[*PG307]ENSURING THE FULL FREEDOM OF RELIGION ON PUBLIC LANDS: DEVILS TOWER AND THE PROTECTION OF INDIAN SACRED SITES

George Linge*

Abstract. Federal land management agencies historically have disregarded American Indian cries for protection of sacred sites on public lands, and the federal judiciary consistently has supported such action according to a formalistic interpretation of the Religion Clauses of the First Amendment. This Note takes issue with the pattern of religious oppression in the context of public land management by positing a more inclusive, “full,” conception of religious freedom under the First Amendment. This Note then analyzes the recent controversy at Devils Tower National Monument as an important opportunity to break the trend and embrace Indian religious freedoms around sacred sites on public lands.

Introduction

Devils Tower National Monument (DTNM) is a site of conflicting uses.1 Located in the rather remote corner of northeastern Wyoming, the National Monument nevertheless hosts hundreds of thousands of tourists each year, including more than 6,000 technical rock climbers annually in recent years.2 Devils Tower—boasting some of the longest and most vertical continuous crack climbs in the world—is a climbing [*PG308]mecca.3 The relatively undisturbed landscape of the National Monument also is home to sundry species of plant and animal life.4 Moreover, numerous Indian tribes believe that Devils Tower is imbued with sacred and cultural significance.5 Consequently, many Indians oppose climbing of any sort on the tower because they believe such activity is sacrilegious.6 Even so, many climbers want to continue climbing on the tower.7 Therein lies the rub, with the National Park Service (NPS) positioned among the conflicting sacred and recreational interests as the federal agency charged with managing DTNM.8

This Note: (1) examines the NPS’s attempts to reconcile con-flicting uses at DTNM through the Final Climbing Management Plan (FCMP) adopted in 1995 and modified in 1996;9 (2) presents the litigation that the FCMP engendered, Bear Lodge Multiple Use Ass’n v. Babbitt, in which the district court looked skeptically upon NPS efforts to protect Indian religious freedoms;10 and (3) suggests an alternative, more inclusive view of Indian religious practices and freedoms which would allow the NPS to protect Indian sacred interests at DTNM.11

[*PG309] Of course, to understand the sacred site controversy at Devils Tower, and more importantly, to understand where the dialogue around sacred site protection should be, one must first come to grips with the relevant history and precedents. To this end this Note examines two competing visions of the Religion Clauses of the First Amendment—one grounded in formalism, the other built upon an understanding of “full and equal”12 or “full and free”13 religious freedom.14 This Note then traces the formalist line of reasoning through the relevant strand of sacred site precedents,15 including the Supreme Court’s 1988 decision in Lyng v. Northwest Indian Cemetary Protective Ass’n,16 while concomitantly juxtaposing a “full” understanding of religious freedom. This Note then unpacks the district court’s decisions in Bear Lodge to reveal its formalist underpinnings.17 Finally, this Note endorses “full” religious freedom—rather than traditional formalism—as the means to ensure Indian religious freedoms at Devils Tower and elsewhere.

I.  The Conflict at Devils Tower: An Attempt at
Common Ground

A.  Final Climbing Management Plan

In response to the conflict between climbers and Indian religious practitioners at Devils Tower, the NPS issued a Final Climbing Management Plan (FCMP) for DTNM in 1995.18 The stated objectives of [*PG310]the FCMP are: (1) “To preserve and protect the monument’s natural and cultural resources for present and future generations”; (2) “To manage recreational climbing on the tower”; (3) “To increase visitor awareness of American Indian beliefs and traditional cultural practices at Devils Tower”; and (4) “To provide the monument with a guide for managing climbing use that is consistent with the NPS management policies and other monument management plans.”19

The FCMP implemented a variety of measures to achieve these ends, from limiting the use of power drills and requiring camouflaged climbing gear, to regulating the placement of road signs.20 The most significant and contentious aspects of the FCMP,21 however, concerned three different restrictions on technical rock climbing on Devils Tower.22.

1.  The Stake Ladder Closure

First, the FCMP called for a mandatory year-round closure of the Old Stake Ladder Route due to the ladder’s cultural and historical significance.23 Two local ranchers, William Rogers and Willard Ripley, constructed a stake ladder in one of the cracks on the tower and recorded the first ascent on July 4, 1893.24 The ladder remained and was climbed occasionally until the lower 100 feet of the ladder were removed for visitor safety in 1927.25 The upper portion of the ladder was left intact and remains today as a memorial to the first recorded ascent of the tower.26 The Wyoming State Historic Preservation Office (SHiPO) evaluated the historic stake ladder in 1994 and found it eligible for nomination to the National Register of Historic Places.27 No negative effects to this historic resource are expected under the [*PG311]FCMP since the route in which it is located will remain permanently closed to climbing.28

2.  The Raptor Closure

The FCMP also called for a mandatory seasonal prohibition against climbing on portions of the tower near raptor nesting sites to ensure the viability of the prairie falcon population.29 Only one pair of prairie falcons is currently thought to nest on Devils Tower, and it is widely believed that climbing near potential or actual nesting sites disturbs the raptors and disrupts the fledging process.30 Prairie falcons are not endangered or threatened, but they are protected under federal law in the Migratory Bird Treaty Act31 and the Migratory Bird Conservation Act,32 as well as under NPS regulations that prohibit frightening nesting or breeding wildlife.33 According to the FCMP, “the goal of the raptor nest protection strategy is to allow falcons to freely select and establish nest sites and occupy their nest for the duration of the breeding season without being stressed by climbers on the tower.”34

