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.

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 crèches 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.

The US Forest Service has closed Cave Rock to climbing, a move that is being challenged in federal court by the Access Fund, a 1.6-million member group that represents recreational climbers. Some observers predict that the case could end up in the US Supreme Court.

Related to such cases is the history of "Kennewick Man," the 9,300-year-old skeleton found on federal land in central Washington State in 1996.

Defining 'native' American

Indian tribes in the area claimed the "Ancient One," as they called him, as their own to bury. The federal government agreed, citing the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, which provides for the return of sacred items, human remains, and other things to lineal descendants and "culturally affiliated" Indian tribes. No further excavation was allowed at the site.

But a group of eight scientists - asserting that the remains may be more nearly related to the prehistoric Jomon people of Japan, Polynesians, or even Caucasians - sued for the right to conduct detailed study. The scientists won that case in federal court, and they recently spent 10 days examining Kennewick Man at the University of Washington in Seattle.

That has led to a push in Congress to amend NAGPRA so that it applies to the remains and artifacts of any indigenous American people whether or not they have any proven cultural affiliation to present-day tribes.

"Everyone who worked on the [original] bill, including myself, logically assumed that all pre-Columbian remains indigenous to the United States are 'native American' and would be covered by the act regardless of their age or whether they can be culturally affiliated," Walter Echo-Hawk, an attorney with Native American Rights Fund, told a Senate hearing last week.

But archeologists, anthropologists, and others argue against such a change.

"If the proposed amendment is accepted, NAGPRA will be expanded far beyond the boundaries of what is reasonable, and you will have removed from the national patrimony ancient cultures and heritages that should be a source of pride for all Americans," Paula Barran, an attorney representing the scientists, told the Senate hearing. "Such actions will impoverish future generations and seriously harm education in this country."

What lawmakers, judges, and government agencies continue to look for here are ways to balance the needs of science, cultural heritage, and the demands of the US Constitution regarding religion.

In any case, says Mr. Pendley, "This is an issue that's not going to go away."

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