The American Indian Religious Freedom Act 1978
Public Law 95-341 95th Congress Joint Resolution American Indian Religious Freedom.
Whereas the freedom of religion for all people is an inherent right, fundamental to the democratic structure of the United States and is guaranteed by the First Amendment of the United States Constitution; Whereas the United States has traditionally rejected the concept of a government denying individuals the right to practice their religion, and as a result, has benefited from a rich variety of religious heritages in this country; Whereas the religious practices of the American Indian (as well as Native Alaskan and Hawaiian) are an integral part of their culture, tradition, and heritage, such practices forming the basis of Indian identity and value systems; Whereas the traditional American Indian religions as an integral part of Indian life, are indispensable and irreplaceable; Whereas the lack of a clear, comprehensive, and consistent Federal policy has often resulted in the abridgment of religious freedom for traditional American Indians; Whereas such religious infringements result from the lack of knowledge of the insensitive and inflexible enforcement of Federal policies and regulations premised on a variety of laws; Whereas such laws were designed for such worthwhile purposes as conservation and preservation of natural species and resources but were never intended to relate to Indian religious practices and, there, were passed without consideration of their effect on traditional American Indian religions; Whereas such laws and policies often deny American Indians access to sacred sites required in their religions, including cemeteries; Whereas such laws at times prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies; Whereas traditional American Indian ceremonies have been intruded upon, interfered with, and in a few instances banned; Now, therefore, be it Resolved by the Senate and the House of Representatives of the United States of America in Congress Assembled, That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
SEC. 2. The President shall direct that various Federal departments, agencies, and other instrumentalities responsible for the administering relevant laws to evaluate their policies and procedures in consultation with Native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.
Approved August 11, 1978
The American Indian Religious Freedom Act (commonly abbreviated to AIRFA) is a US federal law and a joint resolution of Congress that was passed in 1978. It was created to protect and preserve the traditional religious rights and cultural practices of American Indians, Eskimos, Aleuts and Native Hawaiians. These rights include, but are not limited to, access of sacred sites, repatriation of sacred objects held in museums, freedom to worship through ceremonial and traditional rites, including within prisons, and use and possession of objects considered sacred. The Act required policies of all governmental agencies to eliminate interference with the free exercise of Native religion, based on the First Amendment, and to accommodate access to and use of religious sites to the extent that the use is practicable and is not inconsistent with an agency’s essential functions. It also acknowledged the prior violation of that right.
Congress enacted the American Indian Religious Freedom Act (AIRFA) on August 11, 1978, enumerating a federal policy of protecting and preserving the ability of Native Americans to exercise their traditional religious beliefs — including access to traditional religious sites, use and possession of sacred objects and freedom to worship in traditional ways. Many traditional religious sites are located on federal lands, and there had been a history of obstacles put in the way of Indians wishing to access those sites to worship there unmolested. To meet the ex-pressed ends, the Act directed federal agencies to adjust their policies so that their consultations with Native American Tribes encompassed the goals of AIRFA.
Specifically, AIRFA states:
On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
For several years after its passage, Native American tribes, environmental organizations and related groups cited AIRFA in litigation in efforts to protect sacred sites, objects and corresponding religious worship. Unfortunately, ten years after passage of the Act, the United States Supreme Court interpreted ARIFA’s loose language to be merely a policy statement of the federal government and not judicially enforceable law. In Lyng v. Northwest Indian Cemetery Protection Association, the Court announced its belief that the Act “had no teeth in it” and determined that AIRFA did not allow a cause of action for Indians for protection of their religious sites from federal management decisions.
While limiting ARIFA’s force in the Lyng decision, the United States Supreme Court did not completely strip AIRFA of all enforcement power. Instead, the Court’s opinion in Lyng and in subsequent opinions has created procedural requirements tied to the Act. Specifically, AIRFA requires federal agencies to consider Indian religious concerns in agency actions that have the potential to affect an Indian religious practice or a spiritually significant Indian religious site.
The fallout from AIRFA and the Lyng decision did create an environment ripe for some positive change. In 1988, the American Indian Religious Freedom Coalition was formed, hoping to influence Congress to amend AIRFA to fix its limitations. No such amendments occurred at the time, but the American Indian Religious Freedom Coalition (AIRFC) did succeed in its efforts to protect Indian religious freedom by influencing other statutory changes.
Most significantly, Congress, due to AIRFC’s influence, amended the National Historic Preservation Act (NHPA). Enacted in 1992, the amendment allowed for “properties of traditional religious and cultural importance to an Indian tribe” to be eligible for inclusion as National Historic Properties. In practice, this amendment has potentially allowed for more government-to-government consultation between the federal government and sovereign Indian tribes than any other piece of federal legislation. The listing of tribal properties as culturally and/or historically significant triggers the federal government’s obligation to consult with tribes before undertaking any action that may affect those properties.
An important amendment to AIRFA did occur in 1994, following Congressional subcommittee hearings on the effectiveness of the Act. Sections were added to AIRFA specifically allowing the ceremonial use of peyote for practitioners of “traditional Indian religions for which the sacramental use of peyote is integral to their practice.”
The major criticism of the American Indian Religious Freedom Act was its inability to enforce its provisions, therefore its inability to provide religious freedom without condition. The act served as more of a joint resolution than an actual law. Its failure to protect certain sacred sites proved detrimental to Native American culture and religion as a whole. The 1988 Lyng v. Northwest Indian Cemetery Association decision represented a unique convergence of religion, law, and land, and confirmed the American Indian Religious Freedom Act as a hollow excess of words
Due to the criticism of the AIRFA and its inability to enforce the provisions it outlined in 1978. On June 10, 1994 the House of Representatives, Committee on Natural resources and Subcommittee on Native American Affairs met to bring about H.R. 4155 in order to provide for the management of federal lands in a way that doesn’t frustrate the traditional religions and religious purposes of Native Americans. Also,H.R. 4230 was set forth to amend the American Indian Religious Freedom Act to provide for the traditional use of peyote as sacrament in religious ceremonies.
485 U.S. 439 (1988)
16 U.S.C. 470 (1966)
- Handbook of American Indian Religious Freedom by Christopher Vecsey (Jun 25, 1991).
- American Religious History (Blackwell Readers in American Social and Cultural History) by Amanda Porterfield (Mar 5, 2002).
- The Peyote Road: Religious Freedom and the Native American Church (Civilization of the American Indian) by Thomas Constantine Maroukis(Apr 2010).
- Lyng v. Northwest Indian Cemetery Protection Association, 485 U.S. 439 (1988).
- American Indian Religious Freedom Act (AIRFA), 42 USC 1996 (1978) and amendments
- National Historic Preservation Act (NHPA), 16 USC 470 (1966)