It is easier to commit murder than to justify it. ~Aemilius Papinianus
This Bill (there have been changes in this original document as it
has wended its way through committees, etc.) is a very crucial piece
of the re-emergence of Native American Indigenous Society.
Native American Free Exercise of Religion Act of 1993.
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
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
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.
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
(5) INDIAN.--The term "Indian" means--
(A) an individual of aboriginal ancestry who is a member of an Indian
(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
(C) any Indian tribe whose federally recognized status has been
(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
(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
(10) NATIVE AMERICAN PRACTITIONER.--The term "Native American
(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
(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--
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;
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;
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;
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;
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;
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;
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
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; the holding in
the case of Lyng v. Northwest Indian Cemetery Association creates a
chilling and discriminatory effect on the free exercise of Native
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; 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);
the United States trust responsibility for lands set aside for the
benefit of Native Hawaiians has never been extinguished;
the Federal policy of self-determination and self- governance is
recognized to extend to all Native Americans;
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;
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
Congress has the authority to enact such a law pursuant to section
8, Article I, of the Constitution and the First and Fourteenth
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--
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;
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;
ensure that its land management plans are consistent with the
provisions and policies of this Act; and 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.
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.
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
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--
Federal planning processes pertaining to the management, use or
preservation of land; and
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.--
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
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.--
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
(C) each Native American traditional leader known by the agency who
may have an interest in the land affected by the proposed undertaking.
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.
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.--
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.
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.
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--
the matter is resolved pursuant to the procedures of this Act;
the period of consultation required under section 104 has been
all parties entitled to such notice consent to a shorter time period.
SEC. 104. CONSULTATION.
(a) IN GENERAL.--
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
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).
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.
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.
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
(b) CASES WHERE SECRECY IS REQUIRED.--
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.
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
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.--
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.
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.
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
(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--
it has a compelling interest in pursuing the Federal or federally
assisted undertaking or the State action as originally proposed;
it is essential that the Federal agency's or State's compelling
interest be furthered as originally proposed; and
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
(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.--
IN GENERAL.--A Federal agency may, by regulation, establish an
administrative procedure to implement the requirements of this section.
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).
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
(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.--
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.
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.
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
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--
specific details of a Native American religion or the significance of
a Native American religious site to that religion; or
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--
where all parties to a proceeding (excluding the Federal Government)
waive its application, and
in case of a Native Hawaiian religious site, where the information is
sought by a Native Hawaiian organization for the purpose of protecting
(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.) and the Archaeological Resources Protection Act (16 U.S.C. huh).
SEC. 109. CRIMINAL SANCTIONS.
(a) DAMAGING RELIGIOUS SITES.--
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.
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.--
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.
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
TITLE II--TRADITIONAL USE OF PEYOTE
SEC. 201. FINDINGS.
The Congress finds that--
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;
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
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;
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;
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;
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;
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;
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;
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
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.--
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
(B) subject to paragraph (6), items and materials utilized in
religious ceremonies; and
(C) Native American religious facilities.
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.
(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;
(ii) these beliefs are sincerely held by the Native American
(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.
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.
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
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.--
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.
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.
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.
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.
CHAIRPERSON.--The Commission shall select 1 of its members to serve as
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.
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.
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
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
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
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
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.--
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.
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.
DUTIES.--The Regional Directors and the Regional Advisory Councils, in
consultation with Indian tribes and Native American traditional leaders,
(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.
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-
issuance of tribal permits to Native American practitioners, and
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
(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--
assess the availability of surplus animals, plants or parts from
determine whether there is a need for such parts for religious
purposes by Native American practitioners; and
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.--
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.
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.
SEC. 601. SAVINGS CLAUSE.
Nothing in this Act shall be construed as abrogating, diminishing, or
the inherent rights of any Indian tribe;
the rights, express or implicit, of any Indian tribe which exist
under treaties, Executive Orders and laws of the United States; and
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
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.
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.
Excerpted from material contributed by Tom Leonard, a member and
director of the Ponca Chapter of the Native American Church of Oklahoma.
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