Article

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 sacred sites are often located on land owned by the federal government, the government regularly wins. Religious liberty precedent leaves sacred sites effectively unprotected.

This Article proposes a new approach that is 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, flowing 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 their sacred sites, rather than assert 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, if necessary, constrain—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.

“The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief . . . . That task, to the extent that it is feasible, is for the legislatures and other institutions . . . . Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”

– Lyng v. Northwest Indian Cemetery Protective Association¹ 1.485 U.S. 439, 452–53 (1988).Show More

Introduction

Since “time immemorial,” Western Apaches have lived and worshipped on Chi’chil Biłdagoteel, known in English as Oak Flat.² 2.Emergency Motion for an Injunction Pending Appeal Under Circuit Rule 27-3 at 1, Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022) (No. 21-15295) [hereinafter Emergency Motion].Show More Situated within Arizona’s vibrant Tonto National Forest, Oak Flat embraces “jagged cliffs, boulder fields, grassy basins, Emory oaks, and perennial waters” that refresh “songbirds, mountain lions, fox, bear, and deer.”³ 3.Id. at 3–4 (“Oak Flat [is] a 6.7-square-mile traditional cultural property between Apache Leap on the west and Ga’an Canyon (called Devil’s Canyon by non-Indians) on the east.”); Zinaida Carroll, The Spiritual Connection of Indigenous Women to the Land and its Crucial Role in the Apache’s Battle for Sovereignty, Nat’l Indigenous Women’s Res. Ctr., https://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel [https://p‌erma.cc/MFW3-NLY2] (last visited Feb. 26, 2024).Show More Western Apaches believe that the Creator gives life to all things, including air, water, and Mother Earth herself, Nahagosan.⁴ 4.Emergency Motion, supra note 2, at 3.Show More They “strive to remain intertwined with the earth, with the mother.”⁵ 5.Id. (citation omitted).Show More While Western Apache religious and cultural identities are inextricably tied to the land of their ancestors, Oak Flat remains the tribes’ most sacred site, a place “uniquely endowed with holiness and medicine,” a kind of “direct corridor” to their religion.⁶ 6.Id. at 5. As the Emergency Motion explained, “Central to this connection [between Apaches and the Creator] are the Ga’an, who are ‘guardians’ and ‘messengers’ between the Creator and people in the physical world—roughly comparable to angels in Christianity. Usen [the Creator] . . . created specific ‘blessed places’ for the Ga’an to dwell. One of the most important of the Ga’an dwelling places is Oak Flat . . . .” (citations omitted). Id. at 3. Chi’chil Biłdagoteel holds significant cultural and spiritual meaning for many Native American tribes, including the San Carlos Apache, Tonto Apache, White Mountain Apache, Yavapai Apache, Zuni, Hopi, Yavapai Prescott Indian Tribe, Gila River Indian Community, and Saltwater Pima Maricopa Indian Community. Carroll, supra note 3.Show More Ritual practices defined by ancestral custom unite Western Apaches with Mother Earth and her Creator, but also with their parents and grandparents, whose own parents and grandparents passed down tribal religious traditions at Oak Flat.⁷ 7.See Declaration of Cranston Hoffman Jr. at 2–3, Apache Stronghold v. United States, 519 F. Supp. 3d 591 (D. Ariz. 2021) (No. 21-15295) [hereinafter Declaration].Show More Western Apaches gather “sacred medicine plants, animals, and minerals essential to . . . [religious] ceremonies,” drawing “sacred spring waters that flows [sic] from the earth with healing powers not present elsewhere,” offering ancient prayers and songs that testify to their place in creation.⁸ 8.Emergency Motion, supra note 2, at 5.Show More Many fundamental religious practices—including Sunrise Ceremonies and Holy Grounds Ceremonies—“must take place there,” since only from Oak Flat can Western Apache “prayers directly go to [the] creator.”⁹ 9.Id. (citation omitted). Beyond the gathering of medicinal plants, animals, minerals, and spring water, Apache religious practices at Oak Flat include the Sunrise Ceremony, Holy Ground ceremonies, and sweat lodge ceremonies. See id. at 6–8 (describing the Sunrise Ceremony).Show More Neither the “powers resident there,” nor Western Apache religious practices that “pray to and through these powers can be relocated.”¹⁰ 10.Id. at 5 (internal quotation marks omitted) (citation omitted).Show More

