[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1021 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                S. 1021

            To assure religious freedom to Native Americans.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                May 25 (legislative day, April 19), 1993

 Mr. Inouye (for himself, Mr. Baucus, Mr. Campbell, Mr. Feingold, Mr. 
 Hatfield, Mr. Pell, and Mr. Wellstone) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
            To assure religious freedom to Native Americans.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Native American 
Free Exercise of Religion Act of 1993''.
    (b) Table of Contents.--

Sec. 1. Short title; table of contents.
Sec. 2. Policy.
Sec. 3. Definitions.
                  TITLE I--PROTECTION OF SACRED SITES

Sec. 101. Findings.
Sec. 102. Federal land management; use and preservation.
Sec. 103. Notice.
Sec. 104. Consultation.
Sec. 105. Burden of proof.
Sec. 106. Tribal authority over Native American religious sites on 
                            Indian lands.
Sec. 107. Application of other laws.
Sec. 108. Confidentiality.
Sec. 109. Criminal sanctions.
                  TITLE II--TRADITIONAL USE OF PEYOTE

Sec. 201. Findings.
Sec. 202. Traditional use of peyote.
                      TITLE III--PRISONERS' RIGHTS

Sec. 301. Rights.
     TITLE IV--RELIGIOUS USE OF EAGLES AND OTHER ANIMALS AND PLANTS

Sec. 401. Religious use of eagles.
Sec. 402. Other animals and plants.
                   TITLE V--JURISDICTION AND REMEDIES

Sec. 501. Jurisdiction and remedies.
                        TITLE VI--MISCELLANEOUS

Sec. 601. Savings clause.
Sec. 602. Severability.
Sec. 603. Authorization of appropriations.
Sec. 604. Effective date.

SEC. 2. POLICY.

    It is the policy of the United States, in furtherance of the policy 
established in the joint resolution entitled ``Joint Resolution 
American Indian Religious Freedom'', approved August 11, 1978 (42 
U.S.C. 1996), to protect and preserve the inherent right of any Native 
American to believe, express, and exercise his or her traditional 
religion, including, but not limited to, access to any Native American 
religious site, use and possession of sacred objects, and the freedom 
to worship through ceremonials and traditional rites.

SEC. 3. DEFINITIONS.

    For the purposes of this Act, the following definitions shall 
apply:
            (1) Aggrieved party.--The term ``aggrieved party'' means 
        any Native American practitioner, Native American traditional 
        leader, Indian tribe, or Native Hawaiian organization as 
        defined by this Act.
            (2) Federal agency.--The term ``Federal agency'' means any 
        department, agency, or instrumentality of the Federal 
        Government.
            (3) Federal or federally assisted undertaking.--The term 
        ``Federal or federally assisted undertaking'' means any 
        regulation relating to or any project, activity, or program 
        pertaining to the management, use, or preservation of land 
        (including continuing and new projects, activities, or 
        programs) which is funded in whole or in part by, or under the 
        direct or indirect jurisdiction of, a Federal agency, 
        including--
                    (A) those carried out by or on behalf of the 
                agency;
                    (B) those carried out with Federal financial 
                assistance;
                    (C) those requiring a Federal permit, license or 
                approval; and
                    (D) those subject to State regulation administered 
                pursuant to a delegation or approval by a Federal 
                agency.
        The term ``Federal or federally assisted undertakings'' does 
        not include regulations, projects, activities, or programs 
        operated, approved, or sponsored by Indian tribes, including, 
        but not limited to, those projects, activities, or programs 
        which are funded in whole or in part by Federal funds pursuant 
        to contract, grant or agreement, or which require Federal 
        permits, licenses or approvals.
            (4) Governmental agency.--The term ``governmental agency'' 
        means any agency, department, or instrumentality of--
                    (A) the United States; or
                    (B) a State, in the case of a Federal or federally 
                assisted undertaking described in paragraph (3)(D).
        The term ``governmental agency'' does not include an agency, 
        department, or instrumentality of an Indian tribe.
            (5) Indian.--The term ``Indian'' means--
                    (A) an individual of aboriginal ancestry who is a 
                member of an Indian tribe,
                    (B) an individual who is an Alaska Native, or
                    (C) in the case of California Indians, an 
                individual who meets the definition in section 809(b) 
                of the Indian Health Care Improvement Act (25 U.S.C. 
                1679(b)), except that an Indian community need not be 
                served by a local program of the Indian Health Service 
                in order to qualify as an Indian community for purposes 
                of this definition.
            (6) Indian lands.--The term ``Indian lands'' means all 
        lands within the limits of any Indian reservation; public 
        domain Indian allotments; all other lands title to which is 
        either held in trust by the United States for the benefit of 
        any Indian tribe or individual or held by any Indian tribe or 
        individual subject to restriction by the United States against 
        alienation; all dependent Indian communities; and all fee lands 
        owned by an Indian tribe.
            (7) Indian tribe.--The term ``Indian tribe'' means--
                    (A) 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,
                    (B) any Indian group that has been formally 
                recognized as an Indian tribe by a State legislature or 
                by a State commission or similar organization 
                legislatively vested with State tribal recognition 
                authority,
                    (C) any Indian tribe whose federally recognized 
                status has been terminated, and
                    (D) any non-federally recognized tribe that has--
                            (i) filed a petition for acknowledgement 
                        with the Branch of Federal Acknowledgement of 
                        the Bureau of Indian Affairs of the Department 
                        of the Interior or is the subject of pending 
                        legislation in the Congress seeking federally 
                        recognized status, and
                            (ii) is recognized as an Indian tribe by 
                        other Indian tribes, communities or groups.
                The definition contained in subparagraph (D) shall not 
                apply if the Department of the Interior has acted to 
                deny such tribe's petition for acknowledgement and all 
                appeals of the Department's determination have been 
                exhausted and have been decided in support of the 
                Department's determination.
            (8) Land.--The terms ``land'', ``lands'', or ``public 
        lands'' mean surface and subsurface land within the 
        jurisdiction of the United States or the respective States, 
        including submerged land of any kind or interest therein and 
        all water and waterways occupying, adjacent to, or running 
        through the land.
            (9) Native american.--The term ``Native American'' means 
        any Indian or Native Hawaiian.
            (10) Native american practitioner.--The term ``Native 
        American practitioner'' means--
                    (A) any Native American who practices a Native 
                American religion, or
                    (B) any Native Hawaiian with an obligation to 
                protect a Native Hawaiian religious site, or any Native 
                Hawaiian who practices a Native Hawaiian religion or 
                engages in a Native Hawaiian ceremonial or ritual 
                undertaking.
            (11) Native american religion.--The term ``Native American 
        religion'' means any religion--
                    (A) which is practiced by Native Americans, and
                    (B) the origin and interpretation of which is from 
                within a traditional Native American culture or 
                community.
            (12) Native american religious site.--The term ``Native 
        American religious site'' means any place or area, including, 
        but not limited to, any geophysical or geographical area or 
        feature--
                    (A) which is sacred to a Native American religion;
                    (B) where Native American practitioners are 
                required by their religion to gather, harvest, or 
                maintain natural substances or natural products for use 
                in Native American religious ceremonies or rituals or 
                for spiritual purposes, including all places or areas 
                where such natural substances or products are located; 
                or
                    (C) which is utilized by Native American religious 
                practitioners for ceremonies, rituals, or other 
                spiritual practices.
            (13) Native american traditional leader.--The term ``Native 
        American traditional leader'' means any Native American who--
                    (A) is recognized by an Indian tribe, Native 
                Hawaiian organization, or Native American traditional 
                organization as being responsible for performing 
                cultural duties relating to the ceremonial or religious 
                traditions of the tribe or traditional organization, or
                    (B) exercises a leadership role in an Indian tribe, 
                Native Hawaiian organization or Native American 
                traditional organization based upon its cultural, 
                ceremonial, or religious practices.
            (14) Native hawaiian.--The term ``Native Hawaiian'' means 
        any individual who is a descendant of the aboriginal Polynesian 
        people who, prior to 1778, occupied and exercised sovereignty 
        and self-determination in the area that now comprises the State 
        of Hawaii.
            (15) Native hawaiian organization.--The term ``Native 
        Hawaiian organization'' means any organization which is 
        composed primarily of Native Hawaiians, serves and represents 
        the interests of Native Hawaiians and whose members--
                    (A) practice a Native American religion or conduct 
                traditional ceremonial rituals, or
                    (B) utilize, preserve and protect Native American 
                religious sites.
            (16) State.--The term ``State'' means any State of the 
        United States and any and all political subdivisions thereof.