3.  The Sacred Site Closure

Finally, the FCMP requested that climbers voluntarily refrain from climbing on the entire tower throughout the month of June in deference to Indian sacred ceremonies.35 Several Indian tribes recognize Devils Tower as a sacred site, and it is the location of sundry traditional sacred practices including prayer offerings, vision quests, the leaving of prayer bundles, sweatlodge rites, and the Sun Dance.36 The goal of the “voluntary ban” is to mitigate the impacts of climbing on [*PG312]Indian traditional cultural practices.37 Because the NPS complied with the “voluntary ban” by refusing to issue commercial climbing permits in June, the voluntary ban was mandatory in effect vis--vis commercial guides.38

B.  The FCMP Goes to Court

No one has challenged the mandatory restrictions on climbing for purposes of ladder and raptor protection. A group of climbers and commercial guides, however, promptly filed suit against the de facto mandatory closure of Devils Tower for protection of Indian sacred sites on constitutional grounds.39 Drawing from a jumbled quiver of inferences, they essentially argued that their right to climb on Devils Tower—wherever such a right comes from—may not be interfered with in order to ensure the Indians’ ability to exercise their religion freely.40 They concluded that the NPS’s policy of not issuing recreational climbing permits (which, in fact, are issued at the Agency’s discretion) compromises the constitutional guarantee of religious freedom.41

In the spring of 1996, the district court—citing Establishment Clause concerns about restricting climbers’ rights in deference to religious interests—granted a preliminary injunction that forced the NPS to issue climbing permits for commercial climbing services in June.42 In December 1996, the NPS reviewed the FCMP and rescinded the de facto mandatory provision denying permits to commercial interests.43 Rather than comply with the voluntary ban itself, the NPS reluctantly issued commercial climbing permits with the hope that the guides themselves would choose to comply.44 Since November 1996, the NPS’s restriction on climbing in June to protect Indian sa[*PG313]cred interests in the tower has been left entirely to climbers’ discretion.45

Still, the same group of climbers and commercial guides again challenged the voluntary ban in April 1998.46 This time the court upheld the NPS’s voluntary policy.47 In dicta that bordered on an advisory opinion, however, Judge Downes ominously asserted that any attempt to resuscitate the mandatory restriction on commercial climb-ing as a means to protect Indian sacred interests in Devils Tower would be “ill-conceived.”48

Judge Downes’ statement reflects a consistently formal judicial vision of Indian religious freedom generally, and of sacred site protection specifically.49 The next section of this Note addresses the roots of this formalism and posits an alternative theory of “full” religious freedom by which the NPS’s attempt to protect Devils Tower as a sacred site would not be “ill-conceived.”50

II.  Two Visions of Religious Freedom

The Religion Clauses of the First Amendment figure prominently in the land-use controversy at Devils Tower.51 To what extent must or may the federal government allow Indians to exercise their religion freely on federal land, and within what limitations? Volumes have been written on the scope and interplay of the Free Exercise and Establishment Clauses,52 and there is a vein of scholarship specifically [*PG314]regarding the application of the Religion Clauses to conflicts between Indians trying to preserve their traditional sacred sites and the developmental tendencies of the federal land management agencies.53 Yet courts scarcely have considered the Indian claims in any but the strictest, most limiting terms.54 There is, however, an alternative theory of “full” religious freedom which would support the NPS’s effort to protect Indian sacred interests in Devils Tower.55

A.  A Formal Vision of Religious Freedom

Over the past two decades, the Federal Judiciary has heard a number of cases brought by Indians and affiliated groups trying to protect Indian sacred sites located on land managed by the United States government.56 In every case, the Indian interest in protecting specific sites imbued with traditional sacred significance ultimately succumbed to the federal government’s interest.57

1.  The Free Exercise Clause

The federal government, as owner/manager of public lands, routinely has acted or has permitted private actions that rendered Indian sacred sites inaccessible and unusable for religious ceremonies.58 By flooding a valley59 or a canyon,60 for example, or by building a road [*PG315]through a high alpine area,61 the government has made it impossible in practice for Indians to exercise their religion.62 In each case, however, a federal court held that such destructive government activity was not an improper burden on the Indians’ freedom to exercise their religious beliefs within the guarantees of the First Amendment.63 This conclusion—that rendering the practice of religion impossible does not burden the free exercise of that religion—seems plausible only if one distinguishes free exercise of religion from full exercise of religion.

2.  The Establishment Clause

Another popular argument against protecting Indian sacred sites is couched in a view of the Establishment Clause as a limiting principle conspiring against “religious servitudes”64 on the land. On this formalistic view, government protection of Indian sacred sites is a virtual per se violation of the constitutional prohibition against establishment of religion.65 In a passage cited by the Tenth Circuit in Badoni v. Higginson, Judge Learned Hand stated the formal construction of the Establishment Clause: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. . . . We must accommodate our idiosyncrasies, religious as well as secular, to the compromise necessary in communal life.”66 It is this formalism that led Judge Downes to offer his “ill-conceived” assertion.67 But there is an alternative, more inclusive approach to religious freedom which supports NPS’s efforts to protect Indian religious practices at Devils Tower.

