Marcia Yablon, Note, Property Rights and Sacred Sites: Federal
Regulatory Responses to American Indian
Religious Claims on Public Land, 113 YALE L.J. 1623 (2004).
(Abstract prepared by James Grimmelmann)
Currently, federal land management agencies are responsible for the
majority of decisions regarding Indian sacred sites located on federal land.
Given that, in the past, land management agencies were often responsible
for the decisions to destroy sacred sites, it is little wonder that most tribes
and sacred sites supporters are dubious that these agencies will provide any
real protection. But such mistrust may no longer be justified. This Note argues that agency
management of Indian sacred sites, in conjunction with statutory
consultation provisions and backed by judicial enforcement, is the best
form of protection for these sites. In addition, it shows that because of the
effectiveness of agency protections, the persistent scholarly arguments for
broader judicial or legislative protections are no longer appropriate.