The federal government has protected Oak Flat for more than six decades, in keeping with its trust responsibility to Western Apache tribal communities in Arizona.¹¹ 11.President Eisenhower reserved 760 acres of Oak Flat for “public purposes” to protect it from mining in 1955. Reserving Lands Within National Forests for Use of the Forest Service as Camp Grounds, Recreation Areas, or for Other Public Purposes, 20 Fed. Reg. 7336, 7336–37 (Oct. 1, 1955) (referred to by the Department of the Interior as Public Land Order 1229). President Nixon renewed that protection in 1971. Modification of Public Land Order 1229, 36 Fed. Reg. 19029, 19029 (Sept. 25, 1971) (Public Land Order 5132). The National Park Service eventually placed Oak Flat in the National Register of Historic Places: “Chi’chil Biłdagoteel is an important feature of the Western Apache landscape as a sacred site, as a source of supernatural power, and as a staple in their traditional lifeway.” Emergency Motion, supra note 2, at 10 (quoting Chi’chil Biłdagoteel Historic District, Traditional Cultural Property, Nat’l Reg. of Historic Places Registration Form, at 8 (Dec. 2, 2015), https://www.resolution‌mineeis.us/sites/default/files/references/nez-2016.pdf [https://perma.cc/8HGZ-VTCB]).Show More But in 2014, a last-minute rider attached to the National Defense Authorization Act revoked presidential orders protecting the site and authorized transfer of a 2,422-acre parcel—including the entirety of Oak Flat—to Resolution Copper, a foreign-owned mining company.¹² 12.See Eric Lipton, In Last Rush, Trump Grants Mining and Energy Firms Access to Public Lands, N.Y. Times (Jan. 16, 2021), https://www.nytimes.com/2020/12/19/us/politics/in-last-rush-trump-grants-mining-and-energy-firms-access-to-public-lands.html [https://perma.cc/F‌B3K-TZSR]; Lydia Millet, Selling off Apache Holy Land, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html [https://per‌ma.cc/84DY-5ZN5].Show More Since Resolution intends to “tunnel below the ore, fracture it with explosives, and remove it from below,” any land above its mine will eventually collapse into a pit nearly two miles wide and 1,100 feet deep.¹³ 13.Emergency Motion, supra note 2, at 12.Show More Oak Flat lies just outside the boundaries of San Carlos Apache Reservation, where trust obligations assumed by the federal government might have offered its cliffs and oaks and waters renewed protection.¹⁴ 14.See United States v. Mitchell, 463 U.S. 206, 225–26 (1983) (recognizing that the federal government’s control over tribal resources may give rise to fiduciary duties, based on common law trust principles); Seminole Nation v. United States 316 U.S. 286, 296–97 (1942) (“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.”).Show More Instead, the most sacred site in traditional Western Apache religion would be destroyed forever.¹⁵ 15.Emergency Motion, supra note 2, at iii, 12–14 (“‘Mitigation measures cannot replace or replicate the tribal resources and traditional cultural properties that would be destroyed.’ As Apache Stronghold members testified, this would render their core religious practices impossible.” (quoting 3 U.S. Dep’t of Agric., Final Environmental Impact Statement: Resolution Copper Project and Land Exchange 856 (Jan. 2021), https://www.resolutionminee‌is.us/sites/default/files/feis/resolution-final-eis-vol-3.pdf [https://perma.cc/E3XW-8VU4])).Show More

Oak Flat is hardly the first Native American sacred site threatened with destruction or desecration.¹⁶ 16.Throughout this Article, I use “Native American” and “Indian” interchangeably. While I acknowledge that these terms are imprecise, my intent is to locate within them the numerous and diverse peoples whose traditional homelands fall within the political borders of the United States, including federally recognized Indian tribes, state-recognized tribes, tribes seeking legal recognition, Alaska Natives, and Native Hawaiians. Each of these Native peoples has a unique history and legal relationship with the United States, though many share a common history of sacred site dispossession.Show More In 2020, Indian burial grounds were “blown up” during construction of the Mexico-United States border wall.¹⁷ 17.See, e.g., Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020, 3:24 AM), https://www.bbc.com/news/world-us-canada-51449739 [https://perma.cc/H4X5-CAMJ] (describing places of worship for the Tohono O’odham Nation near Organ Pipe Cactus National Monument in Arizona); see also Nina Lakhani, ‘That’s Genocide’: Ancient Tribal Graves Threatened by Trump Border Wall, The Guardian (Dec. 16, 2019, 9:37 AM), https://www.theguardian.com/environment/2019/dec/16/tribe-fights-to-save-ancestral-graves‌-in-the-path-of-trumps-border-wall [https://perma.cc/9RMW-8VQV] (discussing the threat to such places of worship months before their destruction).Show More Nor is Apache Stronghold v. United States¹⁸ 18.38 F.4th 742 (9th Cir. 2022), aff’d en banc, 95 F.4th 608 (9th Cir. 2024), opinion modified on denial of reh’g, No. 21-15295, slip op. (9th Cir. May 14, 2024).Show More the first case to challenge such a threat on religious liberty grounds.¹⁹ 19.See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1062–63 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988); Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983); Crow v. Gullet, 541 F. Supp. 785, 788 (D.S.D. 1982); Badoni v. Higginson, 638 F.2d 172, 175 (10th Cir. 1980); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1160 (6th Cir. 1980); Julie Watson, Tribe Says New Border Wall Harming Burial Sites; Sues Trump, Associated Press (Aug. 12, 2020, 4:38 PM), https://apnews.com/277668808d1209533cb2ae0ae5878599 [https://perma.‌cc/Q4RD-SGTC].Show More In 2018, Indian free exercise claims failed to protect an ancient stone altar and tribal burial grounds from government bulldozers, which a federal district court allowed for purposes of road expansion.²⁰ 20.See Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. June 11, 2018); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2020 WL 8617636, at *17–18 (D. Or. Apr. 1, 2020); Slockish v. U.S. Dep’t of Transp., No. 21-35220, 2021 WL 5507413, at *1 (9th Cir. Nov. 24, 2021), cert. denied,144 S. Ct. 324 (2023); Maxine Bernstein, Tribal Members to Challenge Decision in Destruction of Sacred Burial Site, The Oregonian (Mar. 5, 2018, 3:34 PM), https://www.oregonlive.com/environment/2018/03/tribal‌_members_to_challenge_ju.html [https://perma.cc/MA5V-H7AU].Show More When confronting threats to their sacred sites, Native American communities stridently assert the free exercise protections of the First Amendment,²¹ 21.U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). The Establishment Clause and the Free Exercise Clause were likewise incorporated against the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause).Show More the federal Religious Freedom Restoration Act²² 22.42 U.S.C. §§ 2000bb–2000bb-4 (2018).Show More (“RFRA”), and the Religious Land Use and Institutionalized Persons Act²³ 23.42 U.S.C. §§ 2000cc–2000cc-5 (2018).Show More (“RLUIPA”) against public authorities. Yet unlike religious liberty litigation involving non-Indian property—challenging, for example, zoning regulations that preclude the construction of a mosque,²⁴ 24.See, e.g., Albanian Associated Fund v. Twp. of Wayne, No. 06-cv-3217, 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (“[O]ver the past 22 years, the Mosque’s congregation has grown from fewer than 100 individuals to over 200 families. ‘[Houses of worship] cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.’” (quoting Mintz v. Roman Cath. Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006))).Show More or an eminent domain action against church summer camps²⁵ 25.See, e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 508 (1979) (involving camps taken from the Southeastern Pennsylvania Synod of the Lutheran Church in America); State Highway Dep’t v. Augusta Dist. of N. Ga. Conf. of Methodist Church, 154 S.E.2d 29, 30 (Ga. Ct. App. 1967) (allowing consequential damages for property taken from “a recreational and Christian training camp area for youth”).Show More—cases like Apache Stronghold seek to protect land that tribal faith communities do not themselves own. In fact, Native Americans rarely own the property upon which they seek to practice their religion; historic dispossession of tribal lands remains largely unremedied in the United States.²⁶ 26.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1297 (2021); Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience, 76 U. Colo. L. Rev. 989, 1007 (2005) [hereinafter Worthen, Eagle Feathers and Equality]. Historically, the federal government “justified” tribal land dispossession through legal doctrines upholding “‘the exclusive right of the United States to extinguish’ Indian title . . . by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941) (quoting Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 586 (1823)).Show More Because they lack an explicit ownership interest, Native Americans struggle to protect their sacred sites from destruction or desecration. 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.²⁷ 27.See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1063 (2005) [hereinafter Carpenter, A Property Rights Approach to Sacred Sites Cases] (“[A] special problem that American Indians face in practicing their religious and cultural activities at sacred sites [is that] many Indian sacred sites are now located on lands owned by the federal government and the government has the legal power to destroy them.”); Barclay & Steele, supra note 26, at 1297 (“The problem is as follows: because tribes were divested of their traditional homelands by the government, Indigenous peoples are often placed in the difficult position of being beholden to the government to continue to engage in centuries-old practices and ceremonies.”); Fed. Agencies Task Force, American Indian Religious Freedom Act Report, at i (1979) (“Native American people have been denied access to sacred sites on federal lands for the purposes of worship. When they have gained access, they have often been disturbed during their worship by federal officials and the public. Sacred sites have been needlessly and thoughtlessly put to other uses which have desecrated them,” quoted in Barclay & Steele, supra note 26, at 1304 n.32).Show More

