Bear Butte Buffer Zone II

The vote here at Keloland so far stands at four to one in favor of the Governor's proposal to create a commercial-free buffer zone around Bear Butte.  Pat Powers objects on the grounds that it is not the business of government to "limit property rights for religious reasons."  I reply that the religious motives of one of the parties shouldn't matter, so long as the State has a secular motive.  Promoting freedom or even ease of religious practice on the part of a minority is not itself a religious motive. 

Professor Schaff is less certain than I that the Court will agree.  I emphatically agree that the Court's establishment clause jurisprudence is a chaotic mess, and there is no decision so bad that the Court might not arrive at it.  The Court has generally upheld state expenditures if 1) a religious interest is only one of the beneficiaries, and/or 2) the expenditure is necessary for the safety of someone involved.  Thus fire protection covers both the church and the adult bookstore, and if a extra policeman must be hired to direct traffic in front of a Catholic elementary school, that's okay.  Neither would cover the Bear Butte proposal.  However:

Todd Epp points out that the State can argue for the cultural and historical significance of Bear Butte. Since the religious group in question is not Christian or Jewish, I think the Court would be trying to find a way to let this pass; Epp's brief provides a more than adequate secular purpose.

Professor David Newquist argues that the establishment clause is not involved, since the Sioux Nations have the rights to all of West River by the 1868 treaty.  He is certainly right that conceding that point would render moot any establishment clause objection against the State.  But I submit that the State is very unlikely to concede it, and if such a concession is part of the Governor's bill you can kiss the money goodbye. Nor is it likely that the treaty will figure into a case if one arises in the Courts.  However we might resolve this issue, I doubt that the 1868 treaty will be of much help.