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"Land Is Itself a Sacred, Living Being": Native American Sacred Site Protection on Federal Public Lands Amidst the Shadows of Bear Lodge

1999; University of Oklahoma College of Law; Volume: 24; Issue: 1 Linguagem: Inglês

10.2307/20070625

1930-7918

Joel Brady,

Geographies of human-animal interactions

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." 7At the same time, the separation of church and state was intended to encourage "a vibrant, but private sphere of religiously-motivated activity." 8As 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 his dissent 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. 7.