Cave Rock

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Cave Rock, located on the Southeast shore of Lake Tahoe, has been known as a sacred place for the Washoe tribe of American Indians for over ten thousand years. The rock, known to the native people as De’ek wadapush or Standing Gray Rock, recently came under controversy and appeared in the legal system in a debate as to whether the climbers or the natives should have rights to the land. This place held extreme importance for both the recreational and religious realms. On one hand the rock offers some of the most challenging and rewarding sport climbing in the United States, but on the other hand the Washoe tribe consider Cave rock to be integral to the survival of their culture and religion. They believed that Cave Rock was so powerful and sacred that if the secular practices continued there it could jeopardize the health and integrity of their society. As A. Brian Wallace, one of the shaman leaders of the Washoe tribe commented, “for us, rock climbing trivializes the site for the sake of sport” (Roberts 1). This location is of extreme importance and thus the Washoe leaders attained the help of the forest service in order to ban climbing and regain their sacred land.

This sacred land has a long history with being trivialized and tarnished. In 1931 and 1957 the government blasted through the heart of Cave Rock, creating two tunnels. These tunnels carry tourists to and from the casinos and hotels of South Lake Tahoe on four lanes of U.S. Highway 50. Originally when the tunnels were in planning the Washoe people fought back because they feared that “the spirits of the place would be angered and would send a deluge of water from Lake Da-ow to flood Carson Valley and destroy all the people who had allowed such a desecration to occur” (NCPC). Despite the initial shock and fear, the Washoe people now do not believe that the cars passing through subtract from the sacredness of this place. The tribal leaders believe that because vehicles pass through the tunnels so quickly they have little effect on the inherent power of the site, and thus do not continue to jeopardize their religion . Rock climbing, however, provides an extended interface between individuals and the rock in which the power of the rock can be changed or altered. According to the Washoe people, the power of the rock is both extremely powerful and dangerous. Traditionally Washoe Indians are urged to avoid the rock because its dark powers are potentially catastrophic. Women cannot visit the rock, and only shamans are permitted when they have undergone extensive preparations lasting as long as a month. Despite the importance of this land to the native people climbers quickly discovered the rock and began using the sacred area for sport.

Without regard to native religious purposes climbers enjoyed the vast recreational uses of this rock. As climber Dave Schuller put it before the ban was implemented, “There’s nowhere else in the United States with rock climbing like this… it would be a horrible loss not to be able to climb here anymore” (Roberts 1). This rock held some of the toughest climbing routs in the country and was enjoyed by many throughout the summer seasons. At one point the Forest Service tried to appeal both groups by allowing climbers to continue to use the rock but not allowing individuals to put in new bolts or establish new routes. This compromise was viewed as fair by most climbers but did not appeal to the Washoe people. In 2002 the Forest Service issued a Final Environmental Impact Statement (“FEIS”) which sought “to protect the Cave Rock heritage resource and regulate uses there in a manner that . . . preserves the historic and cultural characteristics that make the property eligible for listing on the National Register” (United States Courts of Appeals 3). This effectively put a ban on rock climbing on Cave Rock and pleased the Washoe tribe by returning their sacred land. This came as a shock and an outrage to the men and women who enjoyed climbing before the ban. One climber even went as far as to question the importance of Cave Rock to the Native peoples. In an interview he stated, “I would ask what [the Washoe] have done this century to demonstrate their respect for the site besides maintain a superstitious avoidance” (Roberts 1). A definite lack of respect appeared between some of the climbers and the Native traditions, which led the Forest Service to step in and change the permitted uses.

This ruling was supported heavily by AIRFA, the American Indian Religious Freedom Act, which was put into effect on August 11, 1978. This law intended to give more religious rights to Native Americans in the US, however the law did not reach many Native people’s hopes or expectations. While some courts enforced this law strongly, many others “more or less ignored the Act” (Michaelsen 98). This law became difficult for many to interpret because the law’s focus was to protect the First Amendment for American Indians, but “it was not meant to in any way grant them rights in excess of those guarantees” (Michaelsen 100). Despite the fact that it would not be constitutionally fair to grant one group of people more rights than others, the Indigenous religious practices need different things from the government than Western religions require. The land is central to their traditions, and without it they would not be able to practice or worship as fully. Although many judges understand this they struggle to find the balance between upholding the law and allowing what is needed to the people, and unfortunately man largely fall on the constitutionality side of the argument. Because the court allowed the land to the Washoe people, however, there was resistance from the climbers arguing the constitutionality.

