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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."




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.