Courts rarely construe the free exercise of religion as a property right. Claims involving religious liberty and property rights remain largely incommensurate, particularly for Native American worshippers who struggle to prove a substantial burden on their religious practice. While courts interpret constitutional and statutory religious liberty protections to shield houses of worship from eminent domain, they often allow condemning authorities to take other properties owned by faith communities, including properties that faith communities consider integral to their religious missions.²⁸ 28.See Patrick E. Reidy, C.S.C., Note, Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L.J. 226, 235 (2020) (“While courts consistently protect those structures deemed necessary for religious devotion, for ritual prayer, and for worship, many church-owned parcels and buildings have been successfully condemned. Paradigmatically, courts will protect from eminent domain the religious sanctuary itself—that physical structure in which the faith community gathers for worship. But case law reflects that courts do allow condemning authorities to take other connected properties owned by the faith community—including parking lots and cemeteries, as well as camps and undeveloped parcels of land. These properties are taken even though they, like the religious sanctuary, are often integral to the community’s religious mission.” (footnotes omitted)).Show More In these “church takings” cases, courts frequently make judgments based on their own determinations of what counts as “essential” for faith communities’ free exercise of religion, imposing an inappropriate, judicial theology on religious property.²⁹ 29.Id. at 270 (“Decisions to block takings inside the sanctuary while allowing takings outside the sanctuary—all because of where and how courts believe religious exercise paradigmatically occurs—impose an inappropriate, judge-made theology on church property.”). When courts make judgments about religious property based on what they deem “essential” for faith communities’ free exercise of religion, they resolve theological questions that judges are not competent to answer, the very thing First Amendment jurisprudence forbids. See, e.g., Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (dismissing the district court’s misguided evaluation of an Islamic prisoner’s sincere religious exercise under RLUIPA’s “substantial burden” analysis); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 185–87 (2012) (summarizing cases that underscore the Court’s avoidance of “quintessentially religious controversies whose resolution the First Amendment commits exclusively to [church authorities]” (quoting Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976))); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981))); Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990) (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”); Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice . . . is not to turn upon a judicial perception of the particular belief or practice in question . . . .”); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“[A] determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question . . . .”).Show More