                  TITLE I--PROTECTION OF SACRED SITES

SEC. 101. FINDINGS.

    The Congress finds that--
            (1) throughout American history, the free exercise of 
        traditional Native American religions has been intruded upon, 
        interfered with, and, in some instances, banned by the Federal 
        Government and the devastating impact of these governmental 
        actions continues to the present day;
            (2) the religious practices of Native Americans are 
        integral parts of their cultures, traditions and heritages and 
        greatly enhance the vitality of Native American communities and 
        tribes and the well-being of Native Americans in general;
            (3) as part of its historic trust responsibility, the 
        Federal Government has the obligation to enact enforceable 
        Federal policies which will protect Native American community 
        and tribal vitality and cultural integrity, and which will not 
        inhibit or interfere with the free exercise of Native American 
        religions;
            (4) just as other religions consider certain sites in other 
        parts of the world to be sacred, many Native American religions 
        hold certain lands or natural formations in the United States 
        to be sacred, and, in order for those sites to be in a 
        condition appropriate for religious use, the physical 
        environment, water, plants and animals associated with those 
        sites must be protected;
            (5) such Native American religious sites are an integral 
        and vital part of, and inextricably intertwined with, many 
        Native American religions and the religious practices 
        associated with such religions, including the ceremonial use 
        and gathering, harvesting, or maintaining of natural substances 
        or natural products for those purposes;
            (6) many of these Native American religious sites are found 
        on lands which were part of the aboriginal territory of the 
        Indians but which now are held by the Federal Government, or 
        are the subject of Federal or federally assisted undertakings;
            (7) lack of sensitivity to, or understanding of, Native 
        American religions on the part of Federal agencies has resulted 
        in the absence of a coherent policy for the protection of 
        Native American religious sites and the failure by Federal 
        agencies to consider the impacts of Federal and federally 
        assisted undertakings upon Native American religious sites;
            (8) the Supreme Court of the United States, in the case of 
        Lyng v. Northwest Indian Cemetery Association, 485 U.S. 439 
        (1988) ruled that the free exercise clause of the First 
        Amendment does not restrict the Government's management of its 
        lands, even if certain governmental actions would infringe upon 
        or destroy the ability to practice religion, so long as the 
        Government's action does not compel individuals to act in a 
        manner which is contrary to their religious beliefs;
            (9) the holding in the case of Lyng v. Northwest Indian 
        Cemetery Association creates a chilling and discriminatory 
        effect on the free exercise of Native American religions;
            (10) the Supreme Court of the United States, in the case of 
        Employment Division v. Smith, 494 U.S. 872 (1990) extended the 
        Lyng doctrine to all ``valid and neutral laws of general 
        applicability'' not intended to specifically infringe upon 
        religious practice and held that the First Amendment does not 
        exempt practitioners who use peyote in Native American 
        religious ceremonies from complying with ``neutral'' State laws 
        prohibiting peyote use, notwithstanding the chilling effect of 
        such laws upon their right to freely practice their religion;
            (11) Native Hawaiians have distinct rights under Federal 
        law as beneficiaries of the Hawaiian Homes Commission Act, 1920 
        (42 Stat. 108) and the Act entitled ``An Act to provide for the 
        admission of the State of Hawaii into the Union'', approved 
        March 18, 1959 (73 Stat. 4);
            (12) the United States trust responsibility for lands set 
        aside for the benefit of Native Hawaiians has never been 
        extinguished;
            (13) the Federal policy of self-determination and self-
        governance is recognized to extend to all Native Americans;
            (14) Congress has enacted numerous laws which regulate and 
        restrict the discretion of Federal agencies for the sake of 
        environmental, historical, economic, and cultural concerns, but 
        has never enacted a judicially enforceable law comparably 
        restricting agency discretion for the sake of the site-specific 
        requirements associated with the free exercise of Native 
        American religions;
            (15) the lack of a judicially enforceable Federal law and 
        of a coherent Federal policy to accommodate the uniqueness of 
        Native American religions imposes unique and unequal 
        disadvantages on Native American religions, gravely restricting 
        the free exercise of Native American religions and impairing 
        the vitality of Native American communities and Indian tribes; 
        and
            (16) Congress has the authority to enact such a law 
        pursuant to section 8, Article I, of the Constitution and the 
        First and Fourteenth Amendments.

