                   Permissible Accommodation of Sacred Sites

The Establishment Clause of the First Amendment does not bar either an Executive Order that requires
   the accommodation o f ceremonial use o f sites on federal land that are sacred to federally recognized
   Indian tribes or a National Park Service regulation, designed to implement that Order, that prohibits
   the issuance of commercial climbing licenses at one such site during a period o f religious signifi­
   cance.


                                                                                               September 18, 1996

                  M e m o r a n d u m O p in io n f o r t h e S e c r e t a r y o f t h e In t e r io r



   We have been asked to provide our views on the obligations imposed by the
Establishment Clause on the treatment of sacred sites under Executive Order No.
13007. That Order states that each federal agency with responsibility for the man­
agement of federal lands “ shall, to the extent practicable, permitted by law, and
not clearly inconsistent with essential agency functions, (1) accommodate access
to and ceremonial use of Indian sacred sites by Indian religious practitioners and
(2) avoid adversely affecting the physical integrity of such sacred sites.” Exec.
Order No. 13007, 61 Fed. Reg. 26,771 (1996). The executive order defines “ In­
dian tribe” to mean “ an Indian or Alaska Native tribe, band, nation, pueblo, vil­
lage, or community that the Secretary of the Interior acknowledges to exist as
an Indian tribe pursuant to Public Law No. 103-454, 108 Stat. 4791, and ‘Indian’
refers to a member of such an Indian tribe.” Id.
   Questions concerning the permissible means for implementing this executive
order have arisen in the wake of a recent federal district court decision enjoining
a National Park Service regulation that prohibited the issuance of commercial
climbing licenses at Devils Tower, a sacred site in Wyoming, during the reli­
giously significant month of June.1 We believe that this case was wrongly decided
and that the federal government has broad latitude to accommodate the use of
sacred sites by federally recognized Indian tribes.2
   In the first section of this memorandum, we lay out the general principles that
govern the accommodation of religion under the Establishment Clause. In the sec­
ond section, we address the principles applicable to the accommodation of sacred
sites. We then apply those principles to the Devils Tower case.

    1See Bear Lodge Multiple Use Ass’n v. Babbitt, No. 9 6 -C V -0 6 3 -D (D. Wyo. Jun. 8, 1996).*
   * Editor’s Note: Following both the district court’s gram o f the preliminary injunction in the cited decision and
the issuance o f this opinion, the Secretary o f the Interior revoked the commercial climbing ban at Devils Tower
in December 1996. The district court thereafter dismissed as moot the plaintiffs’ request, based on a theory that
the ban violated the Establishment Clause, for permanent injunctive relief. See Bear Lodge Multiple Use Ass’n v.
Babbitt, 2 F. Supp.2d 1448, 1451 (D. Wyo. 1998), afFd, 175 F.3d 814 (10th Cir. 1999).
   2 It is our understanding that Executive Order No. 13007 only requires accommodations for federally recognized
tribes.


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                                             I. BACKGROUND

