Prioritizing Multiple Uses on Public Lands After Bear Lodge

Abstract

This Article analyzes the courts’ application of First Amendment jurisprudence to Native American cultural activities on federal land. The author concludes that the courts’ use of existing First Amendment law has been strained, especially with respect to Native American cultural practices on federal land. The Article analyzes Bear Lodge Multiple Use Association v. Babbitt within this context to conclude that First Amend­ment jurisprudence may not be the most appropriate legal construct for determining whether to allow or protect Native American cultural activities on federal land. Instead, the Article suggests that Native American practices are often best considered cultural, rather than religious, and as such, a First Amend­ment analysis, which has not been particularly favorable to Native American interests, would not apply. Applying a cultural lens to Native American practices, the Article concludes that federal land managers act well within their prescribed authority when they protect such activities.