Access to sacred sites is an issue for many Indians in the United States. For American Indians, sacred sites do not necessarily (or even frequently) consist of man-made structures. Often they are natural areas in their original state, or with only slight modifications to that original state. They also happen to be areas that non-Indians often have come to appreciate for entirely different reasons. Perhaps the most well-known example of this is Devil’s Tower in Wyoming – an extremely popular rock-climbing location.
The issue is complicated by two primary factors, one factual and one legal. The first issue centers around the fact that many sacred sites are located on what is now federal public land; that is, land owned by the federal government and managed for the benefit of all members of the public. A variety of federal entities manage lands containing sacred sites, ranging from the Department of Interior’s National Park Service and Bureau of Land Management to the Department of Agriculture’s U.S. Forest Service to different branches of the U.S. Armed Forces. The federal entity managing the land has the legal ability to decide who has access to what sites at what times.
The legal issue regarding sacred sites arises out of the Religion Clauses that are located in the First Amendment to the U.S. Constitution. One of those clauses prevents the government from prohibiting the free exercise of religion, and the other prohibits the government from establishing a religion. Initially, many federal land managers were not allowing Indians and Indian tribes and tribal members access to sacred sites. A variety of lawsuits were filed, claiming this policy amounted to a prohibition on the free exercise of religion. Most, if not all, of these suits were unsuccessful, despite the existence of the American Indian Religious Freedom Act, which made it the policy of the U.S. Government to consider Indian religious practices as part of the decisionmaking process.
An example can be found in Lyng v. Northwest Cemeteries Protective Association. 485 U.S. 439 (1988). The U.S. Supreme Court, in deciding that case, declared that the Plaintiff Tribes had not established a prima facie case, as they had not demonstrated that the government’s decision to build a road through a forest (and allow logging in the area) constituted a substantial burden on the practice of religion. The Court reached this conclusion despite the fact that the government’s own report recommended against building the road, in large part because of the negative impact it would have on area tribes, who used the forest for religious ceremonies. According to the court, a true “burden” on the practice of religion had to take the form of criminal penalties or deprivation of benefits to which the individual was already entitled. Since the plaintiffs could not meet that burden, they lost the suit. Other tribes who brought free exercise claims were also unsuccessful in challenging federal land management decisions.
Beginning in 1988 with the development of a historic preservation plan for Bighorn Medicine Wheel in Wyoming, a few federal land managers (including the one at Devils Tower) began consulting with tribes during the process of developing various site management plans. Consultation with tribes became official federal policy in 1996 when President Clinton issued Executive Order 13007: Indian Sacred Sites.
Sacred sites may also qualify as a traditional cultural property under the 1992 amendments to the National Historic Preservation Act. If a site does qualify, the designation of “traditional cultural property” places restrictions on the ability of federal agencies to take actions that would have a negative impact on the site.
Perhaps because American Indian sacred sites do not look like the sacred sites of European settlers, lawsuits to protect those sites have often proven unsuccessful. The shift to a negotiated resolution which protects the sites and their traditional uses, while also allowing room for non-Indian uses of the location, provides a more hopeful avenue for their future protection.