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Legally Speaking


Issue: December, 2005
Author: Paul V. M. Flesher

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Administration of Native American Sacred Space on Federal Land: The Approach of "Equal Treatment"

One of the ongoing challenges in Wyoming has been balancing the rights of Native American citizens with those of the non-native population. In recent decades, the focus has been on how to accommodate the desire of American Indians to worship at traditional sacred sites. The most well-known of these sites have been the Devils Tower and the Big Horn Medicine Wheel, which are now part of federal land and thus subject to the multiple use claims authorized by federal law.

The usual legal approach in Native American land claims has been to claim prior right of use. Unfortunately, two reasons prevent this approach from working for sacred sites. First, when the Native claimants win these cases, as they have for the Black Hills, the land is not returned. Instead, compensation is paid. This approach does not resolve the problem with regard to Native sacred sites because the goal is not money; it is access for worship and preservation of their pristine, natural character. Second, it is often difficult to establish usufruct for sacred sites because sacred sites, because of their nature, are often avoided except at particularly auspicious times in the year. Sometimes they are even places where gods live, but not humans. In the past, tribes usually visited only once or twice a year, but they did not reside there for long periods of time. Hence it is difficult to satisfy the legal requirements of usufruct to support a property claim.

Luckily, in the last quarter of the twentieth century, federal policy has begun to encourage American Indian access to sacred sites. The American Indian Religious Freedom Act of 1978 stated:

[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian…including…access to sites….

In accordance with this act, the National Park Service (NPS) in 1992 developed a Final Climbing Management Plan (FCMP) which placed voluntary restrictions on climbing during the month of June, which is the period for organized Indian worship at the site. The FCMP was challenged in court, but won a narrow victory (Bear Lodge Multiple Use Association v. Bruce Babbit et al, 1999). Similarly, the National Forest Service (NFS) has developed a Historic Preservation Plan (HPP) of the Medicine Wheel, a National Historic Landmark. The HPP is presently under litigation (Wyoming Sawmills v. U.S. Forest Service).

The challenges to these plans for accommodation of Indian worship at federally owned sacred sites arise from the legal principle of the separation of church and state, which has been the dominant interpretation of the First Amendment’s religion clauses. The claim has been that in order to accommodate “free exercise” of Native American religion, the government has violated the clause against federal “establishment of religion.” While the government has so far won these challenges, it has not been on strong grounds. In the Devils Tower case, for instance, the NPS won because the climbing restrictions were voluntary and thus did not actually harm the climbers. However, the judgment envisions that the plan could be revised to include mandatory restrictions if necessary. Such a change would remove the basis for the successful ruling.

The principle of separation of church and state makes a poor fit for Indian sacred site law. The idea of separation has become enshrined in the Lemon tests as the goal of avoiding “excessive government entanglement with religion.” (Lemon v. Kurtzman, 1971) Since “the place of worship is found on property of the United States” (Bear Lodge v. Babbit), however, it is impossible for the government to avoid entanglement. The challenges to the use plans reveal the problem. Interpreting the First Amendment through the principle of separation, the state cannot uphold both the free exercise and the non-establishment clauses; it must choose one or the other.

In the past decade a new interpretation of the First Amendment has begun to gain legal acceptance by the Supreme Court. This is what I call “equal treatment.” Based on the free speech clause of the First Amendment, this principle holds that all other conditions being equal, religious groups cannot be denied rights held by non-religious groups simply because the content of their speech is religious. This can be seen most clearly in the case of Good News Club v. Milford Central School (2001) which rules that a public school must treat religious clubs the same as non-religious clubs. Building on this concept, the present Bush administration has begun allowing “faith-based” charities to compete for certain grant monies on an equal footing with secular charities.

The principle of equal treatment provides a better fit for the issue of Native American use of their sacred sites for worship than does the separation of church and state, especially in situations of multiple use like the Devils Tower and the Medicine Wheel. This is because it does not have the goal of separation in a situation where the government is already inextricably entangled. The Good News Club case parallels the issue of Native American sacred space in three key ways. First, since “speech” in the Good News Club case clearly includes activities (even worship), it imagines a similar variety of activities that Indian use of a sacred site entails. Second, the case compares the religious club to secular clubs that serve a variety of purposes, which is similar to the contrast between Indian use of the public land and the secular uses of the same land. There is no expectation, to take a silly example, for the Chess Club to worship or for a religious club to play chess. Third, both the religious club and Native American use of sacred sites take place on government property.

The biggest impact which the Supreme Court’s ruling in Good News Club has for the Native American sacred site issue is that it explicitly permits government bodies to administer the free exercise of religious activities by religious groups as well as non-religious activities of non-religious groups. Even though the content of this club’s speech and activities is religious, the school—a government body—is not prevented from overseeing the club’s meetings. This oversight does not constitute establishment.

When the Good News Club ruling is applied to the cases concerning Native American worship at sacred sites on federal land, it allows—even requires—government bodies to treat religious groups even-handedly with secular groups. Even-handed treatment requires comparable handling, even though competing groups perform different activities. It would not require Indians to climb the Devils Tower as part of their worship, for instance, any more than it would require climbers to engage in worship.

So the new principle of Equal Treatment as an approach to interpreting the First Amendment provides a more solid footing for government accommodation of Native American religious rights on public land than has the principle of separation of church and state. It provides a middle way between the two requirements found in the Bill of Rights, permitting the free exercise of religion while avoiding the government establishment of a religion.

Paul V.M. Flesher is an Associate Professor of Religious Studies at the University of Wyoming.

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