SEC. 102. FEDERAL LAND MANAGEMENT; USE AND PRESERVATION.

    (a) In General.--Notwithstanding any other provision of law each 
Federal agency shall manage any lands under its jurisdiction in a 
manner that complies with the provisions of this Act.
    (b) Planning Process.--Each Federal agency involved in Federal or 
federally assisted undertakings, including, but not limited to, 
activities pursuant to the National Forest Management Act (16 U.S.C. 
1600 et seq.), and the Federal Land Policy and Management Act (43 
U.S.C. 1701 et seq.), shall as part of its planning process--
            (1) consult with Indian tribes and Native Hawaiian 
        organizations identified pursuant to section 103, as well as 
        Native American traditional leaders who can be identified by 
        the agency to have an interest in the land in question;
            (2) provide for notice of all Federal or federally assisted 
        undertakings with the potential to have an impact on certain 
        specified lands to an Indian tribe, Native Hawaiian 
        organization, or Native American traditional leader if such 
        tribe, organization, or leader places the agency on notice, in 
        writing, that it is interested in receiving notice of all such 
        undertakings;
            (3) ensure that its land management plans are consistent 
        with the provisions and policies of this Act; and
            (4) maintain the confidentiality of specific details of a 
        Native American religion or the significance of a Native 
        American religious site to that religion in accordance with the 
        procedures specified in sections 107 and 108 of this Act.
    (c) Access.--
            (1) In general.--Unless the President determines that 
        national security concerns are directly affected, in which case 
        the provisions of section 105 shall apply, Native American 
        practitioners shall be permitted access to Native American 
        religious sites located on Federal lands at all times, 
        including the right to gather, harvest, or maintain natural 
        substances or natural products for Native American religious 
        purposes.
            (2) Prohibition against vehicles.--Paragraph (1) does not 
        authorize the use of motorized vehicles or other forms of 
        mechanized transport in roadless areas where such use is 
        prohibited by law, nor affect the application of the Endangered 
        Species Act, except as provided for by section 501(b) of this 
        Act.
            (3) Temporary closing.--Upon the request of an Indian 
        tribe, Native Hawaiian organization, or Native American 
        traditional leader, the Secretary of the department whose land 
        is involved may from time to time temporarily close to general 
        public use one or more specific portions of Federal land in 
        order to protect the privacy of religious cultural activities 
        in such areas by Native Americans. Any such closure shall be 
        made so as to affect the smallest practicable area for the 
        minimum period necessary for such purposes.
    (d) Regulations.--The Secretary of the Interior, in consultation 
with Indian tribes and Native Hawaiian organizations, shall promulgate 
uniform regulations relating to--
            (1) Federal planning processes pertaining to the 
        management, use or preservation of land; and
            (2) notice to and consultation with Indian tribes, Native 
        Hawaiian organizations, Native American traditional leaders and 
        Native American practitioners as required by sections 103 and 
        104 of this Act.
The regulations shall be sufficiently flexible to enable consultation 
to meet the unique needs of Indian tribes, Native Hawaiian 
organizations, Native American traditional leaders and Native American 
practitioners.

SEC. 103. NOTICE.

    (a) Identification of Lands by Secretary.--
            (1) In general.--For the purpose of assuring that a 
        governmental agency properly determines whether a proposed 
        undertaking will have an impact on the exercise of a Native 
        American religion and which affected parties should be provided 
        notice of a proposed undertaking, the Secretary of the 
        Interior, in conjunction with tribal governments, shall 
        identify land areas with which an Indian tribe has aboriginal, 
        historic, or religious ties.
            (2) Ongoing identification.--Paragraph (1) does not 
        preclude a tribal government from continuing to conduct an 
        ongoing identification process, which may supplement the 
        process required by this subsection.
    (b) Duty of Agencies.--
            (1) Tribal lands.--Before a governmental agency proceeds on 
        lands identified pursuant to subsection (a) with any Federal or 
        federally assisted undertaking that may have an impact on the 
        exercise of a Native American religion, the agency shall 
        provide a geographical description of the lands affected by the 
        undertaking (including information on metes and bounds of the 
        lands in question, where available) and a description of the 
        undertaking to--
                    (A) the Secretary of the Interior;
                    (B) each Indian tribe which has aboriginal, 
                historic, or religious ties to the land affected by a 
                proposed Federal or federally assisted undertaking; and
                    (C) each Native American traditional leader known 
                by the agency who may have an interest in the land 
                affected by the proposed undertaking.
            (2) Lands in hawaii.--Before a governmental agency proceeds 
        on lands in the State of Hawaii with any Federal or federally 
        assisted undertaking that may have an impact on the exercise of 
        a Native American religion, the agency shall publish a 
        geographical description of the lands affected by the 
        undertaking (including information on metes and bounds of lands 
        in question, where available) and a description of the 
        undertaking in a newspaper of general circulation for a period 
        of 2 weeks.
            (3) Documentation.--The governmental agency shall fully 
        document the efforts made to provide the information to Indian 
        tribes, Native Hawaiian organizations and Native American 
        traditional leaders as required by this section or any 
        applicable regulations, guidelines, or policies.
    (c) Notice by Tribe.--
            (1) In general.--Within 90 days of receiving the notice 
        provided under subsection (b), or within the time limit of any 
        comment period permitted or required by any Federal law 
        applicable to the Federal or federally assisted undertaking, 
        whichever is later, an Indian tribe, Native Hawaiian 
        organization, or Native American traditional leader invoking 
        the protection of this title may provide notice to the 
        governmental agency whether the proposed Federal or federally 
        assisted undertaking may result in changes in the character or 
        use of one or more Native American religious sites which are 
        located on lands with which the Indian tribe or Native Hawaiian 
        organization has aboriginal, historic, or religious ties.
            (2) No duty to respond.--Paragraph (1) does not impose a 
        duty upon any Indian tribe, Native Hawaiian organization, or 
        Native American traditional leader to respond to any notice 
        under this section.
            (3) Additional information.--The Indian tribe, Native 
        Hawaiian organization, or Native American traditional leader 
        acting pursuant to paragraph (1) may also provide the agency 
        with information as to any Native American traditional leaders 
        or practitioners who should be included in the notice and 
        consultation requirements of this section and section 104.
    (d) 90-Day Prohibition Against Activity Following Notice to 
Tribes.--No action to approve, commence, or complete a Federal or 
federally assisted undertaking that is subject to this section shall be 
taken by a governmental agency for a period of 90 days following the 
date on which notice is provided under subsection (b) to Indian tribes 
and Native Hawaiian organizations unless or until--
            (1) the matter is resolved pursuant to the procedures of 
        this Act;
            (2) the period of consultation required under section 104 
        has been completed; or
            (3) all parties entitled to such notice consent to a 
        shorter time period.

