American Indian Religious Freedom Act of 1978

There are individuals who believe that medicine men and women should enjoy the same rights as priests, rabbis, and ministers to openly practice their religious beliefs. Conversely, some people consider Indian ceremonies as relics of a primitive lifestyle and advocate for their discontinuation. – Vine Deloria (NARF article)

The idea of religious freedom is often overlooked and assumed in modern society. Many individuals fail to question or appreciate this privilege. For example, Westerners are able to freely practice Catholicism, study the “Koran,” or explore the principles of Zen Buddhism without encountering any negative consequences. On the other hand, Native Americans do not enjoy the same liberty as their religious freedom has been transformed into a concession bestowed upon them by the US government rather than being an inherent right.

Throughout the last 200 years, there has been a significant attempt by the white community to assimilate Native Americans into their own society. This process involved religious persecution and was present from the initial Spanish settlements until the arrival of French, English, and subsequently American colonists. These different groups held diverse religious views and viewed instructing Native Americans about their “God” as a rationale for seizing their land. Consequently, Native American culture eventually blended with the prevailing cultures in their vicinity.

The American Indian religions suffered partial erasure due to the paternalistic attitudes of European colonizers, who legally mandated their suppression. To safeguard the religious rights of American Indians living within the oppressive Western society, the American Indian Religious Freedom Act of 1978 (A.I.R.F.A.) was enacted.

Religious freedom is a defining aspect of Indian culture, deeply intertwined with their heritage and way of life. It goes beyond being a Sunday obligation for salvation, becoming an integral part of who they are. In contrast, the United States’ suppression of indigenous religions can be traced back to Columbus’ arrival in 1492, despite its founding on the principle of seeking religious freedom. The hypocrisy of these actions is even evident within the Constitution.

Despite the First Amendment of the United States Constitution, which prohibits Congress from making laws that establish or restrict religious practices, the American Indian Religious Freedom Act of 1978 was enacted as a response to government policies in the late 1800s. These policies were aimed at undermining indigenous religions and included Interior Secretary Henry M. Teller’s call for an end to ceremonial dances in 1882 due to their perceived obstruction of American civilization (Vecsey 28).

Due to this, the Bureau of Indian Affairs implemented laws that resulted in the imprisonment of any Indian practicing their traditional rituals, for up to thirty days. These laws included restrictions on Indians wearing braided hair and a ban on the sacred sun dance. The government’s determination to suppress Indian religions led to efforts to halt the Ghost Dance religion, fearing it could revive their culture and restore their rightful land. Rather than passing legislation, the government resorted to unnecessary violence to suppress the Ghost Dance. In 1890, the tragic “Wounded Knee” massacre resulted in the loss of 390 lives, including men, women, and children.

Indian religions faced constraints until President Franklin D. Roosevelt appointed John Collier as the Commissioner of Indian Affairs in 1932. During his time in office, Collier worked towards eliminating biases against Indian religious practices. His efforts to combat cultural discrimination highlighted the importance of preserving the rights of Indian religions. However, he made limited progress in changing the existing national ignorance towards Indian religions.

Despite enduring decades of war, social upheaval, and the displacement of Native Americans, their unwavering determination to safeguard their religious beliefs persisted. In the 1970s, spiritual leaders convened in New Mexico to publicly condemn the government’s encroachment on Native American religious rights. This assembly ignited heightened awareness and spurred various tribes to actively advocate for changes in federal laws that would uphold religious freedom. Consequently, Native American groups nationwide initiated campaigns aimed at influencing legislation that would secure protection for their religious rights. In response to these concerted efforts, Senator James Abourezk presented the American Indian Religious Freedom Act of 1978 before the Senate on December 15, 1977.

The bill was approved by the Senate with support from Indians and Hawaiians concerned about religious oppression. During the Senate hearings, Larry Simms, a representative from the Justice Department, raised two concerns on behalf of the administration. The first concern was that the bill required federal agencies to use national resources to protect Native religions. The second concern was ensuring compliance with existing federal laws that disregarded the Equal Protection and Establishment Clauses. Abourezk argued that the bill would change current federal laws and regulations, leading to its eventual acceptance. Consequently, the Senate unanimously passed the bill.

The bill faced opposition in the House despite receiving positive feedback in the Senate. Concerns were raised about potential violations of the Equal Protection and Establishment Clauses. Some individuals disagreed because they believed it would allow religious access to privately owned lands, which could harm protected wildlife and involve dangerous drugs. During Senate hearings, Abourezk argued that the bill would strengthen the First Amendment by providing regulated legal options for tribes. Eventually, without any further modifications, the bill was approved with a vote of 377 to 81 in the House. On August 12, 1978, President Jimmy Carter signed it into law and recognized its significance.

