Traditional Lands Versus Modern Gates

The San Miguel gate, located in the Tohono O’odham Nation (“People of the Desert”; hereafter TON), has allowed tribal members to continue to roam in the lands of the Sonoran Desert that is now divided between the U.S. and Mexico. Passage through San Miguel was for several years not complicated and allowed passage both by foot and by vehicle. The first major closure occurred in late 2016, when a unnamed Mexican private property owner (PPO) built an additional gate and fencing on his own accord and closed passage off via vehicles, allegedly because of private concerns related to drug cartels. TON members brought this issue to the Mexican consulate, whose response was that “[they were] not able to enforce or to directly investigate such matters.” TON members protested the closure, as several family members could no longer visit each other, pilgrimages to sacred sites became difficult to arrange, and access to groceries became restricted. Tribal members are still allowed in by-foot, but opening of the gate is sporadic and has contributed to several adverse effects. Vehicles have continued to be banned since 2016 and CBP enforces this request, assumingly on the private property owner’s behalf.

A prescriptive easement, as described in the case Felgenhauer v. Soni, may inform this dispute. The Felgenhauer’s operated a restaurant that was adjacent to a bank and would later rent the building to different managers. As time progressed, it became the norm for delivery drivers to use the bank parking lot as a short-cut. The bank later renovated its property with a fence but added in a gate that allowed the delivery drivers to continue accessing their parking lot. When a new owner took over the bank however, he sought to restrict the delivery staff from using the gate. The courts found that the Felgenhauer’s claim sufficiently met each element required for a prescriptive easement, which were “open and notorious use that is hostile and adverse, continuous and uninterrupted for [the statutory period] under a claim of right.” As for hostility and claim of right, the court said that they do “not require a belief or claim that the use was legally justified. It simply means that the property must have been used without permission of the owner of the land.”

So, can a prescriptive easement apply? To reiterate, the elements of a prescriptive easement are open and notorious, hostile, under a claim of right, continuous, and that it falls within the statutory period. In the present case, actual use is met, as tribal members travel through the gate. The O’odham have a more historical claim for the open/notorious element, as they were moving between the north and south of the Sonora Desert prior to the border and San Miguel gate even existing. The private property owner would dispute hostility and claim of right, as he excluded others from using the gate and likely has a deed to show that the gate falls within his property. But the Soni court specifically ruled that a claim of right can be valid even if mistaken, as long as the property was utilized without permission from the owner. There is nothing available to demonstrate that the private property owner had ever expressly consented that the O’odham could use his property, or that they even knew of his existence. The TON had likely been unaware that the gate was on private property for several decades, as they lay a hundreds-year-old claim to the lands that the owner now contests. Additionally, the O’odham have brought wagons through San Miguel for decades prior to their use of automobiles up until 2016. Accordingly, all the elements for a prescriptive easement are met.

There are recent rumors that the Mexican private property owner has died and the O’odham now own the land on both sides of the gate. Does that change this analysis in any way? What is certain, is that an easement would be “reasonable” in the legal sense of the word. Any inertia on analyzing this issue however has been sidelined by modern efforts towards securitizing the border. The American courts seem to be the likeliest stop for this case, as the private property owner also threatened ATS claims against border patrol who did not check tribal ID at his gate, so perhaps the O’odham could purposefully trespass in the hopes of reaching a U.S. court with a counterclaim of an injunction for an easement. The O’odham have travelled throughout the Sonoran Desert for a time immemorial, so why should the concept of an international border restrict this easement from applying? After all, CBP would still be able to enforce the border as normal and would be more in-line with its historical use, which is one of the essential justifications for easements to begin with. In San Miguel, for what only amounts to a 15 feet slot of a border that is almost 2,000 miles long, there is a real case for restorative justice and change.

Dominic Brunaccioni is a student at the Washington College of Law. They will be clerking for the Tohono O’odham tribal court in 2026, working on establishing a wellness court for the tribe and other duties of the court. They are extremely grateful for the opportunity and look forward to making an impact for the O’odham.

Image: Evan616, San-Miguel-Gate.