Crow v. Gullet

• Decision Date: 25 June 1982
• Docket Number: No. CIV 82-5047.,CIV 82-5047.
• Citation: 541 F. Supp. 785
• Parties: Re Frank Fools CROW, Arvol Looking Horse, Pete Catches, Grover Horned Antelope, Larry Red Shirt, Selo Black Crow and Francine Nelson, For Themselves and On Behalf of the Lakota Nation and Persons Practicing the Lakota Religion, and Bill Red Hat, Jr., Terry Wilson, Laird Cometsevah, Walter Hamilton, the Southern Cheyenne Research and Human Development Association, Inc., For Themselves and On Behalf of the Tsistsistas Nation and Persons Practicing the Tsistsistas Religion v. Tony GULLET, In His Official Capacity as Park Manager of Bear Butte State Park; The South Dakota State Game, Fish and Parks; and the State of South Dakota.
• Court: U.S. District Court — District of South Dakota

541 F. Supp. 785

Re Frank Fools CROW, Arvol Looking Horse, Pete Catches, Grover Horned Antelope, Larry Red Shirt, Selo Black Crow and Francine Nelson, For Themselves and On Behalf of the Lakota Nation and Persons Practicing the Lakota Religion, and Bill Red Hat, Jr., Terry Wilson, Laird Cometsevah, Walter Hamilton, the Southern Cheyenne Research and Human Development Association, Inc., For Themselves and On Behalf of the Tsistsistas Nation and Persons Practicing the Tsistsistas Religion v. Tony GULLET, In His Official Capacity as Park Manager of Bear Butte State Park; The South Dakota State Game, Fish and Parks; and the State of South Dakota.

No. CIV 82-5047.

United States District Court, D. South Dakota.

June 25, 1982.

COPYRIGHT MATERIAL OMITTED

Mario Gonzalez, Pine Ridge, S. D., for plaintiffs.

Mark V. Meierhenry, Atty. Gen., State of S. D., Pierre, S. D., for defendants.

MEMORANDUM OPINION

BOGUE, Chief Judge.

Bear Butte is a geological formation which stands at the eastern edge of the Black Hills. The Butte has immense cultural and historical importance to this area. Bear Butte was purchased by the State of South Dakota in 1962, and was designated by the South Dakota Legislature as a State Park. SDCL 41-17-1(1). The Legislature delegated the power to manage and improve state parks for the benefit of the general public to the defendant Department of Game, Fish and Parks. The defendant Tony Gullet is the Department's manager at Bear Butte State Park.

The plaintiffs in this action include traditional chiefs and spiritual leaders of the Lakota Nation and the Tsistsistas Nation.¹ The plaintiffs contend that Bear Butte is the most powerful ceremonial site for the religious practices of the Lakota and Tsistsistas people. In this action the plaintiffs challenge the constitutionality of the defendants' conduct at Bear Butte. Specifically, plaintiffs object to projects, some of which began in April, 1982, by which defendants constructed roads, bridges, parking lots, and other access facilities at Bear Butte. Plaintiffs also object to alleged attempts by defendants to restrict or regulate the access of plaintiffs to Bear Butte for worship and ceremonial purposes.

Accordingly, plaintiffs brought this action for declaratory and injunctive relief, and for damages. They contend that defendants' actions both restricting and regulating access to the Butte for religious purposes violates the Free Exercise Clause of the first amendment, the American Indian Religious Freedom Act, 42 U.S.C. § 1996, Article 18 of the Universal Declaration of Human Rights, and Article 18 of the International Covenant on Civil and Political Rights. Plaintiffs assert that these provisions also establish the right of the Lakota and Tsistsistas people to the "continued natural topographic unity and isolation of Bear Butte...." On this basis plaintiffs oppose the constructive projects.

Plaintiffs request this Court to declare plaintiffs' right to full, unrestricted and uninterrupted religious use of the Butte. Additionally, plaintiffs seek an injunction precluding defendants from restricting or regulating plaintiffs' access to and use of Bear Butte for religious purposes. Plaintiffs seek an injunction not only to enjoin construction projects or any other alteration of the natural features of the Butte, but they also request this Court to order defendants to remove any roads, parking lots and buildings currently in place at the park. Finally, plaintiffs seek over one million dollars in damages for the alleged deprivation of their civil rights. 42 U.S.C. § 1983. This Court has jurisdiction of the controversy pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4).

