13.1 American Indian Religious Freedom Act and Sacred Sites Protection

Religious freedom for Native Americans is a complex issue, balancing constitutional rights with cultural preservation. The American Indian Religious Freedom Act of 1978 aimed to protect traditional practices, while Executive Order 13007 focused on sacred site access.

Legal challenges like Lyng v. Northwest Indian Cemetery and Employment Division v. Smith highlighted limitations in religious protections. This led to further legislation like the Religious Freedom Restoration Act and efforts to safeguard sacred objects and cultural items.

American Indian Religious Freedom Act (AIRFA)

Legislative Protection of Native American Religious Practices

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• American Indian Religious Freedom Act (AIRFA) enacted in 1978 to protect and preserve the traditional religious rights and cultural practices of American Indians, Eskimos, Aleuts, and Native Hawaiians
• AIRFA is based on the free exercise clause of the First Amendment, which guarantees the right to practice one's religion free from government interference
• The First Amendment to the U.S. Constitution prohibits Congress from making laws that establish religion or prohibit free exercise of religion, which extends to Native American religious practices
• AIRFA aimed to ensure that traditional religious practices of Native Americans were protected, including access to sacred sites, use and possession of sacred objects, and freedom to worship through ceremonial and traditional rites
• The act requires federal agencies to evaluate their policies and procedures in consultation with native traditional religious leaders to determine changes necessary to protect and preserve Native American religious cultural rights and practices
• Freedom of worship is a fundamental human right, and AIRFA sought to safeguard this right for Native Americans by requiring federal agencies to accommodate tribal religious practices and consult with tribes on policies that may impact their religious traditions

Protection of Sacred Sites

Preserving Access to Sacred Sites

• Sacred sites are areas of land with religious or cultural significance to Native American tribes, often used for ceremonies, gatherings, and spiritual practices
• Many sacred sites are located on federal lands, and tribes have advocated for protection of these sites and guaranteed access for religious and cultural purposes
• Executive Order 13007, issued in 1996, requires federal agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sacred sites
• The order also requires agencies to maintain the confidentiality of sacred sites and consult with tribes on policies that may impact these sites
• In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court ruled that the Free Exercise Clause does not prohibit the government from permitting timber harvesting and road construction in a national forest that would destroy an area used for religious purposes by Native Americans
• The Lyng decision highlighted the limitations of First Amendment protections for sacred sites and led to increased efforts to secure legislative and administrative protections for these areas

Native American Church and Peyote Use

• The Native American Church is an intertribal religious organization that incorporates elements of Christianity with traditional Native American spiritual practices
• A central sacrament of the Native American Church is the use of peyote, a small cactus containing psychoactive alkaloids, in religious ceremonies
• Peyote has been used for centuries by indigenous peoples in Mexico and the American Southwest for spiritual and medicinal purposes
• The use and possession of peyote is restricted under federal and state drug laws, but the Native American Church has sought legal exemptions for religious use
• In Employment Division v. Smith (1990), the Supreme Court ruled that the state of Oregon could deny unemployment benefits to individuals fired for using peyote in Native American Church ceremonies
• The Smith decision led to the passage of the Religious Freedom Restoration Act (RFRA) in 1993, which requires the government to demonstrate a compelling interest and use the least restrictive means when burdening religious practices

Protection of Sacred Objects and Cultural Items

• Native American tribes have long sought to protect sacred objects and cultural items from theft, desecration, and illegal trafficking
• Sacred objects may include items such as ceremonial regalia, prayer sticks, pipes, and medicine bundles, which are vital to the practice of traditional Native American religions
• The Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990, requires federal agencies and institutions that receive federal funding to return Native American cultural items, including human remains, funerary objects, sacred objects, and objects of cultural patrimony, to lineal descendants or culturally affiliated tribes
• NAGPRA also establishes procedures for the inadvertent discovery or intentional excavation of Native American cultural items on federal or tribal lands and criminalizes the trafficking of these items
• The use and possession of sacred objects is central to many Native American religious practices, and legal protections aim to ensure that tribes can maintain and use these objects without interference or threat of prosecution