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Article: American Indian Religions::

By Bornali Halder

© 2002 by Bornali Halder

Url: http://www.lakotaarchives.com/natlawrelpr.html

Native American Religion and the Law

The following is a brief survey of some of the major federal acts and judicial decisions that have affected Native American religious freedom:

1869: Board of Indian Commissioners Act

• Formed to oversee Bureau of Indian Affairs (BIA) operations and have "joint control" with the Secretary of the Interior to "humanize, Christianize and civilize" Native American peoples.

1871: Abolition of Treaty Making Act

• Outlawed further treaty making so that "hereafter, no Indian nation or tribe within the territory of the US shall be acknowledged or recognized as an independent nation, tribe or power".

1883: Indian Religious Crimes Code (Courts of Indian Offences)

• Enforced as BIA policy, it prohibited Native American ceremonial activity under pain of imprisonment and withholding of rations for up to 10 days. Medicine persons "who shall resort to any artifice or device to keep the Indians of the reservation from adopting and following civilized habits and pursuits [...] for the first offensive shall be imprisoned for no less than ten days nor more than thirty days".

1884: Canadian Indian Act

• Made the potlatch illegal and participants subject to a misdemeanour and imprisonment from 2 to 6 months. This was repealed in the Canadian Indian Act of 1951, which removed government control of culture display.

1906: Act for the Preservation of American Antiquities

• It was a criminal offence to appropriate, excavate, injure or destroy historic or prehistoric ruins or monuments or objects of antiquity located on lands owned or controlled by the US Government. This act also defined Indian artefacts and remains as "archaeological resources" and as such were federal "property".

1978: American Indian Religious Freedom Act (AIRFA)

• Guarantees constitutional First Amendment protection of freedom of religion for Native Americans - to believe, express, and exercise their traditional religions, including "access to sacred sites, use and possession of sacred objects and freedom to worship through ceremonials and traditional rites".

1979: Archaeological Resources Protection Act

• To protect resources and sites from "uncontrolled excavation and pillage", to correct deficiencies in American Antiquities Act of 1906. Articles must be at least 100 years old; permits for excavation are required; consent must be obtained for any work on tribal land from tribal landowners; work on public lands held to be sacred by any tribes must be notified before any permits are granted. Does not protect objects less than 100 yrs old and does not apply before 1979.
• However, human remains on federal lands are still "archaeological resources" and "property of the United States", which if excavated under federal permit can be "preserved by a suitable university, museum or other scientific or educational institution".

1989: National Museum of the American Indian Act [NMAIA]

• Provisions are made for the repatriation of Indian human remains collected by the Smithsonian Institute to American Indian tribes (including Hawaii) upon request. The Smithsonian must inventory and identify its collection, notify appropriate groups, and return if tribe requests.

1990: Native American Grave Protection and Repatriation Act [NAGPRA]

• Protects Indian gravesites from looting, and requires repatriation of all culturally identifiable tribal artefacts. It does not apply to state land or private property, however. Museums must inventory collections and notify tribes of their appropriate holdings. Limits are imposed on the kind of objects legally subject to claims to avoid "raids on collections" and claimants must meet strict legal tests.

1991: Oregon Vs Smith

• Alfred Smith and Galen Black fired from Douglas County's Council on Alcohol and Drug Abuse Prevention and Treatment for using peyote at religious ceremonies. Supreme Court held that it is constitutionally permissible for a state to exempt the religious use of peyote from drug laws but that it is not constitutionally required. New bill allows for the sacramental use of peyote in Oregon, but only for Native American Church members, not guests.

1993: Religious Freedom Restoration Act (RFRA)

• RFRA was sponsored by a coalition of religious leaders from many mainstream faiths, including Protestant, Catholic, Jewish, and Muslim leaders. The practices of ALL faiths were potentially in peril as a result of the SMITH decision (above), and the passage of RFRA, by an overwhelming 96-3 vote in the Senate, restores protections to most mainstream religious groups in the United States.

1993: Native American Free Exercise of Religion Act (NAFERA, Pending)

• NAFERA is the bill that includes specific protections for the use of peyote by Native American Church (NAC) members as well as the religious rights of Native American prisoners who wish to practice in traditional manner. There is nothing specific in RFRA that protects either NAC members or the traditional practices of Native American prisoners.
• NAFERA is an amendment to the American Indian Religious Freedom Act (AIRFA) of 1978. It is designed to strengthen protections and proscribe procedures and agencies of authority to address abuses.

1996: Executive Order 13007, May 24

• "In order to protect and preserve Indian religious practices, it is hereby ordered" that access to and ceremonial use of "Indian sacred sites by Indian religious practitioners" on federal lands be accommodated and that "the physical integrity of such sacred sites" should not be adversely affected. Any proposed federal action on federal lands "that may adversely affect access to, ceremonial use of, or the physical integrity of sacred sites" must be carried out only upon consultation "with appropriate Indian tribes and religious leaders".

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