SEC. 104. CONSULTATION.

    (a) In General.--
            (1) Effect of notice by tribe.--If an Indian tribe, Native 
        Hawaiian organization, or Native American traditional leader 
        indicates in writing within 90 days of receiving notice under 
        section 102, or within the time limit of any comment period 
        permitted or required by any Federal law applicable to the 
        Federal or federally assisted undertaking, whichever is later, 
        that a Federal or federally assisted undertaking will or may 
        alter or disturb the integrity of Native American religious 
        sites or the sanctity thereof, or interfere with the access 
        thereto, or adversely impact upon the exercise of a Native 
        American religion or the conduct of a Native American religious 
        practice, except as provided in paragraph (2), the governmental 
        agency engaged in the Federal or federally assisted undertaking 
        shall immediately discontinue such undertaking until the agency 
        performs the duties described in paragraphs (3) and (4).
            (2) Inadvertent discovery.--If in the process of a Federal 
        or federally assisted undertaking, a Native American religious 
        site is inadvertently discovered, the governmental agency 
        engaged in the undertaking shall immediately discontinue such 
        undertaking until the agency performs the duties set forth in 
        paragraphs (3) and (4).
            (3) Consultation.--The governmental agency shall consult 
        with any interested party, including Native American 
        practitioners with a direct interest in the Native American 
        religious site in question, concerning the nature of the 
        adverse impact and alternatives that would minimize or prevent 
        an adverse impact, including any alternatives identified by an 
        Indian tribe, Native Hawaiian organization, or Native American 
        traditional leader that has filed a written objection under 
        this subsection.
            (4) Evaluation of comments.--The governmental agency shall 
        prepare and make available to the tribe, organization or 
        traditional leader, as well as Native American practitioners 
        who have been involved in the consultation process, a document 
        evaluating and responding to the comments received. The 
        document shall include an analysis of adverse impacts upon the 
        site and the use thereof and an analysis of alternatives to the 
        proposed action, including any alternative offered by an Indian 
        tribe, Native Hawaiian organization, or Native American 
        traditional leader submitting a written objection under 
        paragraph (1) and a no action alternative.
            (5) Additional information.--In any case where the 
        governmental agency is also required to prepare a document 
        analyzing the impact of its undertaking or decision pursuant to 
        the National Environmental Policy Act (43 U.S.C 4321 et seq.), 
        the National Historic Preservation Act (16 U.S.C. 470 et seq.) 
        or any other applicable law, such agency shall incorporate the 
        analysis required by this section into the contents of the 
        document.
    (b) Cases Where Secrecy Is Required.--
            (1) In general.--In the case of those Indian tribes whose 
        traditional religious tenets prohibit disclosure of information 
        concerning their Native American religious sites or religious 
        beliefs or practices, and mandate secrecy and internal 
        sanctions to enforce those prohibitions, and where the tribal 
        government of the affected Indian tribe so certifies and 
        invokes this subsection--
                    (A) the tribal government shall not be required to 
                reveal the location of the Native American religious 
                site or in what manner the undertaking would have an 
                impact on the site or any information concerning their 
                religious beliefs or practices;
                    (B) the tribal government shall not be required to 
                explain in what manner any proposed alternative is or 
                is not less intrusive upon the adversely affected 
                Native American religious practice or religious sites 
                which may be adversely affected than the original 
                proposed Federal or federally assisted undertaking; and
                    (C) in engaging in consultation and preparing any 
                document required by this Act, the governmental agency 
                shall not include an analysis of adverse impacts upon 
                the site or the use thereof or the Indian tribe's 
                religious beliefs and practices.
            (2) After consultation.--If after consultation--
                    (A) the governmental agency agrees to pursue a less 
                intrusive alternative proposed by the Indian tribe or 
                some other alternative which the Indian tribe agrees 
                would be less intrusive; or
                    (B) if no alternative is identified which the 
                Indian tribe agrees is less intrusive;
        the governmental agency shall be deemed to have met its 
        obligation to consider and pursue the least intrusive 
        alternative under this Act in regard to the objection raised to 
        the Federal or federally assisted undertaking by the Indian 
        tribe invoking this subsection.
    (c) Rule of Construction.--Where the provisions of subsection (b) 
have been invoked, those requirements shall control in all 
circumstances and shall supersede any conflicting provisions in this 
Act or any other provision of law.
    (d) Disclosure Required.--Within 30 days of receipt of any written 
objection under subsection (a), the governmental agency proposing the 
Federal or federally assisted undertaking which gave rise to that 
notice shall disclose to and shall make available to the objecting 
party, all plats, maps, plans, specifications, socioeconomic, 
environmental, scientific, archaeological or historical studies, and 
comments and information in that agency's possession bearing on said 
undertaking.
    (e) Special Rule for Pueblos Regarding Standing.--In the case of a 
proposed Federal or federally assisted undertaking affecting the 
management, use, or preservation of public land involving potential 
adverse religious impacts on any of the Indian pueblos of New Mexico or 
any of their religious sites, the only party with standing to file an 
objection or participate in consultation under this section, or to file 
an action under section 105 or 501, shall be the governor of the 
affected pueblo or the governor's designee.