This case was not yet finished, and in 2007 the Access Fund, a rock climbing association located in Boulder Colorado, appealed the decision made by the Forest Service. The plaintiff argued that the Forest Service’s decision to ban climbing at Cave Rock both violated the Establishment Clause and was arbitrary and capricious under the APA. The leader of the Access Fund, Jason Keith, firmly believed in the injustice of the Forest Service FEIS and stated that the organization viewed “a ban on climbing at Cave Rock as arbitrary, capricious and unconstitutional” (Roberts 2). Although Keith provided a just argument the courts reviewed the case and decided that the FEIS was in fact constitutional and upheld the ban. In this particular case the Judges looked at the wording of the FEIS itself, which proved to be especially important. Instead of citing the Washoe Indians’ religious claims of the importance of Cave Rock the Forest Service stated that climbing Cave Rock should be banned because the environmental, historical and cultural resources of the land needed protection. Because of these terms the Appeals court established that the ban on rock climbing should not be viewed as “requiring others to conform their conduct to Indian cultural concerns” (United States Courts of Appeals 3). Rather than imposing religion upon other groups and thus violating the Establishment Clause, the Forest Service Ruling of 2002 established protection of the land in secular ways through its implementation. Maribeth Gustafson further explained this idea by stating “although [the Cave Rock property] is spoken of in religious terms and is associated with spiritual figures, it has significant cultural and historical significance” (United States Courts of Appeals 4). The Forest Service drew upon these secular needs and therefore did not violate the Establishment Clause. In this case the Forest Service felt the need to protect the Native peoples’ religious freedom but they cleverly did so in a way that would be lawful. , “the government may (and sometimes must) accommodate religious practices and . . . it may do so without violating the Establishment Clause” (United States Courts of Appeals 4). The Forest Service did something incredible in that they were able to protect the rights of these people without giving them excess rights, a feat that has not been successful in many cases.

It seems fairly clear that the Forest Service did not believe the FEIS to be a purely secular cause. This process has often been described as an act in which the “Forest Service Staff took the Washoe [religious] concerns to heart” (Howard 398). The Forest Service referred to the land an important ‘cultural’ site in the FEIS document but did not mention the importance of the religious practices to the Washoe tribe. While the Forest Service enacted a policy to protect a religious resource, the court found the action protecting Cave Rock did not violate the constitution because it was undertaken with a secular purpose as the main focus. This distinction is important to hold true with the Establishment Clause. If the Forest Service had used the term ‘religion’ instead of ‘culture’ then they would have in fact been violating the Establishment Clause by attributing extra value to the land and giving a specific religious group more rights than others. Because, however, the courts could not find mention of religion of the Washoe Indians in the Forest Service ban, simply that the rock was a “core element in the Washoe culture” they upheld that the act was in accordance with the constitution and therefore could be upheld (United States Courts of Appeals 8). As the court discussed they cited previous cases in which the Establishment Clause was at the heart of the battle. Under the precedence of this case, an action or policy violates the Establishment Clause if it holds true to any of three principles: it has no secular purpose, its principal effect is to advance religion, or it involves excessive entanglement with religion. None of these were violated because of the purely secular, even though the underlying cause of the ban on climbing was for the religious freedom of the Washoe Indians.

Because of the careful use of language this sacred land has been returned to it’s original occupants to continue upholding their religious needs. In 2009 a the rock finally returned to its sacred state when the final bolt was removed from the rock and the Washoe people were given back their land. Cave Rock continues to remain open to the public to explore and use, however the era of climbing its faces officially ended. This case proved to be liberal in part from the judges reasoning as well. The courts are rooted in European-American culture, however in the case of Cave Rock Judge Betty B. Fletcher’s progressive thinking bridged the cultural gap and granted the Washoe Indians right to their land. In defense of the Court’s decision she stated that “Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites.” This place and the decisions made to restore its religious significance shows that progress is being made to fully understand all cultures under the constitution.

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-Kristin Sawyer

Literature Cited:

Hall, Clyde. “Project: Cave Rock | NCPC.” NCPC. N.p., n.d. Web. 03 Nov. 2012. <http://ncpc.info/projects_caverock.html>.

Howard, Ellen. “Inequity of Protection: Why Agency Accommodation Does Not Always Work.” University of California Davis 32.2 (2010): 395-400.

Michaelsen, Robert S. “The Significance Of The American Indian Religious Freedom Act Of 1978.” Journal of the American Academy of Religion LII.1 (1984): 93-115. Print.

Roberts, David. “Whose Rock Is It Anyway?” Smithsonian 33.12 (2003): 26-28.

The ACCESS FUND, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Mike Johanns, Defendants-Appellees. United States Court of Appeals, Ninth Circuit. 27 Aug. 2007.

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