The American Indian Religious Freedom Act, Public Law No. 95–341, 92 Stat. 469 (Aug. 11, 1978) (commonly abbreviated to AIRFA), codified at , is a United States federal law, enacted by joint resolution of the Congress in 1978. Prior to the act, many aspects of Native American religions and cultures had been prohibited by law.Powell, Jay; & Jensen, Vickie. (1976). Quileute: An introduction to the Indians of La Push. Seattle: University of Washington Press. (Cited in Bright 1984).
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.Canby, John C. Jr. American Indian Law in A Nutshell. West Publishing Company, 1988. Pg. 339, 340.
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.Christopher Vacsey, Handbook of American Indian Religious Freedom (New York: Crossroad Press, 1991).
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.Getches, David, Wilkinson, Charles F., Williams, Robert A. Jr. Cases and Materials on Federal Indian Law, Fifth Edition. West Group, 1998. Pg. 764. 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.Enumeration of areas of conflict from Francis Paul Prucha, The Great Father: The United States Government and the American Indians, volume 2 (Lincoln, Nebraska: University of Nebraska Press, 1984), p. 1127.
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:
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.Utter, Jack. "American Indians: Answers to Today's Question, Second Edition." University of Oklahoma Press, 2001. Pg. 157, 158.
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.Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretations of Sacred Land. Greenwood Press, 1999. pp. 6, 7. 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.Duthu, N. Bruce. American Indians and the Law, The Penguin Group, 2008. P. 110.
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.Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretations of Sacred Land. Greenwood Press, 1999. Pg 125 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.Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretations of Sacred Land. Greenwood Press, 1999. Pg. 126 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.