Tohono O'odham Defend Iolkam in Court...

How ironic that the Smithsonian would defile sacred lands at the same time they open NMAI. Somebody up there doesn't 'get it'...

--ryan



Lawsuit to Halt Kitt Peak Telescopes Filed
© Indian Country Today April 11, 2005. All Rights Reserved
Posted: April 11, 2005
by: Brenda Norrell / Indian Country Today

SELLS, Ariz. - While San Carlos Apache led decades of court battles and protests to protect their sacred Dzil Nchaa Si An (Mount Graham) from massive telescope construction, many American Indians questioned whether the Tohono O'odham would battle in federal court the expansion of mammoth telescopes on Kitt Peak, the O'odham sacred mountain ''Iolkam,'' near the U.S.-Mexico border.

Kitt Peak crowns the north portion of the Baboquivari Mountains and is located in the tribe's Schuk Toak District.

Their speculation ended in March, when the Tohono O'odham Nation filed a lawsuit in U.S. District Court against the National Science Foundation seeking an injunction to immediately halt construction of telescopes on Kitt Peak. Further, the Nation requested that the BIA cancel the Kitt Peak lease.

The suit names the Smithsonian Institution Astrophysical Observatory, Kitt Peak National Observatory and NSF Astronomical Sciences Director G. Wayne Van Citters as defendants.

The Nation claimed the National Science Foundation manipulated the process for the environmental assessment and as a result, the mountain, known as ''I'itoi's Garden,'' was not declared a sacred site. U.S. cultural and tribal self-governance laws were also violated in site preparation for the Very Energetic Radiation Imaging Telescope Array System (VERITAS), the Nation said.

The O'odham lawsuit states, ''Since the announcement of plans to construct a new array of telescopes and related buildings, the Nation has asserted that further building would destroy the spiritual nature of the site.''

Pressing to halt VERITAS telescope construction, the O'odham claimed the National Environmental Policy Act of 1969 was violated and stated that the environmental assessment and subsequent finding of ''no significant impact'' should have been sent out for review before a final document was issued. The final document alone was sent to the tribe, the Schuk Toak District, the BIA and the U.S. Fish and Wildlife Service.
''This was not done. In addition, the federal official who signed the finding of no significant impact relied on a defective cultural resources report that failed to identify Kitt Peak as an Indian sacred site. Therefore the finding of no significant impact violated federal law,'' the nation said.

The United States' cultural laws were also violated. Under Section 106 of the National Historic Preservation Act of 1966, a federal project's Cultural Resource Report must be sent to the Arizona State Historic Preservation Office for review. However, that report was sent neither to SHPO, the Nation nor the BIA for review.

The Endangered Species Act of 1973 stipulates that a copy of the biological report for the VERITAS project must be sent to the U.S. Fish and Wildlife Service for review. However, the report was not sent to the USFWS, the nation or the BIA.

Tohono O'odham Chairman Vivian Juan-Saunders said the telescope project has proceeded in defiance of tribal, state and federal laws.
''I'itoi's Garden has cultural and religious significance to our people - we have no choice but to try to halt the construction of this project,'' Juan-Saunders said in a statement.

The Tohono O'odham, entering the arena to battle a consortium of international universities and the Smithsonian Institution, took the legal action to halt telescope construction following years of pressure from O'odham spiritual leaders.

The Papago Tribal Council, whose name was changed to the Tohono O'odham Nation in 1986, rejected the plan to build telescopes on the sacred mountain three times in 1958.

''The tribe eventually agreed while voicing the cultural and spiritual significance of the mountain,'' Juan-Saunders said.

However, the Tohono O'odham Nation said the National Science Foundation failed to comply with the National Environmental Policy Act, National Historic Preservation Act and the Nation's right to self-governance.

The BIA and the Arizona State Historic Preservation Office have asked NSF to comply with federal laws and regulations or halt telescope construction. In February, the BIA said VERITAS is not in ''lawful compliance'' because NSF did not comply with the National Historic Preservation Act of 1966.

Meanwhile, Curt Suplee, director of legislative and public affairs for the NSF, said the foundation hopes to reach an out-of-court resolution that will allow the complex to be built.

The Nation has gained support from Rep. Raul Grijalva, D-Ariz., who has asked the NSF to address the concerns of the Tohono O'odham, BIA and other agencies.

''I am concerned about the apparent process by which the NSF has pursued and approved the construction of the VERITAS project on the Tohono O'odham Reservation, particularly in light of the Nation's express opposition and the concerns raised by federal and state agencies.''