The American Indian Religious Freedom Act 1978

 

Congressional Seal

 The American Indian Religious Freedom Act 1978

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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.

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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

 

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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.

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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.

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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.

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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.

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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.

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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.

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 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.”

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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

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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.

Click here to see the AMERICAN INDIAN RELIGIOUS FREEDOM ACT AMENDMENTS OF 1994

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Also consider the NAGPRA (Native American Graves Protection and Repatriation Act of 1990) and ARPA (Archaeological Resources Protection Act 1979).

 

source: http://en.wikipedia.org/wiki/American_Indian_Religious_Freedom_Act

and

[1]485 U.S. 439 (1988)

[2]16 U.S.C. 470 (1966)

  • 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)

American Indian Religious Freedom Act Amendments of 1994

American Indian Religious Freedom Act Amendments of 1994

Source

(Pub. L. 95–341, § 1,Aug. 11, 1978, 92 Stat. 469.)

Short Title of 1994 Amendment

 

Pub. L. 103–344, § 1,Oct. 6, 1994, 108 Stat. 3125, provided that: “This Act [enacting section 1996a of this title] may be cited as the ‘American Indian Religious Freedom Act Amendments of 1994’.”
Short Title

 

Pub. L. 95–341, as amended, which enacted this section, section 1996a of this title, and a provision set out as a note under this section, is popularly known as the American Indian Religious Freedom Act.
Federal Implementation of Protective and Preservation Functions Relating to Native American Religious Cultural Rights and Practices; Presidential Report to Congress

 

Pub. L. 95–341, § 2,Aug. 11, 1978, 92 Stat. 470, provided that the President direct the various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with native traditional religious leaders to determine changes necessary to preserve Native American religious cultural rights and practices and report to the Congress 12 months after Aug. 11, 1978.
Ex. Ord. No. 13007. Indian Sacred Sites

 

Ex. Ord. No. 13007, May 24, 1996, 61 F.R. 26771, provided:
By the authority vested in me as President by the Constitution and the laws of the United States, in furtherance of Federal treaties, and in order to protect and preserve Indian religious practices, it is hereby ordered:
Section 1. Accommodation of Sacred Sites. (a) In managing Federal lands, each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.
(b) For purposes of this order:
(i) “Federal lands” means any land or interests in land owned by the United States, including leasehold interests held by the United States, except Indian trust lands;
(ii) “Indian tribe” means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law No. 103–454, 108 Stat. 4791 [see 25 U.S.C. 479a, 479a–1], and “Indian” refers to a member of such an Indian tribe; and
(iii) “Sacred site” means any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion; provided that the tribe or appropriately authoritative representative of an Indian religion has informed the agency of the existence of such a site.
Sec. 2. Procedures. (a) Each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, as appropriate, promptly implement procedures for the purposes of carrying out the provisions of section 1 of this order, including, where practicable and appropriate, procedures to ensure reasonable notice is provided of proposed actions or land management policies that may restrict future access to or ceremonial use of, or adversely affect the physical integrity of, sacred sites. In all actions pursuant to this section, agencies shall comply with the Executive memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” [25 U.S.C. 450 note].
(b) Within 1 year of the effective date of this order, the head of each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall report to the President, through the Assistant to the President for Domestic Policy, on the implementation of this order. Such reports shall address, among other things, (i) any changes necessary to accommodate access to and ceremonial use of Indian sacred sites; (ii) any changes necessary to avoid adversely affecting the physical integrity of Indian sacred sites; and (iii) procedures implemented or proposed to facilitate consultation with appropriate Indian tribes and religious leaders and the expeditious resolution of disputes relating to agency action on Federal lands that may adversely affect access to, ceremonial use of, or the physical integrity of sacred sites.
Sec. 3. Nothing in this order shall be construed to require a taking of vested property interests. Nor shall this order be construed to impair enforceable rights to use of Federal lands that have been granted to third parties through final agency action. For purposes of this order, “agency action” has the same meaning as in the Administrative Procedure Act (5 U.S.C. 551 (13)).
Sec. 4. This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by any party against the United States, its agencies, officers, or any person.

