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Group's challenge to sacred site policy rejected
Wednesday, March 31, 2004

A group of non-Indians who challenged government policy aimed at protecting a sacred site in Utah saw their lawsuit thrown out by a federal appeals court last week.

On March 23, the 10th Circuit Court of Appeals ruled that non-Indian visitors to the Rainbow Bridge National Monument failed to show how they were harmed by being asked to stay away from the sacred Rainbow Bridge. As a result, they can't sue the National Park Service for allegedly violating their constitutional rights, a three-judge panel concluded.

"They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error," wrote Judge Robert H. McWilliams for the majority, quoting precedent set by another sacred site case.

But in dismissing the case, the court left open the question of whether workers at the monument can tell nearly 300,000 visitors a year not to approach and walk under the world's largest natural bridge. By determining that the non-Indian plaintiffs lacked standing, McWilliams said "we do not reach the merits" of this policy.

Several tribes, including the Navajo Nation and the Hopi Tribe, consider Rainbow Bridge to be an important religious site that people should not approach for fear of upsetting the balance of life. The concern was so great that at one time the Navajo Nation sued to stop all access to the bridge. The case was eventually thrown out.

As far back as the 1980s, the monument posted signs asking visitors to respect these religious beliefs. But it wasn't until the mid-1990s, with the adoption of an executive order on sacred sites by then-President Bill Clinton and the signing of an agreement with five area tribes, that the policy became an issue.

The Mountain States Legal Foundation, a conservative group that represented the non-Indian visitors, contends the policy promotes Indian religion in violation of the U.S. Constitution. The plaintiffs say the monument allows tribal members to go to the bridge to hold ceremonies but bars everyone else.

In response to last week's ruling, William Perry Pendley, the group's president, said it "ignores both the facts of this case and the law of the Tenth Circuit as to when users of public land may demand compliance with the Constitution's Establishment Clause." He added: "We will file a petition that the entire Tenth Circuit review the panel's ruling.

Mountain States, which formerly employed Interior Secretary Gale Norton, has represented other non-Indians in a variety of cases affecting sacred sites and treaty rights. In one significant case, the group representing climbers who challenged a voluntary ban on climbing at Devils Tower National Monument in Wyoming, which is used by area tribes for Sun Dance ceremonies.

The group's track record is not positive. Almost every case, including the Devils Tower one, has been decided in favor of tribal rights. The U.S. Supreme Court has refused to accept the group's appeals.

Currently, Mountain States is challenging Indian-teacher training programs at several universities. In letters to school officials, Pendley said the programs are illegal in light of the U.S. Supreme Court's recent decision in an affirmative action case.

Get the Decision:
Natural Arch and Bridge Society v. Alston (March 23, 2004)

Relevant Links:
Rainbow Bridge National Monument - http://www.nps.gov/rabr
Rainbow Bridge Case, Mountain States Legal Foundation - http://www.mountainstateslegal.org/legal_cases.cfm?legalcaseid=53