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Litigation Developments 1998-99

James M. Grijalva, Natural Resources Development and Environmental Regulation in Indian Country (1999)

In Alves v. United States,2 the Federal Circuit held that the Bureau of Land Management's (BLM) failure to prevent livestock owned by Shoshone Indians from trespassing on a neighboring non-Indian ranch was not a Fifth Amendment taking. The court found the trespasses occurred because of the omissions of third parties (the Indian livestock owners) and not BLM, and citing United States v. Fuller,3 the court held that neither plaintiff's grazing preference nor his grazing permit issued under the Taylor Grazing Act (TGA)4 for certain public lands were compensable property interests.

In Bear Lodge Multiple Use Ass'n v. Babbitt,5 a federal district court ruled that the National Park Service's voluntary “ban” on climbing Devil's Tower National Monument (Bear Lodge) during June when certain tribes conduct religious ceremonies there did not violate the Establishment Clause of the federal Constitution. The court reasoned that the ban sought to accommodate rather than promote Indian religious practices and thus had the legitimate secular purpose of removing barriers to religious worship, and that the Park Service's aspirations for complete voluntary compliance did not amount to impermissible coercion. The court also found no excessive entanglement where the Park Service had no involvement in the manner of worship, but provided only an “atmosphere more conducive to worship.”