William J. Clinton.

American Indian Religious Freedom Act

The American Indian Religious Freedom Act (AIRFA, Public Law 95-341), was signed into law by President Jimmy Carter on August 12, 1978. President Carter defined the intention of AIRFA well when he stated at the signing ceremony

It is the fundamental right of every American, as guaranteed by the first amendment of the Constitution, to worship as he or she pleases. . . . This legislation sets forth the policy of the United States to protect and preserve the inherent right of American Indian, Eskimo, Aleut, and Native Hawaiian people to believe, express, and exercise their traditional religions.

The Act was introduced in the Senate on December 15, 1977, by Senator James Abourezk (Democrat, South Dakota) and later in the House of Representatives by Representative James Udall (Democrat, New Mexico). The Senate held hearings on AIRFA but the House did not. Testimony in the Senate hearings came primarily from Native Americans and representatives of various government entities. AIRFA was considered and passed in the Senate on April 3, 1978, and in the House on July 18, 1978.President Carter and Secretary of Agriculture Bob Berglud were enthusiastic supporters of AIRFA, as were several senators and congresspersons. The Department of Justice expressed concerns about the effect of AIRFA on existing state and federal laws but was reassured by Representative Udall, who stated that it had “no teeth in it” and was not intended to override existing state laws. President Carter echoed this sentiment and stated that the “act is in no way intended to alter . . . or override existing laws.” With those concerns addressed, AIRFA passed with very little resistance in the House or Senate. Congress passed AIRFA with the intent of eliminating federal interference with the exercise of Native American religious traditions and to compel government agencies to consider AIRFA in the institution and administration of policies and procedures.

AIRFA is divided into two sections. The first section addresses the right of Native Americans to practice their traditional religions. The relevant language states:

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 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 House of Representatives of the United States of America in Congress assembled, that henceforth it shall be the policy of the United States to preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.

This section of AIRFA is important because it was the first federal legislation specifically addressing Native Americans’ inherent right to freedom of religion.

Section 2 requires that the president direct federal departments and agencies responsible for administering relevant laws to evaluate their policies and procedures in consultation with traditional Native religious leaders and report back to Congress with any recommended changes in one year’s time.

The AIRFA Report

The report committee formed to satisfy Section 2 of AIRFA was chaired by Secretary of the Interior Cecil B. Andrus. The report was submitted to Congress in August of 1979 and detailed the government’s overall failure to protect Native Americans’ religious freedoms. It stated that the failure had primarily stemmed from the “ignorance and misunderstanding on the part of the non-Indian” of Native American religions. The report called for the need for improvements in several areas, including access to sacred objects such as eagle feathers and peyote, access to sacred sites, protection of sacred sites, and the overall double standard in terms of the treatment of European-American versus Native American human remains. The response of government agencies and departments was sporadic and generally dismal. Because AIFRA lacked a clear interpretation of Congress’s intent, primarily due to the use of convoluted language on the lack of penalties for non-compliance, there was little incentive for government response.

The Suppression of Native American Religious Traditions

Native Americans have had their free practice of religion suppressed by every Western nation that sought to colonize the New World. Throughout history, suppressing Native religious practices has been a common practice of those seeking to subjugate a people. It was thought that through the denial of a people’s own culture, they would be easily assimilated into their suppressor’s culture. France, Britain, Spain, and the United States all suppressed Native Americans’ free practice of religion and supported, and often funded, efforts to convert Native Americans to Christianity. Freedom of religion has been the law of the land since the birth of the United States as a nation; however, this basic right, guaranteed to all by the Constitution, has repeatedly been denied to Native Americans.

