A Property Rights Approach to Sacred Sites Cases : Asserting a Place for Indians as Non-Owners

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an ownership model of property law wherein the rights of the owner trump all other interests and values. As scholars have argued, however, the ownership model represents a view of property law that is neither descriptively accurate nor normatively attractive. In theory and practice, property law also recognizes the rights of nonowners in furtherance of human values and social relations. Accordingly, this Article contends that, even as nonowners, Indians may have enforceable property rights to use, and maintain the physical integrity of, sacred sites. Examining sacred sites problems through common law, federal Indian law, public lands law, and human rights law, the Article identifies and analyzes property rights arguments that may be available to Indian litigants even where the government is the undisputed owner of the land. While this approach will not secure Indian religious freedoms in every case, the Article concludes that Indian nations should consider property rights arguments as part of a multipronged legal strategy in sacred sites cases