[*PG316]B.  A Full Vision of Religious Freedom

1.  Fullness and Free Exercise

In opposition to the formalist interpretation, some have argued that freedom, equality, and fullness are concrescent terms that ought to function in unison to ensure practical protection of the free exercise of religious beliefs,68 which has been termed the “first liberty,” “first freedom,” and “the most inalienable and sacred of all human rights.”69 Chief among the supporters of this expanded, realistic construction of religious freedom are two veritable edificios of the American discourse on rights and freedoms: Thomas Jefferson and James Madison.70 As Jefferson toiled over the Declaration of Independence in Philadelphia during the summer of 1776, he also found time to prepare a draft of the Virginia Constitution, a task he considered much more important.71 The terminology used by Jefferson in the Religion Clause in his draft of the Virginia Constitution is significant: “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.”72 Over the course of the same dramatic summer, James Madison, who was to become Jefferson’s close friend and political ally,73 proposed a Religion Clause to the Virginia Declaration of Rights arrived at independently but which bore a remarkable resemblance to Jefferson’s language:

That religion, or the duty to which we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience, and therefore, that no man or class of men ought, on account of religion, to be invested with the peculiar emoluments or privileges, nor sub[*PG317]jected to any penalties or disabilities unless, under color of religion, the preservation of equal liberty and the existence of the state be manifestly endangered.74

Thirteen years later Madison again invoked fullness in an effort to protect religious freedom, this time in his proposed First Amendment: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”75 Of course, the First Amendment as adopted does not contain fullness language.76 Yet some think that the deletion of the word full was nothing more than stylistic editing rather than a content-based reduction intended to alter the meaning of the guarantee of religious freedom.77

The lack of fullness, however, has made a great difference in free exercise jurisprudence.78 It is generally accepted that people should be free to exercise their religious beliefs in keeping with the most basic guarantee of equality. A guarantee of freedom and equality, however, is “an empty form having no substantive content of its own.”79 Indeed, “‘equal’ seems only to require even-handed process.”80 Fullness, however, imbues the parchment rights of freedom and equality with “substantive content.”81 Fullness considers the practical reality of equality and freedom, rather than simple-minded adherence to the [*PG318]theoretical strictures of formal reasoning.82 Put another way, fullness ensures the effect of freedom and equality in one’s quotidian existence.83

It is in the application of freedom and equality to people’s lives and circumstances that fullness makes all of the difference.84 “Full and free” or “full and equal” expression of religious beliefs is distinct from a formalistic interpretation of the Free Exercise Clause. And nowhere is this more apparent than in the strand of cases involving Indian attempts to protect sacred sites.85

2.  Fullness and Establishment

It is not the purpose of the Establishment Clause to wring the vestiges of fullness from the Free Exercise Clause by preventing the government from ensuring the practice of religion.86 Rather the Establishment Clause provides an assurance against government-imposed religion, and it prevents one religion from trampling the rights of others.87 The Establishment Clause decidedly does not require the subordination of religious interests to contrary secular interests such as rock climbing.88

The disestablishment of religion was a response to a general fear that one set of religious beliefs might come to overwhelm all others, thereby rendering the free exercise of those subordinated beliefs profoundly meaningless.89 Disestablishment thus functions as a mechanism supporting the “first freedom” embodied in the Free Exercise Clause.90 Madison suggested as much in his Memorial and Remon[*PG319]strance: “A just Government . . . will be best supported which protects his person and property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”91 Jefferson also believed that disestablishment was a means to free exercise rather than a check on religious liberty.92 In his words, the Establishment Clause prohibited government

from intermeddling with religious institutions, their doctrines, discipline, or exercises . . . [and from] the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining of them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets.93

Only after this “first freedom” is ensured may the Establishment Clause be invoked to limit the tyranny of a particular group’s religious exercise over another’s.94

Several early drafts of the First Amendment framed disestablishment in terms of the relationships between sects of religious beliefs: “Congress shall make no law establishing one religious sect or society in preference to others”;95 “Congress shall make no law establishing any particular denomination of religion in preference to another.”96 In light of these early drafts, the Establishment Clause should be understood to enhance and ensure the fullness of one’s freedom to exercise religious beliefs rather than as a limiting principle.97 Moreover, the Free Exercise Clause and the Establishment Clause should be allowed to function together as “an interlocking and interdependent shield” in the protection of full religious freedom.98 Fullness of religious exercise, emboldened by the supporting rather than limiting dis[*PG320]establishment of one religion vis--vis another, would suggest that communal life must accommodate as much as possible our sundry religious “idiosyncrasies,” not vice-versa.99 In the context of Indian sacred site protection, however, the courts have adopted a dichotomous conception of the First Amendment Clauses, which sets the Establishment Clause and the Free Exercise Clause at cross-purposes.100

III.  The Early Precedents

A.  American Indian Religious Freedom and Restoration Act

After years (centuries?) of neglecting Indian sacred and cultural interests, Congress passed the American Indian Freedom and Restoration Act (AIRFA) in 1978.101 AIRFA was intended to force government agencies to recognize, consider, and respect traditional Indian religious practices.102 However, Rep. Morris K. Udall (D-AZ), cosponsor of the bill, asserted at the time of AIRFA’s passage that the Act “had no teeth” because AIRFA did not create any legal rights.103 Instead, AIRFA “depends on Federal administrative good will for its implementation.”104

Since AIRFA was passed into law, several Indian groups have brought suits against public land management agencies in order to force the government to respect their religious interests.105 Because AIRFA is toothless,106 however, Indian plaintiffs have relied solely on the Free Exercise Clause of the First Amendment to support their claims.107 The following discussion of these cases reveals the evolution of a test for determining the extent to which the federal government may interfere with Indian religious practices without violating the Free Exercise Clause.108

