American
Indian Religious Freedom Act of 1978
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PUBLIC
LAW 95–341—AUG. 11, 1978 |
92 STAT. 469 |
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Public Law 95-341
95th Congress |
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Joint Resolution
American
Indian Religious Freedom
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Aug. 11, 1978
[S.J. Res. 102] |
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Whereas the freedom
of religion for
all people is an
inherent right, |
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fundamental to the democratic
structure of the United States and
is guaranteed by the First Amendment of the United
States Constitution; |
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Whereas
the United States has traditionally
rejected the concept of |
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a
government denying individuals the right to practice
their reli- gion, and as a result, has benefited from
a rich variety of religious heritages in this country; |
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Whereas the religious practices of the
American Indian (as well as |
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Native
Alaskan and Hawaiian) are an integral part of their
cul- ture, tradition, and heritage, such practices
forming the basis of Indian identity and value
systems; |
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Whereas the
traditional American Indian
religions as an integral |
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part of Indian life, are
indispensable and irreplaceable; |
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Whereas the
lack of a clear,
comprehensive, and consistent
Federal |
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policy
has often resulted in the abridgment of
religious freedom for traditional American Indians; |
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Whereas such
religious infringements result from
the lack of knowl- |
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edge or the
insensitive and inflexible enforcement of
Federal poli-
cies and regulations premised on a variety of laws; |
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Whereas such laws
were designed for such worthwhile purposes
as |
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conservation and preservation of
natural species and resources
but
were never intended to relate
to Indian religious practices and,
therefore, were passed without
consideration of their effect on
traditional American Indian religions; |
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Whereas such laws
and policies often deny American Indians access
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to sacred sites required
in their religions, including cemeteries; |
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Whereas such laws at
times prohibit the use and possession of sacred
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objects necessary to the
exercise of religious rites and ceremonies; |
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Whereas
traditional American Indian
ceremonies have been
intruded |
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upon, interfered
with, and in a few
instances banned: Now,
therefore,
be it
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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. |
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92 STAT.470
42 USC 1996
note.
Presidential
report to
Congress. |
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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. |
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Approved August 11, 1978. |
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__________________________________
LEGISLATIVE HISTORY:
HOUSE REPORT No. 95-1308 accompanying H.J. Res. 738 (Comm.
on Interior and
Insular Affairs).
SENATE REPORT No. 95-709 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Apr. 3, considered and passed Senate
July 18, H.J. Res. 738 considered and passed House;
proceedings vacated and
S.J. Res. 102, amended, passed in lieu.
July 27, Senate concurred in House amendment. |
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1994 Amendments - Full Text
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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.
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H.R. 4155 |
(http://thomas.loc.gov/cgi-bin/query/z?c103:H.R.+4155:)
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103D
CONGRESS
2D
SESSION
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H. R.
4155 |
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To provide for the management of Federal
lands in a manner that does
not undermine or
frustrate traditional Native American religions or
religious practices.
IN THE HOUSE OF REPRESENTATIVES
M ARCH
24, 1994
Mr. R ICHARDSON
introduced the
following bill; which was referred to the
Committee on Natural Resources
A BILL
To provide for the management of Federal
lands in a manner
that does not undermine or frustrate traditional Native
American religions or
religious practices.
1 Be it enacted by the
Senate and House of Representa-
2 tives of the United States of America
in Congress assembled,
3
SECTION 1. SHORT
TITLE.
4 This Act may
be cited as the ‘‘American Indian
5 Religious Freedom Act Amendments of
1994’’.
6
SEC. 2. FINDINGS.
7 The Congress
finds that—
8
(1) unlike any other established religion, many
9 traditional
Native American religions are site-spe-
· HR
4155 IH
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1 cific in
that the Native American religions hold cer-
2 tain lands
or natural formations to be sacred;
3
(2) such sacred sites are an integral and vital
4 part of the
Native American religions and the reli-
5 gious
practices associated with such religions;
6
(3) many of these sacred sites are found on
7 lands which
were formerly part of the aboriginal ter-
8 ritory of
the Indians but which now are held by the
9 Federal
Government; and
10
(4) lack of sensitivity or understanding of tradi-
11 tional Native American
religions on the part of Fed-
12 eral agencies vested
with the management of Federal
13 lands has resulted in
the lack of a coherent policy
14 for the management of
sacred sites found on Federal
15 lands and has also
resulted in the infringement upon
16 the rights of Native
Americans to religious freedom.