In cases involving sacred sites, courts make similar judgments about what is “essential” to Native American religious practice.³⁰ 30.See, e.g., Wilson v. Block, 708 F.2d 735, 744 (D.C. Cir. 1983) (“[P]laintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government’s proposed land use would impair a religious practice that could not be performed at any other site.”); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1164 (6th Cir. 1980) (“Granting as we do that the individual [Cherokee] plaintiffs sincerely adhere to a religion which honors ancestors and draws its spiritual strength from feelings of kinship with nature, they have fallen short of demonstrating that worship at the particular geographic location in question is inseparable from the way of life (Yoder), the cornerstone of their religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody).”); Badoni v. Higginson, 455 F. Supp. 641, 646 (D. Utah 1977) (“Plaintiffs fail, however, to demonstrate in any manner a vital relationship of the [religious] practices in question with the Navajo way of life or a ‘history of consistency’ which would support their allegation of religious use of Rainbow Bridge . . . .”).Show More But unlike in church takings, courts largely overlook the property aspects of Indian claims to sacred sites. Courts focus on arguments that sound in Indian religious liberty, rather than property or quasi-property, only to frame their ultimate decision in terms of non-Indian ownership rights. Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and consistently do—decide in favor of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion.³¹ 31.See Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773, 823–33 (1997) (“[F]ederal courts have subordinated the free exercise rights of Native American plaintiffs to property rights.”); Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 270 (2012) (“[A]mong all the Native American cultural and religious issues, protection of sacred sites is the one area where Native Americans have enjoyed by far the least success.”); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623, 1634–38 (2004) (asserting that Lyng was correct, in part, because of the “inability of Western law and legal institutions to protect native land rights”).Show More The Supreme Court’s formulation of government ownership rights in Lyng v. Northwest Indian Cemetery Protective Association effectively bars most religious liberty arguments that Native Americans attempt to make in defense of their sacred sites: “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”³² 32.485 U.S. 439, 453 (1988); e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. May 14, 2024) (en banc) (“Apache Stronghold asserts that the transfer of Oak Flat from the Government to Resolution Copper would ‘violate the Free Exercise Clause.’ This claim fails under the Supreme Court’s controlling decision in Lyng . . . .” (citation omitted)); see Carpenter, A Property Rights Approach to Sacred Sites Cases, supra note 27, at 1064.Show More

And yet, before the federal government claimed title to sacred sites like Oak Flat, the land belonged to Native American communities that used the land for their religious practice, in keeping with ancestral custom. This religious practice persisted through the government’s dispossession—by force, sale, or broken treaty—of each sacred site where use rights and preservation have been litigated.³³ 33.See, e.g., Apache Stronghold v. United States, 38 F.4th 742, 774 (9th Cir. 2022) (Berzon, J., dissenting); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1081 (9th Cir. 2008) (Fletcher, J., dissenting); Lyng, 485 U.S. at 459 (Brennan, J., dissenting); Sequoyah, 620 F.2d at 1162; Badoni, 638 F.2d at 177.Show More Where Native American religious claimants can demonstrate sacred land use that has persisted through dispossession, that flows from intergenerational traditions uniting past and present, their religious practice at sacred sites gives evidence of more than free exercise interests. They affirm the possibility of use rights in sacred sites—a kind of “sacred easement” over government land.

Framed in terms of property, and not solely religious liberty, claims for Native American sacred use rights can prove effective. When the Zuni Tribe sought access to a path across private lands for making sacred pilgrimage—a 110-mile trek from their reservation in New Mexico to Zuni Heaven in Arizona, completed by tribal religious leaders on horseback every four years, as early as 1540—it sued for a prescriptive easement, in addition to seeking relief under the First Amendment.³⁴ 34.United States ex rel. Zuni Tribe of N.M. v. Platt, 730 F. Supp. 318, 319–20, 324 (D. Ariz. 1990). The Tribe knew that limitations imposed be Lyng, decided two years earlier, could scuttle their case. See Kristen A. Carpenter, In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 629 (2003) [hereinafter Carpenter, In the Absence of Title].Show More The court granted the easement, finding that the tribe’s use of the path demonstrated actual, hostile, open and notorious, and continuous and uninterrupted use for the statutory period.³⁵ 35.Platt, 730 F. Supp.at 323–24.Show More Evidence of the Zuni pilgrims’ “religious purposes” was admitted “only to the extent it demonstrated when and how the land in question was used.”³⁶ 36.Id. at 324 (“In reaching its decision, the Court does not base its ruling on any religious or 1st Amendment rights to the land in question.”).Show More Tribal pilgrims would be free to use the path every four years, unimpeded in their journey to Zuni Heaven.

The federal government can allow similar claims for use rights over public land.³⁷ 37.See discussion infra Section II.B.Show More Under the Supreme Court’s precedent in United States v. Winans, courts have recognized the servitudes that provide for treaty-reserved rights in practices central to Native American religion and culture, including fishing and hunting.³⁸ 38.See United States v. Winans, 198 U.S. 371, 381 (1905) (“[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds as dealings between private individuals. The reservations were in large areas of territory and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein.”); see also id. at 381–82(“The contingency of the future ownership of lands, therefore, was foreseen and provided for—in other words, the Indians were given a right in the land . . . . And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.”).Show More But nineteenth-century treaties, negotiated against the backdrop of federal policies designed to suppress Indian religious beliefs, practices, language, and identity, are predictably silent on reserved use rights in sacred sites.³⁹ 39.See Dussias, supra note 31, at 823–33; Barclay & Steele, supra note 26, at 1307–17.Show More Were tribes in an equal bargaining position with the federal government, tribes’ failure to reserve explicit land use rights in their sacred sites would seem implausible, given evidence of persistent religious practice involving those sites. Such sacred property interests were “part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed.”⁴⁰ 40.Winans, 198 U.S. at 381.Show More Their absence from treaties negotiated between tribes and the United States evidences a certain defect in title to sacred sites located on public land.

The federal government has done nothing to cure this defect in title—which it created during the nineteenth century—and done “little of consequence to protect the ability of tribes to access and preserve sacred sites,” despite its “assertion of sweeping plenary power over Indian affairs.”⁴¹ 41.Barclay & Steele, supra note 26, at 1297.Show More Under Lyng, federal courts continue to allow Native American sacred sites to be desecrated and destroyed. Following the U.S. Court of Appeals for the Ninth Circuit’s decision in Apache Stronghold, Oak Flat may suffer the same fate.⁴² 42.In June 2022, the Ninth Circuit affirmed an Arizona district court’s denial of Apache Stronghold’s motion for a preliminary injunction “seeking to stop the Land Exchange and prevent any copper mining” beneath Oak Flat. Apache Stronghold v. United States, 38 F.4th 742, 748 (9th Cir. 2022). The Ninth Circuit reheard Apache Stronghold en banc and (again) affirmed the district court in March 2024; the court subsequently issued an amended opinion in May 2024 with minor edits. Apache Stronghold v. United States, 95 F.4th 608, 614 (9th Cir.) (en banc), opinion modified on denial of reh’g, No. 21-15295, slip op. at 15 (9th Cir. May 14, 2024) (holding that “Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under [Lyng]”).Show More The Court’s religious liberty precedent leaves many sacred sites effectively unprotected.⁴³ 43.See discussion infra Section I.B.Show More

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 tribal 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 such persistent sacred land uses, 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 their sacred sites, rather than assert 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—easements corresponding to their sacred land use.⁴⁴ 44.Of course, the federal government could transfer its entire ownership interest in sacred sites to tribal communities, a kind of fee simple reparation for centuries of tribal land dispossession. See, e.g., Return of the Blue Lake Act, Pub. L. No. 91-550, 84 Stat. 1437 (1970) (returning 48,000 acres in northern New Mexico to Taos Pueblo, including their sacred Blue Lake); In Observance of the 50th Anniversary of the Blue Lake Bill H.R. 471, Richard Nixon Museum & Libr., https://www.nixonlibrary.gov/observance-50th-anniversary-blue-lake-bill-hr-471 [https://perma.cc/SDA8-3382] (last visited Feb. 26, 2024). But absent political will for this kind of restoration, the government could also divide its property rights such that tribes gain a nonpossessory ownership interest in their sacred sites.Show More Modeled on conservation easements, these nonpossessory ownership interests would preserve sacred sites for Native American religious practice.⁴⁵ 45.See Unif. Conservation Easement Act § 1(1) (amended 2007), 12 U.L.A. 174 (1981).Show More By statute, Congress would not only create a forum for adjudicating tribal claims against the United States (e.g., the Court of Federal Claims), but also permit the federal government to divide its property rights in public lands at those particular places that tribes continue to hold sacred.⁴⁶ 46.Congress created a similar jurisdictional act in response to the Sioux Nation’s claim that the federal government took their sacred Black Hills without just compensation, in violation of the Fifth Amendment. See United States v. Sioux Nation of Indians, 448 U.S. 371, 384–91 (1980); Barclay & Steele, supra note 26, at 1314 (describing the Black Hills, Paha Sapa, “as ‘the heart of everything that is’ and the womb of Mother Earth,” held “sacred to the Lakota” (citation omitted)). The statute allowed “claims against the United States ‘under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band.’” Sioux Nation, 448 U.S. at 384 (quoting Act of June 3, 1920, ch. 222, 41 Stat. 738).Show More Tribes granted “sacred easements” could monitor—and, if necessary, constrain—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 government assuage fears of mutual exclusion from sacred sites located on federal land. By allowing tribes to claim sacred land use easements in their ancestral territory, the federal government can help to cure lingering defects in title created by tribal land acquisition efforts during the nineteenth century. Sacred easements accord with the federal government’s trust responsibility for tribal religious exercise. Historic federal efforts to suppress Native religions—many of which ran afoul of the Establishment Clause—warrant present federal accommodation of Native sacred land use.⁴⁷ 47.See Dussias, supra note 31, at 787–805 (describing efforts by the federal government to suppress various Native American ceremonial dances).Show More

This Article is organized as follows. Part I considers how courts have located Native American sacred sites outside of federal protections for religious exercise. While exploring the unique significance of these sites for traditional Native American religious practice, it reviews constitutional and statutory religious liberty protections relevant to sacred sites. Part II elaborates on the argument for implying easements from sacred land use. After offering a historical overview of federal land acquisition from Native American tribes, it discusses the development of reserved use rights in tribal lands. It then maps the doctrine of easements implied from quasi-easements onto sacred land use, suggesting how tribal religious practices at sacred sites functioned as quasi-easements before the federal government severed tribes’ ancestral territory. Finally, Part III describes the private law structure of statutory sacred easements, addressing concerns about the “right to exclude” non-Indian activity from sacred sites. It concludes by showing how sacred easements accord with the federal government’s trust responsibility for Native American religious exercise.

1.  485 U.S. 439, 452–53 (1988). ↑
2.  Emergency Motion for an Injunction Pending Appeal Under Circuit Rule 27-3 at 1, Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022) (No. 21-15295) [hereinafter Emergency Motion]. ↑
3.  Id. at 3–4 (“Oak Flat [is] a 6.7-square-mile traditional cultural property between Apache Leap on the west and Ga’an Canyon (called Devil’s Canyon by non-Indians) on the east.”); Zinaida Carroll, The Spiritual Connection of Indigenous Women to the Land and its Crucial Role in the Apache’s Battle for Sovereignty, Nat’l Indigenous Women’s Res. Ctr., https://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel [https://p‌erma.cc/MFW3-NLY2] (last visited Feb. 26, 2024). ↑
4.  Emergency Motion, supra note 2, at 3. ↑
5.  Id. (citation omitted). ↑
6.  Id. at 5. As the Emergency Motion explained, “Central to this connection [between Apaches and the Creator] are the Ga’an, who are ‘guardians’ and ‘messengers’ between the Creator and people in the physical world—roughly comparable to angels in Christianity. Usen [the Creator] . . . created specific ‘blessed places’ for the Ga’an to dwell. One of the most important of the Ga’an dwelling places is Oak Flat . . . .” (citations omitted). Id. at 3. Chi’chil Biłdagoteel holds significant cultural and spiritual meaning for many Native American tribes, including the San Carlos Apache, Tonto Apache, White Mountain Apache, Yavapai Apache, Zuni, Hopi, Yavapai Prescott Indian Tribe, Gila River Indian Community, and Saltwater Pima Maricopa Indian Community. Carroll, supra note 3. ↑
7.  See Declaration of Cranston Hoffman Jr. at 2–3, Apache Stronghold v. United States, 519 F. Supp. 3d 591 (D. Ariz. 2021) (No. 21-15295) [hereinafter Declaration]. ↑
8.  Emergency Motion, supra note 2, at 5. ↑
9.  Id. (citation omitted). Beyond the gathering of medicinal plants, animals, minerals, and spring water, Apache religious practices at Oak Flat include the Sunrise Ceremony, Holy Ground ceremonies, and sweat lodge ceremonies. See id. at 6–8 (describing the Sunrise Ceremony). ↑
10.  Id. at 5 (internal quotation marks omitted) (citation omitted). ↑
11.  President Eisenhower reserved 760 acres of Oak Flat for “public purposes” to protect it from mining in 1955. Reserving Lands Within National Forests for Use of the Forest Service as Camp Grounds, Recreation Areas, or for Other Public Purposes, 20 Fed. Reg. 7336, 7336–37 (Oct. 1, 1955) (referred to by the Department of the Interior as Public Land Order 1229). President Nixon renewed that protection in 1971. Modification of Public Land Order 1229, 36 Fed. Reg. 19029, 19029 (Sept. 25, 1971) (Public Land Order 5132). The National Park Service eventually placed Oak Flat in the National Register of Historic Places: “Chi’chil Biłdagoteel is an important feature of the Western Apache landscape as a sacred site, as a source of supernatural power, and as a staple in their traditional lifeway.” Emergency Motion, supra note 2, at 10 (quoting Chi’chil Biłdagoteel Historic District, Traditional Cultural Property, Nat’l Reg. of Historic Places Registration Form, at 8 (Dec. 2, 2015), https://www.resolution‌mineeis.us/sites/default/files/references/nez-2016.pdf [https://perma.cc/8HGZ-VTCB]). ↑
12.  See Eric Lipton, In Last Rush, Trump Grants Mining and Energy Firms Access to Public Lands, N.Y. Times (Jan. 16, 2021), https://www.nytimes.com/2020/12/19/us/politics/in-last-rush-trump-grants-mining-and-energy-firms-access-to-public-lands.html [https://perma.cc/F‌B3K-TZSR]; Lydia Millet, Selling off Apache Holy Land, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html [https://per‌ma.cc/84DY-5ZN5]. ↑
13.  Emergency Motion, supra note 2, at 12. ↑
14.  See United States v. Mitchell, 463 U.S. 206, 225–26 (1983) (recognizing that the federal government’s control over tribal resources may give rise to fiduciary duties, based on common law trust principles); Seminole Nation v. United States 316 U.S. 286, 296–97 (1942) (“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.”). ↑
15.  Emergency Motion, supra note 2, at iii, 12–14 (“‘Mitigation measures cannot replace or replicate the tribal resources and traditional cultural properties that would be destroyed.’ As Apache Stronghold members testified, this would render their core religious practices impossible.” (quoting 3 U.S. Dep’t of Agric., Final Environmental Impact Statement: Resolution Copper Project and Land Exchange 856 (Jan. 2021), https://www.resolutionminee‌is.us/sites/default/files/feis/resolution-final-eis-vol-3.pdf [https://perma.cc/E3XW-8VU4])). ↑
16.  Throughout this Article, I use “Native American” and “Indian” interchangeably. While I acknowledge that these terms are imprecise, my intent is to locate within them the numerous and diverse peoples whose traditional homelands fall within the political borders of the United States, including federally recognized Indian tribes, state-recognized tribes, tribes seeking legal recognition, Alaska Natives, and Native Hawaiians. Each of these Native peoples has a unique history and legal relationship with the United States, though many share a common history of sacred site dispossession. ↑
17.  See, e.g., Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020, 3:24 AM), https://www.bbc.com/news/world-us-canada-51449739 [https://perma.cc/H4X5-CAMJ] (describing places of worship for the Tohono O’odham Nation near Organ Pipe Cactus National Monument in Arizona); see also Nina Lakhani, ‘That’s Genocide’: Ancient Tribal Graves Threatened by Trump Border Wall, The Guardian (Dec. 16, 2019, 9:37 AM), https://www.theguardian.com/environment/2019/dec/16/tribe-fights-to-save-ancestral-graves‌-in-the-path-of-trumps-border-wall [https://perma.cc/9RMW-8VQV] (discussing the threat to such places of worship months before their destruction). ↑
18.  38 F.4th 742 (9th Cir. 2022), aff’d en banc, 95 F.4th 608 (9th Cir. 2024), opinion modified on denial of reh’g, No. 21-15295, slip op. (9th Cir. May 14, 2024). ↑
19.  See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1062–63 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988); Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983); Crow v. Gullet, 541 F. Supp. 785, 788 (D.S.D. 1982); Badoni v. Higginson, 638 F.2d 172, 175 (10th Cir. 1980); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1160 (6th Cir. 1980); Julie Watson, Tribe Says New Border Wall Harming Burial Sites; Sues Trump, Associated Press (Aug. 12, 2020, 4:38 PM), https://apnews.com/277668808d1209533cb2ae0ae5878599 [https://perma.‌cc/Q4RD-SGTC]. ↑
20.  See Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. June 11, 2018); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2020 WL 8617636, at *17–18 (D. Or. Apr. 1, 2020); Slockish v. U.S. Dep’t of Transp., No. 21-35220, 2021 WL 5507413, at *1 (9th Cir. Nov. 24, 2021), cert. denied, 144 S. Ct. 324 (2023); Maxine Bernstein, Tribal Members to Challenge Decision in Destruction of Sacred Burial Site, The Oregonian (Mar. 5, 2018, 3:34 PM), https://www.oregonlive.com/environment/2018/03/tribal‌_members_to_challenge_ju.html [https://perma.cc/MA5V-H7AU]. ↑
21.  U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). The Establishment Clause and the Free Exercise Clause were likewise incorporated against the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause). ↑
22.  42 U.S.C. §§ 2000bb–2000bb-4 (2018). ↑
23.  42 U.S.C. §§ 2000cc–2000cc-5 (2018). ↑
24.  See, e.g., Albanian Associated Fund v. Twp. of Wayne, No. 06-cv-3217, 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (“[O]ver the past 22 years, the Mosque’s congregation has grown from fewer than 100 individuals to over 200 families. ‘[Houses of worship] cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.’” (quoting Mintz v. Roman Cath. Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006))). ↑
25.  See, e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 508 (1979) (involving camps taken from the Southeastern Pennsylvania Synod of the Lutheran Church in America); State Highway Dep’t v. Augusta Dist. of N. Ga. Conf. of Methodist Church, 154 S.E.2d 29, 30 (Ga. Ct. App. 1967) (allowing consequential damages for property taken from “a recreational and Christian training camp area for youth”). ↑
26.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1297 (2021); Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience, 76 U. Colo. L. Rev. 989, 1007 (2005) [hereinafter Worthen, Eagle Feathers and Equality]. Historically, the federal government “justified” tribal land dispossession through legal doctrines upholding “‘the exclusive right of the United States to extinguish’ Indian title . . . by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941) (quoting Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 586 (1823)). ↑
27.  See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1063 (2005) [hereinafter Carpenter, A Property Rights Approach to Sacred Sites Cases] (“[A] special problem that American Indians face in practicing their religious and cultural activities at sacred sites [is that] many Indian sacred sites are now located on lands owned by the federal government and the government has the legal power to destroy them.”); Barclay & Steele, supra note 26, at 1297 (“The problem is as follows: because tribes were divested of their traditional homelands by the government, Indigenous peoples are often placed in the difficult position of being beholden to the government to continue to engage in centuries-old practices and ceremonies.”); Fed. Agencies Task Force, American Indian Religious Freedom Act Report, at i (1979) (“Native American people have been denied access to sacred sites on federal lands for the purposes of worship. When they have gained access, they have often been disturbed during their worship by federal officials and the public. Sacred sites have been needlessly and thoughtlessly put to other uses which have desecrated them,” quoted in Barclay & Steele, supra note 26, at 1304 n.32). ↑
28.  See Patrick E. Reidy, C.S.C., Note, Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L.J. 226, 235 (2020) (“While courts consistently protect those structures deemed necessary for religious devotion, for ritual prayer, and for worship, many church-owned parcels and buildings have been successfully condemned. Paradigmatically, courts will protect from eminent domain the religious sanctuary itself—that physical structure in which the faith community gathers for worship. But case law reflects that courts do allow condemning authorities to take other connected properties owned by the faith community—including parking lots and cemeteries, as well as camps and undeveloped parcels of land. These properties are taken even though they, like the religious sanctuary, are often integral to the community’s religious mission.” (footnotes omitted)). ↑
29.  Id. at 270 (“Decisions to block takings inside the sanctuary while allowing takings outside the sanctuary—all because of where and how courts believe religious exercise paradigmatically occurs—impose an inappropriate, judge-made theology on church property.”). When courts make judgments about religious property based on what they deem “essential” for faith communities’ free exercise of religion, they resolve theological questions that judges are not competent to answer, the very thing First Amendment jurisprudence forbids. See, e.g., Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (dismissing the district court’s misguided evaluation of an Islamic prisoner’s sincere religious exercise under RLUIPA’s “substantial burden” analysis); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 185–87 (2012) (summarizing cases that underscore the Court’s avoidance of “quintessentially religious controversies whose resolution the First Amendment commits exclusively to [church authorities]” (quoting Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976))); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981))); Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990) (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”); Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice . . . is not to turn upon a judicial perception of the particular belief or practice in question . . . .”); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“[A] determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question . . . .”). ↑
