Native Rites and Wrongs

The Nation, editorial, 21 July 1997, pp. 4-5.

If anything can be discerned from the two religious freedom rulings issued by the Supreme Court during the harried final week of its term, it is that jurisprudence in this area—with its talk of establishment, entanglement and accommodation—is still hopelessly entangled, not to mention unaccommodating to the non-expert. Not every case is so hard, though. Take, for example, the ongoing controversy over the soaring Devils Tower National Monument in northeast Wyoming. A plan adopted two years ago by the National Park Service—after consultation with environmentalists, Native Americans and rock climbers—balances recreational use of the tower with the spiritual needs of the twenty tribes who have sun dances, sweat lodge rites, vision quests and prayer offerings there. The plan includes a program highlighting the significance of the site to native peoples, as well as a request that visitors not climb during June, the most important time for Indian worship.

This seems only fair, considering that increased climbing of the tower over the past two decades has led to the routine disruption of religious ceremonies, causing some Native Americans to abandon the site altogether. But while seven of the eight guide companies doing business at the tower honored the request not to climb in June, one did not. Mountain States Legal Foundation, a right-wing litigation outfit, filed a lawsuit on behalf of it and a handful of climbers who argue that the park service's plan "establishes" religion in violation of the First Amendment.

Before we get to the constitutional issues, let's look at this as a question of fairness. Native Americans' religious use of the tower precedes this Republic by centuries. Romanus Bear Stops, a leader of the Cheyenne River Sioux in South Dakota, who have intervened in the case to support the park service, says his people are still trying to recover from the forced assimilation efforts of missionaries and bureaucrats—and that's not to mention violence directed against them. For the rest of us, it seems eminently just to make efforts to insure the survival of spiritual practices that our forebears almost stamped out. The American Indian Religious Freedom Act of 1978 was a step in the right direction. So are compromises like the park service plan under attack. "Now that we can go to Devils Tower [without interference from climbers)," says Bear Stops, "we can breathe new life into our culture."

Legally, the park service and the Indians are on solid ground. The Supreme Court's new decisions mean it will be more difficult for individuals to claim religious exemption from general laws, but the state's ability to accommodate the spiritual needs of citizens has been bolstered. Although prior decisions in 1988 and 1990 restricted the religious freedom of Native Americans (in 1990, by disallowing an exemption from laws criminalizing the use of peyote), both those cases addressed whether one could use the First Amendment to compel the state to accommodate religious needs. The Court said no (as it basically did in striking down the Religious Freedom Restoration Act) but stressed that government could decide on its own to accommodate the Indians, and should be commended if it chose to do so.

That's exactly what the park service has done, carefully tailoring its plan to avoid establishment clause problems. Yet last year a federal judge, William Downes, ruled preliminarily in favor of Mountain States. His final ruling is expected soon.

"Indians simply want the same respect and tolerance that main-stream religions take for granted," says attorney Steven Gunn of the Indian Law Resource Center, representing the tribal intervenors. Gunn adds that religious accommodations on federal property are routine and that dominant faiths are the usual beneficiaries. In many federal parks, the government owns and manages churches for the use of visitors. One can be sure that groups like Mountain States—known for its defense of such practices as the use of a Christian cross in a county seal—wouldn't challenge those accommodations. If Judge Downes rules for Mountain States, he will be sanctioning views like that of plaintiff Andy Petefish, who owns the Devils Tower guide outfit challenging the park service plan. "I'm a Euro-American," he says. "I don't want to understand Indian religion, and I don't have to."