American Indian Religious Freedom Act

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The American Indian Religious Freedom Act (commonly abbreviated to AIRFA) is a 1978 United States federal law and a joint resolution of Congress which pledged to protect and preserve the traditional religious rights of American Indians, Eskimos, Aleuts, and Native Hawaiians.^[1] Before the AIRFA was passed, certain U.S. federal laws interfered with the traditional religious practices of many American Indians. The Act led to a number of changes in government policies, but critics argue that the Act was inadequately enforced and that additional reforms are still needed.

Contents 1 Passage 2 Effects 3 Criticism 4 Notes and references 5 External links

[edit] Passage

Due to the complex nature of American Indian religious beliefs, American Indian religion was often at odds with existing federal laws and government policies. There were three general areas of conflict. Firstly, American Indians did not have access to a number of sacred places that were used in religious ceremonies because these sites had been designated as national parks or other federal lands. Because of this, American Indian religious practices often came into conflict with the idea that American public lands exist for the use and benefit of the American people. ^[2] Another conflict was the restriction of sacred items. Certain essential ceremonial items, such as eagle feathers or bones (protected as an endangered species) or peyote (a restricted drug), were restricted. The third general area of conflict was an issue of interference. Sacred ceremonies were sometimes subject to interference from overzealous officials or curious onlookers.^[3]

The act itself was more a policy statement, and it acknowledged prior infringement on the right of freedom of religion for American Indians by denying them their First Amendment right of "free exercise" of religion.^[4][5] President Jimmy Carter said, in a statement about the AIRFA, a very similar thing:

In the past, Government agencies and departments have on occasion denied Native Americans access to particular sites and interfered with religious practices and customs where such use conflicted with Federal regulations. In many instances, the Federal officials responsible for the enforcement of these regulations were unaware of the nature of traditional native religious practices and, consequently, of the degree to which their agencies interfered with such practices.

This legislation seeks to remedy this situation.^[6]

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. ^[7]

[edit] Effects

The 1994 amendment to the act made it legal for peyote to be used for ceremonial purposes in connection with the practice of traditional American Indian religion. ^[8]

There are two court cases, both decided by the Supreme Court, which have become benchmarks in American Indian religious freedom issues.

In the case of Lyng v. Northwest Indian Cemetery Protective Association ^[9] a logging company wanted to build a road through forest areas where Karok, Tolowa, and Yokuts tribes searched for their spiritual powers. The case resulted in a decision by the Supreme Court that the logging company, for the greater economic good of the American society, had the right to build the road. ^[10]

The AIRFA again came into direct legal proceedings during the case of Employment Division v. Smith in the late 1980s and early 1990s. The case was originally a unemployment compensation claim, which had been denied to two workers at a drug rehabilitation centre. The pair were fired when found using peyote, which they had used as part of their traditional worship service. The case became more serious when the pair argued that the denial of benefits was, in effect, a form of religious persecution and infringed their first amendment rights because they were Native Americans who used the peyote ceremonially, opposed to recreational use. However, the Supreme Court judged that the Oregon law was constitutional, and therefore, the denial of unemployment benefits was permissible. ^[11]

In 1993, the Religious Freedom Restoration Act seemed to contradict this judgement, stating that the Government should not “substantially burden a person’s exercise of religion.” ^[12] The case was also part of the reason for the 1994 amendments.

The AIRFA laid the groundwork for federal museums returning Native human remains and sacred objects back to the American Indians, which led to the Native American Graves Protection and Repatriation Act in 1990. The Native American Graves Protection and Repatriation Act saw many sacred and culturally important objects returned to the American Indians.

[edit] Criticism

One of the major criticisms of the AIRFA is its failure to protect certain sacred sites of the American Indians ^[13]. Due to this, it is argued that the freedom of religious belief for American Indians is still not being protected. ^[14] Another criticism of the AIRFA is that Federal Prisons do not give American Indians the same fair treatment as other ethnic or religious groups; however, this argument fails to recognize that the legislation's validity is based on the government to government relationship the Federal Government has with Indian Tribes. The rights to possess tobacco and prayer pipes, burn cedar and sage, and grow long hair are all banned in prison. ^[15]

[edit] Notes and references

[edit] External links

• President Jimmy Carter commenting on the AIRFA, August 12th, 1978
• A Quaker critique of the AIRFA