It is ironic that the first Europeans who would become known as Americans settled here because they were fleeing religious persecution. The United States continued the policy of the earlier colonial governments by actively promoting Christianity to Native Americans. Christian missionaries were hired as Indian agents, tribal administrative control was often placed in the hands of religious denominations, and tribal-held land was repeatedly given away to organizations that promised to build religious schools or churches on it. In 1869, the Board of Indian Commissioners was established with the intended purpose of educating Native Americans in the principles of Christianity. In 1879, the Carlisle Indian Industrial School was established in Carlisle, Pennsylvania, by the U.S. government for the education of Native American children. The school’s director, Richard Pratt, stated that his goal was to “[k]ill the Indian and save the man.” The school punished children for wearing Native dress or speaking their own languages and forbade any practice of their Native religious traditions.

Interior Secretary Henry M. Teller holds the distinction of being the first U.S. government representative to order official restrictions on the practice of Native American religious customs. In an 1882 directive Teller ordered an end to all “heathenish dances and ceremonies” on reservations due to their “great hindrance to civilization.” In 1883, Commissioner of Indian Affairs Hiram Price codified the practice of officially restricting Native American religious freedom by creating the Indian Religious Crimes Code. In his 1883 annual report to the secretary of the interior, Price stated

there is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rites.

In 1892, Commissioner of Indian Affairs Thomas J. Morgan sought to further suppress Native religions by ordering penalties of up to six months in prison for those who repeatedly participated in religious dances or acted as medicine men.

The government’s attempts to suppress and in many instances outright ban Native American religious practices led to one of the bloodiest events in the history of the United States: the Massacre at Wounded Knee. To enforce the ban on the Ghost Dance in accordance with the Indian Religious Crimes Code, the Seventh Calvary was sent into the Lakota Sioux’s Pine Ridge and Rosebud Reservations to stop the dance and arrest the participants. General Armstrong Custer’s former unit, in response to a dispute over a firearm, attacked and killed approximately 150 Native American men, women, and children on December 29, 1890. Charges of killing innocents were brought against members of the Seventh Calvary, but all were later exonerated. The massacre marked the effective end of the Ghost Dance movement and, according to many historians, signified the end of the Indian Wars.

The Start of a Change in U.S. Policy

The shift toward acknowledging Native American religions, the government’s obligations to the tribes, and their rites as citizens of the United States began in 1933 when President Franklin D. Roosevelt appointed John Collier as commissioner of Indian Affairs. Collier issued Bureau of Indian Affairs Circular 2970, “Indian Religious Freedom and Indian Culture,” on January 3, 1934. The circular was sent to all federal agencies and read in part “no interference with Indian religious life or ceremonial expression will hereafter be tolerated.” Collier also guided, with the support of President Roosevelt, the Indian Reorganization Act, commonly known as the Indian New Deal, through Congress. This act dramatically changed U.S. policy by allowing tribal self-government and consolidating individual land allotments back into tribal hands.

In the 1960s, partly in response to a nationwide wave of discontent and a trend toward active protesting of government policies, a renewed movement of Native American activism resulted in the passage of several acts, including AIRFA. Native Americans began to cooperate and organize a pan-Indian movement to push for change through political channels. While there is a long history of pan-Indian movements, many feel that this one had its roots in the forced boarding school programs and the Bureau of Indian Affairs relocation programs. Both programs brought Native Americans from several tribes together in situations in which their common hardships and interests led to increased inter-tribal communication and cooperation.

One of the first politically active Native American groups to form was the National Indian Youth Council (NIYC), created in 1961. NIYC participated in a series of protests calling for the recognition of treaty-granted fishing rights in the state of Washington. The American Indian Movement (AIM), the most vocal and well-known of the Native American activist groups, was formed in 1968 by George Mitchell and Dennis Banks in Minneapolis. AIM participated in the 1969 occupation of Alcatraz, the November 1972 occupation of the Bureau of Indian Affairs building in Washington, D.C., and the 1973 occupation of Wounded Knee.