   The Supreme Court has held that the Establishment Clause generally prohibits
 the government from singling out religious organizations for special, preferred
treatment, whether in the form of a direct benefit or an exemption from a govern­
ment requirement. See Board o f Educ. o f Kiryas Joel v. Grumet, 512 U.S. 687,
696 (1994) (plurality opinion) (the government must “ pursue a course of ‘neu­
trality’ toward religion, favoring neither one religion over others nor religious ad­
herents collectively over nonadherents” (citation omitted)); Epperson v. Arkansas,
393 U.S. 97, 104 (1968) (same).3 At the same time, however, the Court ‘“ has
long recognized that the government may (and sometimes must) accommodate
religious practices and that it may do so without violating the Establishment
Clause.’ ” C orporation of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987)
(quoting H obbie v. Unemployment A ppeals Comm’n, 480 U.S. 136, 144-45
(1987)).4 The accommodation doctrine permits the government to single out reli­
gion for special treatment under certain circumstances, usually when a generally
applicable regulation interferes with the exercise of religion.
   Although the accommodation doctrine permits the government, at times, to sin­
gle out religion for special treatment, in general it does not excuse the government
from complying with traditional Establishment Clause principles in other respects.
Those traditional principles are embodied in the familiar Lemon test. See Lemon
v. Kurtzntan, 403 U.S. 602, 612-13 (1971).5 Under Lemon, the government must
demonstrate that a law implicating the Establishment Clause (1) has a “ secular
legislative purpose,” (2) has “ a principal or primary effect” that neither advances
nor inhibits religion, and (3) does not foster excessive governmental entanglement
with religion. Recent Supreme Court cases make clear that purported accommoda­
tions must have a “ secular legislative purpose” — namely, to lift a special, gov­
ernment-imposed burden on religious exercise. Such a permissible purpose gen­
erally will, in addition, prevent the accommodation from having the impermissible
effect of advancing religion over non-religion. If an accommodation passes these
two tests, it will satisfy Lemon so long as it does not foster excessive government
entanglement with religion.
   Importantly for present purposes, however, even where accommodations satisfy
the Lemon test, the Establishment Clause still might be implicated where the ac­
commodation is for the benefit of some denominations and not others; indeed,
   3 The Establishm ent Clause o f the First Amendment provides that “ Congress shall make no law respecting an
establishm ent o f religion.” U.S. Const amend. I.
   4 The Free Exercise Clause sometimes requires the government to accommodate religious exercise. This memo­
randum concerns principles that allow (he government to provide religion with special treatment when not mandated
by the Free Exercise Clause.
   5 In recent cases, the Supreme Court has moved away from rigid application o f the Lemon framework. See e.g.,
Rosenberger v. Rector & Visitors of the Univ. o f Virginia, 515 U.S. 819 (1995); Kiryas Joel, 512 U.S. 687. At
the sam e time, however, the Court has continued to apply the principles articulated in Lemon, where relevant. Because
the C ourt has not announced a new test, we aJso use the Lemon principles to organize our analysis, and we supplement
those principles where appropriate.


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                                    Permissible Accommodation o f Sacred Sites


government actions that discriminate among religions typically are subject to strict
scrutiny. See Larson v. Valente, 456 U.S. 228, 246 (1982).

                                      A. Perm issible Secular Purpose

  Under Lemon , laws and government practices that benefit religion must serve
a “ secular legislative purpose.” 403 U.S. at 612. There is no requirement, how­
ever, that a law’s purpose be unrelated to religion. As the Supreme Court has
