ACT OF AUGUST 11, 1978-(American Indian Religious Freedom Act)
Public Law 95–341, as amended
92 Stat. 469, as amended
ACT OF AUGUST 11, 1978-(American Indian Religious Freedom Act)
341
103–344
Statute Compilation
United States House of Representatives
Office of the Legislative Counsel
text/xml
EN
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American Indian Religious Freedom Act
5293
95
1978-08-11
ACT OF AUGUST 11, 1978-(American Indian Religious Freedom Act)
[American Indian Religious Freedom.]
[Public Law 95–341, Approved August 11, 1978, 92 Stat. 469, 42 U.S.C. 1996 et seq.]
[As Amended Through P.L. 103–344, Enacted October 6, 1994]
[Currency: This publication is a compilation of the text of Public Law 95–341. It was last amended by the public law listed in the As Amended Through note above and below at the bottom of each page of the pdf version and reflects current law through the date of the enactment of the public law listed at https://www.govinfo.gov/app/collection/comps/]
[Note: While this publication does not represent an official version of any Federal statute, substantial efforts have been made to ensure the accuracy of its contents. The official version of Federal law is found in the United States Statutes at Large and in the United States Code. The legal effect to be given to the Statutes at Large and the United States Code is established by statute (1 U.S.C. 112, 204).]
Whereas the freedom of religion for all people is an inherent right, fundamental to the democratic structure of the United States and is guaranteed by the First Amendment of the United States Constitution;
Whereas the United States has traditionally rejected the concept of a government denying individuals the right to practice their religion and, as a result, has benefited from a rich variety of religious heritages in this country;
Whereas the religious practices of the American Indian (as well as Native Alaskan and Hawaiian) are an integral part of their culture, tradition and heritage, such practices forming the basis of Indian identity and value systems;
Whereas the traditional American Indian religions, as an integral part of Indian life, are indispensable and irreplaceable;
Whereas the lack of a clear, comprehensive, and consistent Federal policy has often resulted in the abridgment of religious freedom for traditional American Indians;
Whereas such religious infringements result from the lack of knowledge or the insensitive and inflexible enforcement of Federal policies and regulations premised on a variety of laws;
Whereas such laws were designed for such worthwhile purposes as conservation and preservation of natural species and resources but were never intended to relate to Indian religious practices and, therefore, were passed without consideration of their effect on traditional American Indian religions;
Whereas such laws and policies often deny American Indians access to sacred sites required in their religions, including cemeteries;
Whereas such laws at times prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies;1
^1
So in original. Should probably be ; and.
Whereas traditional American Indian ceremonies have been intruded upon, interfered with, and in a few instances banned: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
That [42 U.S.C. 1996] 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.
Sec. 2.
[42 U.S.C. 1996 note]
The President shall direct the various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to the Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.
Sec. 3.
[42 U.S.C. 1996a]
(a)
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;
(2)
since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation;
(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
(5)
the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment.
(b)
(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 Act.
(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 the date of enactment of this section, 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 Act1 (Public Law 103–141; 42 U.S.C. 2000bb–1).
^1
So in law. Should probably be the “Religious Freedom Restoration Act of 1993”.
(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 Act1 (Public Law 103–141; 42 U.S.C. 2000bb–1), 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 Act1 (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)
For purposes of this section—
(1)
the term “Indian” means a member of an Indian tribe;
(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;
(3)
the term “Indian religion” means any religion—
(A)
which is practiced by Indians, and
(B)
the origin and interpretation of which is from within a traditional Indian culture or community; and
(4)
the term “State” means any State of the United States, and any political subdivision thereof.
(d)
Nothing in this section 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;
(3)
the inherent right of Indians to practice their religions; and
(4)
the right of Indians to practice their religions under any Federal or State law.