Largely in response to Native Americans’ well publicized calls for change, a large number of acts were passed by Congress in the late 1960s and 1970s: the Indian Civil Rights Act (PL90-284) in 1968; the Alaska Native Claims Act (PL92-208) in 1971; the Indian Education Act (PL92-318) in 1972; the Indian Self-Determination and Education Assistance Act (PL93-638) in 1974; the Indian Health Care Improvement Act (PL94-437) in 1976; and the Indian Child Welfare Act (PL95-608) in 1978. The Archaeological Resources Protection Act (PL96-95) was passed in 1979 and prohibited the excavation, removal, defacing, or sale of human remains or burial items unless done in accordance with the law.

The increased public awareness of the Native American’s plight led to the creation of the American Indian Policy Review Commission in 1975. Consisting of three senators, three representatives, and five Indian commissioners, the commission oversaw thirty-three task forces reviewing Native American grievances and conditions. The final report was issued in May 1977 and concluded that the government had often interfered in and obstructed the efforts of Native Americans to practice their traditional religious customs. The report was instrumental in the struggle to convince Congress of the need for AIRFA.

Legislation Following AIRFA and AIRFA Amendments

Since 1978, a relatively steady progression of executive orders, memorandums, and legislation has addressed problems with AIRFA and clarified Congress’s intent to the courts. Issues such as access to sacred sites, the ceremonial use of peyote, the rights of Native American prisoners to practice their religions, and the repatriation of human remains and ceremonial objects have all been specifically addressed. The efforts made in addressing the issue of Native Americans’ free practice of religion have not satisfied all, but most would concur that there has been a significant amount of progress made in the nearly three decades since the passage of AIRFA.

President George H. W. Bush signed MAIA, the Museum of the American Indian Act (PL101-185) in 1989 and NAGPRA, the Native American Graves Protection and Repatriation Act (PL101-601) in 1990. MAIA called for the creation of the Museum of the American Indian and the repatriation of 18,500 Native American remains held by the Smithsonian. NAGPRA calls for museums and federal agencies to return Native American human remains, funerary objects, sacred objects, and objects of cultural importance to lineal descendents, affiliated tribes, and Native Hawaiian organizations.

In 1993, the Religious Freedom Restoration Act (PL103-141) was passed and signed into law by President William Jefferson Clinton. On signing the Act, President Clinton stated that it “reestablishes a standard that better protects all Americans of all faiths . . . in a way that I am convinced is far more consistent with the intent of the Founders of this nation.” In 1994, President Clinton issued a memorandum to every executive department and agency of the government, titled “Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes.” In his remarks to Native American and Native Alaskan tribal leaders, he said that the memorandum directed the agencies and departments to “cooperate with tribal governments to accommodate whenever possible the need for eagle feathers in the practice of Native American religions.”

The AIRFA amendments (PL103-344) were passed in 1994 to correct the inadequacies of the original Act. The 1978 version of AIRFA was seen by the courts as a policy for executive agencies and as such was not given extensive weight in court decisions. The courts have always distinguished between religious beliefs and religious practices. People are free to choose their religious beliefs, but practices have been repeatedly prohibited by the courts. Polygamy, human sacrifice, and religious customs such as those allowing rape as a penalty for a violation of religious code are all illegal based on the overriding good of the public and existing state and federal laws. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court ruled that Oregon was within its legal right to fire a Native American employee for the use of peyote in a religious ceremony. The court failed to recognize the religious significance of the peyote use and instead viewed it as an illegal substance not protected under the First Amendment or AIRFA.

Many Native American groups and individuals pushed for amendments to AIRFA, which clarified the legality of peyote use for religious purposes and the distinction between its traditional use and use as a recreational drug. In the hearings held by the Senate Select Committee on Indian Affairs, the late Professor Vine Deloria testified that “We need to make clear that peyote is a sacramental plant used by American Indians in a sacramental way, going back long before the memory of man. Once that clarification is made, there is no possible way to link it to those other drugs.”

The amendments were considered and passed in the House of Representatives on August 8, 1994, and in the Senate on September 26, 1994. The amendments state that “Non-withstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state.” The amendment includes a list of several common sense exceptions and a section prohibiting discrimination based on a Native American’s use of peyote in a religious context.