SEC. 105. BURDEN OF PROOF.

    (a) In General.--
            (1) Burden on aggrieved party.--Except as provided in 
        subsection (b), in any action brought under section 501(a), the 
        aggrieved party shall have the burden of proving that the 
        Federal or federally assisted undertaking or the State action 
        having an impact upon the management, use, or preservation of 
        public land, is posing or will pose a substantial threat of 
        undermining or frustrating a Native American religion or a 
        Native American religious practice.
            (2) Burden on agency.--If the aggrieved party meets its 
        burden of proof under paragraph (1), the Federal agency or 
        State shall have the burden of proving that the governmental 
        interest in the Federal or federally assisted undertaking or 
        the State action is compelling.
            (3) Least intrusive course of action.--If the aggrieved 
        party fails to meet its burden of proof under paragraph (1), 
        but establishes that the Federal or federally assisted 
        undertaking or the State action will alter or disturb the 
        integrity of a Native American religious site or the sanctity 
        thereof, or will have an adverse impact upon the exercise of a 
        Native American religion or the conduct of a Native American 
        religious practice, or if the Federal agency or State meets its 
        burden of proof in paragraph (2), the Federal agency or State 
        shall have the burden of proving that it has selected the 
        course of action least intrusive on the Native American 
        religious site or the Native American religion or religious 
        practice.
    (b) Cases Where Secrecy Is Required.--In the case of any proceeding 
involving a Native American religious site or associated religious 
practices of an Indian tribe described in section 104(b), if the Indian 
tribe objects to the Federal or federally assisted undertaking or State 
action based upon any of the grounds specified in section 104(a), the 
provisions of section 104(b) shall apply and the Federal agency or 
State shall have the burden of proving that--
            (1) it has a compelling interest in pursuing the Federal or 
        federally assisted undertaking or the State action as 
        originally proposed;
            (2) it is essential that the Federal agency's or State's 
        compelling interest be furthered as originally proposed; and
            (3) none of the less intrusive alternatives (if any) 
        identified in the consultation process, or by the Indian tribe, 
        will adequately advance that compelling governmental interest.
The Federal agency or State shall retain this burden of proof at all 
stages of any proceeding or decisionmaking process involving an Indian 
tribe described in section 104(b) as to objections raised by that 
Indian tribe.
    (c) Failure of Agency To Meet Burden.--If a Federal agency or State 
does not meet its burden of proof under this section, it shall not 
proceed with the proposed undertaking. For purposes of this section and 
section 501, the phrase ``burden of proof'' means the burden of 
production and the burden of persuasion.
    (d) Establishment of Administrative Procedure.--
            (1) In general.--A Federal agency may, by regulation, 
        establish an administrative procedure to implement the 
        requirements of this section.
            (2) Exhaustion requirement.--An aggrieved party must use a 
        procedure established under paragraph (1) before filing an 
        action in a Federal court pursuant to section 501(a).
            (3) New factual findings.--If an action is filed in Federal 
        court after exhaustion of administrative remedies, the court 
        shall not defer to the factual findings of the Federal agency, 
        but shall make its own factual findings based upon the record 
        compiled by the Federal agency as well as other evidence that 
        may be permitted by the court under Federal law.

SEC. 106. TRIBAL AUTHORITY OVER NATIVE AMERICAN RELIGIOUS SITES ON 
              INDIAN LANDS.

    (a) Right of Tribe.--All Federal or federally assisted undertakings 
on Indian lands which may result in changes in the character or use of 
a Native American religious site or which may have an impact on access 
to a Native American religious site shall, unless requested otherwise 
by the Indian tribe on whose lands the undertakings will take place, be 
conducted in conformance with the laws or customs of the tribe.
    (b) Agreements.--Any governmental agency proposing a Federal or 
federally assisted undertaking on Indian lands which may result in 
changes in the character or use of a Native American religious site or 
which may have an impact upon access to a Native American religious 
site, may enter into an agreement with the Indian tribe on whose lands 
the undertaking will take place for purposes of assuring conformance 
with the laws or customs of the tribe.
    (c) Protection by Tribes.--Indian tribes may regulate and protect 
Native American religious sites located on Indian lands.
    (d) Other Authorities.--
            (1) Sovereign authority of tribes.--The provisions of this 
        section are in addition to and not in lieu of the inherent 
        sovereign authority of Indian tribes to regulate and protect 
        Native American religious sites located on Indian lands.
            (2) National security.--The provisions of this section 
        shall not apply if the President determines that national 
        security concerns are directly affected by a Federal or 
        federally assisted undertaking.
            (3) Duty to notify.--This section does not relieve a 
        governmental agency of any duty pursuant to section 103 to 
        notify an Indian tribe of a Federal or federally assisted 
        undertaking on Indian lands which may result in changes in the 
        character or use of a Native American religious site.

SEC. 107. APPLICATION OF OTHER LAWS.

    (a) In General.--Nothing in this title shall be construed to 
deprive any person or entity of any other rights which might be 
provided under the laws, regulations, guidelines, or policies of the 
Federal, State, and tribal governments, including but not limited to 
the National Historic Preservation Act (16 U.S.C. 470 et seq.), to 
receive notice of, comment upon, or otherwise participate in the 
decisionmaking process regarding a Federal or federally assisted 
undertaking.
    (b) Existing Procedures.--To the maximum extent possible, the 
procedures required by this Act shall be incorporated into existing 
procedures applicable to the management of Federal lands and 
decisionmaking processes of Federal agencies engaged in Federal or 
federally assisted undertakings.

SEC. 108. CONFIDENTIALITY.

