Federal Court Decision Upholds Protection of Cultural Resources in Montana

Posted on: January 21st, 2011 by National Trust for Historic Preservation

Written by Ti Hays

Montana’s Badger-Two Medicine site. (Photo: The Wilderness Society)

Montana’s Badger-Two Medicine site. (Photo: The Wilderness Society)

Yesterday, a federal district court upheld a U.S. Forest Service travel plan for Montana’s Badger-Two Medicine. This is a good decision for historic preservation and one that the National Trust supported in an amicus brief filed last summer.  In the travel plan, the Forest Service closed most of Badger-Two to motorized vehicles in part to protect the area’s cultural and religious values.  Badger-Two is highly significant to the Blackfeet Tribe.  So much so that the National Park Service has formally determined that roughly 93,000 of the area’s 130,000 acres are eligible for listing in the National Register as a “traditional cultural district.”

In its decision, the court rejected the plaintiffs’ claim that the Forest Service had violated the U.S. Constitution’s Establishment Clause. This clause generally forbids federal agencies from giving undue preference to a particular religious belief or practice in their decision making.  The court, however, found no such deficiency in the Forest Service’s travel plan, since it furthered “a host of secular purposes, including benefits to air quality, water quality, soil quality, wildlife habitat, and fish habitat.”  And, in light of those secular purposes, the court determined that the plan has neither the “principal” nor “primary” effect of advancing the tribe’s religious beliefs.  Finally, since the Forest Service’s dealing with the area is limited to “administrative enforcement of the Travel Plan.” the court found no impermissible “entanglement” between the agency and the Blackfeet’s religious practices.

This case is merely the latest in a string of cases upholding federal protections for areas that possess cultural and religious value to Native Americans.  The National Trust has participated in many of those cases and has consistently supported the federal government’s authority to protect places like Wyoming’s Medicine Wheel National Historic Landmark and Utah’s Rainbow Bridge National Monument.  Additionally, the Badger-Two decision clearly supports the arguments we recently made in an amicus brief in the Mount Taylor case.  That case involves an Establishment Clause claim that is virtually identical to the one rejected yesterday by the Badger-Two court.


Ti Hays is the public lands counsel for the Law Department of the Trust for Historic Preservation.

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