On May 24, 1996, President Clinton issued Executive Order 13007, “Protection and Accommodation of Access to Indian Sacred Sites.” The order states that executive agencies and departments should “accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.” It was issued largely in response to the Supreme Court ruling in the Lyng v. Northwest Indian Cemetery Protective Association. The case resulted from the U.S. Forest Service’s desire to build a road near a Native American religious site. Several tribes were joined by various parties, including the state of California, in seeking a court order to bar the project under AIRFA. The Supreme Court, as stated by Justice Sandra Day O’Connor, decided that “Whatever rights the Indians may have to use of the area those rights do not divest the Government of its right to use what is, after all, its land.”

The Religious Land Use and Institutionalized Persons Act (PL106-274) was signed into law in 2000 by President Clinton. The legislation guarantees access for Native Americans to religious sites located on government property. Section 2 regards the right of Native American prisoners to practice traditional religions. It states, “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”

AMERICAN INDIAN RELIGIOUS FREEDOM

American Indian Religious Freedom

Congressional Seal

The American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 (Aug. 11, 1978) , codified at 42 U.S.C. § 1996, is a United States federal law and a joint resolution of Congress that was passed in 1978. It was enacted 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, freedom to worship through ceremonial and traditional rights and use and possession of objects considered sacred. The Act required policies of all governmental agencies to eliminate interference with the possession of objects considered sacred, 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 acknowledges the prior violation of that right.

 FEDERAL LAW: Members of the Native American Church are exempt from federal criminal penalties for religious use of peyote. Where there is exclusive federal jurisdiction or state law is not racially limited, peyote use by NAC members is legal under a racially neutral regulation. This exemption is as old as federal criminal penalties against peyote use and predates the Controlled Substances Act. The Code Of Federal Regulations reads:

Special Exempt Persons: Section 1307.31 Native American Church. The listing of peyote as a controlled substance in Schedule I does not apply to the non-drug use of peyote in bonafide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law. U.S. v. BOYLL, 774 F.Supp. 133 (D.N.M. 1991) addresses the racial issue specifically and concludes:

For the reasons set out in this Memorandum Opinion and Order, the Court holds that, pursuant to 21 C.F.R. § 1307.31 (1990), the classification of peyote as a Schedule I controlled substance, see 21 U.S.C. § 812(c), Schedule I(c)(12), does not apply to the importation, possession or use of peyote for bonafide ceremonial use by members of the Native American Church, regardless of race.  PUBLIC LAW 103-344 [H.R. 4230]; October 6, 1994

State of Colorado Seal

AMERICAN INDIAN RELIGIOUS FREEDOM ACT
AMENDMENTS OF 1994

For Legislative History of Act, see Report for P.L. 103-344 in U.S.C.C.   A.N. Legislative History Section.

An Act to emend the American Indian Religious Freedom Act to provide for the traditional use of peyote by Indians for religious purposes, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the “American Indian Religious Freedom Act Amendments of 1994″. SEC. 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT.

The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the “American Indian Religious Freedom Act”, is amended by adding at the end thereof the following new section: “SEC. 3. (a) The Congress finds and declares that– “(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures; “(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation; “(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies; “(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling State interest standard; and “(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment. “(b)(1) Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bonafide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs. “(2) This section does not prohibit such reasonable regulation and registration by the Drug Enforcement Administration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act. “(3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon’s Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote. “(4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing reasonable limitations on the use or ingestion of peyote prior to or during the performance of duties by sworn law enforcement officers or personnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2OOObb-1). “(5) This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities. “(6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1), this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations. “(7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 USC 2000bb-1), this section does not prohibit the Secretary of Defense from promulgating regulations establishing reasonable limitations on the use, possession, transportation, or distribution of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. “(c) For purposes of this section– “(1) the term ‘Indian’ means a member of an Indian tribe; “(2) the term ‘Indian tribe’ means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. l601 et seq.)), which is recognized as eligible for the special programs and services provide by the United States to Indians because of their status as Indians; “(3) the term ‘Indian religion’ means any religion– “(A) which is practiced by Indians; and “(B) the origin and interpretation of which is from within a traditional Indian culture or community; and “(4) the term ‘State’ means any State of the United States and any political subdivision thereof.