On June 18, 1982, this Court heard the evidence on a motion for a preliminary injunction. After the hearing, the parties agreed that the evidentiary hearing on the motion could be consolidated with the trial on the merits. The merits of this case are before this Court on the parties' cross-motions for summary judgment.

The plaintiffs presented several witnesses in addition to numerous affidavits. Plaintiffs' 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.

In this action, plaintiffs contend that the conduct of the defendants and the general public at Bear Butte destroys the sanctity and power of the religious ceremonies and violates their right to exercise freely their religious beliefs. Specifically, defendants have allegedly desecrated the ceremonial area at the foot of the Butte through the construction of access roads and parking lots. Defendants also constructed wooden viewing platforms on the Butte. It is also alleged that defendants disrupt ceremonies and interfere with the worshipers by permitting tourists to camp at the Butte and hike to the top of the mountain. Plaintiffs' witnesses stated that tourists violate the sanctity of the ceremonies by taking photographs, carrying food and water on the Butte, taking the worshiper's offerings from the Butte, and bothering prayers and singers. Plaintiffs alleged that defendants violate their constitutional rights by allowing tourists to behave as set forth above. Finally, plaintiffs allege that defendants denied the worshipers access to roots and plants necessary for Vision Quest ceremonies at the Butte.

The defendants agreed that Bear Butte is a traditional, significant religious site for the Lakota and Tsistsistas people. In fact, defendants maintain the park, in part, to serve and assist Indian worshipers. The State also manages Bear Butte State Park for the benefit of the general public. The park has educational facilities through which the public can discover the importance of the Butte to the original development of the Black Hills, as well as the geological and Indian religious values of the Butte.

This most recent dispute apparently arose when the defendants began several construction projects at the park. See, Exhibit 3. Most important of these projects was an access road and parking lot adjacent to the area southeast of the Butte traditionally used by Indians as a ceremonial ground and campsite. The State maintains this campsite for the exclusive use of ceremonial campers. The general public is not authorized to drive to or camp in this area. Defendants found, however, that the vehicles of the ceremonial campers became mired in the mud near the campsite; the makeshift road also provided poor access to the campsite. As a result of vehicle traffic through the open fields, vegetation was destroyed and erosion occurred. For this reason defendants sought and received authorization to build the road and parking lot at the ceremonial grounds. Although plaintiffs' witnesses abhored the desecration represented by the construction, defendants contend many worshipers in the past urged the State to provide better and safer access to the site. The parking lot does not occupy the area utilized for ceremonies. It would occupy the same area used by worshipers to park their automobiles in the past. At this ceremonial area the defendants also provide services such as outdoor bathroom facilities, garbage disposal, and free firewood. The plaintiffs apparently do not object to these activities of the defendants.

Tony Gullet also testified that worshiper/campers may now obtain a ten-day camping permit. Defendants enforce a five-day stay limit at the non-religious campsites at Bear Butte State Park. There was no testimony that any Lakota or Tsistsistas ceremony lasted beyond ten days. Additionally, Gullet testified that park employees are instructed to urge tourists and hikers not to interfere with the Indian worshipers at the Butte. Although plaintiffs object to the construction of platforms on the Butte, Gullet testified that the platforms were built as a means of minimizing the contacts of tourists with worshipers. Tourists are told by defendants not to stray from established hiking trails or from the viewing platforms. Violators are arrested and issued citations. Gullet testified that there are places on the Butte to which worshipers may go out of the sight of the general public. Although worshipers may still hear other hikers and campers, Gullet testified that many of the sources of noise at the Butte are outside defendants' control. Gullet also testified that defendants permit hiking on the Butte by the general public only between the hours of eight o'clock, A.M., to eight o'clock, P.M. Indian religious campers are free to stay on the Butte overnight and may freely hike and camp without regard to the time regulation.

Other construction at the park includes relocating a shop building, constructing a new access road to the shop's new location, and the repairing and resurfacing of the main road into the park. SDCL 41-2-24 and 41-17-4 provide general authority to the Department to construct these improvements in the park. Defendants contend that the construction projects were necessary to improve both the recreational use of the park by the general public and the traditional religious use by Native Americans.

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