[*PG321]1.  Sequoyah v. Tennessee Valley Authority

In one of the original sacred site claims brought following passage of AIRFA, Cherokee plaintiffs contested plans for the Tennessee Valley Authority’s (TVA) Tellico Dam.109 The same dam which focused attention on the tiny snail darter and unveiled the power of the Endangered Species Act110 also stirred contemporary jurisprudence regarding Indian religious freedoms.111 Plaintiffs in the fabled snail darter case trumpeted the fatal effects of damming a watershed: the water temperature would be altered, migratory spawning patterns would be disrupted, traditional feeding behaviors would be obsolete, and so forth.112 And they won.113 The Supreme Court held that building the Tellico Dam would violate the Endangered Species Act by destroying the last known habitat of the endangered snail darter.114 The Tellico Dam project was later exempted from compliance with the ESA (and also notably from the Supreme Court decision construing the ESA) by a shotgun act of Congress shepherded by Senator Howard Baker (R-TN), clearing the way for the subsequent collision between the dam and Indian religious practices.115

The plans for Tellico Dam called for the impoundment of water in the Tellico Reservoir on the Little Tennessee River, thereby flooding the Little Tennessee River Valley.116 Cherokee plaintiffs asserted that some of the land in the valley was sacred to their religion and a vital part of their religious practices.117 Flooding the valley and burying these sacred sites deep under water, the Cherokee contended, would deny them access to sacred sites indispensable to their religious practices.118 For all practical purposes, construction of the Tellico Dam and the concomitant flooding of the Valley would prevent the Cherokee from exercising their religion. Judge Robert L. [*PG322]Taylor recognized this in his opinion for the district court: “The Court assumes that the land to be flooded is considered sacred to the Cherokee religion and that active practitioners of that religion would want to make pilgrimages to this land as a precept of their religion.”119 Moreover, the court conceded that impoundment of the Tellico Reservoir would prevent access to this sacred land.120

By construing the guarantee of the Free Exercise Clause very narrowly, however, Judge Taylor allowed the Tellico Dam project to continue unimpeded.121 “An essential element to a claim under the Free Exercise Clause,” Judge Taylor reasoned, “is some form of governmental coercion of actions which are contrary to religious belief.”122 And in this case Judge Taylor found: “The impoundment of the Tellico Dam has no coercive effect on plaintiff’s religious beliefs or practices.”123 Judge Taylor concluded his analysis by stating the great egalitarian principle to be found in flooding the Little Tennessee River Valley: “The flooding of the Little Tennessee will prevent everyone, not just plaintiffs, from having access to the land in question.”124

Legal formalism clearly carried the day in Judge Taylor’s opinion in Sequoyah. In the strictest literal sense, flooding the Valley would not coerce the Cherokee to act in a manner contrary to their religious beliefs.125 Moreover, everybody—except perhaps adventurous scuba divers—was denied access to the land on equal terms.126 Such a stunted view of the constitutional guarantee hardly protects the Cherokee in the exercise of their religion. By the terms of this decision, the government does not violate the Free Exercise Clause when it engages in or permits activity which knowingly renders the exercise of religion impossible.127

A consideration of fullness, whether directly or obliquely, vis--vis the Cherokee’s right to exercise their religion freely is entirely lacking in Judge Taylor’s decision in Sequoyah. The opinion did not consider the practical effect that impounding the Tellico Reservoir would have on the Cherokee’s ability to practice their religion effectively, or at all, [*PG323]for that matter. Had Judge Taylor cleared his eyes of the formalist myopia, he would have seen clearly that his decision left the Cherokee’s freedom to exercise their religion vacuous. Without consideration of fullness, the Cherokees’ right to free exercise is meaningless.

The district court gave greater credence to the Cherokee’s free exercise claim than the claim received on appeal.128 The appellate court discarded the Cherokee’s claim for lack of centrality.129 While Judge Lively’s opinion for the Sixth Circuit recognized that the Cherokee beliefs constituted a religion, he found that the sacred sites to be flooded by the Tellico Dam project were not central to the Cherokee religion and therefore not protected under the First Amendment.130

In his concise, tepid dissent from the Sixth Circuit’s decision in Sequoyah, Judge Merritt described sacred site protection as “a confusing and essentially uncharted area of the law under the Free Exercise Clause.”131 Future cases and decisions further obfuscated any Indian right to practical, full, and free exercise of religion.132

2.  Badoni v. Higginson

Badoni v. Higginson involved claims similar to those of the Cherokee that were defeated in Sequoyah.133 In fact, these two nearly contemporaneous cases reinforce one another.134 Badoni also involved Indian opposition to a dam and reservoir project which flooded sacred sites.135 In Badoni, Navajo plaintiffs claimed that, by impounding Colorado River water behind Glen Canyon Dam, the federal government drowned some of their gods and rendered sacred prayer spots inaccessible, thereby denying Navajo religious practitioners the ability to exercise their religion freely.136

Writing for the district court, Judge Aldon J. Anderson granted summary judgment for the government because the Navajo did not [*PG324]present a cognizable free exercise claim, holding that they had no property interest in Glen Canyon.137 Alternatively, Judge Anderson found that even if the Navajo did exhibit a cognizable right, it still would be trumped by the government’s compelling interest in maintaining Glen Canyon Dam and Reservoir as a major multi-state water and power project.138