said, “ that would amount to a requirement that the government show a callous
indifference to religious groups, and the Establishment Clause has never been so
interpreted.” Amos, 483 U.S. at 335 (internal quotations and citation omitted).
But the government may not act “ with the intent of promoting a particular point
of view in religious matters.” Id.
  Although this is hardly a bright line, one application is certain: “ Under the
Lemon analysis, it is a permissible legislative purpose to alleviate significant gov­
ernmental interference with the ability of religious organizations to define and
carry out their religious missions.” Amos, 483 U.S. at 335 (emphasis added); see
also Lyng v. N orthwest Indian Cemetery P rotective A ss’n, 485 U.S. 439, 454
(1988) (“ The Government’s rights to the use of its own land . . . need not and
should not discourage it from accommodating religious practices.” ) 6 As a general
rule, however, the government may only lift a burden that it has imposed. The
Supreme Court has repeatedly emphasized that the accommodation doctrine allows
the protection of religious organizations from governmental interference.7 In addi-
   6 In Amos, for exam ple, the Supreme Court upheld an exemption for the secular, nonprofit activities of religious
organizations from Title V II’s prohibition on religious discrimination in employment. 483 U.S. at 327. A lthough
a previous version o f the statute already exempted such employers from the ban on religious discrimination with
respect to their religious activities, the Amos Court reasoned that “ it is a significant burden on a religious organization
to require it, on pain o f substantial liability, to predict which o f its activities a secular court will consider religious”
and that such “ [flear o f potential liability might affect the way an organization carried out what it understood to
be its religious mission.” Id. at 336. Congress was entitled to lift this burden, the Court held.
   In Lyng, the government adopted a plan permitting timber harvesting and road construction in an area of national
forest that was traditionally used for religious purposes by members o f three American Indian Tribes. After rejecting
the tribes’ argument that the Free Exercise Clause prohibited the government from establishing its plan, the Court,
in dicta, encouraged the government to implement the plan in a manner that accommodated tribal religious practices.
485 U.S. at 454-55. This was true even though there was no assurance that other religions (or even other federally
recognized tribes) would receive similar accommodations.
   7 In addition to Amos and Lyngt see, e.g., Kiryas Joel, 512 U.S at 706 ( “ Prior decisions have allowed religious
communities and institutions to pursue their own interests free from governmental interference.” ), id. at 705 ( “ [T]he
Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state
power may place on religious belief and practice.” ), Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (plurality
opinion) (exemption must “ remov[e] a significant state-imposed deterrent to the free exercise of religion” )
   In Estate o f Thornton v. Caldor, Inc., A ll U.S. 703 (1985), the Court invalidated a statutory exemption that
alleviated a privately unposed burden on religious exercise. The Court reasoned that the statute, which required
employers to excuse employees from working on their designated Sabbath, took “ no account o f the convenience
or interests o f the em ployer o r those o f other employees who do not observe a Sabbath.” Id. at 709. As a general
matter, Thornton suggests the importance o f weighing the interests o f third parties when accommodating religious
exercise. Although there is no explicit requirement that the government consider the effect o f a religious accommoda­
tion on third parties, the Court has characterized exemptions that “ burden[] non-beneficiaries markedly” as “ unjusti-
                                                                                                                    Continued


