FOOLS
CROW v. GULLET
706 F.2d 856
United States Court of Appeals, Eighth Circuit. Submitted
February 17, 1983.
Decided May 10, 1983.
Rehearing and Rehearing en banc
Denied June 14, 1983.
PER CURIAM.
Plaintiffs-appellants, spiritual leaders and religious
practitioners of the Lakota and Tsistsistas Nations,
brought a class action suit against defendants-appellees,
the Manager of the Bear Butte State Park, the South
Dakota Fish and Parks Department, and the State of South
Dakota. Appellants sought declaratory and injunctive
relief, as well as damages under [federal statute] on the
grounds the appellees' actions in developing and
regulating public use of Bear Butte State Park violated
appellants' religious free exercise rights under the
first amendment, the American Indian Religious Freedoms
Act (42 U.S.C. s 1996 (Supp.1979)), Article 18 of the
Universal Declaration of Human Rights, and Article 18 of
the International Covenant on Civil and Political Rights.
Bear Butte, a geological formation on the eastern edge
of the Black Hills in South Dakota, was acquired by the
state in 1962 and designated as a state park. The Butte
is an important religious site for the Lakotas and
Tsistsistas, and has been traditionally used by these
people for various religious ceremonies, including the
Lakotas' Vision Quest, a ceremony which may last for
several days.
[EDITOR'S NOTE: The District Court made reference to
the religious significance of the site as follows:
'Plaintiff's witnesses included two Lakota
medicine men. They stated that Bear Butte was the site
where the Lakota originally met with the Great Spirit. It
was the place of instruction and remains today the most
significant site of Lakota religious ceremonies. To the
Tsistsistas, Bear Butte likewise is the site of
pilgrimages, where worshipers go to receive the powers
and benefits of the Great Spirit. Additionally, Lakota
worshipers conduct the Vision Quest at Bear Butte. The
Quest is one of the seven sacred ceremonies of the Lakota
people. During the Quest, the vision seeker and all his
family and companions must be purified by means of the
"sweat lodge" ceremony. The worshipers fast
during this time. The vision seeker climbs to a solitary
place on the Butte where he prays aloud and sings. The
vision seeker may leave sacred gifts on the Butte for the
Great Spirit. During the Vision Quest, which may last up
to four days, the companions wait below the Butte, and
sing honorary songs and pray.' (541 F.Supp. 785, at
788).]
In recent years the state has developed the park by
constructing roads, a machine shop, campgrounds, parking
lots, wooden walkways on the Butte, and a visitors
center. Most recently, the state has undertaken several
construction projects including constructing an access
road to and a parking lot near the area of the Butte
traditionally used by the Indians as a ceremonial ground
and campsite, relocating the maintenance shop, and
repairing and resurfacing the main road into the park. In
addition, the state requires that all persons entering
the park register at the visitors center and that all
persons wishing to camp at the park obtain a camping
permit. The permit for ceremonial campers is free of
charge and allows a ten day stay.
Appellants essentially maintain that the state's
development, construction, and regulatory activities
violate their constitutional and statutory religious
rights in that (1) the development, construction, and
resulting increase in tourist presence at the park have
diminished the spiritual value of the Butte and have
impaired religious ceremonies; (2) appellants' access to
the traditional ceremonial grounds and their religious
activities at other campsites were restricted during the
state's construction activities; (3) registration and
camping permit requirements impermissibly burden
appellants' religions; (4) appellants have failed to
control tourists disrupting appellants' religious
practices at the Butte.
On June 18, 1982, pursuant to the agreement of the
parties, trial on the merits was consolidated with the
evidentiary hearing held on appellants' motion for a
preliminary injunction, and the district court considered
the merits of the dispute on the parties' cross-motions
for summary judgment.[FN1] The district court generally
found that the plaintiffs had not shown that the
defendants' development, construction and regulatory
actions burdened plaintiffs' religious exercises in the
Bear Butte area, and stated in summary that: plaintiffs
failed to establish any infringement of a
constitutionally cognizable first amendment right. To the
extent their right of access was temporarily restricted
at the ceremonial grounds, this Court concludes that the
plaintiffs' interests are outweighed by compelling state
interests in preserving the environment and the resource
from further decay and erosion, in protecting the health,
safety, and welfare of park visitors, and in improving
public access to this unique geological and historical
landmark. Crow v. Gullet, 541 F.Supp. 785, 794
(D.S.D.1982).[FN2] The district court also concluded that
even assuming that the American Indian Religious Freedom
Act (42 U.S.C. s 1996), Article 18 of the Universal
Declaration of Human Rights, and Article 18 of the
International Covenant on Civil and Political Rights
applied to the state in this case, these provisions did
not establish any legal rights or causes of action beyond
those recognized under the first amendment. See Crow
v. Gullet, supra, 541 F.Supp. at 793-94. See also Hopi
Indian Tribe v. Block, 8 I.L.R. 3073, 3076
(D.D.C.1981).
[FN1]See Crow v. Gullet, 541 F.Supp. 785, 788
(D.S.D.1982). Although the district court indicated that
the merits were before the court on the parties'
cross-motions for summary judgment, it is clear from the
record and opinion in this case that in fact the court
was entering a judgment for defendants after a stipulated
trial on the merits. Thus, for purposes of appellate
review the standard is that applicable to such judgments
(i.e., the clearly erroneous doctrine), rather than the
stringent standard of review applicable to summary
judgment (viewing evidence in light most favorable to
nonmoving party to determine if there is genuine issue of
material fact). Cf. Toney v. Bergland, 645 F.2d 1063,
1066 (D.C.Cir.1981) (for purposes of appellate review, in
some circumstances cross-motions for summary judgment may
be treated as a mutual request for trial on a stipulated
record).
[FN2]See Badoni v. Higginson, 638 F.2d 172,
176-80 (10th Cir.1980) (denied relief to members of the
Navajo tribe challenging, on first amendment free
exercise grounds, the governmental regulatory and
development activities at the Rainbow Bridge National
Monument and Glen Canyon Dam), cert. denied, 452 U.S. 954
(1981); Sequoyah v. TVA, 620 F.2d 1159, 1164-65
(6th Cir.) (rejected free exercise challenge by Cherokee
Indians to the flooding of ceremonial grounds caused by
the Tellico Dam), cert. denied, 449 U.S. 953, (1980); Northwest
Indian Cemetery Protective Ass'n v. Peterson, 552
F.Supp. 951, 954 (N.D.Cal.1982) (road construction and
accompanying intrusions into area sacred to several
Indian tribes did not unlawfully burden Indian
plaintiffs' free exercise rights). See also Inupiat
Community of Artic Slope v. United States, 548
F.Supp. 182, 186-87 (D.Alaska 1982); Hopi Indian Tribe
v. Block, 81 I.L.R. 3073 (D.D.C.1981).
Accordingly, the district court granted defendants'
motion for summary judgment as to all claims raised in
plaintiffs' complaint. Before this court, appellants have
essentially raised the same contentions made in the
district court. We have carefully considered appellants'
arguments, the record, and the district court opinion,
and conclude that the court was neither clearly erroneous
as to its factual determinations nor mistaken as to the
law as it was applied to the facts. Accordingly, we
affirm on the basis of the district court's opinion.
All Rights Reserved, 1995.
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