Historically, government agencies and departments have restricted Native Americans’ access to specific areas and disrupted their religious practices, according to Carter (1979). However, the United States now has a policy in place that safeguards the fundamental rights of American Indian, Eskimo, Aleut, and Native Hawaiian individuals. This policy allows them to freely practice their beliefs, express themselves, and engage in traditional religion. According to Carter’s explanation (Vecsey 30), this policy does not intend to supersede existing laws but rather aims to prevent any governmental actions that might infringe upon constitutional protections.

Carter not only approved the bill but also established a task force. This task force included nine federal agencies, such as the Bureau of Indian Affairs and the American Indian Law Center. Its objective was to pinpoint necessary legislative modifications in federal agencies and regulations regarding Native American religious freedom. As a result, all federal agencies were instructed by the task force to assess their policies under the new act and conduct ten hearings across the country.

In 1979, the task force submitted its conclusive report to Congress, which included suggestions concerning cemeteries, sacred objects, ceremonies, and sacred land. Nevertheless, little advancement has been achieved by these task forces since that time. Certain federal agencies such as the Fish and Wildlife Service, the Department of The Navy, and the Customs Service have made slight concessions to accommodate religious practices.

The House Subcommittee of Civil and Constitutional Rights convened in June 1982 to address the persisting issues concerning American Indian religious freedom. Despite the existence of the A.I.R.F.A, both Native Americans and government representatives stressed the government’s neglect for the law and congress’s inability to rectify religious infringements through legislative amendments. While these committee hearings sought to increase awareness about Indian religious freedom, they failed to result in any beneficial alterations to legislation.

After six years, Congress finally addressed the insufficiency of the A.I.R.F.A. In March 1988, Senators DeConcini, Inouye, and Cranston introduced a bill (S.2250,100th Cong.,2nd Sess. 1988) to ensure that Federal lands are administered in a way that does not hinder the practice of traditional American Indian religion (Vecsey 30). This proposed legislation upheld and strengthened the A.I.R.F.A by adding a new provision which stated,

“Federal lands that have been historically essential to a traditional American Indian religion shall not be managed in a way that would greatly hinder or interfere with the exercise or practice of such religion, unless there are compelling governmental interests of the highest order” (Vecsey 30).

In the future, additional sections will be added to strengthen the American Indian Religious Freedom Act (A.I.R.F.A), including a promising new section. The A.I.R.F.A of 1978 has three interpretations, with the Supreme Court adopting the first and foremost interpretation in 1988. According to this interpretation, the A.I.R.F.A is a policy statement that instructs the executive branch to review its procedures and regulations (Vecsey 31). Therefore, the Act itself does not mandate concrete changes but directs federal agencies to consider how their actions impact Indian religious rights based on societal needs.

According to Vecsey (31), there are two interpretations of the act which grant Indian individuals with real claims. These claims may be considered constitutional or statutory. Some lower courts believe that the A.I.R.F.A. only reinforces the first amendment rights already given to Indian plaintiffs and does not provide any additional statutory rights. However, other courts argue that the A.I.R.F.A. gives tribes an extra statutory claim to religious freedom in addition to their constitutionally guaranteed First Amendment Rights.

While the third interpretation, which has the broadest scope, regards the A.I.R.F.A. as a regulated acknowledgement of the federal government’s responsibility to safeguard and conserve the culture and religion of the American Indian.

Despite the hopeful and positive nature of the three interpretations, they do not aim to fully restore the legal status of American Indian Religions in all aspects. The Supreme Court has introduced various loopholes while adding sections to the existing Act of 1978. By providing ambiguous room for modifications within the A.I.R.F.A., there is ample opportunity for progress and enhancement.

Despite being intended for the positive progression of American Indian religions, the A.I.R.F.A. has more cons than pros. When it comes to American laws, there are three aspects of the Act that urgently require improvements:

1. “When Indians are accused of criminal activity: transporting or ingesting peyote(Lophophora williamsii); hunting animals out of season or killing endangered species; or when Indians are prohibited from expressing features of their Indian way of life (e.g., braided hair), or participating in Indian rituals such as sweats or pipe ceremonies especially in the confines of institutions such as prisons or schools.
2. When revered artifacts are kept from the communities that use them religiously andare displayed against their will; or, when Indian bodily remains are taken from burial grounds and treated in a manner perceived by Indians as sacrilegious.
3. When Indians encounter governmental policies or private enterprises, the results of which may endanger Indian religious traditions; when a dam will make inaccessible a pilgrimage site or burial ground; when a road, power line, or resort will create inappropriate activities in a sacred site, etc.”(Vecsey 8)

Despite its intention to protect Indian religious rights, it is evident that A.I.R.F.A. does not always fulfill this role, as seen in the case of Badoni v. Higginson, 2d I79 (10th Cir. 1980). This particular case revolved around the preservation of the sacred shrine of the Navajo tribe. A faction of Navajo medicine men sought exclusive rights to the Rainbow Bridge area in Utah for their ceremonies, requiring the removal of a tourist boating dock.

