Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.
Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act,1 and the Religious Land Use and Institutionalized Persons Act2—to shield their sacred sites from desecration usually fall short.3
In a sense this is understandable. Usually, the property where the sacred sites are located does not belong to the tribes or tribal members seeking the protection. Indeed, often these sites are on government land. And, as the Supreme Court observed in Lyng v. Northwest Indian Cemetery Protective Association, “The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief.”4
In another sense, however, this reality is deeply unjust: After all, the reasons that the tribes do not have an ownership interest in (even right to access) this land is that they, and their ancestors, were forcibly dispossessed of their property, including their sacred sites.
Reidy’s article offers an outside-the-box, partial solution to this problem.
As students of property law know, easements are nonpossessory interests that allow the holder to use (but not possess) property. Easements can be created expressly, and usually are. But they also can arise by force of law: Prescriptive easements, for example, arise from uninterrupted, non-permissive use of property.
And implied easements arise, under certain circumstances, when a single parcel of property is severed. For example, if an owner has historically used one part of their property to access another, say via an established path or road, then the law assumes that the prior use was a “quasi-easement” that transforms into an easement by implication if the property is divided. If the division of the property “landlocks” an owner, preventing her from accessing her property altogether, then an easement by necessity may arise by force of law.5
In certain circumstances, courts have also recognized that uninterrupted customary use can create an easement-like right of access as well.6 As Reidy observes, “Before the federal government severed their ancestral lands—by force, sale, or broken treaty—tribes used certain, inherently sacred parts of their territory, regularly and necessarily, to benefit other parts of that territory. Insofar as these historic land uses may be conceived as quasi-easements, property law affirms the possibility of use rights in sacred sites, a kind of ‘sacred easement’ over government land.”
This is not entirely without precedent. As he observes, many treaties divesting tribes of their possessory interests in property reserved their rights to access certain natural resources even after their right to possession ended.7
Reidy’s insight is that the dispossession of Native American lands—including especially lands upon which sacred sites are located—might have created circumstances under which an easement arises by force of law. In this case, the claim that the access-rights that tribes would be asserting would not be the right to use someone else’s land but instead the right to exercise their ownership interest in that land.
If he’s right, then tribes asserting access rights would be asserting their own access rights, rather than asking a court to balance their interest in access against an encroachment or infringement on another owner’s right to exclude. If a tribe has an easement, the owner of the property burdened by the easement does not have the right to exclude them.
Reidy further argues that, even when resort to the private law of easements is impossible, 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, these interests would preserve sacred sites for Native American religious practice, giving the tribes granted “sacred easements” the ability to 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.
Of course, as Reidy acknowledges, the common law of easements is limited in a variety of ways. For example, prescriptive easements over government land are typically impermissible; easements have a “scope” that is limited, perhaps too limited to provide in many cases sufficient protection of indigenous religious practices; and, importantly, easements can be abandoned by disuse – and many tribes were dispossessed well over a century ago. And, while, as he argues, Congress could step in to fill the gaps, there is no reason to expect that it will, given political realities.
That said, Reidy’s suggestion that the traditional tools of property law can and should be employed to advance the religious liberty rights of indigenous peoples is both thought provoking and, in my view, groundbreaking.
Private law and public law schools far too often talk past one another, or do not talk at all. While Reidy’s solution to the dispossession of indigenous sacred sites is only a partial one, his effort to bridge the two worlds to address what we can all acknowledge was a deep injustice and a shameful remnant of our nation’s history ought to be welcomed and embraced by private and public law scholars alike.
- 42 U.S.C. §§ 2000bb-2000bb-4 (2018).
- 42 U.S.C. §§ 2000cc-2000cc-5 (2018).
- See generally Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294 (2021).
- 485 U.S. 439, 452-53 (1988).
- See Thomas Merrill & Henry Smith, Property: Principles and Policies 979-1005 (3rd Ed. 2017).
- State ex rel Thornton v. Hay, 462 P.2d 671 (Or. 1969).
- See United States v. Winans, 198 U.S. 371, 380-81 (1905).
