Climbers challenge government request to stop scaling Devils Tower during June

Tuesday, June 2, 1998

A group of rock climbers and a climbing guide company continue to wage a legal battle against the National Park Service for asking climbers to refrain voluntarily from scaling Devils Tower National Monument in Wyoming during the month of June—because the rock and its grounds are sacred to Native Americans.

The battle over the use of the rock, which reaches 865 feet and is a prominent feature in the 1978 movie Close Encounters of the Third Kind, was prompted by a climbing- management plan issued by the National Park Service in 1995.

The National Park Service issued the climbing plan because of the conflict between use of Devils Tower by Native Americans and people who climb the monument solely for recreational purposes.

The soaring rock was designated the nation's first natural monument in 1906 by President Teddy Roosevelt. However, the use of the site for religious purposes by Native Americans precedes the American republic by centuries. The site, known to Native Americans as Mato Tipi, is a sacred place of great power. The Lakota people, part of the larger Sioux tribe, come every year, especially in June, to observe spiritual rituals—notably a sun dance observed near the time of the summer solstice. The rock is the core of a volcano exposed after millions of years of erosion.

The National Park Service's climbing plan provides that “in respect for 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.” Additionally, the Park Service has started an educational program at the site's visitors center on Native American culture and religion, and placed a sign reminding climbers that the rock and its grounds are “sacred to Native Americans.”

The Park Service's plan also states that if the request of climbers to voluntary cease scaling the monument in June fails to provide peace for religious worship at Devils Tower, other options will be considered, including barring climbing during June.

In 1996, the Bear Lodge Multiple Use Association, one of the climbing guide companies at Devils Tower, sued the National Park Service alleging the management plan violated the establishment clause of the First Amendment.

The group argued in the federal suit that the plan expressly endorses and promotes Native American religion.

Andy Petefish, owner of the climbing guide company, said the government should not force acceptance of certain religious beliefs.

“I'm a Euro-American,” Petefish said. “I don't want to understand Indian religion, and I don't have to.”

National Park Service officials, however, argued that Native Americans' exercise of religion was often hampered by the presence of large numbers of climbers.

“The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment,” The Park Service argued in defense of the climbing plan. “Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness.”

U.S. District Judge William F. Downes ruled in April that the government's request for voluntary cessation of climbing during June did not subvert the separation of church and state.

“The simple request that climbers refrain from climbing during the month of June out of respect for American Indian religious and cultural values seems to be a permissible accommodation of American Indian religious practices in light of the government's legitimate interest in protecting and preserving for American Indians their inherent right to exercise of the traditional religions, including their access and use of sacred sites,” Downes wrote. “The Court finds that such a request attempts to alleviate a special burden on a particular religion without fostering an excessive governmental entanglement with religion.”

Represented by Mountain States Legal Foundation, a Denver-based legal firm dedicated to property and individual rights, the group of rock climbers and the climbing company have appealed the decision to the 10th Circuit Court of Appeals.

The foundation argues that the Park Service climbing plan favors Native Americans and that Downes erred in calling the plan a reasonable accommodation of religious practices.

“We believe that Native Americans' desire to worship has been accommodated,” William Perry Pendley, the foundation's president, said. “Native Americans already have access to the Devils Tower and can engage in worship… . However, being able to worship at the site does not mean the site is exclusive to Native Americans and that during June the site cannot be used.”

Pendley said Downes' conclusion that the climbing plan was a reasonable accommodation was in error—especially since a part of the plan says if the voluntary closure does not work, the Park Service may revert to mandatory closing of the site in June.

“In this specific case we are talking about coercing conduct by threatening punitive actions,” Pendley said. “This is about access to federal land. This is not about barging into anyone's church or synagogue. This is about going onto property owned by the American people and opened to all American people.

“We say the climbing plan is not voluntary,” he said. “The Park Service threat to close the site is real and a lot of people have changed their conduct and have decided not to climb Devils Tower.”

Downes, however, said the voluntary climbing ban, though directly related to Native American religious practices, is constitutionally sound.

“The purposes underlying the ban are really to remove the barriers to religious worship occasioned by the public ownership of the Tower,” Downes wrote. “This is the nature of accommodation, not promotion, and consequently is a legitimate secular purpose.”

Downes added that “the Park Service's hopes that climbers will adhere to the voluntary climbing ban cannot be viewed as coercive.”

Pendley maintains that the Park Services actions amount to “the government taking sides,” and that Christian rock climbers should not be told by the government that the Devils Tower is sacred.

“The Park Service says Devils Tower is sacred and it must be treated as sacred,” Pendley said. “What does that mean for a Christian that takes the Ten Commandments seriously? The Bible says we should respect the creator, not the creation. The National Park Service is asking the Christian believer to enter a belief system that is blasphemous.”

A Washington, D.C.-based religious liberty group, however, sees the Park Service's actions as a reasonable accommodation and has filed legal briefs in support of Native Americans' use of Devils Tower.

“This case very clearly sets forth the principle that there is nothing wrong with the government recognizing that various religions are a part of our culture,” Eric Treene, the Becket Fund's litigation director, said. “The Park Service is simply saying that Native Americans should not be drummed out of Devils Tower by the clanging of foot hooks being placed in Devils Tower by rock climbers.”

Treene also pointed out that since many Native American sacred sites are under federal government control, that “it is imperative for the government to be free to craft ways to provide Native Americans the quiet access to the sites they need to practice their religion.”

Steven Gunn, an attorney with the Indian Law Resource center and one of the lawyers representing the Cheyenne River Sioux Tribe in the case, said that it is not rare for the federal government to accommodate religious practices on land it owns.

“This situation is no different than what other government agencies do on other federal property,” Gunn said. “For example, recreational activities are not allowed at Arlington National Cemetery during religious ceremonies. Moreover, there are countless churches and chapels on government lands that when services are taking place, disruptive activities are simply not allowed.”

Gunn noted that while majoritarian religious practices have historically been accommodated on federal land, American Indians' religious practices have often gone unprotected and have even been openly flouted.

“Accommodation of minority religious practices has not always been applied and they have suffered,” Gunn said. “The Park Service's accommodation of religious practices at Devils Tower may be misperceived by some as special rights, but that is not the case. The accommodation is reasonable and should be upheld.”