American Indian Religious Freedom Act

Passage

American Indian religious practices have often been prohibited by existing federal laws and government policies. There have been three general areas of conflict. Firstly, American Indians did not have access to a number of sacred places that the tribes had traditionally used in religious ceremonies. Native American religious practices often came into conflict with the idea that American public lands exist for the use and benefit of the American people. The results of the passage of the Indian Removal Act and the General Allotment Act were the displacement of hundreds of tribes, including the Five Civilized Tribes of the southeastern United States, and the forced assimilation of Native American families into agricultural settler societies.

The second conflict was the possession by tribal members of ceremonial items that are restricted under United States law, such as eagle feathers or bones (under laws to protect threatened species), or peyote, a ritual drug and restricted substance. The conflict lies in the fact that items such as peyote are integral parts of ceremonies practiced by members of churches such as the Native American Church. The importance of eagle bones for use in traditional religious ceremonies has been repeatedly cited in cases involving Indian claims on hunting and fishing rights to allow tribal member to hunt for eagles.

The third general area of conflict was an issue of interference. Sacred ceremonies were sometimes subject to interference from overzealous officials or curious onlookers.

The act acknowledged prior federal infringement on the right of freedom of religion for American Indians by denying them their First Amendment right of "free exercise" of religion.

President Jimmy Carter said, in a statement about the AIRFA:

In the past, Government agencies and departments have on occasion denied Native Americans access to particular sites and interfered with religious practices and customs where such use conflicted with Federal regulations. In many instances, the Federal officials responsible for the enforcement of these regulations were unaware of the nature of traditional native religious practices and, consequently, of the degree to which their agencies interfered with such practices.

This legislation seeks to remedy this situation.

Section 2 of the AIRFA directs federal agencies to consult with American Indian spiritual leaders to determine appropriate procedures to protect the inherent rights of American Indians, as laid out it the act.

Original text

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.

Effects

Native American tribes had traditionally been closely associated with their lands, and their religious practices and beliefs were based in specific geographic areas. Lyng v. Northwest Indian Cemetery Protective Association (1988) is a landmark case in the Supreme Court's decisions affecting Native American religion under the AIRFA. The bureaucratic decisions to alter land sites implemented by the Court on this case, constitute invasions of tribal self-understanding. This case helped to prove that the dissipation of tribal identity is the consequence of land desecration. The fact that land desecration is allowed to happen so easily is a result of the absence of enforcement and stability within the terms of the American Indian Religious Freedom Act.

The Forest Service wanted to build a road that went directly through the sacred lands of the Yurok, Tolowa, and Karok tribes. Under Lyng v. Northwest Indian Cemetery Protective Association, in 1988 the tribe filed suit against the government for denying their rights to religious freedom under the first amendment by ruling in favor of the United States Forest Service. Tribal leaders testified that the road would destroy parts of the pristine mountains and high country that the tribes considered sacred and essential to their religious beliefs and practices. They expressed their concerns in court, outlining the burden imposed upon their religious freedom. However, the court determined that, because the tribes had not stated a requisite legal burden on those rights, that they could not receive protection under the AIRFA.

The Theodoratus Report was a comprehensive study prompted by the American Indian Religious Freedom Act during Lyng v. Northwest Indian Cemetery Protective Ass'n (1988) and conducted by the United States Forest Service in order to evaluate policies and procedures to protect Native American religious cultural rights and practices. This study was done in order to provide definitive information on the effects of the Forest Service's actions on Native American religious culture in high country. This study was completed in April 1979 and was titled Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest and was written by Dr. Dorothea J. Theodoratus, Dr. Joseph L. Chartkoff, and Ms. Kerry K. Chartkoff. It was a compilation of ethnographic, archaeological and historical data that identified the culture contained in the area that the Forest Service proposed to be the site of the Chimney Rock Section of the Gasquet-Orleans Road. This culture belonged to the Yurok, Karok, and Tolowa peoples.

In its final recommendations, the report criticizes the Forest Service for ignorance of the physical and historical significance and religious importance of the site proposed for road construction. The report warned the Forest Service against the ruinous impact of road construction, and its logging and mining operations. It said the philosophy that high country is solely a natural resource to be managed and improved was at fault. The report traced the long history of this site as sacred to succeeding cultures of indigenous peoples, whose connection could be documented from prehistory. The report stated that the only appropriate management of such land should be its preservation in a natural state.

The Theodoratus Report, in effect, established a guideline by which the Forest Service would be able to understand the importance of land to Native American culture. Because they had commissioned the report and recognized its significance they conformed with the AIRFA in the Lyng case, but it was the Theodoratus Report, not the AIRFA, that compelled the Forest Service to follow the report's collection of data on the religious significance of the high country. However, nothing within the AIRFA prevented the Forest Service from ignoring the warning of its own commissioned report concerning the destruction of the Yurok, Karok, and Tolowa religious traditions.

This case's decision states that tribes have no First Amendment right of religious freedom that can halt federal land management of public lands that contain sacred tribal spaces. This decision became the standing precedent that threatened the survival of any traditional Native American community whose sacred lands, by the fault of the government's history of Indian affairs, are on public land rather than on reservations. The Supreme Court advocated its decision to refuse the countenance of the religious valuation of land as representing its responsibility towards enforcing the First Amendment rights of the Native American plaintiff.

In Employment Division v. Smith (1990), the Court ruled against the Native American Church its constitutional rights. Alfred Smith, a Native American who had been born on the Klamath Reservation in Oregon, was fired from his job at an agency in Roseburg, Oregon that helped develop services for Native American clientele. His termination was based on his attendance at ceremonies of the Native American Church, which uses peyote as a sacrament. Because it is a restricted substance under drug laws, Smith was fired for his use of it. Another member of the N.A.C. was also fired from the agency for the same reason. When denied unemployment compensation, Smith and his co-worker challenged the grounds of their terminations. Smith took his case to the Oregon courts, which ruled in his favor of protected use of peyote under the free-exercise clause of AIRFA.

The U.S. Supreme Court reviewed the case, and overturned the Oregon court ruling. The Supreme Court stated that they could in fact be denied unemployment benefits because by using peyote they were in violation of state criminal law. The Smith decision prompted the development of the Native American Religious Freedom Project which involved and concerned almost every Native American tribe in the country. The case was taken up with Congress, and in 1993 the Religious Freedom Restoration Act was passed, and by 1994 the American Indian Religious Freedom Act Amendments were passed as Public Law 103-344. The Amendments provided legislative protection for religious practices of the Native American Church that the Supreme Court had decided lack constitutional protection.

Criticism

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 cultures and religions as a whole.

The 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. The Supreme Court itself declared that the legislation had no firm grasp on what it stood for. There was nothing in the Act that mandated changes pursuant to the review process prior to its amendment in 1994. The case illustrates that compliance with the review procedure of the AIRFA does not provide any assurance that judicial protections or substantive agency will be offered to Native American religious belief and practice, even if the serious endangerment to Native American religion from proposed government action is recognized within that review procedure.

1994 Amendments – full text

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 later the 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. The full text is available on the Library of Congress website. However, it never became law.

In 1994, Congress passed H.R. 4230 to amend the American Indian Religious Freedom Act, in order to provide for protected use of peyote as a sacrament in traditional religious ceremonies. This was passed as Public Law No 103-344 on October 6, 1994, with full text as below.

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. 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: