Bear Lodge Multiple Use Ass'n v. Babbitt, 98-8021

Page 814

175 F.3d 814

1999 CJ C.A.R. 2451

BEAR LODGE MULTIPLE USE ASSOCIATION, A Wyoming Non-profit Corporation; Andy Petefish, doing business as Tower Guides Kenneth D. Allen; Gary W. Anderson; Gregory Hauber; Wes Bush, Plaintiffs--Appellants, v. Bruce BABBITT, in his official capacity as United States Department of the Interior Secretary; Roger G. Kennedy, in his official capacity as Director of the National Park Service; John E. Cook, in his official capacity as Rocky Mountain Regional Director, National Park Service; Deborah O. Liggett, in her official capacity as Superintendent of Devil's Tower National Monument; National Park Service Defendants--Appellees Cheyenne River Sioux Tribe; Romanus Bear Stops; Burdell Blue Arm; Arvol Looking Horse; Steven Vance Defendants-Intervenors--Appellees, Group of Concerned Scholars; Medicine Wheel Coalition on Sacred Sites of North America, Northern Arapaho Tribe, Sissetonwahpeton Sioux Tribe, Upper Sioux Indian Community; National Congress of American Indians; The Baptist Joint Committee on Public Affairs; The Becket Fund for Religious Liberty; Bureau of Catholic Indian Missions; Clifton Kirkpatrick, as Stated Clerk of the General Assembly; The Presbyterian Church (U.S.A.); Enright Bighorn, as Stated Clerk of the Dakota Presbytery in the Synod of Lakes & Prairies and the Presbyterian Church (U.S.A.); The Evangelical Lutheran Church In America; Friends Committee on National Legislation; General Conference of Seventh-Day Adventists; National Jewish Commission on Law and Public Affairs; Prison Fellowship Ministries; Union of American Hebrew Congregations; Union of Orthodox Jewish Congregations of America, Amici Curiae.

No. 98-8021.

United States Court of Appeals, Tenth Circuit.

April 26, 1999.

William Perry Pendley (Todd S. Welch, with him on the briefs), Mountain States Legal Foundation, Denver, Colorado, for Plaintiffs-Appellants.

Jared A. Goldstein, United States Department of Justice, Environmental & Natural Resources Division (Lois J. Schiffer, Assistant Attorney General; John A. Bryson, United States Department of Justice, Environmental & Natural Resources Division, with him on the briefs), Washington, D.C.; for Defendants-Appellees.

Steven J. Gunn, Indian Law Resource Center (Steven C. Emery and Thomas J. Van Norman, Cheyenne River Sioux Tribe, Eagle Butte, South Dakota, with him on the brief), Washington, D.C., for Defendants-Intervenors-Appellees.

Peter G. Griffin, Jacobson, Buffalo, Schoessler & Magnuson, LTD., Minneapolis, Minnesota: Jack F. Trope, Sant'Angelo and Trope, P.C., Cranford, New Jersey: Steven C. Moore and Walter R. Echo-Hawk, Native American Rights Fund, Boulder, Colorado: Kevin J. Hasson and Eric W. Treene, The Becket Fund for Religious Liberty, Washington, D.C., for Amici Curiae.

Before PORFILIO, McKAY, and TACHA, Circuit Judges.

PORFILIO, Circuit Judge.

Devils Tower is a National Monument, as well as the place of creation and religious practice for many American Indians. Rock climbers use the Tower for recreational and commercial climbing ascents. Over the past 30 years rock climbing on Devils Tower has dramatically increased, affecting the environment and the spiritual life and practices of American Indians. To address the various concerns, the National Park Service (NPS) developed a Final Climbing Management Plan for Devils Tower National Monument (FCMP). In addition to providing educational and environmental programs, the FCMP asks that climbers voluntarily refrain from climbing during the month of June when American Indians engage in the Sun Dance and other ceremonies. The Secretary of the Interior (Secretary) approved the plan. Bear Lodge Municipal Use Association and other climbers (Climbers) ¹ challenged the Secretary's approval, arguing the FCMP violates the Establishment Clause. The district court found the FCMP balanced the competing interests and observed the Constitution, and was therefore within Secretarial discretion in managing Devils Tower National Monument. Our jurisdiction arises pursuant to 28 U.S.C. § 1291. We believe the Climbers alleged no injury and, therefore, lacked standing to sue.

I.

The Devils Tower National Monument, a 600-foot butte, is located in northeastern Wyoming. The FCMP reports that Devils Tower ² is a "sacred site" to indigenous peoples of the northern plains who travel to the monument to perform "traditional cultural activities." Devils Tower is also eligible for inclusion to the National Register of Historic Places as a traditional cultural property. In recent years, the Tower has been increasingly used by recreational and commercial rock climbers. Devils Tower, therefore, implicates interests of several American Indian tribes, rock climbers, and the National Park Service.

