New England Law Review
Kristen A. Carpenter, In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619 (2003), available at https://scholar.law.colorado.edu/faculty-articles/549.
This paper examines the challenge of protecting American Indian sacred sites located on federal public lands. Many have addressed this issue in the religious freedoms context, but I believe the problem is just as much about property law. The Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, for example, would appear to suggest that federal ownership of certain sacred sites trumps tribal free exercise clause claims regarding those sites. This holding corresponds with a classic model in which "[p]roperty is about rights over things and the people who have those rights are called owners." However, a closer look at property law reveals that "ownership" is only one factor in any analysis, and property also encompasses interests, obligations, and values beyond the narrow question of owners' rights. Here I argue that recognizing the expansiveness of property law can be a useful tool in developing legal arguments that respond to the ownership bar presented by Lyng.
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