American Indian Religious Freedom Act
Legislative history
- Introduced in the Senate as S.J.Res. 102 by James Abourezk (D-SD) on December 15, 1977
- Committee consideration by Senate Indian Affairs
- Passed the Senate on April 3, 1978
- Passed the House on July 18, 1978 (in lieu of H.J.Res. 738, 337–81) with amendment
- Senate agreed to House amendment on July 27, 1978
- Signed into law by President Jimmy Carter on August 11, 1978
The law was enacted to return basic civil liberties to American Indians, Eskimos, Aleuts, and Native Hawaiians, and to allow them to practice, protect and preserve their inherent right of freedom to believe, express, and exercise their traditional religious rites, spiritual and cultural practices. These rights include, but are not limited to, access to sacred sites, freedom to worship through traditional ceremonial rites, and the possession and use of objects traditionally considered sacred by their respective cultures.
The Act requires policies of all governmental agencies to eliminate interference with the free exercise of Native American religions, based upon the First Amendment to the United States Constitution, and to accommodate access to, and use of, Native American religious sites to the extent that the use is practicable and is consistent with an agency's essential functions. It also acknowledges the prior violation of that right.
Passage
American Indian religious practices have often been prohibited by existing federal laws and government policies. There have been three general areas of conflict.
The passages of the Indian Removal Act (1830) and General Allotment Act (1887) resulted in the forced relocation and displacement of hundreds of tribes from their traditional homelands. Most of the people of the Five Civilized Tribes of the southeastern United States were forced into the Central Plains of the United States, and the forced assimilation of Native American families into agricultural settler societies and, later, urban communities left Native Americans without access to the sacred sites where they and their ancestors had traditionally held their religious ceremonies. Native American spiritual culture is tied to place, making some ceremonies difficult or impossible to practice when removed from their original context. At sites that are seen as particularly holy, only certain people are allowed to enter, and protocols are observed as to what behaviors must be observed, or prohibited, at these locations. These beliefs can conflict with the idea that American public lands now exist for the recreational use of all the American people.
The second conflict was the possession by tribal members of ceremonial items considered sacred and in their cultures and an integral part of their ceremonies that are nonetheless restricted under United States law. Eagle feathers or bones are considered necessary for certain ceremonies, yet the birds are protected as a threatened species. The importance of eagle feathers and bones for use in traditional religious ceremonies has been repeatedly cited in cases involving Indian claims on hunting and fishing rights, with petitions being made for exceptions to occasionally hunt for eagles. The Native American Church uses peyote as a sacrament. However, peyote is a legally restricted substance.
The third general area of conflict was an issue of government interference into the sphere of religion. Despite the American laws governing the separation of church and state, Native Americans were not being treated equally under the law, and their sacred ceremonies were often subject to interference from overzealous government officials or curious onlookers.
The act acknowledged prior federal infringement on the rights of American Indians to freedom of religion, and that their First Amendment right of "free exercise" of religion had been denied.
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.
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