17
SEC. 3.
MANAGEMENT OF FEDERAL LANDS SO AS TO NOT
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UNDERMINE
NATIVE AMERICAN RELIGIOUS
19
PRACTICES.
20 Public Law 95–341
(42 U.S.C. 1996), popularly
21 known as the American Indian Religious
Freedom Act, is
22 amended by adding at the end thereof the
following new
23 section:
24 ‘‘S EC.
3. (a)(1) Except as provided by subsection (b),
25 no Federal lands described in paragraph
(2) may be man-
· HR
4155 IH
3
1 aged in a manner that undermines and
frustrates a tradi-
2 tional Native American religion or
religious practice.
3 ‘‘(2)
The Federal lands referred to in paragraph (1)
4 are those lands that—
5
‘‘(A) have historically been considered sacred
6 and
indispensable by a traditional Native American
7
religion, and
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‘‘(B) are necessary to the conduct of a Native
9
American religious practice.
10 ‘‘(b) Subsection
(a)(1) shall not apply to a manage-
11 ment decision that is necessary to
protect a compelling
12 governmental interest. In making such a
management de-
13 cision, the Federal agency shall attempt
to accommodate
14 the various competing interests and
shall, to the greatest
15 extent feasible, select the course of
action that is the least
16 intrusive on traditional Native American
religions or
17 religious practices.
18 ‘‘(c) An Indian
tribe or a member of an Indian tribe
19 may, upon showing of actual harm suffered
by such tribe
20 or member, bring an action in the
appropriate United
21 States district court against any person
who is violating,
22 or who has violated, the prohibition
contained in this sec-
23 tion. In any such action, the court may
enjoin such viola-
24 tion or issue such orders as may be
necessary to enforce
· HR
4155 IH
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1 such prohibition or to require that action
be taken to rem-
2 edy such violation, or any combination of
the foregoing.
3 ‘‘(d) Nothing in this section shall be
interpreted as
4 requiring any Federal agency to totally
deny public access
5 to Federal lands.
6 ‘‘(e) As used in
this section—
7
‘‘(1) The term ‘Federal lands’ has the same
8 meaning as
provided by section 2(5) of the Native
9 American Graves
Protection and Repatriation Act
10 (25 U.S.C. 3001(5).
11
‘‘(2) The term ‘Indian tribe’ means any Indian
12 tribe, band, nation, or other
organized group or com-
13 munity, including any Alaska
Native village or re-
14 gional or village corporation
as defined in or estab-
15 lished pursuant to the Alaska
Native Claims Settle-
16 ment Act (85 Stat. 688) (43
U.S.C. 1601 et seq.),
17 which is recognized as
eligible for the special pro-
18 grams and services provided
by the United States to
19 Indians because of their
status as Indians.
20
‘‘(3) The term ‘tribal lands’ includes Indian res-
21 ervations; public domain
Indian allotments; former
22 Indian reservations in
Oklahoma; land held by incor-
23 porated Native groups,
regional corporations, and
24 village corporations under
the provisions of the Alas-
25 ka Native Claims Settlement
Act (43 U.S.C. 1601 et
· HR 4155
IH
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1 seq.); and
dependent Indian communities within the
2 borders of the
United States, whether within the
3 original or
subsequently acquired territory thereof
4 and whether within
or without the limits of a
5 State.’’.
· HR 4155
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H.R. 4230 |
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One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City
of Washington on Tuesday,
the twenty-fifth day of
January, one thousand nine hundred and ninety-four
An Act
To amend 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 inperpetuating 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
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. No Indian shall be
penalized
or discriminated against on the basis of such use,
possession or
H. R. 4230—2
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. 2000bb–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 Restora-
tion 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 Restora-
tion Act (Public Law 103–141; 42 U.S.C. 2000bb–1), this
section
does not prohibit the Secretary of Defense from promulgating
regu-
lations 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. 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.
H. R. 4230—3
‘‘(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.’’.
Speaker of the House of
Representatives.
Vice President of the
United States and
President of the Senate.
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