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tion, the government may only lift a burden that specially affects the exercise
of religion, or religious activity. In the absence of a special burden on religious
exercise, the government simply has nothing to accommodate.8
   It is also clear that the Court at times will examine the purpose behind regula­
tions that do not on their face refer to religion.9 Thus, drafting a regulation with­
out reference to religion will not necessarily shield it from Establishment Clause
scrutiny. However, the Supreme Court has suggested in dicta that in the context
of government zoning and land-use regulations, facially neutral accommodations
of religion — that is, regulations that are designed to accommodate religion but
that do so without explicitly referring to religion— are likely to withstand Estab­
lishment Clause review, even when designed to accommodate only one religious
group.10 Furthermore, the Court will not strike down a law (facially neutral or
otherwise) on purpose grounds unless the law has no apparent secular purpose
or its (impermissible) religious purpose predominates.11

                                         B. N on preferen tial E ffect

  Under Lem on , the primary effect of a government regulation cannot be to ad­
vance religion over non-religion. The Supreme Court has held, however, that when
the government lifts a burden it has imposed on the exercise of religion, it does
fiable awards o f assistance to religious organizations" rather than permissible accommodations. Texas Monthly, 489
U.S. at 15 (internal quotations omitted).
   8 The Court applied this logic in Texas Monthly to invalidate a state tax exemption for religious periodicals. Reject­
ing the state's argument that the Free Exercise Clause compelled the tax exemption, the plurality observed: “ [T]he
State has adduced no evidence that the paym ent o f a sales tax by subscribers to religious penodicals . . . would
offend their religious beliefs o r inhibit religious activity. . . . No concrete need to accommodate religious activity
has been s h o w n /’ 489 U.S. at 18. Because the tax exem ption singled out religious periodicals for a benefit and
could not “ reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion,”
the plurality found that it constituted an impermissible subsidy to religion. Id. at 15.
   9 See Gillette v. United States, 401 U.S. 437, 452 (1971) ( “ The question o f government neutrality is not concluded
by the observation that [a statute] on its face makes no discrimination am ong religions, for the Establishment Clause
forbids subtle departures from neutrality, ‘religious gerrym anders,’ as well as obvious abuses.” ). In McGowan v.
Maryland, 366 U.S. 420 (1961), for exam ple, the Court exam ined the purpose behind the state’s Sunday Closing
laws, even though those laws merely prohibited commercial activity on Sunday and made no reference to religion.
The Court upheld the laws, despite their apparent religious purpose, because they advanced several important secular
goals. Id. at 433-35.
   l0See Lyng, 485 U .S. at 4 5 3 -5 4 (“ Nothing in our opinion should be read to encourage governmental insensitivity
to the religious needs o f any citizen. The G overnm ent’s rights to the use o f its own land, for example, need not
and should not discourage it from accommodating religious practices like those engaged in by the Indian respond­
en ts.” ); id. at 454 (noting with approval th e “ m any” ameliorative, facially neutral measures that the Forest Service
planned— including building a road so as to avoid Indian sacred sites— and implicitly suggesting that such “ solic­
itous” choices w ould not violate the Establishment Clause despite their obvious purpose to accommodate religious
exercise). A t the very least, the Establishment Clause is not seriously implicated by facially neutral zoning regulations
that benefit religious as w ell as other “ lik e ” institutions. See Larkin v. GrendeVs Den, Inc., 459 U.S. 116, 121
(1982) ( “ [T]here can be little doubt about th e power o f a state to regulate the environment in the vicinity of schools,
churches, hospitals, and the like by exercise o f reasonable zoning law s.” ); id. at 123 ( “ There can be little doubt
that [protecting spiritual, cultural, and educational centers from the ‘hurly-burly’ associated with liquor outlets] em­
braces valid secular legislative purposes” u n d e r Lemon.).
   11 See Wallace v. Jaffree, 472 U.S. 38, 5 6 -6 0 (1985) (invalidating m om ent of silence statute where the record
not only establishes a religious purpose but reveals no secular purpose); Edwards v. Aguillard, 482 U.S. 578, 590
(1987) (finding legislation invalid if backed by “ preeminent religious purpose” ); id. at 599 (Powell, J., concurring)
(observing that “ religious purpose must predom inate” for legislation to be invalid).


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not impermissibly advance religion. See Amos, 483 U.S. at 336-37. Although the
government may thereby enable religion to better advance itself, such an effect
does not automatically offend the Establishment Clause. Id. at 337. Furthermore,
the Court has stated, where “ government acts with the proper purpose of lifting
a regulation that burdens the exercise of religion, [there is] no reason to require
that the exemption comes packaged with benefits to secular entities.” Id. at 338.

                                      C. N o Excessive E ntanglem ent

  Finally, Lemon prohibits the government from accommodating religion in a
manner that creates a risk of excessive governmental entanglement with religion.
Under Lemon, impermissible entanglement may occur when the government inter­
venes in religious affairs or when religious organizations assume governmental
functions.12

                                            D. N ondiscrim ination

  Even where religious accommodations satisfy all three Lemon prongs, they also
must satisfy the “ clearest command of the Establishment Clause” : “ that one reli­
gious denomination cannot be officially preferred over another.” Larson, 456 U.S.
at 244. It follows that a discriminatory accommodation typically will be subject
to strict scrutiny. Id. at 2 46.13

                        O. ACCOMMODATION AT SACRED SITES

   Although the accommodation doctrine generally permits the government to sin­
gle out religion for special treatment in order to alleviate government-imposed
burdens on religious exercise, it nonetheless ordinarily prohibits the government
from enacting regulations that prefer one religion over others, that foster excessive
    12 For example, in Larkin, the Court invalidated a statute that granted religious bodies veto power over applications
for liquor licenses. Despite the S tate's otherwise valid interest in protecting churches, schools, and like institutions
from “ the ‘hurly-burly’ associated with liquor outlets,” 459 U.S. at 123, the Court found that the statute created
an impermissible “ fusion” o f governmental and religious functions. Id. at 126. Similarly, in Kiryas Joel, the Court
invalidated a statute creating a school district for the Satmar Hasidim in part because it “ delegat[ed] the State’s
discretionary authority over public schools to a group defined by its character as a religious com m unity.” 512 U.S.
at 696.
    13 In Larson, the Supreme Court invalidated a portion o f M innesota’s charitable solicitation registration and report­
ing requirements that exempted only those religious organizations that received more than half o f their funding
from members o r affiliated organizations. A pplying strict scrutiny, the Court found that the exemption was not closely
fitted to further the government’s interest in protecting its citizens from abusive solicitation practices because there
was no evidence that predominantly member-funded organizations committed such practices less frequently than
organizations receiving the majority o f their funding elsewhere. Id. at 244-46. More recently, in Kiryas Joel, the
Supreme Court invalidated a statute creating a special school district only for the religious enclave o f Satmar Hasidim.
It reasoned, in part, that the statute violated the principle that “ government should not prefer one religion to another,
or religion to irreligion” because the benefit flowed only to a single sect and there was “ no assurance that the
next similarly situated group seeking a school district o f its own will receive one.” 512 U.S. at 703. Citing Larson,
the Court concluded that, “ w hatever the limits o f permissible legislative accommodations may be it is clear that
neutrality as among religions must be honored.” Id. at 706-07 (citations omitted).


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                    Opinions o f the Office o f Legal Counsel in Volume 20


entanglement with religion, or that lift privately imposed burdens. However, these
general prohibitions do not apply to regulations that accommodate the religious
practices of federally recognized Indian tribes.

                                             A.

  In M orton v. M ancari, 417 U.S. 535 (1974), the Supreme Court held that pref­
erences for federally recognized Indian tribes are subject to less exacting scrutiny
under the Equal Protection Clause than racial or ethnic preferences because of
the historical guardian-ward relationship between those tribes and the federal gov­
ernment. In upholding an employment preference for Indians contained in the In­
dian Reorganization Act, 25 U.S.C. §§461-494, the Court held that “ [a]s long
as the special treatment can be tied rationally to the fulfillment of Congress’s
unique obligation toward the Indians, such legislative judgments will not be dis­
turbed.” 417 U.S. at 555. Applying this standard, the Court found that the pref­
erence before it was “ reasonable and rationally designed to further Indian self-
government” and did not constitute racial discrimination. Id. In fact, according
to the Court, the preference was not even racial in nature because it favored a
quasi-sovereign or political group consisting of federally recognized Indian tribes,
rather than a discrete racial group consisting of Native Americans. Id. at 554,
553 n.24.
  Two Courts of Appeals have extended the logic of Morton to the Establishment
Clause context. In Rupert v. D irector, U.S. Fish and Wildlife Serv., 957 F.2d 32
(1st Cir. 1992) (per curiam), the First Circuit upheld an exemption for federally
recognized Indian tribes from the federal criminal prohibition on the possession
of eagle feathers. Faced with the question of whether to apply the strict scrutiny
standard of Larson or the rational basis test of M orton, the court concluded that
the principles articulated in M orton govern “ where the government has treated
Native Americans differently from others in a manner that arguably creates a reli­
gious classification.” Id. at 35. The court reasoned that such preferential treat­
ment— as with the preferential treatment at issue in Morton — “ finds its source
in Congress’s historical obligation to respect Native American sovereignty and
to protect Native American culture.” Id. The court also found that such treatment

       is uniquely supported [in this context] by the legislative history and
       congressional findings underlying the American Indian Religious
       Freedom Act [42 U.S.C. § 1996], which declares a federal policy
       of “ protect[ing] and preserv[ing] for American Indians their inher­
       ent right of freedom to believe, express and exercise the[ir] tradi­
       tional religions . . ., including but not limited to access to sites,
       use and possession of sacred objects, and the freedom to worship
       through ceremonials and traditional rites.”

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                         Permissible Accommodation o f Sacred Sites


Id. at 35 (quoting United States v. Rusk, 738 F.2d 497, 513 (1st Cir. 1984), cert,
denied, 470 U.S. 1004 (1985)).
  Similarly, in P eyote Way Church o f God, Inc. v. Thornburgh, 922 F.2d 1210
(5th Cir. 1991), the Fifth Circuit upheld statutory exemptions for the Native Amer­
ican Church from federal and state laws prohibiting peyote possession. After con­
struing the exemptions as political classifications rather than as religious classifica­
tions, the court stated:

       The unique guardian-ward relationship between the federal govern­
       ment and Native American tribes precludes the degree of separation
       between church and state ordinarily required by the First Amend­
       ment. The federal government cannot at once fulfill its constitu­
       tional role as protector of tribal Native Americans and apply con­
       ventional separatist understandings of the establishment clause to
       that same relationship.

Id. at 1217.
   Given the special trust relationship between the federal government and feder­
ally recognized Indian tribes that Morton, Rupert, and Peyote Way recognize, there
is a strong argument that neither Lemon nor Larson should apply to accommoda­
tions of tribal religious practices or sacred sites, because such accommodations
are not religious preferences in the usual sense of that term. Rather, they are polit­
ical preferences conferred by the federal government on a quasi-sovereign in fur­
therance of the federal government’s duty to promote tribal self-determination in
all of its forms. The fact that the accommodated rituals might be viewed as reli­
gious in some sense (because of the way in which the distinction between church
and state has been understood in traditional Establishment Clause jurisprudence)
is not dispositive when the government benefits those rituals in order to promote
trib’al self-determination. Such accommodations are political ones under M orton
because they are ‘‘reasonably designed to further the cause of Indian self-govem-
ment.” 417 U.S. at 554.
   But, even if traditional Establishment Clause principles apply, they must be ap­
plied in a manner that takes account of the special considerations that underlie
Morton. As Morton clearly states, the Constitution gives the federal government
broad power in dealing with federally recognized tribes as quasi-sovereigns. The
Establishment Clause cannot appropriately be read to diminish the government’s
ability to exercise this power, as would result from a direct application of standard
Establishment Clause analysis in the context of tribal religious accommodations.
Indeed, as the P eyote Way court suggested, such analysis is plainly incompatible
with the federal government’s duty toward the tribes.
   The special relationship between the federal government and tribes — a relation­
ship that envisions active assistance from the federal government— thus, at the
very least, necessitates a modification of the usual Establishment Clause analysis

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when evaluating accommodations of tribal religious practices and sacred sites. At
a minimum, as M orton suggests and Rupert and P eyote Way hold, the federal
government may, without triggering Larson strict scrutiny, single out federally
recognized Indian tribes for special treatment that is not provided to other groups,
if other Establishment Clause principles are satisfied.14 Moreover, we think that
the government may do more than simply lift a government-imposed burden on
tribal religious practices, and may in addition alleviate burdens imposed by private
parties. While the Lemon test ordinarily requires the government to lift a burden
of its own making when accommodating religion to deter back-door attempts to
benefit religion, the special relationship contemplates direct benefits for tribes.
Furthermore, such accommodations arguably may include a degree of involvement
with Indian tribes that exceeds the normal entanglement boundaries between gov­
ernment and religion. While the Lemon test typically forbids excessive government
entanglement with religion, the special relationship between the government and
the tribes entails a degree of government involvement in tribal religious practices.
In short, the federal government has considerable discretion to enact accommoda­
tions on behalf of federally recognized tribes.15
   We should not be understood to suggest that the government’s discretion to
accommodate tribal religious practices is unlimited, even under the broadest under­
standing of M orton’s effect on Establishment Clause analysis. For example, the
rationale of M orton would not permit the government to act with the impermis­
sible purpose of diluting tribal religious practices or establishing a national Indian
religion. We do not decide here the precise limits of our analysis. We believe,
however, that M orton leaves the government with broad latitude to accommodate
tribal religious practices.

