THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978
The American Indian Religious Freedom Act of 1978
“Some people want the medicine man and woman to share their religious belief in the same manner that priests, rabbis, and ministers expound publicly the tenets of their denominations; others feel that Indian ceremonials are remnants of primitive life and should be abandoned.” – Vine Deloria (NARF article)
Religious freedom is an autonomy that most people living in the present take for granted. For most it is a right that they have never had to question. For example, if a westerner wants to practice Catholicism, study the “Koran“, or even master the art of Zen Buddhism he or she is free to do so without suffering any consequences. This is not true for the American Indian. Religious freedom has become more of a gift given to the Indians from the United States government rather than a birthright. In the last two hundred years, the white mans’ desire to assimilate the Indian in to their own culture by refining them through religious persecution can be well noted from the times of the early Spanish settlements all the way through the arrival of the French, English, and ultimately the colonization of the Americans. All four above mentioned groups, with their own religious beliefs, felt that to educate the Indians upon their “God” was an equitable rationalization for taking Indian land, leading to the absorption of the American Indian into the dominating cultures which surrounded them. As a result of the paternalistic attitudes brought with the European colonizers, the American Indian religions were forced by law into partial extinction. The American Indian Religious Freedom Act of 1978 (A.I.R.F.A.) was created to protect the religious rights of American Indians living under the oppression of western society.
For Indians, religious freedom can be seen as their life-blood. It is not a practice seen as a duty they must fulfill to be granted passage into a “heaven” by congregating into a sacred church on Sunday. Religion is their way of life and without it they loose their heritage and ultimately their true identity as a unique and individualistic culture. The United States historical suppression upon the traditional “pagan” religious ways of the American Indian can be traced back all the way to the arrival of Columbus in 1492. Although the immigrants came to this land in search of religious freedom and base their nation upon it, they were reluctant to see the hypocrisy of their own actions. One need look no further than the Constitution itself to find this to be true.
Within the First Amendment of the United States Constitution it clearly states that, “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof,” and should have ruled out the need for the American Indian Religious Freedom Act of 1978 (Vecsey 28). At the end of the 1800’s, government representatives promulgated policies that would deteriorate indigenous religions. In 1882 Interior Secretary Henry M. Teller demanded the end of all ceremonial dances due to their hamper on the United States civilization. As a result of this the Bureau of Indian Affairs enforced laws that would imprison any Indian found practicing their traditional rituals, for as many as thirty days. Among these laws passed was one that would oppress Indians for wearing their hair in braids and another outlawing the sacred sun dance. The government’s determination to further oppress Indian religions, provoked action to put an end to the Ghost Dance religion in fear that it may actually help the Indians to a rebirth of their culture and to be given back the land that was rightfully theirs. Instead of passing a law, the government used unnecessary violence to bring down the curtains upon the Ghost dance. In 1890 the horrific massacre, at “Wounded Knee” resulted in the death of 390 men, women, and children.
Constraints opposing Indian religions carried on until President Franklin D. Roosevelt designated John Collier as the Commissioner of Indian Affairs in 1932. Throughout his term, Collier helped to put an end to the nations’ prejudices of Indian religious practices. Through his valiant efforts to help end cultural discrimination the need to preserve the rights of the Indian religions presented itself. However he did very little to alter the nation’s pre-construed notions of ignorance towards Indian religions.
Throughout the passing of the following thirty years of war, social cataclysm, and termination of the American Indian, the means to protect their religious entity through self-determination continued. In the mid-1970’s, traditional religious leaders met in New Mexico to attest the governments’ transgression upon Indian religious rights. The awareness brought on by the meeting in New Mexico lead to more concrete proposals from Indian tribes demanding more changes in the federal legislation concerning religious freedom. Ultimately, Indian groups across the nation embarked on efforts to lobby for a bill to be passed that would protect Native religious rights. In response, Senator James Abourezk unveiled his American Indian Religious Freedom Act of 1978 into the Senate on December 15, 1977.
Corroborations from Indians as well as Hawaiians upon religious suppression generated Senate support for the bill to be passed. In the Senate hearings, Justice Department spokesman Larry Simms presented two elements of concern from the administration. One, that the bill required federal agencies to protect the Native religions at the nation’s expense. Two, that the act itself would not infringe upon nor conflict with any existing federal laws desecrating the Equal Protection and Establishment Clauses. Abourezk responded that the act would modify existing federal laws and regulations diverting acceptance of the proposal. The result was the Senate approved passage with a unanimous vote.
