Wyoming Sawmills Inc. v. U.S. Forest Service, et al.

This case pits two public interest law firms—The Becket Fund and Mountain States Legal Foundation—against one another, in a dispute over whether the U.S. Forest Service can constitutionally act to protect and preserve an historic site that is sacred to a number of Native American tribes.

Medicine Mountain, in the Bighorn National Forest in north central Wyoming, is the site of a large Medicine Wheel, about 80 feet in diameter, described by the Interior Department as "the largest and most elaborate Indian structure of its type." Archeologists estimate that the area was used by prehistoric Native Americans for nearly 7,000 years, and that the wheel itself dates to the latter half of the Late Prehistoric Period.

Hearth charcoal samples recovered from the site have been dated as early as 6650 B.C. (Other, smaller medicine wheels have been identified elsewhere in Wyoming and in South Dakota, Montana, Alberta and Saskatchewan.)

In 1915, the National Park Service recommended that the site be designated a national monument, but it was not until 1970 that it became a National Historic Landmark. Although it is an increasingly popular tourist destination—the number of visitors has grown from barely 2,000 in 1967 to tens of thousands in recent years—it remains an important focus of contemporary Native American spiritual life for members of regional tribes, including the Arapaho, Shoshone, Cheyenne, Crow and others.

In 1994, various government and Native American groups joined together to develop a Historic Preservation Plan (HPP) for the Medicine Wheel and vicinity, and an agreement on such a plan was formally signed in September 1996. The HPP establishes a 23,000 acre "Area of Consultation" that includes all of Medicine Mountain, with special emphasis on protecting its sacred values. The plan provides for unlimited ceremonial use by Indian practitioners, and allows Native Americans to request privacy for the conduct of their religious observations at the Medicine Wheel site for 12 or more days per year. Visitors (except for the handicapped) must now walk about a mile and a half to reach the Medicine Wheel, and elsewhere in the area, livestock grazing and timber harvesting is restricted, but not prohibited.

Shortly after the plan's approval, Wyoming Sawmills of Sheridan, Wyoming, filed an appeal of the plan. The Forest Service denied the appeal in 1997. Two years later, in 1999, with the help of the Mountain States Legal Foundation, Wyoming Sawmills filed suit in federal court, seeking to overturn the plan, arguing in part that it violated the Establishment Clause of the First Amendment to the U.S. Constitution. In December 2001, U.S. District Judge Alan Johnson ruled against the company, holding that it did not have standing to challenge the plan based upon either the First Amendment or environmental laws. Wyoming Sawmills appealed the case to the 10th U.S. Circuit Court of Appeals.

In November 2002, The Becket Fund  filed an amicus curiae brief (PDF format, 96K) with the 10th Circuit, on behalf of itself and a wide variety of Christian, Jewish and Muslim organizations, including the Bureau of Catholic Indian Missions, the General Conference of Seventh-Day Adventists, theGeneral Assembly of the Presbyterian Church (U.S.A.), the Union of Orthodox Jewish Congregations of America, the Baptist Joint Committee on Public Affairs, and the Council on American Islamic Relations.

The brief describes the HPP as "a carefully crafted, constitutional exercise of the government's powers to accommodate religion by removing burdens to its practice while simultaneously accomplishing a variety of secular goals." Such accommodations of religious practice are hardly unique to the Forest Service, the brief points out. "Chaplain programs in the military, hospitals and prisons also involve use of the government's real property for religious purposes." Other examples abound, including chapels in government-owned airports. The U.S. Circuit Court of Appeals for the D.C. Circuit upheld the decision by the U.S. Park Service to give permission for the Pope to say a Mass on the mall in Washington, D.C. in 1979, rejecting a challenge by the late Madalyn Murray O'Hair.

Moreover, a "reasonable observer" would not interpret the HPP as a governmental "endorsement" of Native American religion. "Such an observer would know that Medicine Mountain is considered to be a precious historic resource for the nation precisely because those tribes have used it for such observances for centuries. The history—including the religious history—that is preserved and celebrated there is precisely the history of that area of our country. As many courts have noted, it is not possible or necessary to attempt to purge history or culture of all its religious components. . . . Nor is such purging of religion from history the general practice. For example, the history of the settlement of the original 13 colonies is taught and celebrated as including the flight from religious persecution by the Pilgrims, Quakers and several other religious groups; any attempt to hide religion in the presentation of that history would distort the nature of our government and people. A similar distortion of history would occur if the Forest Service is barred from preserving the religious nature of Medicine Mountain's history."

(Wyoming Sawmills, Inc. v. U.S. Forest Service, et al., Case No. 02-8009, U.S. Court of Appeals for the Tenth Circuit. On appeal from the U.S. District Court for the District Court of Wyoming, Case No. 99-CV-0031-J)

Media Coverage:

Medicine Wheel debate goes to court (Billings Gazette, by Michael Milstein, March 19, 1999)

Seeking to chainsaw the Medicine Wheel Historic Preservation Plan (Casper Star-Tribune, by Charles Levendosky, April 18, 1999)

Links of Interest:

Historic Sacred Sites: Medicine Wheel (Sacred Land Film Project)

Medicine Wheel National Historic Landmark (Wyoming State Historic Preservation Office)

Articles & News Items

• "Becket Fund defends Forest Service plan for Native American sacred site," November 13, 2002