    ,4 To the extent the Establishment Clause o r any other provision o f law prohibits the federal government from
discrim inating between sim ilarly situated federally recognized tribes, we note that Executive O rder No. 13007, which
provides that federal agencies “ shall, to the extent practicable . . . accommodate access to and ceremonial use
of Indian sacred sites by Indian religious practitioners,” ensures that all such tribes will receive accommodations
 where possible, and we read that Order to intend that similarly situated federally recognized tribes shall be treated
similarly. Cf. Kiryas Joel , 512 U.S. at 703 (invalidating statute creating school district for the Satmar Hasidim where
there was “ no assurance that the next similarly situated group seeking a school district o f its own will receive
one” ).
    13    Prior to Rupert and Peyote Way, this O ffice took a narrower view of the effect on Establishment Clause analysis
o f the special relationship between the federal government and federally recognized tribes. See Peyote Exemption
fo r Native American Church, 5 Op. O.L.C. 403, 419-20 (1981) (concluding that special relationship does not affect
 Establishment C lause analysis). In that O pinion, we stated that the unique status of federally recognized tribes does
 not justify special treatm ent o f tribal religious practices. Because the tribes’ unique status derives from their political
 position as quasi-sovereign nations, we reasoned that it only extends to preferences that further tribal authority and
 self-governance, not tribal religious observance. We note that that Opinion was drafted without the benefit o f Rupert
or Peyote Way and substantial commentary arguing that tribal religious practices are integral to tribal self-governance.
 See, e.g., R ichard Herz, Legal Protection fo r Indigenous Cultures: Sacred Sites and Communal Rights, 79 Va. L.
 Rev. 691, 7 0 3 -0 4 (1993); Michael J. Sim pson, Accommodating Indian Religions: The Proposed 1993 Amendment
 to the American Indian Religious Freedom Act, 54 Mont. L. Rev. 19, 34 (1993); Jack F. Trope, Protecting Native
American Religious Freedom: The Legal, Historical, and Constitutional Basis for the Proposed Native American
Free Exercise o f Religion Act, 20 N.Y.U. Rev. L. & Soc. Change 373, 393 (1993). In addition, we do not believe
that Morton’s holding is lim ited to legislation directly related to Indian self-government functions. The reasoning
in Morton should apply as well to legislation that is rationally related to the furtherance o f Congress’s unique obliga­
tion tow ard federally recognized tribes. See, e.g., Alaska Chapter v. Pierce, 694 F.2d 1162, 1167 (9th Cir. 1982).


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                                  Permissible Accommodation o f Sacred Sites


   Although we believe that the Lemon test does not apply with full force to tribal
religious accommodations, no court has had occasion to address this precise issue.
Rupert and Peyote Way upheld laws that singled out tribes for special treatment,
but those laws complied with Lemon in other respects. Because the law is unsettled
in this area, we recommend that federal agencies comply with Lemon to the extent
feasible in implementing Executive Order No. 13007. Thus, where possible, we
would advise agencies to minimize the risk of governmental entanglement and
to target government-imposed burdens on access to, or ceremonial use of, sacred
sites.16 If these hurdles are cleared, the only remaining obstacle will be a question
of Larson-like differential treatment; and Rupert and P eyote Way have held (cor­
rectly, in our view) that, in light of Morton, such differential treatment is permis­
sible when it is to the benefit of federally recognized tribes.
  We also suggest that, where feasible, agencies adopt regulations that are facially
neutral with respect to religion— i.e., that do not on their face give priority to
any religious use of the sites. Although such neutral regulations would not be
immune from traditional Establishment Clause scrutiny, they may engender fewer
constitutional challenges. Furthermore, as noted above, the Supreme Court has
suggested that in the context of government zoning and land-use regulations, such
neutral accommodations of religion are likely to withstand Establishment Clause
scrutiny.

                                                         B.

