Below is the abstract for “Sacred Easements,” available for download on SSRN.
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.
This Article also argues that Congress can, and should, create a statutory property right for tribes to claim an explicit ownership interest in their sacred sites, corresponding to their sacred land use. Modeled on conservation easements, such nonpossessory ownership interests would preserve sacred sites for Native American religious practice. Tribes granted “sacred easements” could monitor, and constrain if necessary, both present and future uses of government-owned lands, ensuring compliance with the needs of their religious practice without barring public access to sacred sites.
Divided property rights can help Native American faith communities and the federal government assuage fears of mutual exclusion from sacred sites located on public land. By allowing tribes to claim sacred land use easements in their ancestral territory, the government can help to cure lingering defects in title created by tribal land acquisition efforts during the nineteenth century. Sacred easements accord with the government’s trust responsibility for tribal religious exercise. Historic federal efforts to suppress Native religions warrant present federal accommodation of Native sacred land use.