    (a) In General.--Notwithstanding any other provision of law, 
whenever information has been obtained as a result of or in connection 
with a proceeding pursuant to section 105 or 501 or consultation 
pursuant to sections 102 and 104, all references pertaining to--
            (1) specific details of a Native American religion or the 
        significance of a Native American religious site to that 
        religion; or
            (2) the location of that religious site;
shall be deleted from the record of a Federal agency or court before 
the record is released to any party or the general public pursuant to 
the Freedom of Information Act (5 U.S.C. 552) or any other applicable 
law.
    (b) Supplementation of Record.--The agency or court shall 
supplement the record described in subsection (a) to include the 
general results and conclusions of the administrative or judicial 
review to the extent necessary to provide other interested parties with 
sufficient information to understand the nature of, and basis for, a 
decision by the Federal agency or court.
    (c) Exceptions.--This section shall not apply--
            (1) where all parties to a proceeding (excluding the 
        Federal Government) waive its application, and
            (2) in case of a Native Hawaiian religious site, where the 
        information is sought by a Native Hawaiian organization for the 
        purpose of protecting such site.
    (d) Other Law.--Indian tribes, Native Hawaiian organizations, 
Native American traditional leaders, and Native American practitioners 
seeking to maintain the confidentiality of information relating to 
Native American religious sites may also seek redress through existing 
laws requiring that certain information be withheld from the public, 
including, but not limited to the National Historic Preservation Act 
(16 U.S.C. 47Ow-3) and the Archaeological Resources Protection Act (16 
U.S.C. huh).

SEC. 109. CRIMINAL SANCTIONS.

    (a) Damaging Religious Sites.--
            (1) Initial violation.--Any person who knowingly damages or 
        defaces a known Native American religious site located on 
        Federal land, except as part of an approved Federal or 
        federally assisted undertaking or an action authorized by a 
        governmental agency with the authority to approve such 
        activity, shall, upon conviction, be fined not more than 
        $10,000, or imprisoned not more than 1 year, or both.
            (2) Subsequent violations.--In the case of a second or 
        subsequent violation, a person shall be fined not more than 
        $100,000, or imprisoned not more than 5 years, or both.
    (b) Release of Information.--
            (1) Initial violation.--Any person who knowingly releases 
        any information required to be held confidential pursuant to 
        this title shall, upon conviction, be fined not more than 
        $10,000, or imprisoned not more than 1 year, or both.
            (2) Subsequent violations.--In the case of a second or 
        subsequent violation, be fined not more than $100,000, or 
        imprisoned not more than 5 years, or both.

                  TITLE II--TRADITIONAL USE OF PEYOTE

SEC. 201. FINDINGS.

    The Congress finds that--
            (1) some Indian people have used the peyote cactus in 
        religious ceremonies for sacramental and healing purposes for 
        many generations, and such uses have been significant in 
        perpetuating Indian tribes and cultures by promoting and 
        strengthening the unique cultural cohesiveness of Indian 
        tribes;
            (2) since 1965, this religious ceremonial use of peyote by 
        Indians has been protected by Federal regulation, which exempts 
        such use from Federal laws governing controlled substances, and 
        the Drug Enforcement Administration has manifested its 
        continuing support of this Federal regulatory system;
            (3) the State of Texas encompasses virtually the sole area 
        in the United States in which peyote grows, and for many years 
        has administered an effective regulatory system which limits 
        the distribution of peyote to Indians for ceremonial purposes;
            (4) while numerous States have enacted a variety of laws 
        which protect the ceremonial use of peyote by Indians, many 
        others have not, and this lack of uniformity has created 
        hardships for Indian people who participate in such ceremonies;
            (5) the traditional ceremonial use by Indians of the peyote 
        cactus is integral to a way of life that plays a significant 
        role in combating the scourge of alcohol and drug abuse among 
        some Indian people;
            (6) the United States has a unique and special historic 
        trust responsibility for the protection and preservation of 
        Indian tribes and cultures, and the duty to protect the 
        continuing cultural cohesiveness and integrity of Indian tribes 
        and cultures;
            (7) it is the duty of the United States to protect and 
        preserve tribal values and standards through its special 
        historic trust responsibility to Indian tribes and cultures;
            (8) existing Federal and State laws, regulations and 
        judicial decisions are inadequate to fully protect the ongoing 
        traditional uses of the peyote cactus in Indian ceremonies;
            (9) general prohibitions against the abusive use of peyote, 
        without an exception for the bona fide religious use of peyote 
        by Indians, lead to discrimination against Indians by reason of 
        their religious beliefs and practices; and
            (10) as applied to the traditional use of peyote for 
        religious purposes by Indians, otherwise neutral laws and 
        regulations may serve to stigmatize and marginalize Indian 
        tribes and cultures and increase the risk that they will be 
        exposed to discriminatory treatment.

SEC. 202. TRADITIONAL USE OF PEYOTE.

    (a) In General.--Notwithstanding any other provision of law, the 
use, possession, or transportation by an Indian of peyote for bona fide 
ceremonial purposes in connection with the practice of a Native 
American religion by an Indian is lawful and shall not be prohibited by 
the Federal Government 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.
    (b) Regulation Authorized.--This section does not prohibit such 
reasonable regulation and registration of those persons who import, 
cultivate, harvest or distribute peyote as may be consistent with the 
purpose of this title.
    (c) Texas Law.--This section does not prohibit application of the 
provisions of section 481.111(a) of Vernon's Texas Code Annotated, in 
effect on the date of enactment of this Act, insofar as those 
provisions pertain to the cultivation, harvest or distribution of 
peyote.

                      TITLE III--PRISONERS' RIGHTS

SEC. 301. RIGHTS.