108 STAT. 3126
Oct. 6
AMERICAN INDIAN RELIGIOUS FREEDOM
P.L. 103-344

“(d) Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting– “(1) the inherent rights of any Indian tribe; “(2) the rights, express or implicit, of any Indian tribe which exist under treaties, Executive orders, and laws of the United States; “(3) the inherent right of Indians to practice their religions; and “(4) the right of Indians to practice their religions under any Federal or State law.”.

Approved October 6, 1994.

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 American 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.

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.

H.R. 4155

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE This Act may be cited as the “American Indian Religious Freedom Act Amendments of 1994.” SECTION 2. FINDINGS.The Congress finds that- (1) unlike any other established religion, many traditional Native American Religions are site-specific in that the Native American religions hold certain lands or natural formations to be sacred; (2) such sacred sites are an integral and vital part of the Native American religions and the religious practices associated with such religions; (3) many of these sacred sites are found on lands which were formerly part of the aboriginal territory of the Indians but which now are held by the Federal Government; and (4) lack of sensitivity or understanding of traditional Native American religions on the part of Federal agencies vested with the management of Federal lands has resulted in the lack of a coherent policy for the management of sacred sites found on Federal lands and has also resulted in the infringement upon the rights of Native Americans to religious freedom. SEC. 3. MANAGEMENT OF FEDERAL LANDS SO AS TO NOT UNDERMINE NATIVE AMERICAN RELIGIOUS PRACTICES.Public Law 95-341 (42 U.S.C. 1996), popularly known as the American Indian Religious Freedom Act, is amended by adding at the end thereof the following new section: “SEC. 3. (a)(1) Except as provided by subsection (b), no Federal lands described in paragraph (2) may be managed in a manner that undermines and frustrates a traditional Native American religion or religious practice. “(2) The Federal lands referred to in paragraph (1) are those lands that- “(A) have historically been considered sacred and indispensable by a traditional Native American religion, and “(B) are necessary to the conduct of a Native American religious practice. “(b) Subsection (a)(1) shall not apply to a management decision that is necessary to protect a compelling governmental interest. In making such a management decision, the Federal agency shall attempt to accommodate the various competing interests and shall, to the greatest extent feasible, select course of action that is the least intrusive on traditional Native American religions or religious practices. “(c) An Indian tribe or a member of an Indian tribe may, upon showing of actual harm suffered by such tribe may, upon showing of actual harm suffered by such tribe or member, bring an action in the appropriate United States district court against any person who is violating, or who has violated, the prohibition contained in this section. In any such action, the court may enjoin such violation or issue such orders as may be necessary to enforce such prohibition or to require that action be taken to remedy such violation, or any combination of the foregoing. “(d) Nothing in this section shall be interpreted as requiring any Federal agency to totally deny public access to Federal lands. “(e) As used in this section- “(1) The term ‘Federal Lands’ has the same meaning as provided by section 2(5) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001(5). “(2) The term ‘Indian Tribe’ means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. “(3) The term ‘tribal lands’ includes Indian reservations; public domain Indian allotments; former Indian reservations in Oklahoma; land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); an dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof and whether within or without the limits of a State.”.

 

H.R. 4230

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the “American Indian Religious Freedom Act Amendments of 1994″. SEC. 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT.The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the “American Indian Religious Freedom Act”, is amended by adding at the end thereof the following new section: “SEC. 3. (a) The Congress finds and declares that – “(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures; “(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation; “(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, many States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies; “(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling of the State interest standard and “(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment in violation of the religious guarantees of the First Amendment of the Constitution. “(b)(1) Notwithstanding any other provision of the law, the use, possession, or transportation or peyote by an Indian who uses peyote in a traditional manner for bonafide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs. “(2) This section does not prohibit such reasonable regulation and registration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act. “(3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon’s Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote. “(c) For purposes of this section- “(1) the term ‘Indian’ means a member of an Indian tribe; “(2) the term ‘Indian tribe’ means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.S. 1601 et seq.)), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; “(3) the term ‘Indian religion’ means any religion- “(A) which is practiced by Indians, and “(B) the origin and interpretation of which is from within a traditional Indian culture or community; and “(4) the term ‘State’ means any State of the United States, and any political subdivision thereof. “(d) Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting- “(A) the inherent rights of any Indian tribe; “(B) the rights, express of implicit, of any Indian tribe which exist under treaties, executive orders, and laws of the United States; “(C) the inherent right of the Indians to practice their religions under any Federal or State law.”.

