American Indian Religious Freedom Act

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AMERICAN INDIAN RELIGIOUS FREEDOM ACT

AMERICAN INDIAN RELIGIOUS FREEDOM ACT. Passed in 1978 by both houses of Congress, the American Indian Religious Freedom Act (AIRFA), recognized the "inherent right" of American citizens to religious freedom; admitted that in the past the U.S. government had not protected the religious freedom of American Indians; proclaimed the "indispensable and irreplaceable" role of religion "as an integral part of Indian life"; and called upon governmental agencies to "protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions." The resolution referred specifically to Indians' access to sacred sites, the use of natural resources normally protected by conservation laws, and participation in traditional Indian ceremonies.

AIRFA was enacted at a high-water mark of federal concern for American Indians, a time when U.S. policy-makers were recognizing the validity of Indian claims to land and sovereignty and were acknowledging the history of U.S. mistreatment of Indian tribes. Progressives, who saw government as an instrument for assisting the disadvantaged, passed AIRFA as a corrective measure.

Observers have noted that AIRFA was construed too broadly and thus had "no teeth," and several court cases seemed to bear out this assessment. In a California case, Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court ruled that Indian tribes' "practice of religion" would not be endangered by building a road through heavily forested public lands used for vision questing. In addition, AIRFA did not protect the Navajo sacred sites Chimney Rock and Rainbow Arch in Utah from disruptive tourist boats, the Hopi sacred site San Francisco Peaks in Arizona from the construction of ski resorts, or the Apache sacred site Mount Graham in Arizona from an astronomical observatory. In an Oregon case, Employment Division v. Smith (1990), the Supreme Court ruled that minority religions like the Native American Church, the peyote religion, cannot expect special protection from general laws, for example, against controlled substances, passed by the states, and the states do not have to defend their need for such laws, even when they infringe upon Indian religious practices. Following the unpopular Smith decision, a number of states enacted legislative exemptions for peyote use. In 1993, Congress tried to overturn Smith by passing the Religious Freedom Restoration Act, but the Supreme Court struck down the act in 1997, saying Congress lacks the authority to engage in judicial review.

Failures notwithstanding, AIRFA encouraged Indian tribes to press for their religious prerogatives, for example, at Bighorn Medicine Wheel and Devils Tower, Wyoming, in both cases enlisting the assistance of federal agencies in the protection of Indian religious practices on public lands. When Coast Salish tribes harvested cedars on public land to conduct their Paddle to Seattle (1989) and when the Makah tribe carried out its historic whale hunt (1999), they cited AIRFA as inspiration for their culturally restorative activities. AIRFA led also to the passage of other, more effective resolutions, such as the National Museum of the American Indian Act (1989), the Native American Graves Protection and Repatriation Act (1990), the Native American Language Act (1992), and President William Clinton's Executive Order No. 13007 (1996), which aims to protect Native American religious practices on public lands by ordering federal agencies, including the Bureau of Land Management, the U.S. Forest Service, and the National Park Service, to consult Indians in the management of their sacred sites.