The Tenth Circuit rejected the district court’s conclusion that the Navajo’s free exercise claim was dependent upon an assertion of property rights.139 After positing that the proper inquiry is whether the government action created a burden in the form of a coercive effect on the Navajo’s free exercise of religion, Judge Logan escaped this thread of inquiry by finding a compelling interest for the government’s action: “The government’s interest in maintaining the [water] capacity of Lake Powell . . . outweighs plaintiff’s religious interest.”140 Judge Logan reasoned that ensuring the ability of the Navajo to exercise their religion freely would require drawing down the reservoir to a level which would adversely impact the water supply for the arid Upper Basin States of the Colorado River Project (Colorado, New Mexico, Utah, and Wyoming).141 Even if Lake Powell burdened the Navajo free exercise of religion, Judge Logan concluded, such a burden is justified: “The government has shown an interest of a magnitude sufficient to justify the alleged infringements.”142 The free exercise of religion, like many constitutional claims, is trumped by a showing of a compelling interest.143

The Navajo brought a second claim in Badoni.144 They asserted that the government implicitly sanctioned desecration of an indispensable sacred site by permitting and encouraging tourists to visit Rainbow Bridge (the featured physical attraction at Rainbow Bridge National Monument), thereby denying the Navajo their right to engage in the free exercise of religious ceremonies at that sacred site.145 As a remedy, the Navajo proposed some measure of accommodation such [*PG325]as closing the Monument to general public access “on reasonable notice when religious ceremonies are to be held there.”146

The district court rejected this claim because the Navajo lacked property rights.147 The Tenth Circuit, however, did not find the lack of property rights decisive.148 The court determined that the government did not violate the Navajo’s right to exercise their religion freely because the government action did not compel or coerce the Navajo to violate the tenets of their religion.149 Rather, the government action merely rendered the practical exercise of their religion impossible: “The government here has not prohibited plaintiff’s free exercise in the area of Rainbow Bridge; plaintiffs may enter in the Monument on the same basis as other people.”150

Badoni relied on formal doctrine to undercut the Navajo’s constitutionally guaranteed right to the free exercise of religion.151 Such disingenuous judicial formalism speaks loudly to the lack of fullness in the First Amendment. Had the Tenth Circuit considered the Navajo claim in the “full and equal” or “full and free” context Madison and Jefferson proposed, the outcome of this case would have been quite different.152 Fullness of the Navajo right to exercise their religion freely would ensure substantive content and effectiveness of that right so as to require protection of Rainbow Bridge as a practical sacred site.153 Without fullness, the Free Exercise Clause becomes a mere parchment right as it applies to Navajo religious practitioners at Rainbow Bridge.154

The Tenth Circuit also invoked the Establishment Clause in rejecting the Navajo request for government protection of their sacred site.155 Judge Logan found unacceptable the Navajo request that the government monitor public access to Rainbow Bridge in order to allow the Navajo to engage in important religious ceremonies at that sacred site:

[*PG326]They seek government action to exclude others from the Monument, at least for short periods of time, and to control tourist behavior. . . . Issuance of regulations to exclude tourists completely from the Monument for the avowed purpose of aiding plaintiff’s conduct of religious ceremonies would seem a clear violation of the Establishment Clause.”156

Judge Logan asserted the following inquiry vis--vis Establishment Clause jurisprudence, as set forth by the Supreme Court in Abington v. Schempp:

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.157

Finding that the requested government regulation and limitation of tourist behavior and volume had no secular purpose and would serve to recreate Rainbow Bridge National Monument as “a government-managed religious shrine,” Judge Logan concluded that such action would violate the Establishment Clause.158

3.  Cases following Sequoyah and Badoni

a.  Crow v. Gullett

Sequoyah and Badoni provided the guiding principles for decisions in subsequent cases of sacred site protection.159 In Crow v. Gullett, for example, the district court considered Lakota and Tsistsistas claims that construction projects at Bear Butte and regulation of Indian ac[*PG327]cess to Bear Butte violated their free exercise rights.160 Chief Judge Bogue, writing for the district court, did not question the validity or centrality of the religious claims: “In this case there is no dispute that plaintiffs’ practices at Bear Butte are based on a system of beliefs that is religious and is sincerely held by plaintiffs.”161 Nonetheless, Judge Bogue concluded: “The Free Exercise Clause places a duty upon a state to keep from prohibiting religious acts, not to provide the means or the environment for carrying them out.”162 Relying on the district court opinions in Sequoyah and Badoni, Judge Bogue found it significant that the Indians had no legal property interest in the Bear Butte area, and also that Indians could successfully complete their vision quests despite the alleged distractions.163 Moreover, Judge Bogue determined that the government had demonstrated a compelling interest in completing the construction of a road and a parking lot.164

b.  Inupiat Community v. United States

In Inupiat Community v. United States, the district court considered Inupiat opposition to oil development in large portions of the Beaufort and Chukchi seas on the grounds that development would disrupt their hunting and gathering lifestyle, which they claimed was inextricable from their religious beliefs.165 Judge Fitzgerald failed to recognize the Inupiat claims because the Inupiats offered no explanation of either the religious significance of the hunting grounds or how the proposed development would interfere with the free exercise of their religion.166 Moreover, Judge Fitzgerald found that the government has a compelling interest in developing oil exploration.167 In conclusion, Judge Fitzgerald also cited Establishment Clause problems in the tension between “religious servitudes” and public access: “The Supreme Court has held repeatedly that the First Amendment [*PG328]may not be asserted to deprive the public of its normal use of an area.”168

c.  Wilson v. Block

In Wilson v. Block, Hopi and Navajo opposed a Forest Service decision to permit the expansion of the Snow Bowl ski area in the San Francisco Peaks area of Arizona.169 Hopi and Navajo asserted that the Peaks were sacred land, and neither the district court nor the appeals court questioned the sincerity of the Indians’ religious claims.170 Yet the D.C. Circuit affirmed a district court ruling that government permitting of a ski area on Forest Service land did not violate the Free Exercise Clause because the government did not burden the Indians’ religion by denying access to the sacred sites or impairing their ability to conduct ceremonies.171

