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Joel Brady
Excerpted from Joel Brady, "Land Is Itself a Sacred, Living
Being": Native American Sacred Site
Protection on Federal Public
Lands Amidst The Shadows of Bear Lodge
, 24 American Indian Law
Review 153 - 185 (2000 )(1)
Where dogma lies at the heart of Western religions, Native
American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the
Native American perception that land is itself a sacred, living
being."
This excerpt from Justice Brennan's dissenting opinion in Lyng v.
Northwest Indian Cemetery Protective Ass'n underscores the
centrality of sacred land to the spiritual lives of Native
Americans. Yet, Justice Brennan's words are clearly in the
minority. He alone takes the time to scrutinize the particular
Native American faith at issue in an attempt to ascertain its
relevance, both to the case at bar, as well as to the lives of
practicing Native Americans everywhere. His words and sentiments
reflect an awareness of the considerable differences between Native
American spirituality and Western religious thought, and the impact
those differences should have on our legal system. Moreover, his
words express the cyclical and all-encompassing nature of Native
American spirituality, recognizing that areas of life considered
fundamentally separate and distinct in Western religions are an
all- encompassing amalgam in the Native American vision: "Thus, for
most Native Americans, '[t]he area of worship cannot be delineated
from social, political, cultur[al], and other areas o[f] Indian
lifestyle."D¢=EQP:0003¢='
At the center of most Native American belief systems is the basic
tenet that religion and faith draws heavily upon sacred lands. Land
is, as Justice Brennan notes, a living being. As such, courts would
do well to heed Justice Brennan's delineation of the paramount
importance of sacred land to every aspect of Native American life,
not just religion. The pervasiveness of spirituality has fueled
many Native Americans to be increasingly assertive in exercising
their sovereignty. Specifically, they are "demanding that agencies
such as the Park Service treat them like living cultures, not dead
ones." Once the federal government grasps the idea that Native
American land is part of the rich tapestry that binds tribal
members together as well as an actual, living being in the minds of
Native Americans. The relief sought by sacred site protection
advocates may finally be realized.
In considering the law regarding Native American sacred site
protection on public lands, in terms of the applicability of the
First Amendment's Establishment Clause, courts and scholars should
be vigilant in recalling the Framers' intent behind the
Establishment Clause. The Framers intended the Establishment Clause
to "guarantee a separation of church and state that would prevent
the persecution of religious minorities." At the same time, the
separation of church and state was intended to encourage "a
vibrant, but private sphere of religiously-motivated activity." As
Native Americans have suffered tremendous blows to their way of
life over the course of United States' history, Native Americans
are owed the respect which the Framers intended under the
Establishment Clause. Justice Brennan's words in hisdissent in Lyng
speak admirably to this issue. Those in a position to enhance
protection of Native American sacred sites should heed those words.
This comment attempts to address some of the key issues raised
when considering Native American sacred site protection on federal
public lands. This comment illustrates the ongoing litigation
concerning land in northeast Wyoming known to Lakota, Dakota, and
Nakota Sioux as "Mateo Tepee," or "Mato Tipila," which means "Bear
Lodge" or "Bear's Lodge." To most of the Western world, this area
is known as Devil's Tower. After a brief comparison of some of the
basic tenets of Native American and Christian belief systems, the
analysis turns to applicable First Amendment Free Exercise and
Establishment Clause jurisprudence. From the basis of the
Establishment Clause, the comment addresses the issues at play in
Bear Lodge, examining how Establishment Clause jurisprudence has
determined and continues to determine the federal approach to
sacred site protection. Finally, the comment focuses upon the
current situation involving a sacred Native American site on
federal public land -- Rainbow Bridge, in Utah. This, along with
many other situations, is a context in which federal public land
managers are attempting to lay the policy groundwork for the
future, while at the same time trying to comport with a vague area
of the law.
No Supreme Court case law exists which directly addresses the
applicability of the Establishment Clause to sacred site
protection. Also, the Establishment Clause is the chief barrier to
the passage of a general sacred lands statute. These two factors
taken together seem to result in a "Catch-22" for sacred site
protection advocates. The concluding section of this comment
addresses the future of sacred site protection in terms of
accommodation and the federal-tribal trust relationship, as well
analyze how the Bear Lodge and Rainbow Bridge cases are
constitutional examples of successful compliance with the
affirmative mandate of accommodation of Native American religion.
