Protecting the Sacred Sites of Indigenous People in U.S. Courts: Reconciling Native American Religion and the Right to Exclude

Abstract:     
The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate the activities of non-tribal members “derives solely from the tribes’ power to exclude nonmembers entirely from territory that has been reserved for the tribe.” Justice Stevens thus equated the tribe’s power as sovereign with its right as property owner, focusing on what the Court has called “one of the most essential sticks in the bundle of rights that are commonly characterized as property” – “the right to exclude.”

During the past two decades the Supreme Court has reduced a somewhat nuanced theory of jurisdiction and inherent sovereignty, requiring careful analysis and a sensitive balancing of interests, into a much more simplified test focusing largely on a single aspect of traditional property law - a landowner’s right to exclude.

What has all this to do with sacred sites? A review of the case law involving the right of Native Americans to use and protect their sacred sites reveals that the same kind of simplification has occurred, with the courts focusing on the same aspect of property law - the right to exclude.

Keywords: Sacred sites, Native American religious freedom, cultural heritage, right to exclude, Merrion v. Jicarilla Apache Tribe (1982), jurisdiction, inherent sovereignty

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