Tulsa Law Review
Kristen A. Carpenter, The Interests of "Peoples" in the Cooperative Management of Sacred Sites, 42 Tulsa L. Rev. 37 (2006), available at https://scholar.law.colorado.edu/articles/357.
This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government to recognize their interests and battling one another in the process.
To foster a more cooperative approach to sacred sites management, it may help to transcend the model of absolute federal control with various groups left fighting over the crumbs of accommodation. Instead, federal land management should recognize the concerns of groups on all sides of sacred sites disputes, make those concerns an explicit part of legal analysis, and develop models to recognize the various interests at stake. It will be immensely challenging to reform the management of sacred sites in these ways, and this essay aims only to offer some preliminary thoughts on the topic.
In particular, this essay argues for analysis of sacred sites problems through the language of "peoples" and "peoplehood." A people is often defined as a body of persons united by a common culture, tradition, politics, or kinship. And peoplehood means the sense or state of belonging to a people. The concept of peoplehood thus helps to explain and validate why human beings group themselves in certain ways and why certain things may be important to them. In the sacred sites context, peoplehood has at least two important ramifications: it can expand the discussion beyond the power of the federal government to include the interests of subnational groups, and it can inspire those groups to recognize and accept one another's interests. Thus, considering the interests of peoples might lay the groundwork for an attitude of cooperation at sacred sites.
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