Unconstitutional Oxymoron: Closing Sacred Public Land

by William Perry Pendley
President and Chief Legal Officer
Mountain States Legal Foundation

12/3/02

One crystal clear summer day in southern Utah in the American southwest, a tourist came to the Rainbow Bridge
National Monument to see its main attraction, Rainbow Bridge, the world's largest natural bridge, which rises
290 feet high and spans 278 feet. The Monument, which lies between the Colorado River Canyon and the Utah-Arizona line, was designated by President Taft in 1920. For decades, visitors have come to gaze in wonder at and to walk beneath Rainbow Bridge.

But this beautiful day suddenly turned ugly. Said the tourist, "I was prevented from walking under [Rainbow
Bridge] [by] a ranger in [the] uniform of the [National Parka Service {NPS}] who, a Navajo speaking for the Navajo people, said, 'We request that you not walk under the bridge because that violates our religion.'" She said, "I was offended at the implication that my [presence] would be considered a sacrilege, and that the [NPS] was favoring the religion of the Navajos over mine." Moreover, "I protest being manipulated by this not so subtle process [that] places me in a position where I am ostracized and criticized by other tourists if I exercise my freedom of choice and walk under [Rainbow Bridge]."

What that tourist had encountered was the official policy of the NPS, adopted in response to the demands of American Indians and formalized by an agreement between the NPS and American Indians. Under that policy, the NPS, using its signs, websites, brochures, barriers, lectures, threats of arrest and citation, moral suasion, public ridicule, and other techniques, does all in its power to ensure that every visitor to the Monument shows "respect" for American Indians' belief that Rainbow Bridge is divine; it is "the Rainbow God!"

In fact, the NPS has given management of the Monument over to American Indians agreeing that "the religious and sacred significance of the area to various American Indians" is the main determinant of how it will be managed. As a result, the NPS cut tourist visits in half! Today, for hundreds of thousands of Americans, the Monument is closed.

The First Amendment's Establishment Clause provides, "Congress shall make no law respecting an establishment of religion...." The Supreme Court interprets that phrase to ensure "government neutrality in religious matters." It is no defense, rules the Supreme Court, for the government to argue that a violation is minor. "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent," held the Supreme Court in 1963, "and, it is proper to take alarm at the first experiment on our liberties." Some say the federal government's acquiescence already has become that "raging torrent."

In Montana, federal officials closed the Lewis and Clark National Forest to energy development because Indians say it is sacred, this at a time when 250,000 Americans prepare for war in the Middle East.

In Wyoming, federal officials closed an entire mountain in the Bighorn National Forest to timber harvesting because Indians say it is sacred, this at a time when drought and fuel build-up are causing catastrophic forest fires.

In New Mexico, federal officials closed federal land to ski expansion because Indians say it is sacred; in Wyoming,
federal officials denied permits to climbing guides because Indians said Devils Tower is sacred; in California, federal officials took a miner's claim because Indians say the federal land is sacred; and in Hawaii, federal officials bar all tourists from portions of an historical monument unless they are Native Hawaiian religious practitioners!

What is most remarkable about all this is that, in 1988, the Supreme Court ruled that federal lands may not be closed to meet religious demands by American Indians. Perhaps the officials who are closing these lands and the lawyers who are defending them could explain to the tourist at Rainbow Bridge why their view of the Constitution differs so markedly from hers and from that of the U.S. Supreme Court.