40. What does remain valuable is the aggregate on Woodruff Butte, the best in the region, due to its very high density and low porosity, which yield great concrete strength while using less oil in the paving process. Those constructing streets and highways in Arizona were anxious to use McKinnon's aggregate.

Dale McKinnon, operating as Cholla Ready Mix, obtained a commercial source permit from the Arizona Department of Transportation to allow his aggregate to be used in bids to construct Arizona highways. But then the Hopi, and soon the Navajo and the Zuni, asserted that McKinnon's rock pile was sacred. McKinnon's efforts at compromise failed; tribal leaders refused to identify any sacred locations so McKinnon could protect them. (Incredibly, younger tribal members who were particularly opposed to compromise asked McKinnon for directions to Woodruff Butte.)

Then came the Hopi lawsuit, challenging use of McKinnon's aggregate. The harassment of McKinnon continued. Finally, in January 2001, Arizona revoked McKinnon's commercial source permit and barred him from obtaining another one to ensure that the public shows respect for the beliefs of Native Americans that McKinnon's land is sacred.

Property Owner Harassed

Although this is the first time Native Americans have demanded that a landowner be barred from using his property because it is "sacred," over the last several years Native Americans have demanded that "sacred" federal land be closed to the public. In northeastern Wyoming, tribes demanded that Devils Tower National Monument be closed to climbing; in north central Montana, tribes said that Lewis and Clark National Forest could not be used for oil and gas exploration; in north central Wyoming, tribes urged that the Bighorn National Forest be closed to timber harvesting; in southern Utah, tribes called for restricted public access to Rainbow Bridge within a National Monument; in northern California, tribes insisted that several mining claims in the Plumas National Forest be nullified.

In each case, federal officials acceded to these demands, either with outright closures or with "voluntary" closures whereby the public is "urged" by federal officials, some carrying weapons, to show respect for Native American religion by staying away. Challenges to these closures have yet to reach the appellate level; once there, they may be doomed given binding Supreme Court precedent that federal lands are "public lands."

What is different about Dale McKinnon's situation is that Woodruff Butte is his private property. Nonetheless, Native Americans assert that he should be barred from using his land because of their view of it. When McKinnon returned to court last month, he said he would challenge Arizona's action as a violation of the prohibitions of the United States and Arizona Constitutions against, not only the establishment of religion, but also the adoption of "special legislation." What hangs in the balance is not only whether Arizona may, in Chief Justice Rehnquist's parlance, "take sides in religion," but whether it may do so as to private property.

Mr. Pendley is President and Chief Legal Officer of the Mountain States Legal Foundation.

Copyright Human Events Publishing, Inc. May 27, 2002
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