The Becket Fund, in cooperation with the Native American Rights Fund and the Indian Law Resource Center, filed an amicus brief in defense of the religious freedom rights of Native Americans in Wyoming. In recent years, Native American worship services and prayer activities on a sacred site known as Devil's Tower have been interrupted by more than a thousand rock climbers scaling the edifice during the month of June. The National Park Service sought a compromise between the ability of Native Americans to practice their religion in Devil's Tower National Monument in peace and the rock climbers' pursuit of their passion.
The Park Service implemented a three-part plan. First, the Park Service asked rock climbers to voluntarily refrain from climbing during June, but permited them to do so if they insisted. Second, the Park Service placed a sign along one of the hiking trails alongside the Tower stating, "This site is sacred to Native Americans. Please Stay on the Trail." Third, the Park Service started a cultural education program at the visitor's center in order to teach Park visitors about Native American culture and religion, and to encourage visitors to be respectful of the Native Americans' use of the site.
A group of climbing guides filed suit against the Park Service, calling the compromise an unconstitutional Establishment of Religion. The Becket Fund joined the case as amicus curiae, arguing that the Park Service's efforts are a commendable accommodation of Native American religious practice. We viewed the lawsuit as a grave threat to Native Americans' religious freedom. Since Native American sacred sites are so often under the control of the federal government, we believe 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.
We also believe that the lawsuit threatened the religious liberty of all faiths. It challenged the constitutionality of the government cultural education programs that include discussions of the religious practices and beliefs of Native Americans. The implication of the plaintiffs' theory is that while the government can teach about culture, as it does in museums, schools, parks, and other venues, the constitution forbids any discussion of the religious aspects of culture. It is precisely the same argument that has been used to challenge singing sacred music as part of a public school music curriculum, discussing religious history in the schools, and including religious elements in local cultural and ethnic festivals and displays.
The case was argued before the Federal District Court in Wyoming in April 1997.
April 2, 1998: Judge William F. Downes of the U.S. District Court for the District of Wyoming ruled that the National Park Service's climbing management plan did not violate the establishment clause.
In finding no establishment of Native American religion, the judge ruled that "the government has no involvement in the manner of worship that takes place, but only provides an atmosphere more conducive to worship."
April 26, 1999: The Court of Appeals for the Tenth Circuit affirmed the District Court's opinion, holding that the plaintiffs had no standing to challenge the government policy which was designed to eliminate barriers to American Indians' free practice of religion.
[T]he Climbers "claim that the Constitution has been violated, [but] they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485, 102 S. Ct. 752, 765 (1982). The Climbers are clearly incensed by the NPS' request that they voluntarily limit their climbing, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. That concrete adverseness which sharpens the presentation of issues, is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.
The court's opinion is here: Bear Lodge Multiple Use Ass'n v. Babbitt, No. 98-8021, slip op. (Apr. 26, 1999).