BLMUA saw the key issue as the public's right to use federal land, whereas the tribes and the National Park Service (NPS) saw it as the need to protect the tribes' right to freely practice their religion, which involves protecting Devils Tower as a sacred site. Devils Tower (Bear Lodge) is a 1,267 foot-tall rock tower in northeastern Wyoming in the Black Hills, an area once controlled by the Sioux tribes. In 1906, Devils Tower was established as a national monument by President Theodore Roosevelt, and thus the tower is located on federal land. In 1978, Congress passed the American Indian Religious Freedom Act, which aimed to protect traditional Native American sacred sites and Native Indians' freedom to worship. It called for federal departments to evaluate their policies and alter them in way that will further provide for the protection and preservation of the Native American religion. Also, in 1996, President Bill Clinton wrote the Executive Order 13007, which required that Native Americans' religious practices be preserved and protected; this primarily involved accommodating their access to sacred sites and their ceremonial use of them.
In 1992, responding to the issues surrounding the current use of Devils Tower, the NPS created a Draft Climbing Management Plan/Environmental Assessment. One of the main issues that concerned the NPS was the increased use of Devils Tower for recreational rock climbing since the 1970's and its knowledge of the importance of the site to many Native American tribes. The plan examined six alternatives including the No Change Alternative in its effort to address the issues at hand. The alternatives ranged from allowing unregulated rock climbing on the tower to permanently closing the tower to all climbing. Alternative D, the Preferred Alternative, was shaped into the Final Climbing Management Plan (FCMP), issued in 1995. The FCMP asks that people voluntarily refrain from climbing the tower during June; it is a culturally significant month for the tribes because the Sun Dance ritual is performed. The Sun Dance, one of the most important religious ceremonies for Native Americans, involves singing, dancing, praying, and fasting. It lasts four to eight days, celebrates spiritual renewal, and symbolizes the resolved conflict between the individual and the now-sacred buffalo. The FCMP provided for an evaluation period of three to five years, after which the effectiveness of the voluntary ban would be assessed and a mandatory ban would be considered. The NPS would rely on self-regulation in terms of people not climbing the tower in June. Because of the possibility of instituting a mandatory ban if the voluntary ban was not successful, it would be in the guide services' best interests to make prospective climbers aware of the voluntary ban. Placards and NPS employees would also notifiy prospective climbers of the voluntary ban. The plan also allowed existing bolts and pitons for rock climbing to be replaced, but not the addition of new ones. The FCMP also included other stipulations about the use of rocking climbing hardware and plans for environment protection efforts. In June of 1994, before the FCMP was passed, 1,293 people climbed the tower; in 1995 that number dropped to 193 and has fluctuated in a narrow range ever since.
In response to the climbing plan, BLUMA sued Bruce Babbitt, the Secretary of the Interior, claiming that the voluntary climbing ban violated the Establishment Clause because the FCMP was a form of federal support of Native American religion. BLUMA asserted that the FCMP instilled fear in climbers that one day they may not be able to climb the Tower if an actual ban were passed, and that the ban affected Andy Petefish's economic wellbeing as a commercial guide.
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