FREE ESSAY ON AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978

AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978

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 and are
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. 
?Works Cited
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*.