Protecting Sacred Sites on Public Land: Religion and Alliances in the Mato Tipila-Devils Tower Litigation

Conflicts over Native American sacred places on public lands usually involve multiple interest groups. That was true in a dispute over a National Park Service (nps) policy to discourage climbing at Devils Tower National Monument during the month of the Sun Dance. Such conflicts sometimes end in court, as happened when a group called the Bear Lodge Multiple Use Association—a commercial guiding service—and recreational climbers sued the nps to challenge the plan as a violation of the Establishment Clause of the First Amendment; that clause provides that "Congress shall make no law . . . respecting an establishment of religion." The Cheyenne River Sioux Tribe and several of its spiritual leaders intervened on the side of the nps. What made this case unusual is that a variety of "mainstream" religious and religious rights organizations joined Native American groups and scholars who described themselves as "active in Federal Indian law and/or the religious issues under the First Amendment" in filing friend-of-the-court briefs in Bear Lodge Multiple Use Association v. Babbitt.¹ The case reflects a broadening of the more common litigation alliances in which environmental groups participate alongside tribes and other Native American organizations. Here, no environmental groups participated as litigation allies.

This case study uses interviews, judicial decisions, litigation documents, and other public records to examine the alliance in this lawsuit and its implications. This article discusses factors that informed decisions by Native American and "public interest" groups and the process by which they allied themselves.

Mato Tipila (Bear Lodge)—also known as Devils Tower and, in Lakota, He Hota Paha (Grey Horn Butte)—is a rugged butte towering above the Belle Fourche River in northeastern Wyoming. The United States' first national monument is a sacred place steeped in Native American culture and history, a place of religious practices and creation. The monument is open for recreational, aesthetic, research, and commercial uses under management by the nps, a unit of the U.S. Department of the Interior. It has become a magnet for as many as five thousand to six thousand climbers and their innumerable spectators among the monument's five hundred thousand annual visitors. As a result it is an economic asset for the regional tourism industry.

In 1995 after three years of discussion including consultation with Native American groups, the nps adopted a Climbing Management Plan (CMP) to regulate recreational climbing activities and protect the monument's natural and cultural resources. The CMP culminated from a lengthy administrative planning process that acknowledged the potential for conflict between Indians and climbers.² The process included extensive participation by stakeholders outside the nps: Native American communities strongly affiliated with the site; local and national climbing organizations; local and national environmental groups; and county government. There were work groups, mutual education efforts, "cultural brokering," and a compromise reflecting cultural values.³

As amended after the litigation began, the plan included educational and environmental programs; but the controversial component asked climbers to "voluntarily refrain from climbing . . . during the culturally significant month of June," when the Sun Dance and other Native American ceremonies occur.⁴ The CMP cited "the reverence many American Indians hold for Devils Tower as a sacred site." One goal of the plan was to teach the public about the site's character so the number of climbers would drop voluntarily to zero and thus forestall more stringent measures, including a possible mandatory ban.

Ultimately, a U.S. district court judge and a federal appeals court rejected the challenge to the CMP. The U.S. Supreme Court refused to consider a further appeal.

The voluntary ban remains in effect. The monument's Web site describes the policy this way, "Climbers are asked to refrain from climbing during the month of June out of respect for American Indians."⁵ The effect of the policy is reflected in an average annual 79 percent decline in the number of June climbers, compared to the 1990–1994 preclosure average for the month. However, the voluntary compliance rate has been declining and reached a low of 69...