American Indian Religious Freedom Act Amendments of 1994

American Indian Religious Freedom Act Amendments of 1994


(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.”