30.  See, e.g., Wilson v. Block, 708 F.2d 735, 744 (D.C. Cir. 1983) (“[P]laintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government’s proposed land use would impair a religious practice that could not be performed at any other site.”); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1164 (6th Cir. 1980) (“Granting as we do that the individual [Cherokee] plaintiffs sincerely adhere to a religion which honors ancestors and draws its spiritual strength from feelings of kinship with nature, they have fallen short of demonstrating that worship at the particular geographic location in question is inseparable from the way of life (Yoder), the cornerstone of their religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody).”); Badoni v. Higginson, 455 F. Supp. 641, 646 (D. Utah 1977) (“Plaintiffs fail, however, to demonstrate in any manner a vital relationship of the [religious] practices in question with the Navajo way of life or a ‘history of consistency’ which would support their allegation of religious use of Rainbow Bridge . . . .”). ↑
31.  See Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773, 823–33 (1997) (“[F]ederal courts have subordinated the free exercise rights of Native American plaintiffs to property rights.”); Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 270 (2012) (“[A]mong all the Native American cultural and religious issues, protection of sacred sites is the one area where Native Americans have enjoyed by far the least success.”); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623, 1634–38 (2004) (asserting that Lyng was correct, in part, because of the “inability of Western law and legal institutions to protect native land rights”). ↑
32.  485 U.S. 439, 453 (1988); e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. May 14, 2024) (en banc) (“Apache Stronghold asserts that the transfer of Oak Flat from the Government to Resolution Copper would ‘violate the Free Exercise Clause.’ This claim fails under the Supreme Court’s controlling decision in Lyng . . . .” (citation omitted)); see Carpenter, A Property Rights Approach to Sacred Sites Cases, supra note 27, at 1064. ↑
33.  See, e.g., Apache Stronghold v. United States, 38 F.4th 742, 774 (9th Cir. 2022) (Berzon, J., dissenting); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1081 (9th Cir. 2008) (Fletcher, J., dissenting); Lyng, 485 U.S. at 459 (Brennan, J., dissenting); Sequoyah, 620 F.2d at 1162; Badoni, 638 F.2d at 177. ↑
34.  United States ex rel. Zuni Tribe of N.M. v. Platt, 730 F. Supp. 318, 319–20, 324 (D. Ariz. 1990). The Tribe knew that limitations imposed be Lyng, decided two years earlier, could scuttle their case. See Kristen A. Carpenter, In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 629 (2003) [hereinafter Carpenter, In the Absence of Title]. ↑
35.  Platt, 730 F. Supp. at 323–24. ↑
36.  Id. at 324 (“In reaching its decision, the Court does not base its ruling on any religious or 1st Amendment rights to the land in question.”). ↑
37.  See discussion infra Section II.B. ↑
38.  See United States v. Winans, 198 U.S. 371, 381 (1905) (“[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds as dealings between private individuals. The reservations were in large areas of territory and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein.”); see also id. at 381–82 (“The contingency of the future ownership of lands, therefore, was foreseen and provided for—in other words, the Indians were given a right in the land . . . . And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.”). ↑
39.  See Dussias, supra note 31, at 823–33; Barclay & Steele, supra note 26, at 1307–17. ↑
40.  Winans, 198 U.S. at 381. ↑
41.  Barclay & Steele, supra note 26, at 1297. ↑
42.  In June 2022, the Ninth Circuit affirmed an Arizona district court’s denial of Apache Stronghold’s motion for a preliminary injunction “seeking to stop the Land Exchange and prevent any copper mining” beneath Oak Flat. Apache Stronghold v. United States, 38 F.4th 742, 748 (9th Cir. 2022). The Ninth Circuit reheard Apache Stronghold en banc and (again) affirmed the district court in March 2024; the court subsequently issued an amended opinion in May 2024 with minor edits. Apache Stronghold v. United States, 95 F.4th 608, 614 (9th Cir.) (en banc), opinion modified on denial of reh’g, No. 21-15295, slip op. at 15 (9th Cir. May 14, 2024) (holding that “Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under [Lyng]”). ↑
43.  See discussion infra Section I.B. ↑
44.  Of course, the federal government could transfer its entire ownership interest in sacred sites to tribal communities, a kind of fee simple reparation for centuries of tribal land dispossession. See, e.g., Return of the Blue Lake Act, Pub. L. No. 91-550, 84 Stat. 1437 (1970) (returning 48,000 acres in northern New Mexico to Taos Pueblo, including their sacred Blue Lake); In Observance of the 50th Anniversary of the Blue Lake Bill H.R. 471, Richard Nixon Museum & Libr., https://www.nixonlibrary.gov/observance-50th-anniversary-blue-lake-bill-hr-471 [https://perma.cc/SDA8-3382] (last visited Feb. 26, 2024). But absent political will for this kind of restoration, the government could also divide its property rights such that tribes gain a nonpossessory ownership interest in their sacred sites. ↑
45.  See Unif. Conservation Easement Act § 1(1) (amended 2007), 12 U.L.A. 174 (1981). ↑
46.  Congress created a similar jurisdictional act in response to the Sioux Nation’s claim that the federal government took their sacred Black Hills without just compensation, in violation of the Fifth Amendment. See United States v. Sioux Nation of Indians, 448 U.S. 371, 384–91 (1980); Barclay & Steele, supra note 26, at 1314 (describing the Black Hills, Paha Sapa, “as ‘the heart of everything that is’ and the womb of Mother Earth,” held “sacred to the Lakota” (citation omitted)). The statute allowed “claims against the United States ‘under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band.’” Sioux Nation, 448 U.S. at 384 (quoting Act of June 3, 1920, ch. 222, 41 Stat. 738). ↑

47.  See Dussias, supra note 31, at 787–805 (describing efforts by the federal government to suppress various Native American ceremonial dances). ↑