Vol. 28, No. 6 #5 (December 2005). Administration of Native American Sacred Space on Federal Land: The Approach of Equal Treatment.

• Author: By Paul V.M. Flesher

Wyoming Bar Journal

2005.

Vol. 28, No. 6 #5 (December 2005).

Administration of Native American Sacred Space on Federal Land: The Approach of Equal Treatment

WYOMING LAWYERDecember 2005/Vol. XXVIII, No. 6Administration of Native American Sacred Space on Federal Land: The Approach of "Equal Treatment"By Paul V.M. Flesher

One of the ongoing challenges in Wyoming has been balancing the rights of Native American citizens with those of the non-native population. In recent decades, the focus has been on how to accommodate the desire of American Indians to worship at traditional sacred sites. The most well-known of these sites have been the Devils Tower and the Big Horn Medicine Wheel, which are now part of federal land and thus subject to the multiple use claims authorized by federal law. The usual legal approach in Native American land claims has been to claim prior right of use. Unfortunately, two reasons prevent this approach from working for sacred sites. First, when the Native claimants win these cases, as they have for the Black Hills, the land is not returned. Instead, compensation is paid. This approach does not resolve the problem with regard to Native sacred sites because the goal is not money; it is access for worship and preservation of their pristine, natural character. Second, it is often difficult to establish usufruct for sacred sites because sacred sites, because of their nature, are often avoided except at particularly auspicious times in the year. Sometimes they are even places where gods live, but not humans. In the past, tribes usually visited only once or twice a year, but they did not reside there for long periods of time. Hence it is difficult to satisfy the legal requirements of usufruct to support a property claim.

Luckily, in the last quarter of the twentieth century, federal policy has begun to encourage American Indian access to sacred sites. The American Indian Religious Freedom Act of 1978 stated:

[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian... including... access to sites....

In accordance with this act, the National Park Service (NPS) in 1992 developed a Final Climbing Management Plan (FCMP) which placed voluntary restrictions on climbing...