    (a) In General.--
            (1) Access.--Notwithstanding any other provision of law, 
        Native American prisoners who practice a Native American 
        religion shall have, on a regular basis comparable to that 
        access afforded prisoners who practice Judeo-Christian 
        religions, access to--
                    (A) Native American traditional leaders who shall 
                be afforded the same status, rights and privileges as 
                religious leaders of Judeo-Christian faiths;
                    (B) subject to paragraph (6), items and materials 
                utilized in religious ceremonies; and
                    (C) Native American religious facilities.
            (2) Materials.--Items and materials utilized in religious 
        ceremonies are those items and materials, including foods for 
        religious diets, identified by a Native American traditional 
        leader. Prison authorities shall treat these items in the same 
        manner as the religious items and materials utilized in 
        ceremonies of the Judeo-Christian faith.
            (3) Hair.--
                    (A) Right of prisoner.--Except in those 
                circumstances where subparagraph (B) applies, Native 
                American prisoners who desire to wear their hair 
                according to the religious customs of their Indian 
                tribes may do so provided that the prisoner 
                demonstrates that--
                            (i) the practice is rooted in Native 
                        American religious beliefs; and
                            (ii) these beliefs are sincerely held by 
                        the Native American prisoner.
                    (B) Denial of request.--If a Native American 
                prisoner satisfies the criteria in paragraph (3)(A), 
                the prison authorities may deny such request only where 
                they can demonstrate that the legitimate institutional 
                needs of the prison cannot be met by viable less 
                restrictive means which would not create an undue 
                administrative burden.
            (4) Definition of ``religious facilities''.--The term 
        ``religious facilities'' includes sweat lodges, teepees, and 
        access to other secure, out-of-doors locations within prison 
        grounds if such facilities are identified by a Native American 
        traditional leader to facilitate a religious ceremony.
            (5) Discrimination prohibited.--No Native American prisoner 
        shall be penalized or discriminated against on the basis of 
        Native American religious practices, and all prison and parole 
        benefits or privileges extended to prisoners for engaging in 
        religious activity shall be afforded to Native American 
        prisoners who participate in Native American religious 
        practices.
            (6) Scope of subsection.--Paragraph (1) shall not be 
        construed as requiring prison authorities to permit (nor 
        prohibit them from permitting) access to peyote or Native 
        American religious sites.
    (b) Commission To Investigate Religious Freedom.--
            (1) In general.--The Attorney General shall establish the 
        Commission on the Religious Freedom of Native American 
        Prisoners (hereafter in this section referred to as the 
        ``Commission'') to investigate the conditions of Native 
        American prisoners in the Federal and State prison systems with 
        respect to the free exercise of Native American religions.
            (2) Report.--Not later than 36 months after the date of 
        enactment of this Act, the Commission shall submit to the 
        Attorney General and the Congress a report containing--
                    (A) an institution-by-institution assessment of the 
                recognition, protection, and enforcement of the rights 
                of Native American prisoners to practice their 
                religions under this Act; and
                    (B) specific recommendations for the promulgation 
                of regulations to implement this Act.
            (3) Composition of commission.--The Commission shall 
        consist of 5 members, at least 3 of whom shall be Native 
        Americans and--
                    (A) at least 1 of whom shall be a Native American 
                traditional leader;
                    (B) at least 1 of whom shall be a Native American 
                ex-offender; and
                    (C) at least 1 of whom shall be a Native American 
                woman.
            (4) Nominations.--The Native American members selected 
        under paragraph (2) shall be appointed from nominations 
        submitted by Indian tribes, Native Hawaiian organizations and 
        Native American traditional leaders.
            (5) Chairperson.--The Commission shall select 1 of its 
        members to serve as Chairperson.
            (6) Compensation.--Each member of the Commission who is not 
        a Federal employee shall be compensated at a rate equal to the 
        daily equivalent of that prescribed for level V of the 
        Executive Schedule under section 5316 of title 5, United States 
        Code. All members of the Commission while away from home or 
        their place of business, in the performance of the duties of 
        the Commission, shall be allowed travel and other related 
        expenses, including per diem in lieu of subsistence, in the 
        same manner as persons employed intermittently in Government 
        services are allowed expenses under section 5703 of title 5, 
        United States Code.
            (7) Staff.--The Commission may hire, without regard to the 
        provisions of title 5, United States Code, governing 
        appointments in the competitive service, and may pay without 
        regard to the provisions of chapter 51, and subchapter III of 
        chapter 52 of such title relating to classification and General 
        Schedule pay rates, such staff as necessary to fulfill its 
        duties under this section. In addition, the Commission may 
        request any Federal department or agency to make available to 
        the Commission personnel on a nonreimbursable basis, to assist 
        the Commission in fulfilling such duties.
            (8) Termination.--The Commission shall cease to exist upon 
        the expiration of the 60-day period following the date of 
        submission of its report to the Congress.

     TITLE IV--RELIGIOUS USE OF EAGLES AND OTHER ANIMALS AND PLANTS

SEC. 401. RELIGIOUS USE OF EAGLES.

