Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land
Yablon, Marcia, The Yale Law Journal
According to the National Trust for Historic Preservation, the Kw'st'an Sacred Sites at Indian Pass in Imperial County, California, are one of America's eleven most endangered historic places. (1) For thousands of years, American Indians from the Quechan tribe have undertaken spiritual pilgrimages to these sites and conducted religious ceremonies known as Keruk, in which they have cremated their dead and assisted in bringing them to the next world. (2) These sites are on the National Trust's list because, in addition to being rich in spiritual and cultural significance, Indian Pass is also rich in gold. Glamis Gold Ltd., a Canadian mining company, is seeking permission to extract the gold; if granted, such permission will result in "a massive 1,600-acre cyanide heap-leach gold-mine that will leave a gaping hole in the ground and a skyscraper-size mound of toxic waste." (3)
The situation at Indian Pass is not unique. Dozens and potentially hundreds of Indian sacred sites face similar threats. (4) For those seeking to protect such sites, both the problems and the solution are clear. Most sacred sites supporters believe that the Supreme Court's unwillingness to find that the First Amendment mandates the protection of sacred sites has led to this precarious and distressing situation. (5) They further believe that the only way to ensure the protection of these sites is either to overrule the Court's previous decisions (6) or to pass a comprehensive statute giving tribes the power to prevent the destruction or development of their sacred sites. (7) Those holding this view believe that anything less than these types of sweeping measures will be disastrous for the future of Indian sacred sites. Yet as widespread as this belief is, it may not be correct. Furthermore, it may actually be a good thing for society as a whole that these proposed protections have not succeeded.
Indian sacred sites are lands that hold significant spiritual value for an Indian tribe. These sites may be discrete geological monuments such as Bear Lodge (also known as Devils Tower) in Wyoming, a sixty-million-year-old rock formation made from the hardened magma of an extinct volcano, (8) or wide swaths of land such as the Indian Pass Sacred Sites, a series of trails running from Los Angeles to Mexico. (9) Some sites factor into a tribe's creation myth or are vital to the continuing practice of a tribe's religion. (10) For example, for the past 10,000 years, the Lakota have performed their most important religious ceremonies, such as yearly Sun Dances, at Bear Lodge. (11) Conversely, other sites are used less regularly and for multiple purposes. The Quechan tribe has used Indian Pass for a variety of religious purposes, including Keruk, the ceremony of bringing the dead into the next world; vision quests, where tribal members run in search of visions; and prayer circles. (12)
Just as there are different types of sacred sites, these sites face many different types of threats. For instance, Bear Lodge is a national monument and, as such, is in no danger of being demolished or developed. But for those tribes that believe Bear Lodge is a sacred site, simply having the site open to the public--especially for activities such as rock climbing--is seen as a serious threat. The threat to Indian Pass is even starker: Parts of it face destruction if developers are given the right to dig up the land and turn it into a leach mine. Although the threats to these sites are serious, the costs of protecting them are just as significant. The difficulty with sacred sites protection is that preventing development and other uses of these lands often has a huge economic impact. For instance, the Glamis gold mine alone may be worth as much as fifty million dollars. (13)
All sacred sites controversies involve the issue of control: Who has the right to control how these sites are used and who gets to use them? The difficulty of the issue is compounded by its magnitude. …