According to Deloria and Lytle (239), the Court of Appeal for the 10th Circuit determined that accommodating the religious practices of the Navajo at Rainbow Bridge would violate the Establishment Clause of the First Amendment. This is because it would turn Rainbow Bridge into a government-managed shrine. Consequently, the Navajos lost the case as providing government protection specifically for their religious needs would give them preferential treatment compared to other religious groups.

Despite the Act of 78 lacking support for American Indian religions, it has still been effective in protecting Native rights. One example is the court case People v. Woody (1964) where the First Amendment’s Free Exercise Clause was used to defend a man’s religious use of peyote.

A group of Navajos convened in a hogan near Needles, California for a religious ritual involving peyote. Regrettably, they were apprehended and detained due to violating the state’s ban on peyote usage. Nonetheless, being members of the Native American Church, they contested their detainment and effectively argued that their consumption of peyote was an integral part of their religious practices and therefore protected under the Free Exercise Clause. This case significantly contributed to highlighting the importance of preserving Indigenous spiritual traditions, ultimately leading to the passing of the American Indian Religious Freedom Act (A.I.R.F.A.) in 1978.

The American Indian Religious Freedom Act of 1978 is the legal foundation for religious ceremonies in the United States. Over time, this act has been revised multiple times. In 1993, a modified version known as the Native American Free Exercise of Religion Act was enacted to address various issues such as sacred sites, peyote use, rights of Indian prisoners, and religious use of eagles, plants, and animals. These revisions aim to enhance the freedom and allowances provided to American Indian religious rituals by lessening constraints on sacred practices.

The possibilities for applying these amendments to the Act of 78 are limitless. Unless the US recognizes the significance of offering diverse accommodations for Native American religions to be freely practiced, genuine diversity and a complex spiritual society will remain unattainable in this nation.

A.I.R.F.A. has gained increasing support over the past two decades, as it addresses three key areas of conflict between American Indian religions and the government: involvement in criminal activity, protection of sacred objects, and preservation of sacred sites. These issues frequently result in legal battles and necessitate extensive reforms to safeguard the religious freedom of American Indians.

The American Indian in the United States is facing challenges in their struggle for religious freedom. According to Sherman Alexie, author of “The Lone Ranger and Tonto Fistfight in Heaven,” their fight for preservation of their religion is evident. Alexie’s quote emphasizes that while an individual may not wear a watch, their skeletons metaphorically represent memories, dreams, and voices that always know the importance of preserving their culture (21).

The watch symbolizes the enforced assimilation of Native Americans, as their indigenous religions gradually disappear. The skeleton represents what remains of Native American beliefs if further diplomatic changes continue to destroy their fundamental traditions.

Reference

1. Alexie, Sherman. The Lone Ranger and Tonto Fist Fight in Heaven. New York: Harper, 1993.
2. Deloria, Vine. “American Indian Religious Freedom.” Native American Rights Fund Winter 1997. Earthlink. 10 Oct. 00*Http://www.Narf.org/nill/resources/ar/justice1.html*.
3. Deloria, Vine and Clifford M. Lylte. American Indians, American Justice. Austin: Texas Press, 1983.
4. Foster, Len. “Native American Prisoners’ Religious Freedom.” Religious Intolerance Against Indian Religion Mar 15, 1998. Earthlink. 10 Oct. 00 * Http://www.theofficenet.cpm/~redorman/lfoster2.html*.
5. Public Law 95-341-August 11, 1978 – 92 Stat. 469 95th Congress * Joint Resolution. “American Indian Religious Freedom Act.” Friends of Moccasin Bend National
6. Park Nov 7, 1998. Earthlink. 12 Oct. 00 *Http://www.Chattanooga.net/fmbnp/AIRF.htm*.
7. Public Law 103-344, 108 STAT.3124 Passed by 103rd Congress “American Indian Religious Freedom Act of 1994.” The Vaults of the Erowid. Oct 29, 00. Earthlink. 10 Oct. 00 *Http://www.erowid.org/freedom/religious/airfaq.shtml*.
8. Vecsey, Christopher. The Handbook of American Indian Religious Freedom. New York: Crossroad, 1991.
9. Wilson, Tracy. “Authorities Return Peyote to Indians in Ventura County.” The Vaults of the Erowid Oct. 29, 00. Earthlink. 12 Oct. 00 *Http://www.erowid.org/plants/peyote/peyote_media5.shtml*.