Although passage of the bill was solid in the Senate, the approval of the House would not come so easily. Many argued that the bill would clash with the Equal Protection and Establishment Clauses. Other representatives rejected the act because it would permit entry onto privately owned lands for ceremonial worship; endangering protected wildlife and allow the use of hazardous drugs. In the following Senate hearings, Abourezk claimed that the bill would be complementing the First Amendment with a regulated cause of action for tribes. The bill then went on to pass the House, with no further revised permutations with a vote of 377 to 81.
On August 12, 1978 President Jimmy Carter signed the bill into law. He recognized the bill’s vital justification by stating,
“In the past Government agencies and departments have…denied Native Americans access to particular sites and interfered with religious practices and customs. It would now be the policy of the United States to protect and preserve the inherent right of American Indian, Eskimo, Aleut, and Native Hawaiian people to believe, express, and exercise their traditional religion..” The act, Carter continued, was “in no way intended to… override existing law, but is designed to prevent Government action that could violate… constitutional protections” -Carter, 1979 (Vecsey 30).
In addition to the bill’s passing, Carter selected a task forces consisting of nine federal agencies which included the Bureau of Indian Affairs and the American Indian Law Center. It was their duty to find the necessary legislative alterations within the federal agencies and regulations concerning the issue of Indian religious freedom. The task force then went on to demand that all federal agencies evaluate their policies in the boundaries of the new act and conduct ten on-site hearings from coast to coast. In 1979 the task force advanced its final report to Congress composed of thirty-seven pages of recommendations for the administrative and legislative changes in regards to cemeteries, sacred objects, ceremonies, and sacred land. To this day very little has been accomplished by these tasks forces with a few minor exceptions amongst the federal agencies like the Fish and Wildlife Service, the Department of The Navy, and the Customs Service in regards to religious practices.
In June of 1982 the House Subcommittee of Civil and Constitutional Rights addressed the never-ending problems that American Indian religious freedom continued to face even though the A.I.R.F.A. had long since been passed. American Indians as well as governmental officials joined together to point out the fact that the federal administration was showing very little if any regard with the law and the failure of congress to set straight religious contraventions via legislative reform. The committee hearings proved to be somewhat of a vehicle for the restoration of attention upon Indian religious freedom, but did not attain any beneficial results to rectify any of the needed changes within the legislation.
Six years passed until Congress challenged the scantiness of the A.I.R.F.A. In March 1988, Senators DeConcini, Inouye, and Cranston introduced legislation “to ensure that Federal lands are managed in a manner that does not impair the exercise of traditional American Indian religion” (S.2250,100th Cong.,2nd Sess. 1988) (Vecsey 30). It was this bill that supported A.I.R.F.A. by implementing a new section that stated,
“Except in cases involving compelling governmental interests of the highest order, Federal lands that have been historically indispensable to a traditional American Indian religion shall not be managed in a manner that would seriously impair to interfere with the exercise or practice of such traditional American Indian religion” (Vecsey 30).
Consequently this new promising section was just one of the few of that would be added in the years to come that would further strengthen the A.I.R.F.A. The American Indian Religious Freedom Act of 1978 has three interpretations. The first and foremost being adopted by the Supreme Court in 1988 states that, “A.I.R.F.A. merely represents a policy statement directing the executive branch to review its procedures and regulations” (Vecsey 31). Thus meaning that the Act itself does not order tangible alterations, but directs federal agencies to take regard, in alliance with the needs of the society, the consequences of their conduct within the realm of Indian religious rights.
“The second interpretation of the act provides Indian individuals with real claims. Such claims are subject to being considered constitutional or statutory in nature. Several lower courts have held that A.I.R.F.A. only lends support to those guarantees already provided to Indian plaintiffs by the first amendment, that the act provides no additional statutory rights. Other courts have ruled that A.I.R.F.A. provides tribes with a statutory claim to religious freedom that is in addition to their constitutionally guaranteed First Amendment Rights” (Vecsey 31).
Whereas the third interpretation being the furthest reaching perceives the A.I.R.F.A. as a regulated recognition of the federal government’s trust obligation to protect and preserve the culture and religion of the American Indian.
Although the three interpretations appear to be hopeful and positive in nature, they do not fully intend to legally revitalize the practice of American Indian Religions in all aspects. The Supreme Court left many loopholes when creating these added sections to the existing Act of 1978. By allowing such ambiguous room for alterations within the A.I.R.F.A., there is definitely more than enough space for progress and improvement.