    (a) In General.--Within 1 year after the date of enactment of this 
Act, the Director of the United States Fish and Wildlife Service 
(hereafter in this section referred to as the ``Director'') shall, in 
consultation with Indian tribes and Native American traditional 
leaders, develop a plan to--
            (1) ensure the prompt disbursement from Federal 
        repositories of available bald or golden eagles, or their 
        parts, nests, or eggs for the religious use of Indians upon 
        receipt of an application from a Native American practitioner;
            (2) provide that sufficient numbers of bald or golden 
        eagles are allocated to Native American practitioners to meet 
        the demonstrated need where they are available by reason of 
        accidental deaths, natural deaths, or takings permitted by 
        Federal law; and
            (3) simplify and shorten the process by which permits are 
        authorized for the taking, possession, and transportation of 
        bald or golden eagles, or their parts, nests, or eggs for the 
        religious use of Indians.
    (b) Consultation With Regional Advisory Councils.--In developing 
the plan required by subsection (a), the Director shall consult with 
the Regional Advisory Councils established pursuant to subsection (c) 
to determine whether these goals might best be met by decentralizing 
the system for the disbursement of bald or golden eagles or their 
parts, nests, or eggs for Native American religious purposes.
    (c) Regional Advisory Councils.--
            (1) Establishment.--Within 120 days after the date of 
        enactment of this Act, the Regional Directors of the United 
        States Fish and Wildlife Service shall establish Regional 
        Advisory Councils.
            (2) Composition.--Each Regional Advisory Council shall 
        consist of 3 Native American traditional leaders appointed by 
        each Regional Director of the United States Fish and Wildlife 
        Service from nominations submitted by Indian tribes and Native 
        American traditional leaders located within the region.
            (3) Duties.--The Regional Directors and the Regional 
        Advisory Councils, in consultation with Indian tribes and 
        Native American traditional leaders, shall--
                    (A) develop a plan to--
                            (i) ensure that all bald and golden eagles 
                        and their parts, nests, or eggs which are 
                        recovered within the region are promptly 
                        transmitted to and collected by the United 
                        States Fish and Wildlife Service and made 
                        available for distribution as provided by law 
                        and consistent with the plan developed by the 
                        Director pursuant to subsection (a); and
                            (ii) expedite the review and approval of 
                        permit applications at each regional level;
                    (B) consult with the Director regarding the 
                advisability of decentralizing the distribution system; 
                and
                    (C) monitor the operation of the collection, 
                permit, and, if applicable, the distribution system at 
                the regional level.
            (4) Compensation.--Members of the Regional Advisory 
        Councils established under paragraph (1) of this section shall 
        serve without pay, but shall be reimbursed at a rate equal to 
        the daily rate for GS-18 of the General Schedule for each day 
        (including travel time) for which the member is actually 
        engaged in council business. Each member shall receive travel 
        expenses, including per diem in lieu of subsistence, in 
        accordance with sections 5702 and 5703 of title 5, United 
        States Code.
    (d) Tribal Law.--If bald or golden eagles or their parts, nests, or 
eggs are discovered on Indian lands and the Indian tribe on whose land 
the eagles or their parts, nests, or eggs were discovered has 
established or establishes, by tribal law or custom, a procedure for--
            (1) issuance of tribal permits to Native American 
        practitioners, and
            (2) distribution of bald or golden eagles or their parts, 
        nests, or eggs in accordance with tribal religious custom,
the Indian tribe may distribute said bald or golden eagles or their 
parts, nests, or eggs to Native American practitioners in accordance 
with such tribal law or custom.
    (e) Scope of Subsection (d).--Subsection (d) applies only to eagles 
which have died by reason of accidental deaths or natural deaths and 
does not authorize the taking of live eagles which, subject to 
standards established in section 501(b), shall continue to be governed 
by regulations promulgated by the United States Fish and Wildlife 
Service. An Indian tribe under subsection (d) shall provide an annual 
report by March 31 of each year to the United States Fish and Wildlife 
Service summarizing the number and type of bald and golden eagles and 
their parts, nests, and eggs that have been discovered and distributed 
during the previous calendar year.

SEC. 402. OTHER ANIMALS AND PLANTS.

    (a) Plan.--Within 1 year after the date of enactment of this Act, 
the Director of the United States Fish and Wildlife Service shall, in 
consultation with Indian tribes and Native American traditional 
leaders, develop a plan to implement the recommendations of the 
President's 1979 American Indian Religious Freedom Task Force Report 
regarding the disposition of surplus plant and animal products by 
Federal agencies.
    (b) Assessment.--In developing this plan, the Director shall--
            (1) assess the availability of surplus animals, plants or 
        parts from Federal agencies;
            (2) determine whether there is a need for such parts for 
        religious purposes by Native American practitioners; and
            (3) evaluate the feasibility of developing a joint uniform 
        set of regulations to govern the disposition of surplus 
        animals, plants or parts which have been confiscated or 
        gathered under the jurisdiction and control of Federal 
        agencies.

                   TITLE V--JURISDICTION AND REMEDIES

SEC. 501. JURISDICTION AND REMEDIES.

    (a) In General.--Any appropriate United States district court shall 
have original jurisdiction over a civil action for equitable or other 
relief, including damages, brought by an aggrieved party against the 
United States or a State to enforce the provisions of this Act.
    (b) Burden of Proof.--
            (1) In general.--Except as provided in titles I through 
        III, if an aggrieved party meets the burden of proving that a 
        governmental action restricts or would restrict the 
        practitioner's free exercise of religion, the governmental 
        authority shall refrain from such action unless it can 
        demonstrate that application of the restriction to the 
        practitioner is essential to further a compelling governmental 
        interest and the application is the least restrictive means of 
        furthering that compelling governmental interest.
            (2) Special rule for native american practitioners.--The 
        burden of proof for a Native American practitioner is a showing 
        of any evidence that a restriction upon the practitioner's free 
        exercise of religion exists as a result of Federal or State 
        action. Native American practitioners may elect to provide 
        testimony about their beliefs in camera or in some other 
        protective procedure.
    (c) Attorney's Fees.--An aggrieved party who is a prevailing party 
in any administrative or judicial proceeding brought pursuant to this 
Act shall be entitled to attorney's fees, expert witness fees, and 
costs under the provisions of section 504 of title 5, United States 
Code, and section 2412 of title 28, United States Code.

                        TITLE VI--MISCELLANEOUS

SEC. 601. SAVINGS CLAUSE.

    Nothing in this Act shall be construed as abrogating, diminishing, 
or otherwise affecting--
            (1) the inherent rights of any Indian tribe;
            (2) the rights, express or implicit, of any Indian tribe 
        which exist under treaties, Executive Orders and laws of the 
        United States; and
            (3) the inherent right of Native Americans to practice 
        their religions.

SEC. 602. SEVERABILITY.

    If any title or section of this Act, or any provision or portion 
thereof, is declared to be unconstitutional, invalid, or inoperative in 
whole or in part, by a court of competent jurisdiction, such title, 
section, provision or portion thereof shall, to the extent it is not 
unconstitutional, invalid, or inoperative, be enforced and effectuated, 
and no such determination shall be deemed to invalidate or make 
ineffectual the remaining provisions of the title, section, or 
provision.

SEC. 603. AUTHORIZATION OF APPROPRIATIONS.

    There are hereby authorized to be appropriated such sums as may be 
necessary to carry out the provisions of this Act.

SEC. 604. EFFECTIVE DATE.

    This Act takes effect on the date of its enactment. Application and 
enforcement of this Act does not depend upon the promulgation of 
regulations by any governmental agency.

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