ABSTRACT
In the last forty years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. When confronting threats to sacred lands, Native Americans stridently assert constitutional and statutory free exercise protections against public authorities. But unlike litigation involving non-Indian religious property, cases involving sacred sites seek to protect land that tribal faith communities do not themselves own. Because they lack an explicit ownership interest, Native Americans struggle to protect their sacred sites from desecration and destruction. Courts asked to weigh Indian religious liberty claims against non-Indian property claims always side with the landowner. Since most sacred sites are located on land owned by the federal government, the government always wins. Religious liberty precedent leaves sacred sites effectively unprotected.
This Article proposes a new approach, rooted in property law. It argues that Native American religious practice at sacred sites may have created circumstances under which easements arose by force of law. Before the federal government severed their ancestral lands, Native American tribes used certain, inherently sacred parts of their territory regularly, necessarily, and predictably for their religious practice. Where Native American claimants can demonstrate sacred land uses that persisted through dispossession, that flow from intergenerational traditions uniting past and present, their religious practice can provide the kind of secular evidence courts typically consider in defining easements. An easement arising by force of law – by prescription, customary claim, or implication – would allow their tribes to exercise an ownership interest in its sacred site, rather than asserting an access right that can be balanced against another owner’s right to exclude …
Reidy, CSC, Patrick E, Sacred Easements (June 26, 2023), Virginia Law Review, Forthcoming.
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