American Indian Religious Freedom Act and Amendments

American Indian Religious Freedom Act of 1978

  

 

PUBLIC LAW 95–341—AUG. 11, 1978

92 STAT. 469
  Public Law 95-341
95th Congress
 
 

Joint Resolution

American Indian Religious Freedom
 

 

 Aug. 11, 1978   
 [S.J. Res. 102]

 

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 reli- gion, 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 cul- ture, 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  knowl-
  edge or  the insensitive and inflexible enforcement  of  Federal  poli-
cies 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,
therefore,  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.

 
92 STAT.470

42 USC 1996
note.

 

Presidential
report to
Congress.

   
  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.
    
 
  __________________________________
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.
 
       

    

 
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 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     (http://thomas.loc.gov/cgi-bin/query/z?c103:H.R.+4155:)

   

 
 
103D CONGRESS
            2D SESSION
H. R. 4155
 
 

 

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

MARCH 24, 1994

Mr. RICHARDSON 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

18                  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     ‘‘SEC. 3. (a)(1) Except as provided by subsection (b),

25 no Federal lands described in paragraph (2) may be man-

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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

8             ‘‘(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

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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

5

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 IH

  

 
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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