The D.C. Circuit “consider[ed] separately the effects of development upon their beliefs and upon their religious practices.”172 Judge Lumbard found that the development of the ski area did not penalize faith and therefore did not burden religious belief.173 With regard to practice, Judge Lumbard applied the Sequoyah test for indispensability: “We hold that plaintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government’s proposed land use would impair a religious practice that could not be performed at any other site.”174 Judge Lumbard found that expansion of the ski area would not trample on indispensable sacred land because the Hopi and Navajo plaintiffs could perform their ceremonies in other parts of the Peaks.175

[*PG329]IV. The Supreme Court Speaks: Lyng v. Northwest Indian Cemetery Protective Association

The Supreme Court denied certiorari to Sequoyah, Badoni, and Wilson. In 1987, however, the Supreme Court heard arguments in Lyng v. Northwest Indian Cemetery Protective Association.176 The result was Supreme Court affirmation of the doctrine evidenced in Sequoyah, Badoni, and Wilson, which denied protection to Indian sacred sites.177

A.  Lower Court Proceedings

Two lower courts (the District Court for the Northern District of California and the Court of Appeals for the Ninth Circuit) rejected the prevailing doctrine of Sequoyah and Badoni and enjoined a Forest Service proposal to build a road and to permit logging in the Chimney Rock section of the Six Rivers National Forest in Northern California because the Chimney Rock area historically was used for religious purposes by Yurok, Karok, and Tolowa Indians.178 The lower courts accepted the findings of a study commissioned by the Forest Service:

‘Successful [religious] use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.’ The study concluded that constructing a road along any of the available routes ‘would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.’ Accordingly, the report recommended that the road not be completed.179

Relying largely on the conclusions presented in this study, both lower courts held that construction of the road would violate the Indians’ rights as guaranteed by the Free Exercise Clause.180 Although neither court determined that construction of the road was designed purposefully to coerce, compel, penalize, or otherwise disrupt the [*PG330]Indian religious practices, the practical effect of constructing the road through the Chimney Rock area—that the Indians would be unable to exercise fully their religious beliefs—was enough to render the project unconstitutional.181

It should be clear that a formalist tack was available to the lower courts that heard Lyng.182 They could have rationalized the constitutionality of the road through the sacred site by adhering to the strict theories advanced in previous sacred site protection cases and concluded that the Indians’ free exercise of religion was not infringed because the Indians could still visit the site and engage in their ceremonies.183 At least in this case the Indians would not have to dive under water to reach their sacred sites.184

Moreover, the courts could have posited that the Indians’ religious rights were not singled out for mistreatment, nor were the Indians compelled to act in violation of their beliefs.185 Such arguments had been used in other cases to demonstrate the continuing freeness (if not fullness) of Indian religious practices in spite of government dam building or other such actions.186 Remarkably, the lower courts broke ranks from the common theories in sacred site cases and invoked fullness vis--vis the Indians’ right to exercise their religion.187 Construction of the road technically might not have extinguished the freedom of Indians to exercise their religion, but it would have restricted their exercise of religion in practical and effective ways.188 Both the district court and the court of appeals, therefore, implicitly found that construction of the road violated the Free Exercise Clause because such government action would deny the Indians fullness with their freedom.189 The triumph of a Jeffersonian/Madisonian conception of full religious freedom, however, was short-lived.190

[*PG331]B.  Justice O’Connor’s Majority Opinion

The Supreme Court disputed neither the sincerity of the Indians’ religious claims nor the study’s conclusion that the government’s proposed action would have a severe, adverse, and perhaps even fatal, effect on the Indians’ ability to exercise their religion.191 However, in what Justice Brennan in dissent called a “cruelly surreal result,”192 the majority reversed the lower courts and held that destroying a sacred site essential to the exercise of religion does not burden the exercise of religion.193

Justice O’Connor, writing for the majority, dismissed any need for a compelling interest showing by the government.194 Instead, O’Connor asserted that in this case neither would the Indians be “coerced by the Government’s action into violating their religious beliefs; nor would governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”195 Although the government action would render the Indians’ free exercise right meaningless by destroying a sacred site where that free exercise takes place, the Court found that building a road was merely the “incidental effect” of a government program.196

Justice O’Connor explicitly rejected any legal accounting for the effects of the government action on religious practice:

The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.197

The rationale for such line-drawing, which banishes any effects test, altogether suffers from the Court’s failure to consider the Free [*PG332]Exercise Clause in the context of fullness. Echoing Learned Hand’s earlier admonition that people accommodate their lives to the machinations of contemporary politics and popular culture, O’Connor wrote: “However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.”198 Fearing creation of a “religious servitude” on a tract of federal land,199 the Court propounded the government’s property interest in National Forest land: “Whatever rights [under the Constitution] the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”200

O’Connor also expounded on the purported egalitarian premise underlying formal line-drawing: “The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion.”201 In that single sentence, the Court recognized that the Indians’ right to exercise their religious beliefs deserved equality and freedom. Any practical enforcement of those constitutional promises, however, was entirely lacking in the Court’s consideration. An effects test that considers the practicality and fullness of the Indians’ right to exercise their religious beliefs is essential to ensure that equality and freedom do not go gently into the night.

C.  Justice Brennan’s Dissent

Justice Brennan’s powerful dissent in Lyng included an implicit recognition of fullness. Joined by Justices Marshall and Blackmun, Brennan scoffed at the hypocrisy of a ruling which allows the Indians a “freedom [that] amounts to nothing more than the right to believe that their religion will be destroyed,”202 and “leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices.”203 Brennan challenged the Court’s hair-splitting formalism, including its distinction between governmental actions which coerce, compel, or prohibit religious activity and governmental actions which render religious activity impossible:

[*PG333]Ultimately the Court’s coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious belief, and those governmental actions that prevent conduct consistent with religious belief. In my view, such a distinction is without constitutional significance. . . .Religious freedom is threatened no less by governmental action that makes the practice of one’s chosen faith impossible than by government programs that pressure one to engage in conduct which is inconsistent with religious beliefs. Both common sense and our prior cases teach us, therefore, that governmental action that makes the practice of a given faith more difficult necessarily penalizes that practice and thereby tends to prevent adherence to religious belief.204

After all, Brennan implied, there can be hardly any action more inconsistent with one’s religious beliefs than one that makes it impossible to practice at all.205

Justice Brennan rejected “the Court’s premise that the form of the government’s restraint on religious practice, rather than its effect, controls our constitutional analysis.”206 Instead, Brennan posited a constitutional inquiry based upon the harm to which the religious practitioners are subjected rather than the style in which the government implements that harm.207 To do otherwise, in Brennan’s words, allows for a “cruelly surreal result: governmental action that will virtually destroy a religion is nevertheless deemed not to ‘burden’ that religion.”208

D.  Cases following Lyng

1.  Manybeads v. United States

In Lyng, the Supreme Court affirmed the doctrine posited in Sequoyah and Badoni. Lyng, in turn, proved dispositive in subsequent district court decisions involving Indian claims to protect sacred sites [*PG334]from destruction by governmental action.209 In Manybeads v. United States, for example, Navajo plaintiffs challenged the Navajo-Hopi Relocation Act, which required that Navajo move to another district within the federal reservation system.210 Writing for the district court, Judge Carroll found Lyng dispositive and relied on Lyng’s “religious servitude” finding: “However much plaintiffs may desire to permanently reside where they now do that option is not available to them. To hold otherwise would afford plaintiffs rights, benefits and privileges not enjoyed by other citizens.”211

2.  Attakai v. United States

In Attakai v. United States, Navajo challenged Department of the Interior and Bureau of Indian Affairs construction projects on grounds that the governmental agencies interfered with the ability of the Navajo to practice their religion by irreparably disturbing and destroying religious sites.212 Judge Carroll again recognized both that the Navajo claims were grounded in sincerely held bona fide religious belief, and that the construction projects would seriously interfere with or impair some of plaintiffs’ religious practices.213 Once again, however, Judge Carroll applied the principles of the recent Lyng decision and concluded that Lyng was dispositive:

The fact that a person’s ability to practice their [sic] religion will be virtually destroyed by a governmental program does not allow them to impose a religious servitude on the property of the government. . . . There has been no evidence that the government has denied plaintiffs the right to physically visit or use any of those shrines or the other sites involved in this action.214

[*PG335]3. Havasupai Tribe v. United States

In Havasupai Tribe v. United States, the Havasupai Tribe challenged Forest Service authorization of a mining operation on grounds that the mine will “deny them access to sacred sites and destroy the very essence of their religious and cultural system.”215 Judge Strand, like Judge Carroll, assumed the truth of the plaintiffs’ assertions about the religious sanctity of the Canyon Mine site and the adverse effects upon the Havasupai belief system, but still found Lyng dispositive.216 In this case, as in Lyng, “plaintiffs are not penalized for their beliefs, nor are they prevented from practicing their religion.”217

Judge Strand’s opinion also adopted the property rights reasoning of Lyng: “Whatever rights the Indians may have to use the area . . . those rights do not divest the Government of its right to use what is, after all, its land.”218 Judge Strand then invoked Lyng’s “religious servitude” trope: “Giving the Indians a veto power over activities on federal land would ‘easily require de facto beneficial ownership of some rather spacious tracts of public property.’”219

With these decisions, the legacy of Sequoyah and Badoni, as amplified by the Supreme Court through Lyng, seemed to control sacred site jurisprudence.220 The failure of any attempt by Indian groups to protect sacred sites on federal land on the basis of religious freedom seemed preordained no matter how meritorious the claim or how destructive the government’s activity.221 And then the Bear Lodge case slipped into the mix.