....
[W]e are still here and we intend to be here for many
generations to come.... People in the larger society need to know
some of this history so that they will stop trying to resurrect
failed policies and learn to accept our permanence as the third
kind of sovereign in our federal system.
This eloquently sums up the need for a more sympathetic view of
Native American culture, and for an increased appreciation of what
Native Americans, as a people, have endured over the course of our
nation's history. It shows that the dominant culture, and in
particular that dominant culture's legal system, must take heed of
the unique role of the Native American people in our national
heritage. Moreover, it highlights the special and sacred place
in which Native Americans place their lands in their respective
worldviews. Accordingly, we must seek to defend their ways of life
and be simultaneously guided and constrained by the Constitution in
doing so. We must be cognizant of the fundamentally conflicting
belief and value systems which underscore the Native American and
Anglo-American ways of life, respectively. In doing so, we can
begin to accord Native American faiths the respect and dignity they
deserve, as mandated by the principle of accommodation under the
Establishment Clause.
In an even broader sense, our respect of Native American sacred
site rights under the Establishment Clause can be channeled into a
stronger sense of respect for all lands:
By focusing some of our attention on the ways that particular
tribal cultures relate to the natural world and the ways in which
they explain these relationships, we can help people in the larger
American society come to a fuller understanding of the
relationships between human societies and the natural world. In
doing so, we can help them become better practitioners of a concept
that non-Indian environmentalists might call "stewardship."
In honoring the Native Americans' sense of the sanctity of the
land, only good can come of a policy that stresses such respect and
preservation of our entire nation's precious land.
Regardless of one's position on the issue, it is absolutely
critical that one honor and respect the dignity and vitality of the
Native American faith and heritage. Bob Archibald, a rock climber
sympathetic to the Native American argument in Bear Lodge, touches
upon this necessity: "'How would you like it if someone came into
your church while services were going on and threw a party? What
this is about is respect." That respect can be said to be owed both
to the Native Americans, as well as to the mandates of the federal
government's trust relationship with the Native Americans. At the
very least, one can be cognizant of the original intent of the
Framers in crafting the Establishment Clause, and respect the
Native American claims to various tracts of public land. At best,
one can fully embrace Justice Brennan's description of Native
American faith, weighing it very heavily in considering the rights
of Native Americans to sacred site protection on federal public
*186 lands: "The site-specific nature of Indian religious practices
derives from the Native American perception that land is itself a
sacred, living being."
1.
This article was originally written in December 1998. In the
interim, the Tenth Circuit Court of Appeals has ruled on the appeal
filed by the Mountain States Legal Foundation, on behalf of the
Bear Lodge Multiple Use Association. In the opinion, filed on April
26, 1999, the Tenth Circuit held that the climbers who originally
filed suit lacked standing. Specifically, the Court stated:
"Because they have alleged no injury as a result of their claim the
FMCP improperly establishes religion, we hold the Climbers have no
standing to sue in this case."
Moreover, the Court, in disposing of the case on grounds of
standing, avoided addressing the constitutional issues that this
article addresses:
Therefore, we do not reach either Climbers' argument the FCMP
establishes religion or the Secretary's response that the plan was
designed, in part, to eliminate barriers to American Indians' free
practice of religion and such accommodation is appropriate in
situations like this where the impediments arise because the sacred
place of worship is found on property of the United States. [FN2]
As such, this most recent Bear Lodge decision appears to render
the case ripe for a potential Supreme Court grant of certiorari,
should another appeal follow. Given the considerable lack of
Supreme Court guidance directly addressing the issue of sacred site
protection on federal public lands, it would appear that Bear Lodge
would avail the Court a unique opportunity to delineate precisely
how the religion clauses of the First Amendment should decide the
issues raised by this case. It is this article's contention that
the time-honored affirmative mandate of accommodation of religion
can by fully honored in this case, while at the same time remaining
well within the permissible bounds of the Court's Establishment
Clause jurisprudence.
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