On Indian Land, a Twist on Church vs. State ; as US Agencies and Courts Declare Sites as Holy Ground, Critics Charge the Government Is Establishing Religion

Article excerpt

The relationship between government and religion has been a complicated issue ever since the architects of the new American republic made it the lead item in the First Amendment to the US Constitution and Thomas Jefferson argued for "a wall of separation between church and state."

It remains a difficult legal and political issue, as witness the US Supreme Court's recent split decisions on public displays of the Ten Commandments. It may be even more complex involving claims by native Americans, whose spiritual and religious practices are so connected to what they see as holy ground.

A series of court cases and federal agency policy decisions have attempted to thread subtle differences between the constitutional protection of the "free exercise" of religion and the equally important prohibition against the "establishment" of religion.

As with the Supreme Court's two-way decisions on the Ten Commandments, federal courts seem to have moved in conflicting directions.

Holy monuments vs. sacred ground

In one case, the US Court of Appeals for the Ninth Circuit ruled against an 8-foot cross that had stood since 1934 on a hill in the Mojave National Preserve in California commemorating US soldiers lost in World War I. Yet another panel of judges from that same appellate court ruled that the owner of property in Arizona could not extract sand and gravel for commercial concrete from his land because Hopi, Navajo, and Zuni tribes considered it to be sacred.

Critics say that declarations of hallowed ground by the federal government - just as in cases involving Christmas creches and other religious displays - go against the First Amendment. "That's a clear establishment clause violation," says William Perry Pendley, president of the Mountain States Legal Foundation. He reads the court decisions as "no to Christianity, yes to pantheism."

Ruling in the Arizona case, brought by gravel pit owner Dale McKinnon, three Ninth Circuit judges saw things differently. "Because of the unique status of Native American societies in North American history, protecting Native American shrines and other culturally important sites has historical value for the nation as a whole, much like Greece's preservation of the Parthenon," wrote Judge Betty Fletcher.

"The Establishment Clause does not require governments to ignore the historical value of religious sites," Judge Fletcher wrote. "Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites ... including the National Cathedral in Washington, D.C.; the Touro Synagogue, America's oldest standing synagogue, dedicated in 1763; and numerous churches that played a pivotal role in the Civil Rights Movement, including the Sixteenth Street Baptist Church in Birmingham, Ala."

Among the more well-known sites at least partially protected because of their religious and cultural importance to native Americans are Medicine Wheel and Devil's Tower in Wyoming, Rainbow Bridge in Utah, and Cave Rock on the Nevada side of Lake Tahoe. …