American Indian Religious Freedom Act after Twenty-five Years: An Introduction

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.

—American Indian Religious Freedom Act of 1978, Public Law 95-341

Policy to Preserve and Protect Native American Religious Freedom

The American Indian Religious Freedom Act turned twenty-five on August 11, 2003. Two months later, Arizona State University's College of Law held a gathering of Native American people who worked to achieve the act's passage and to further its policy promise. Our reflections on the past quarter-century and our calls for future action are contained in the pages of this journal.

Today, there is every reason both to celebrate the American Indian Religious Freedom Act (AIRFA) and to complete its unfinished agenda. In AIRFA, Congress and the president stated plainly that the policy of the United States is to preserve and protect Native American traditional practices and religious freedom. This was necessary in 1978 because Native peoples were still suffering the ill effects of sorry policies of the past intended to ban traditional religions, to neutralize or to eliminate traditional religious leaders, and to force traditional religious practitioners to convert to Christianity, to take up English, and to give up their way of life.

Even though the federal Civilization Regulations that first criminalized traditional religious expressions in the 1880s were withdrawn in the mid-1930s, laws and practices impeding Native Americans' free exercise of traditional religions persisted. Native sacred objects continued to be confiscated and graves looted. Those stolen in earlier times filled federal, state, and private collections, as well as museums and educational institutions in Europe. Native sacred places continued to be desecrated and damaged. Those annexed during the Civilization Regulations period remained in non-Native governmental and private hands, and Native people risked stiff fines and imprisonment for fulfilling religious mandates at those sites.

Native traditional people organized a national coalition in 1967 to gain protections for sacred places and ceremonies, to recover Native human remains and sacred objects, and to promote respect for Native people and rights in general society. As the coalition achieved returns of important sacred places and legal protections for the use of feathers and other sacred objects, it sought a broad policy to remove the federal barriers standing in the way of Native American traditional religious expression. When AIRFA was signed into law, it was greeted with relief, elation, and hope by traditional American Indian, Alaska Native, and Native Hawaiian peoples. After generations of traditional Native religions being driven underground or to extinction, and traditional practitioners being stigmatized as outlaws, AIRFA was lauded as a needed and welcome policy.

Policy to Consult with Native Traditional Religious Leaders

In sharp contrast to the religious suppression policies, AIRFA established the policy of federal agencies consulting with Native traditional religious leaders on proposed actions regarding Native traditional religious matters. This is an ongoing policy and the context for similar consultative requirements in subsequent federal laws and regulations.

Over the past twenty-five years, many lawyers, both for and against Native traditional interests, have ignored this consultative policy requirement of AIRFA. Governmental agents often overlook it, inadvertently or deliberately, when taking or approving actions affecting traditional religions. Some consult only with tribal government leaders or employees, excluding traditional religious leaders. Some even conduct sham consultations by not seriously considering the information or conclusions of the traditional experts who are being consulted. This occurs most egregiously at present with respect to those developmental decisions that would damage or destroy sacred places. Sadly, some tribal government agents engage in these practices, too, and many Gucci Gulch [the hallways of Congress] lobbyists and federal staffers in Washington, DC, keep a watchful eye on laws and regulations that would interfere with development plans at sacred places.

Part of the continuing religious freedom agenda...