On the western edge of the Black Hills, a granite monolith points skyward. The National Park Service is the congressionally designated caretaker for the nation's first national monument -- Devil's Tower. The tower is revered as an embodiment of the national park idea. But this small patch of real estate in northeastern Wyoming is also the embodiment of a classic modern conflict. The conflict is not just recreation versus the sacred but the separation of church and state.
The butte, now known as Devil's Tower, is a sacred altar to American Indians and a premier recreational climbing destination. A management plan based on mutual respect has been carved out over a period of two years. During June a voluntary closure to individual climbing, a restriction on climbing for profit and an educational program respect the tower as a cultural resource significant - yes, even holy - to American Indians. No recreational activities are prohibited, but the time frame in which they occur is managed. In the first year of the plan's existence it registered an 85 percent approval rating with both climbers and the visiting public.
Deb Ligget...a 16-year veteran of the National Park Service.
A federal district court judge in Casper, Wyoming is poised to decided the constitutionality of efforts by the National Park Service to accommodate American Indian religious practices at Devil's Tower National Monument in Wyoming.
Devil's Tower is a sacred site and a vital cultural resource for Indians from over twenty tribes. For centuries, Indians have performed religious and cultural ceremonies there, including the Sun Dance, sweat lodge rites, vision quests, and prayer offerings. These ceremonies continue today. However, in recent years, growing numbers of rock climbers have disrupted them, preventing many Indians from completing their ceremonies and causing others to discontinue their spiritual use of the monument altogether.
After lengthy consultations with environmentalists, Indians, rock climbers and others, the National Park Service devised a plan to balance the competing visitor uses of the monument and to accommodate Indian religious ceremonies at the monument. The plan discourages, but does not prohibit, rock climbing at Devil's Tower during June. Under this plan, the Park Service has posted a sign that encourages visitors to remain on the designated trails (and away from Indians conducting ceremonies at off-trail locations and the Park Service provides information to visitors on the significance of the Tower to Indians.
This is a unique case. Seldom has the federal government developed such a program to accommodate Indian religious practicess at a sacred site on public lands.
Most rock climbers support the plan, including the Access Fund, a national, non-profit climbing organization, which reports that since the plan took effect, climbing during June has fallen by over 86%.
In March of 1996, however, several rock climbers sued the Park Service in federal court, asserting that the plan establishes Indian religion in violation of the Establishment Clause. The climbers are represented by Mountain States Legal Foundation, a conservative legal rights organization in Denver, Colorado.
The Cheyenne River Sioux Tribe and four of its traditional leaders intervened in the lawsuit to defend the Park Service's program at "Mato Tipila," or Bear Lodge, the Lakota name given to Devil's Tower hundreds of years ago. They are represented by the Indian Law Resource Center in Washington, D.C., and attorneys in the Tribe's legal department.
"The unfolding legal battle is a milestone in the never-ending constitutional struggle to draw a principled line between the duty of the government to uphold the free exercise of religion, while not establishing or promoting religion," says Steven Gunn of the Indian Law Ressource Center.
In the 1988 case of Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court ruled that a federal court could not compel the government to protect sacred sites on public lands. In that case, the Court rejected a tribe's request for a court order to stop the U.S. Forest Service from building a road through sacred lands in a national forest. Two years later, in Employment Division v. Smith, the Supreme Court ruled that Indians could not assert their free exercise rights to demand a court-ordered religious exemption from generally applicable laws criminalizing the use of peyote. The net result: it is now extraordinarily difficult for Indians to use the federal courts to compel unwilling governments to accommodate their religious needs.
However, in both Lyng and Smith, the Supreme Court made clear that the political branches of government may voluntarily enact reasonable religious accommodations. In fact, in Lyng, the Court stressed that the "Government's rights to the use of its own land... need not and should not discourage it from accommodation religious practices... engaged in by ... Indian[s]...." In that case, the Court commended the Forest Service's "solicitude" toward Indian religious practices in sacred forest areas, including its "ameliorative measures" to establish "protective zones" in which timber harvesting, off-road vehicle use, and other disruptive activities were strictly prohibited.
"The Park Service has displayed similarly commendable, and equally constitutional, solicitude for Indian religious practices at Devil's Tower," say Gunn. "The Park Service's program at Devil's Tower accommodates, but does not establish, Indian religious practices," he adds. "Neither the Park Service nor the Indians are trying to impose Indian religions on rock climbers or other visitors at Devil's Tower. Indians have absolutely no interest in proselytizing or converting others to their points of view. They simply want the same respect and tolerance that mainstream religions take for granted. Their modest request is to be left alone for one month out of 12 to carry out their religious ceremonies as their ancestors have for centuries."
There is a long, deep, and principled tradition of accommodating religious practices on government lands in this country. For example, at Arlington National Cemetery, a site described by the federal government as "our nation's most sacred shrine," recreational activities that would otherwise interfere with religious burial or memorial services are strictly prohibited. And in countless national parks, the Park Servie owns or leases churches and other religious properties and manages them in a manner that prohibits activities that would conflict with religious services. Such accommodations of religion are not only permissible under the Establishment Clause, but in our cournty's best traditionsl of pluralism and tolerance.
In defending the Park Service's plan at Devil's Tower, the Indians and the Park Service are joined by The Becket Fund for Religious Liberty, a bipartisan public interest organization whose Board of Directors includes U.S. Senator Orrin Hatch (R-Utah), U.S. Representative Henry Hyde (R-Illinois), Eunice Kennedy Shriver, Sergeant Shriver, and Kenneth Starr. Also defending the plan are the National Congress of American Indians, which represents over 200 American Indian tribes; the Medicine Wheel Coalition for Sacred Sites of North America, a coalition of traditional religious practitioners from eight Plains tribes; and the Native American Rights Fund.
Judge William F. Downes heard the arguments of the parties in April and is expected to decide the case this summer. As he reaches a decision, the Indians and the Park Service hope he does not forget the cautionary words Congress spoke nearly two decades ago when adopting the American Indian Religious Freedom Act: "America does not need to violate the religions of her native people. There is room for and great value in cultural and religious diversity. We would be poorer if these American Indian religions disappeared from the face of the Earth."
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