By Seth Richardson
The Mystery Cavern at the Garden of the Gods, sealed up in 1935, must be reopened for archeological examination and documentation. The actions of the Colorado Springs Parks and Recreation Advisory Board in denying access to credentialed archeologists based on objections by Ute tribal historian Alden Naranjo of the Southern Ute Indian Tribe is a violation of the First Amendment’s Establishment Clause, which prohibits government “establishment” of religion.
There may be legitimate reasons for keeping the cavern sealed, including preservation of archeological resources or safety, but the Board used as its excuse the one reason that it is legally forbidden to use: Religion.
According to the article in the Gazette by reporter Dave Phillips, Colorado Springs agreed in the 1990s that no archeological digs would take place in the Garden of the Gods without tribal approval because the Ute Tribe claims that the park has “spiritual significance.” While we all should respect the places of “spiritual significance” that any religious group cares about, such respect should not, and indeed cannot be established as a law or policy by any governmental unit without violating the First Amendment.
A similar controversy exists in Wyoming, at Devil’s Tower National Monument. Native American Indians object to climbers scaling the basalt volcano core because they feel the place has spiritual significance. They have attempted for years to persuade the National Park Service to ban climbing entirely, or at least ban it during “sacred” periods when Indians worship there, out of respect for Native American Indian tradition and religious practice.
The best the National Park Service has been able to do, on advice from the United States Attorney, is to post a “voluntary” climbing ban in June, a time of sacred significance, that asks, but does not require that climbers respect Indian traditions and religious observances. No mandatory ban can be enacted because this would, as the actions of the Board do in this case, violate the Constitutional ban on government either advancing or inhibiting religion.
The relevant United States Supreme Court case is Lemon v. Kurtzman, 403 U.S. 602, decided in 1971. In this case, the Court lays out a tripartite test of government actions to determine if the action violates the Establishment Clause of the First Amendment.
The first prong of the tests asks, “Does the government’s action have a secular legislative purpose?”
The second prong of the test asks, “Does the government’s action have the primary effect of either advancing or inhibiting religion?”
The third prong of the test asks, “Does the government’s action result in an ‘excessive entanglement’ of government in religion?”
In the case of the Garden of the Gods Mystery Cavern, the advisory board’s decision facially violates the first and second prongs of the Lemon test.
According to the article, the board stated that it would approve the request for archeological examination of the cave “if there were no objections from the Ute tribe.” But because the reason that the city made the agreement to ask permission from the Ute Tribe is based upon the Tribe’s claim that the park has “spiritual significance,” this causes the boards deference to the Tribe to be based upon prohibited religious criteria, which makes the board’s action an unlawful and unconstitutional decision that has no legitimate “secular purpose” and which has the primary effect of advancing the interests of Native American Indian religion over the legitimate, secular need for proper archeological examination and documentation of the site.
The fact is that the very agreement signed by the city with the Ute Tribe in the 1990s is itself very likely invalid because it has the practical and primary effect of advancing Ute tribal religious interests over the secular needs and rights of the owners of the site, the People of Colorado Springs.
However “spiritually significant” any publicly-owned property is to some group of religious people, such considerations cannot, by law, be part of the decision making process of a public board considering limiting access to the property by the public.
The board must reevaluate its decision and permit the archeological investigation, as it said it would, and it must, according to the Supreme Court and the Lemon Test, disregard any religious claims that would interfere with the right of the public to use and enjoy its public property. If the board does not reverse its decision, the city will likely face yet another expensive lawsuit, which it will certainly lose.
This does not mean, however, that qualified archeologists or historians from the Ute Tribe should be excluded from the excavation. They should absolutely be included, so that cultural artifacts associated with their Tribe can be properly analyzed and preserved, and so that their cultural history can be added to the knowledge gained by opening and examining the cavern.
And once the archeological dig has been completed and documented, the cavern should be sealed again in order to protect it from vandalism and theft, which is a legitimate secular government purpose.
But to deny the public the ability to document and know both its own and its Native American Indian cultural heritage based on allegations of “spiritual significance” is most definitely not a legitimate government action.
© 2009 Altnews