   For the reasons outlined above, we believe that the district court in Bear Lodge
erred in declaring the National Park Service (“ NPS” ) management plan unconsti­
tutional. That plan provides, in relevant part: “ commercial use licenses for June
climbing guide activities will not be issued [by the NPS] for June 1996 and be­
yond.” National Park Service, Final Climbing Plan Management Plan at 22 (Feb.
1995). A group of commercial climbers sought to enjoin the operation of this
part of the plan as a violation of the Establishment Clause. The district court
granted a preliminary injunction, characterizing the no-commercial-climbing rule
as “ affirmative action by the NPS to exclude a legitimate public use of the tower
for the sole purpose of aiding or advancing some American Indians’ religious
practices.” B ear Lodge, slip op. at 1 1 .17 Furthermore, the court found that the
   16 In many cases, it m ight be argued that the federal government imposed a burden on tribal religious practices
when it occupied the land on which a sacred site is located. More often, it might suffice that the governm ent’s
prior Indian regulations, as well as its prior zoning and land-use decisions — including those that permit private
parties to make use o f the land on which the site sits— created a burden on tribal religious exercise.
   17 The court relied on Badoni v. Higginson, 638 F.2d 172, 179 (10th Cir. 1980), cert, denied, 452 U.S. 954 (1981),
in which the Tenth Circuit rejected a Free Exercise claim asserted by Indians seeking to completely exclude tourists
from a national monument. We note that nothing in Badoni— which merely held that the federal government need
not exclude tourists from the monument under the Free Exercise C lause— precluded the government from voluntarily
accommodating the tribal religious exercise under the Establishment Clause. As the Supreme Court has observed,
“ (i]t is well established . . . that [tjhe limits o f permissible state accommodation to religion are by no means co-
                                                                                                             Continued


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                            Opinions o f the Office o f Legal Counsel in Volume 20


restriction “ coerce[d]” climbers to conform their conduct to the Indians’ religious
practices in a way that would entangle the government in regulating behavior.

   The district court incorrectly analyzed the Devils Tower no-commercial-climb­
ing rule. As discussed above, regulations that accommodate tribal religious prac­
tices generally are permissible under M orton and its progeny either because they
are political (and not religious) preferences or because they are subject to a dif­
ferent, less restrictive test under the Establishment Clause.
   Indeed, the rule in this case is perhaps the least problematic form of accommo­
dation on our analysis because it satisfies traditional Establishment Clause prin­
ciples in every respect, with the possible exception of one. For example, the no­
commercial-climbing rule creates no risk of excessive entanglement because it
does not involve the government in tribal affairs or vice versa. It merely regulates
third parties (i.e., commercial climbers)— parties that have been long subject to
NPS regulation and permitting authority. Furthermore, it does so in a manner that
neither requires the government to conform climber conduct to tribal religious
practices, nor requires the climbers to conform their own conduct to those prac­
tices, as the district court suggested. Far from entangling the government in moni­
toring climber conduct at the site, the rule simply forecloses commercial climbing
activity for a limited period of time.
   To the extent that the climbing ban lifts a burden imposed by NPS in permitting
commercial climbing at the site in the first instance, it satisfies this aspect of
the purpose prong of Lemon. It is true that the rule was designed, at least in
part, to accommodate tribes and tribal religions and not other groups or religions.
It achieves this purpose, however, without referring to tribal religious practices
or singling out religious uses of Devils Tower for preferential treatment. Thus,
in order for the rule to survive constitutional review, the government need rely
upon M orton only insofar as that case makes clear that the government may act
with the purpose of accommodating tribes without providing a comparable accom­
modation to other religions. We believe M orton easily supports this modest appli­
cation and that the no-commercial-climbing rule therefore comports with the Es­
tablishment Clause. Although the district court reached the opposite conclusion,
its decision has no binding precedential effect on other courts.19

                                                                CHRISTOPHER H. SCHROEDER
                                                                 Acting Assistant Attorney General
                                                                      Office o f Legal Counsel

extensive with the noninterference mandated by the Free Exercise C lause.” Amos, 483 U.S. at 334 (internal quotations
om itted). Thus, "[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit
religious exercise to exist without sponsorship and without interference." Id. (internal quotations omitted).
   18 The court thus analogized the climbing ban to the tribes' request in Badoni that the government require tourists
to act in a respectful and appreciative m anner when visiting the site.
   19The district court’s decision is unpublished and was issued in the context o f an expedited motion for preliminary
injunction. Briefing on the merits has yet to commence.


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