Regardless of the fact that the A.I.R.F.A. itself stands for the positive progression for the liberation of American Indian religions, its’ cons heavily outweigh the supports of its’ intentions. When confronted by the American laws there are three ramifications of the Act that are in need of dire 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 the fact that A.I.R.F.A. was created to protect all of the preceding rights of Indian religious beliefs and practices it obviously can be noted that it would be a mistake to believe so when studying the case of Badoni v. Higginson, 2d I79 (10th Cir. 1980). This case dealt with this issue of the preservation of a sacred shrine of the Navajo tribe. A group of Navajo medicine men sought sole use of the Rainbow Bridge area in Utah for ceremonies. In doing so they needed to remove a boating dock used for tourism. “The Court of Appeal for the 10th Circuit ruled that to accommodate the religious practices of the Navajo at Rainbow Bridge itself would be a violation of the Establishment Clause of the First Amendment since Rainbow Bridge would then become a government-managed shrine” (Deloria and Lytle 239). In conclusion the Navajos lost the case on basis that the provided protection needed from the government would be catering to their religious needs, thus favorably distinguishing them apart from other religious groups.
In comparison to the negative issues that revolve around the Act of 78 having very little if any support for the practice of American Indian religions, there have been numerous accounts in which it has helped to protect Native rights and accomplish what it was created to do. In the court case of People v. Woody (1964), before the American Indian Religious Freedom Act had been created; the use of the Free Exercise Clause of the First Amendment surfaced to help protect an innocent man from being arrested for his religious use of peyote. Meeting in a hogan near Needles, California, a group of Navajos gathered to conduct a religious ceremony that involved the use of peyote. They were then arrested for violating the California law, which prohibited its use. Being members of the Native American Church, they attested their arrest and were set free on grounds that peyote use was part of their religion and are protected by the Free Exercise Clause. It was this case that acted as a catalyst for the further need of Indian religious protection and ultimately leading up to necessity for A.I.R.F.A. of 1978.
As of now, the American Indian Religious Freedom Act of 1978 remains to be the grounds of legality for all religious rituals that coincide with the United States jurisprudence. Since it has been signed as a bill, the A.I.R.F.A. continues to be further amended. In 1993, a similar yet revised Act of 78 known as the Native American Free Exercise of Religion Act was put into effect. It covers the issues of sacred sites, traditional use of peyote, Indian prisoner rights, and religious use of eagles, plants and other animals. This policy further extends the rights of American Indian religious rituals by granting less restriction upon sacred practices. The applications of such amendments to the Act of 78 remain to be never ending. Until the United States recognizes the need for the numerous accommodations that are necessary for free practice of the American Indian religions, this nation will never be a truly diverse and multi-faceted spiritual society.
Throughout the past twenty-two years, the progression of A.I.R.F.A. has been rolling along slowly but surely due to the widespread support that it receives. Concentrating on three main circumstances in which the practice of the American Indian religions has gone toe to toe with the government, revolving around the issues of Indians and criminal activity, sacred objects, and sacred sites. These are the three ramifications that are most commonly to appear in court and in need of drastic change in order for the American Indian to be allowed to practice religion freely.
The struggle for the right to religious freedom in the United States as presented through government diplomacy leaves the American Indian struggling for a better means of the preservation of their religion. Sherman Alexie, the author of “The Lone Ranger and Tonto Fistfight in Heaven” writes “Maybe you don’t wear a watch, but your skeletons do, and they always know what time it is. Now, these skeletons are made of memories, dreams, and voices. (21)” This quote perfectly illustrates the Native American struggle to preserve what little they have left of their religion. The watch representing the culturally forced assimilation upon the Indians, counting the time that passes as the indigenous religions fade closer and closer to extinction. While the skeleton is representative of all that may be left of the Native American religion if further diplomatic alterations continue to devour their life-blood traditions.
Alexie, Sherman. The Lone Ranger and Tonto Fist Fight in Heaven. New York: Harper, 1993.
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*.
Deloria, Vine and Clifford M. Lylte. American Indians, American Justice. Austin: Texas Press, 1983.
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*.
Public Law 95-341-August 11, 1978 – 92 Stat. 469 95th Congress * Joint Resolution. “American Indian Religious Freedom Act.” Friends of Moccasin Bend National
Park Nov 7, 1998. Earthlink. 12 Oct. 00 *Http://www.Chattanooga.net/fmbnp/AIRF.htm*.
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*.
Vecsey, Christopher. The Handbook of American Indian Religious Freedom. New York: Crossroad, 1991.
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*.