American Indians at Devils Tower

The Intervenors Cheyenne River Sioux Tribe, et al., and members of numerous other Indian tribes have long viewed Devils Tower as a sacred site of special religious and cultural significance. The NPS explains, "archaeological evidence has revealed that the ancestors to the Lakota people inhabited the Devils Tower area as far back as 1000 A.D., while ancestors to the Shoshone people inhabited the area in the 1500's." The historical use of Devils Tower and surrounding areas by Lakota people was acknowledged by the Fort Laramie Treaty of 1868. Amici Concerned Scholars state, "Devils Tower is central to [the Indians'] etiological explanation of the universe." The most sacred religious artifact of the Sioux people is the White Buffalo Calf Pipe, given to them by White Buffalo Calf Woman at the beginning of creation when she emerged from Devils Tower. The Tower is prominent in other religiously relevant traditional stories of the Sioux, as well as in the cosmology of numerous other northern plains tribes.

According to Intervenor Romanus Bear Stops, a traditional spiritual leader of the Cheyenne River Sioux Tribe, Devils Tower is also a pilgrimage site where important liturgical functions are performed. At Devils Tower, Indian people ³ partake in Sun Dances and individual Vision Quests. The Sun Dance is a group ceremony of fasting and sacrifice which leads to spiritual renewal of the individual and group as a whole. Sun Dances are performed around the summer solstice. Vision Quests are intense periods of prayer, fasting, sweat lodge purification, and solitude designed to connect with the spiritual world and gain insight. Sun Dances and Vision Quests, as well as individualized prayer offerings and sweat lodge ceremonies, require solemnity and solitude.

The district court did not question the sincerity of the religious practices at Devils Tower. Intervenors explain these traditional religious uses of the Tower are:

vital to the health of our nation and to our self-determination as a Tribe. Those who use the butte to pray become stronger. They gain sacred knowledge from the spirits that helps us to preserve our Lakota culture and way of life. They become leaders. Without their knowledge and leadership, we cannot continue to determine our destiny.

Amici Concerned Scholars state "as with most cultural groups, traditional religious practice[s] are essential to maintaining a stable and healthy community for Indian people."

Federal Policy on Indian Religious Worship

As the various amici inform us, past federal policy was to assimilate American Indians into United States culture, in part by deliberately suppressing, and even destroying, traditional tribal religions and culture in the 19th and early 20th centuries. The government provided direct and indirect support to Christian missionaries who sought to convert and civilize the Indians, and "from the 1890's to 1930's, the government moved beyond promoting voluntary abandonment of tribal religions to, in some instances, affirmatively prohibiting those religions." Jack F. Trope, Protecting Native American Religious Freedom: The Legal, Historical, and Constitutional Basis for the Proposed Native American Free Exercise of Religion Act, 20 N.Y.U. Rev. L. & Soc. Change 373, 374 (1993). ⁴ By the late 19th Century federal attempts to replace traditional Indian religions with Christianity grew violent. In 1890 for example, the United States Calvary shot and killed 300 unarmed Sioux men, women and children en route to an Indian religious ceremony called the Ghost Dance; these included individuals from the Intervenors' tribe. In 1892, Congress outlawed the practice of traditional Indian religious rituals on reservation land. Engaging in the Sun Dance, one of the ceremonies at issue in this case, was punishable by withholding 10 days' rations or 10 days' imprisonment. See H. Exec. Doc. No. 1 part 5, vol. II, 53 Cong., 2d Sess., at 28-31, reprinted Francis Paul Prucha, S.J., AMERICANIZATION OF THE AMERICAN INDIAN: WRITINGS FROM THE FRIENDS OF THE INDIANS 1880-1900 (1973), 300-05. ⁵ This and other laws disrupted and harmed Indian practices, but many, including the Sun Dance and others at issue in this case, survived.

Starting in the 1930's federal policy toward Indians changed, and over the past 65 years, has valued and protected tribal governments and cultures. In 1978, Congress enacted the American Indian Religious Freedom Act creating a government-wide policy to protect Indian sacred sites and traditional forms of worship. See 42 U.S.C. § 1996 (1994). In 1990, Congress passed the Native American Graves and Repatriation Act (NAGPRA) requiring federal land managers, including the NPS, to protect Indian graves, consult with Indian tribes concerning religious and cultural sites and objects, and to repatriate cultural and religious items found on federal lands. See 25 U.S.C. § 3001 (1995). Under the National Historical Preservation Act Amendments of 1992, "properties of traditional religious and cultural importance to an Indian tribe may be determined eligible for inclusion on the National Register" and federal agencies, including the NPS are directed to...