706 F.2d 856 (8th Cir. 1983), 82-1852, Crow v. Gullet

Docket Nº:82-1852.
Citation:706 F.2d 856
Party Name: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
Case Date:May 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 856

706 F.2d 856 (8th Cir. 1983)

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, Appellants,

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, Appellees.

No. 82-1852.

United States Court of Appeals, Eighth Circuit

May 10, 1983

Submitted Feb. 17, 1983.

Rehearing and Rehearing en banc Denied June 14, 1983.

Page 857

Mark V. Meierhenry, Atty. Gen., Mikal Hanson, Asst. Atty. Gen., Pierre, S.D., for appellees.

Mario Gonzalez, Pine Ridge, S.D., Russel L. Barsh, Seattle, Wash., for appellants.

Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

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 42 U.S.C. Sec. 1983 (1976) 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, 1 the American Indian Religious Freedoms Act (42 U.S.C. Sec. 1996 (Supp.1979)), Article 18 of the Universal Declaration of Human Rights, and Article 18 of the International Covenant on Civil and Political Rights. District court jurisdiction was based on 28 U.S.C. Secs. 1331, 1343(3) & (4) (1976).

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. 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.

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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...

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