Religious Freedom Restoration Act of 1993107 STAT. 1488, Public Law 103-141[Partially overturned for state-law matters on June 25th, 1997]Passed by 103rd Congress, Nov 16, 1993

AN ACT

    To protect the free exercise of religion.Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled,

SECTION 1, SHORT TITLE.

    This Act may be cited as the “Religious Freedom Restoration Act of 1993″.

SECTION 2, CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.

  1. FINDINGS.—The Congress finds—
    1. the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
    2. laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
    3. governments should not substantially burden religious exercise without compelling justification;
    4. in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
    5. the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
  2. PURPOSES.—The purposes of this Act are—
    1. to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
    2. to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

SECTION 3, FREE EXERCISE OF RELIGION PROTECTED.

  1. IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
  2. EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it determines that application of the burden to the person—
    1. is in furtherance of a compelling governmental interest; and
    2. is the least restrictive means of furthering that compelling governmental interest.
    3. JUDICIAL RELIEF.—A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

SECTION 4, ATTORNEYS FEES.

  1. JUDICIAL PROCEEDINGS.—Section 722 of the Revised Statutes of the United States (42 U.S.C. 1988) is amended by inserting “the Religious Freedom Restoration Act of 1993,” before “or title VI of the Civil Rights Act of 1964″.
  2. ADMINISTRATIVE PROCEEDINGS.—Section 504(b)(1)(C) of title 5, United States Code, is amended—
    1. by striking “and” at the end of clause (ii);
    2. by striking the semicolon at the end of clause (iii) and inserting “;and”; and
    3. by inserting “(iv) the Religious Freedom Restoration Act of 1993″ after clause (iii).

SECTION 5, DEFINITIONS.

As used in this Act–

  1. the term “government includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;
  2. the term “State” includes the District of Columbia, the Commonwealth of PuertoRico, and each territory and possession of the United States;
  3. the term “demonstrates” means meets the burden of going forward with the evidence and of persuasion; and
  4. the term “exercise of religion” means exercise of religion under the First Amendment to the Constitution.

SECTION 6, APPLICABILITY.

  1. IN GENERAL.—This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of the Act.
  2. RULE OF CONSTRUCTION.—Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.
  3. RELIGIOUS BELIEF UNAFFECTED.—Nothing in this Act shall be construed to authorize any government to burden any religious belief.

SECTION 7, ESTABLISHMENT CLAUSE UNAFFECTED.

Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause of the First Amendment, shall not constitute a violation of this Act. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include a denial of government funding, benefits, or exemptions.

Approved November 16, 1993.


Nov. 16, 1993
[H.R. 1308]
Sec. 2 is 42 USC 2000bb
Sec. 3 is 42 USC 2000bb-1
Sec. 4 is 42 USC 2000bb-1
Sec. 5 is 42 USC 2000bb-2
Sec. 6 is 42 USC 2000bb-3
Sec. 7 is 42 USC 2000bb-4


LEGISLATIVE HISTORY — H.R. 1308 (S. 578):


HOUSE REPORTS: No. 103-88 (Comm. on the Judiciary).
SENATE REPORTS: No. 103-111 accompanying S. 578 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 139 (1993):
May 11, considered and passed House.
Oct. 26, 27, S. 578 considered in Senate; H.R. 1308, amended, passed in lieu.
Nov. 3, House concurred in Senate amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 29 (1993):
Nov. 16, Presidential remarks.