Appeals court upholds federal park accommodation of Native Americans

Tuesday, May 4, 1999

A group of commercial rock climbers has lost another legal round in its effort to overturn a federal government policy that asks it and other rock climbers to refrain voluntarily from scaling a national monument in Wyoming for religious reasons.

Late last week, a three-judge panel of the 10th U.S. Circuit Court of Appeals ruled that a commercial group of rock climbers and a guide company did not have standing to challenge the National Park Service's policy of asking climbers to respect Native Americans' religious use of Devils Tower, a 600-foot butte located in northeastern Wyoming.

The last couple of decades have seen an increase in the number of commercial groups and individuals who climb Devils Tower, which was anointed the nation's first natural monument in 1906 by President Teddy Roosevelt.

Before the soaring rock was taken under the care of the national government, however, it was a place of religious practice for many American Indians. In fact the site was used for religious practices by Indians centuries before the United States came into being. According to the National Park Service, “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.”

In 1992, the park service, which is an agency of the Secretary of Interior, began preparing a policy to manage “climbing so as to preserve and protect the monument's natural and cultural resources, and to increase visitor awareness of American Indian beliefs and traditional practices at Devils Tower.” Three years later, the park service issued a policy that stated in part: “In respect for the reverence many American Indians hold for Devils Tower as a sacred site, rock climbers will be asked to voluntarily refrain from climbing on Devils Tower during the culturally significant month of June.”

Represented by a Denver-based legal firm dedicated to individual and property rights, the group of rock climbers and the climbing guide company sued the National Park Service in federal court, arguing its policy violated the establishment clause of the First Amendment. Specifically, the groups claimed the policy endorsed and was meant to advance the religion of American Indians. A federal judge ruled last year in Bear Lodge Multiple Use Association v. Babbitt, that the park service policy was a constitutional accommodation of religious practices.

“The Supreme Court has long recognized that the government may (and sometimes) must accommodate religious practices and that it may do so without violating the Establishment Clause,” U.S. District Judge William F. Downes wrote. “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.”

The 10th Circuit left Downes' decision alone, concluding that park service policy had caused no personal injury to any members the commercial climbing group or guide. The appeals panel also noted religious practices that take place at Devils Tower and the importance of the practices to the spiritual life of Native Americans.

“At Devils Tower, Indian people partake in Sun Dances and individual Vision Quests,” Judge John C. Porfilio wrote for the majority. “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.”

Porfilio then concluded that the park service policy, although disagreeable to commercial rock climbers, had caused them no harm.

The policy “has not caused any injury to Bear Lodge or its members because they remain free to climb Devils Tower any time they choose, including during June,” Porfilio wrote. He added that “while many climbers have chosen not to climb during the month of June out of respect for American Indian use of the site,” some members of the commercial climbing guide company, including its owner Andy Petefish, have continued their practice of scaling Devils Tower in June. Petefish has called himself a “Euro-American” and says he refuses to “understand Indian religion.”

If the park service decides the policy is not effective in keeping nonreligious use of Devils Tower to a minimum during June, it may alter the policy in a number of ways, such as banning commercial climbers and groups from using the monument in June.

Eric Treene, litigation director for the Becket Fund, a Washington, D.C.-based religious- liberty group that a filed a friend-of-the-court brief in support of the park service policy, said the policy was not intended to and did not violate anyone's constitutional rights.

“The court ruled on standing grounds and the climbers did not suffer, because they were allowed to and continued to climb Devils Tower,” Treene said. “The court decision underscores the fact that what the park service had done was in the nature of accommodating Native American religious practices and did not constitute any kind of coercive action promoting religion against the rock climbers.”