American Indian Religious Freedom Act
Public Law 95-341
92 Stat. 469
Aug 11, 1978
American Indian Religious Freedom
[S.J. Res. 102]
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
American Indian Religious Freedom. 42 USC 1996.
[S.J. Res. 102]
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
American Indian Religious Freedom. 42 USC 1996.
AIRFA affirms the right of Native Americans to have access to their sacred places. If a place of religious importance to American Indians may be affected by an undertaking, AIRFA promotes consultation with Indian religious practitioners, which may be coordinated with Section 106 consultation. Amendments to Section 101 of NHPA in 1992 strengthened the interface between AIRFA and NHPA by clarifying that:
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Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register.
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In carrying out its responsibilities under Section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A). [16 U.S.C. 470a (a)(6)(A) and (B)].
See ACHP on relations to 106 and ACHP Criteria
Title 42 The Public Health and Welfare
Chapter 21 Civil Rights
Subchapter 1 Generally
§1996 Protection and preservation of traditional religions of Native Americans
TITLE 42 > CHAPTER 21 > SUBCHAPTER I > § 1996§ 1996. Protection and preservation of traditional religions of Native Americans
On and after August 11, 1978, it shall be the policy of the United States to
protect and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the American
Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to
access to sites, use and possession of sacred objects, and the freedom to
worship through ceremonials and traditional rites.
§ 1996a. Traditional Indian religious use of peyote
(a) Congressional
findings and declarations
The Congress finds and declares that-
(1) for
many Indian people, the traditional ceremonial use of the peyote cactus as
a religious sacrament has for centuries been integral to a way of life,
and significant in perpetuating Indian tribes and cultures;
(3) while
at least 28 States have enacted laws which are similar to, or are in
conformance with, the Federal regulation which protects the ceremonial use
of peyote by Indian religious practitioners, 22 States have not done so,
and this lack of uniformity has created hardship for Indian people who
participate in such religious ceremonies;
(4) the
Supreme Court of the United States, in the case of Employment Division v.
Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect
Indian practitioners who use peyote in Indian religious ceremonies, and
also raised uncertainty whether this religious practice would be protected
under the compelling State interest standard; and
(b) Use,
possession, or transportation of peyote
(1) Notwithstanding
any other provision of law, the use, possession, or transportation of
peyote by an Indian for bona fide traditional ceremonial purposes in
connection with the practice of a traditional Indian religion is lawful,
and shall not be prohibited by the United States or any State. No Indian
shall be penalized or discriminated against on the basis of such use,
possession or transportation, including, but not limited to, denial of
otherwise applicable benefits under public assistance programs.
(2) This
section does not prohibit such reasonable regulation and registration by
the Drug Enforcement Administration of those persons who cultivate,
harvest, or distribute peyote as may be consistent with the purposes of
this section and section 1996
of this title.
(3) This
section does not prohibit application of the provisions of section
481.111(a) of Vernon's Texas Health and Safety Code Annotated, in effect
on October 6, 1994, insofar as those provisions pertain to the
cultivation, harvest, and distribution of peyote.
(4) Nothing
in this section shall prohibit any Federal department or agency, in
carrying out its statutory responsibilities and functions, from
promulgating regulations establishing reasonable limitations on the use or
ingestion of peyote prior to or during the performance of duties by sworn
law enforcement officers or personnel directly involved in public
transportation or any other safety-sensitive positions where the
performance of such duties may be adversely affected by such use or
ingestion. Such regulations shall be adopted only after consultation with
representatives of traditional Indian religions for which the sacramental
use of peyote is integral to their practice. Any regulation promulgated
pursuant to this section shall be subject to the balancing test set forth
in section 3 of the Religious Freedom Restoration Act (Public Law
103-141; 42
U.S.C. 2000bb-1).
(5) This
section shall not be construed as requiring prison authorities to permit,
nor shall it be construed to prohibit prison authorities from permitting,
access to peyote by Indians while incarcerated within Federal or State
prison facilities.
(6) Subject
to the provisions of the Religious Freedom Restoration Act (Public Law
103-141; 42
U.S.C. 2000bb-1)
[42
U.S.C. 2000bb
et seq.], this section shall not be construed to prohibit States from
enacting or enforcing reasonable traffic safety laws or regulations.
(7) Subject
to the provisions of the Religious Freedom Restoration Act (Public Law
103-141; 42
U.S.C. 2000bb-1),
this section does not prohibit the Secretary of Defense from promulgating
regulations establishing reasonable limitations on the use, possession,
transportation, or distribution of peyote to promote military readiness,
safety, or compliance with international law or laws of other countries.
Such regulations shall be adopted only after consultation with
representatives of traditional Indian religions for which the sacramental
use of peyote is integral to their practice.
(c) Definitions
For purposes of this section-
(2) the
term "Indian tribe" means any tribe, band, nation, pueblo, or other
organized group or community of Indians, including any Alaska Native
village (as defined in, or established pursuant to, the Alaska Native
Claims Settlement Act (43
U.S.C. 1601
et seq.)), which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their status
as Indians;
US CODE Title 42,1996a. Traditional Indian religious use of peyote