American Indian Sacred Religious Sites and Government Development: A Conventional Analysis in an Unconventional Setting

Authors

Mark S. Cohen, University of Michigan Law SchoolFollow

Abstract

For centuries, American Indians have regarded specific lands as essential to their livelihood, government, culture, and religion. Congress and the courts have at times recognized the important relationship between tribes and their lands. Recognition has not always coincided with protection; during the nineteenth century and part of the twentieth century a series of governmental actions resulted in the tribes surrendering title and possession to many of their ancestral lands. Recently, however, American Indians have become increasingly active litigants in a variety of contexts. In one set of cases, Indians challenged government development projects on public lands, contending that because the projects interfered with Indian sacred sites, they violated the free exercise clause.

This Note focuses on the sacred lands cases and argues that courts have improperly transferred conventional free exercise analysis to an unfamiliar setting. As a result, these decisions fail to give adequate consideration to sincere Indian religious interests, and seem to conflict frequently with vital principles underlying the free exercise clause.

Part I outlines the development of the Supreme Court's current tripartite approach to free exercise issues. Part II examines the application of this approach to a series of earlier cases in which Indian free exercise claims did not involve sacred sites. Part III analyzes the sacred lands cases and concludes that they are inconsistent with both mainstream free exercise cases and the earlier Indian religious cases. After surveying possible legislative alternatives, Part IV offers recommendations for restructuring current free exercise analysis so that it leads to fairer evaluation of sacred site issues.

Recommended Citation

Mark S. Cohen, American Indian Sacred Religious Sites and Government Development: A Conventional Analysis in an Unconventional Setting, 85 Mich. L. Rev. 771 (1987).
Available at: https://repository.law.umich.edu/mlr/vol85/iss4/5