V.  A gasp for fullness: Bear Lodge

The Bear Lodge litigation, which concerned restrictions on climbing at Devils Tower, reflects the flip-side of the previous cases. In all of the previous sacred site protection cases, the court considered Indian challenges to government programs which denied their right to the free exercise of their religion.222 In Bear Lodge, the district court ac[*PG336]knowledged that it confronted the converse: whether the government went so far in enabling the Indians’ free exercise of religion as to breach the Establishment Clause.223

This inquiry succeeds only insofar as the Establishment Clause may be understood to work at cross-purposes to the Free Exercise Clause. Whereas the Establishment Clause exists to support rather than negate the religious liberty set forth in the Free Exercise Clause, as previously argued, however, the climbers’ rights argument should fail.224 The climbers do not suggest that the National Park Service is favoring one religion over another, nor do they suggest that the government has a compelling interest in allowing climbing on Devils Tower. They merely posit that allowing Indians to freely and fully exercise their religious beliefs hinders the climbers’ engagement in a secular activity.225 The Establishment Clause should not be brought to bear in a manner so inimical to its purpose.

Judge Downes recognized the climbers’ argument, however, and applied both the Lemon test and Justice O’Connor’s endorsement test from her concurrence in Lynch.226 According to the Lemon test: “A government action does not offend the Establishment Clause if it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement with religion.”227 Essentially, the O’Connor test holds: “Government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred.”228

Unlike the Court’s free exercise jurisprudence in the area of sacred site protection which explicitly rejects the effect of government action on one’s ability to exercise one’s religious beliefs, both Lemon and Justice O’Connor’s Lynch concurrence consider the purpose and effect of the government action. Consequently, Judge Downes held: “Plaintiffs can succeed . . . only if they show that the action has no clear secular purpose or that despite a secular purpose the actual [*PG337]purpose is to endorse religion.”229 Citing the Supreme Court’s decision in Amos, which found that a government action need not be wholly unrelated to religion, the court determined that “it is a permissible . . . purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”230 As to the purpose element, Judge Downes found:

While the purposes behind the voluntary climbing ban are directly related to Native American religious practices, that is not the end of the analysis. The purposes underlying the ban are really to remove barriers to religious worship occasioned by public ownership of the Tower. This is in the nature of accommodation, not promotion, and consequently is a legitimate secular purpose.231

As to the effect element, Judge Downes found: “Actions step beyond the bounds of reasonable accommodation when they force people to support a given religion.”232 Judge Downes, however, also cited Badoni: “The exercise of First Amendment freedoms may not be asserted to deprive the public of its normal use of an area.”233 “If the NPS is, in effect, depriving individuals of their legitimate use of the monument in order to enforce the tribes’ rights to worship,” he continued, “it has stepped beyond permissible accommodation and into the realm of promoting religion. The gravamen of the issue then becomes whether climbers are allowed meaningful access to the monument.”234 Because the ban is voluntary and not coercive, the climbers are not denied meaningful access.

As to the excessive entanglement element, the Court looked at “the character and the purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.”235 In this case, Judge Downes found that the NPS serves only a custodial function by creating an atmosphere more conducive to worship.236 Based [*PG338]on these findings, Judge Downes upheld the “voluntary ban.”237 As noted, however, he warned that a mandatory ban on climbing—a mandatory restriction on climbers’ access to Devils Tower—would not pass constitutional muster.238 Consideration of the Indians’ right to exercise their religious beliefs in the context of Madison’s and Jefferson’s “full and equal” or “full and free” construction, however, would mandate protection of the Indians’ sacred interest in Devils Tower. To do less denies Indians substantive content—fullness—with their theoretical free exercise of religion.

VI.  Conclusion

Americans like to think of themselves as the progenitors of freedom and equality in the modern age. The Pilgrims sailed west, according to our national mythology, to escape tyranny and persecution in the Old World. In the New World, they established a shining “city upon a hill” which we celebrate as the global model for democratic principles. “All men are created equal,” we reassure ourselves, comforted with the notion that we, as a nation, proclaimed this concept to the world. “Let freedom ring. . . .”

Yet American history is littered with the detritus of battles fought—both literally and in cultural discourse—over the extension of myriad aspects of freedom and equality to various groups. Nearly every American generation since the Revolution is identified with a rights revolution, from the antebellum struggle against slavery and the women’s suffrage movement to late twentieth century struggles for equal access to places of public accommodation or to the benefits of marriage. These struggles suggest a darker side of the democratic, egalitarian national heritage we embrace so proudly.

Our periodic fights for rights have played out on a number of fronts: voting booths, streets and sidewalks, battlefields, churches, reservations, Greenwich Village bars, and lunch counters in North Carolina. And eventually—all too slowly—America’s rights revolutions have been contested in the political arena and in court. We may take pride in some of the outcomes of these struggles—a broader right to vote, for instance—but we also should wonder at the limited scope of the egalitarian, freedom-bound nature of our city upon a hill. We are inclined to forget the resistance to expanded conceptions of freedom and equality, and the sustained battles that had to be fought. Ensuring [*PG339]freedom and equality in the United States has not been as easy as the Declaration of Independence suggests.

Nowhere in American history or contemporary culture are the concepts of freedom and equality more corrupted than vis--vis American Indians. The tortured legacy of genocide haunts our national conscience, yet our “conquest” is revered in American mythology and celebrated in popular culture. The “Trail of Tears” and the great buffalo hunts are merely some of the most prominent, concerted American efforts to curtail the Indians’ very existence in order to make room for our city upon a hill. Even today, battles are being fought around Indian freedom and equality and basic cultural survival. The Indians are losing once again. We should be ashamed at our failure to protect fully the free exercise of religion.

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