Preserving Sacred Sites and Property Law

Abstract

Should courts have power to order the federal government to give land rights to particular groups based solely on their religious beliefs? Calls for legal rules requiring such effectual transfers have grown in recent years as Americans have begun to more seriously confront the country’s history of mistreatment of Native Nations and other disadvantaged groups. Most recently, Indigenous claimants in a pending Ninth Circuit case want the court to interpret the Religious Freedom Restoration Act of 1993 to entitle them to a remedy resembling a perpetual easement on certain federal land that would prohibit development on the land to protect a sacred site. At first glance, a law requiring the federal government to give the equivalent of an easement in public land to a singled-out religious party might seem like an appealing way to further important reparative justice or religious freedom goals. However, legal rules requiring such uncompensated property transfers on the basis of religion would also contravene bedrock principles of constitutional and property law and threaten vital climate change mitigation efforts. This Article is the first to rigorously examine the broader consequences of embracing rules that would compel governments to effectively forfeit public land rights to advance vital reparative justice or religious liberty objectives. This Article then outlines an alternative approach to preserving Indigenous sacred sites that would respect federal land rights and give Native Nations a much stronger voice in site protection decisions.

Keywords: Property Law, Federal Indian Law, Religious Liberty, Climate Change Policy, Establishment Clause, Takings Clause, Federal Lands, Mining, Renewable Energy, Reparative Justice