American Indian Religious Freedom Act of 1978

Congress announced that the policy of the United States was to ‘‘protect and preserve’’ the rights of American Indians, Alaskan Natives, and Native Hawaiians ‘‘to believe, express, and exercise’’ their ‘‘traditional religions’’ in a joint resolution adopted in 1978, now known as the American Indian Religious Freedom Act (AIRFA). The AIRFA defined the practice of ‘‘traditional religions’’ to include, without limitation, ‘‘access to sites, use and possession of sacred objects, the freedom to worship through ceremonials and traditional rites.’’

The impetus for the AIRFA was a study conducted by the House of Representatives that concluded the federal government was restricting Indian religious freedom in at least three ways. First, federal agencies such as the U.S. Forest Service, National Park Service, and the Bureau of Land Management frequently prevented Indians from entering federal land where sacred sites were located. Moreover, the agencies refused to allow the burial of tribal leaders in tribal cemeteries located on federal land. Second, federal law-enforcement officials regularly confiscated substances, such as peyote, used by Indians for religious purposes, even though federal cases had protected the use of these substances as a bona fide religious sacrament. Federal officials also confiscated the use of animal parts from endangered species, such as turkey and eagle feathers, that Indians used in religious ceremonies.

Third, the House found that federal agents directly and indirectly interfered with tribal ceremonies and religious practices. For example, federal officers had a long history of opposing and restricting the practice of tribal religions through the enforcement of Bureau of Indian Affairs-authored reservation law-and-order codes that flatly prohibited most tribal religious ceremonies. These law-and-order codes were enforced in the Courts of Indian Offenses, with judges handpicked by federal officers. Federal courts in cases such as United States v. Clapox, 35 F. 575 (D. Or. 1888), upheld federal regulations, thus allowing the prosecution of Indians engaging in traditional religious practices. On-reservation federal Indian agents, as a matter of administrative practice, obstinately remained on the grounds at Rio Grande pueblos during religious ceremonies requiring that no non-Indian be present. Federal law-enforcement officers would also do little or nothing to stop unwelcome on-lookers from interfering in tribal religious ceremonies. The House also found that federal officials had directly interfered or allowed interference in tribal religious practices because the officials rejected Indian religions.

As a mere joint resolution, the AIRFA does not have the full force of federal law. Importantly, it did not include an enforcement and penalty provision. This status has undermined the effectiveness of the act in tough cases, such as Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). There, the Supreme Court upheld a federal road project that would cut through the heart of tribal sacred sites located near the Hoopa Valley Reservation in California, even though the Ninth Circuit had determined that the project would destroy areas central to the religions of the Yurok, Karuk, and Tolowa tribes. The Court refused to enforce the act, largely because, without an enforcement clause, it had ‘‘no teeth in it.’’

The Court evinced greater hostility to tribal religious practices in Employment Division v. Smith, 494 U.S. 872 (1990). There, the state of Oregon denied unemployment benefits to individuals who had been fired for good cause. The state denied benefits to two Indians who had been fired for using peyote as a religious sacrament outside of work. The Court upheld the regulation on the theory that the regulation was a neutral law not designed to restrict religion. As such, the Court applied the rational basis test to scrutinize Oregon’s action under the free exercise clause.

Congress attempted to reverse the holding in Smith and other freedom of religion cases by enacting the Religious Freedom Restoration Act (RFRA). This statute would require the Court to apply a compelling interest test, but the Court struck it down in City of Boerne v. Flores, 521 U.S. 507 (1997), as applied to state and local governments.

In 1996, President Clinton issued Executive Order No. 13007 that requires all federal agencies to accommodate access to sacred sites for Indian religious practitioners and avoid negatively affecting those sites. This executive order also does not contain an enforcement provision. In short, the AIRFA, along with Executive Order No. 13007, is little more than the imposition of a duty on federal agencies to take into consideration tribal interests, to consult with tribal leaders on the subject of Indian religion, and not to interfere with tribal religious practices.

MATTHEW L. M. FLETCHER

References and Further Reading

• Carpenter, Kristen A., A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, UCLA Law Review 52 (2005): 4:1061–1148
• Cohen, Felix S., The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy, Yale Law Journal 62 (1953): 3:348–390
• Epps, Garrett. To an Unknown God: Religious Freedom on Trial. New York: St. Martin’s Press, 2001
• Petoskey, John. ‘‘Indians and the First Amendment.’’ In American Indian Policy in the Twentieth Century, Vine Deloria, Jr., ed. Norman: University of Oklahoma Press, 1985, 221–238
• Pevar, Stephen L. The Rights of Indians and Tribes, 3rd. ed., Carbondale and Edwardsville: University of Southern Illinois Press, 2002, 260–266

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507 (1997) 
• Employment Division v. Smith, 494 U.S. 872 (1990) 
• Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) 
• Native American Church of New York v. United States, 468 F. Supp. 1247 (S.D. N.Y. 1979), aff’d, 633 F.2d 205 (2nd Cir. 1980) 
• People v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 814 (1964) 
• United States v. Clapox, 35 F. 575 (D. Or. 1888) 
• Wilson v. Block, 708 F.2d 735 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983) 
• American Indian Religious Freedom Act, S.J. Res. 102, Aug. 11, 1978, Pub. L. 95-341, 92 Stat. 469, codified in part 42 U.S.C. § 1996 
• Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq 

See also Accommodation of Religion; City of Boerne v. Flores, 521 U.S. 507 (1997); Drugs, Religion, and Law; Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Native Americans and Religious Liberty; Religious Freedom Restoration Act