With passage of the American Indian Religious Freedom Act, the U.S. Congress recognized the federal government’s obligation “to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise traditional religions.”
Throughout most of U.S. history, the federal government has discouraged and abridged the free exercise of traditional Native American religions. The federal government provided direct and indirect support to a variety of Christian denominations who sought to Christianize and “civilize” American Indians. In 1883, bowing to pressure from Christian churches, the federal government forbade “the savage and barbarous practices that are calculated to continue [American Indians] in savagery, no matter what exterior influences are brought to bear on them.” The Sun Dance, rites of purification, other religious ceremonies, and the practices of medicine men were forbidden. Violators could be prosecuted and receive ten days in jail if they continued their “heathenish practices.” Such a law restricting freedom of religion was possible because tribes were regarded as distinct political units separate and apart from the United States, and so were not covered by the protections of the Constitution or the Bill of Rights.
In the 1920’s, there was a crusade for reform in federal American Indian policy, and there were outspoken concerns for the support of freedom of religion for American Indian peoples. In 1933, John Collier was appointed commissioner of Indian affairs under President Franklin D. Roosevelt. On January 31, 1934, he circulated a pamphlet titled Indian Religious Freedom and Indian Culture among employees of the Indian Service.
Two weeks later, Collier issued a second order that dealt with religious services at government-operated schools for Native Americans. It had been common practice to require Indian students in government schools to attend church services. This new policy statement, “Regulations for Religious Worship and Instruction,” prohibited schools from making attendance at services compulsory, although it did allow religious denominations to use school facilities for services. Religious instruction was permitted one hour per week in the day schools; however, parents had to give written permission for their children to attend. This policy was especially controversial, because these regulations extended to representatives of Native American religions as well as to Christian missionaries.
These policy statements were not well received by missionaries who had been active on various Indian reservations, and many regarded Collier’s move to protect Native Americans’ religious freedoms as a direct attack on the churches and Christianity. Collier was accused of being an atheist and of being antireligious. Criticism of Collier was especially strong among Protestant missionary societies and included attacks from Christian Indians who decried this return to the old ways as subverting the progress of Native Americans. Nevertheless, Collier insisted that Native Americans be granted complete constitutional liberty in all matters affecting religion, conscience, and culture, and he asserted that religious liberty should extend to all people, not just Christians.
Most tribal governments endorsed Collier’s policy of religious freedom, and on many reservations a revival of the older spiritual traditions took place. However, federal and state laws did not endorse or permit freedom of religion for American Indians consistently. Certain state and federal laws and policies prevented the free exercise of religion for many Native Americans. A large area of concern was that many lands that were considered to be sacred by the tribes had passed from Indian control to state or federal jurisdiction. Access to such sacred sites often was limited or not permitted. The use of peyote
In response to continuing problems with the free exercise of traditional Native American religions, the U.S. Congress passed a broad policy statement, Senate Joint Resolution 102, commonly known as the American Indian Religious Freedom Act (AIRFA), on August 11, 1978. After noting the right to freedom of religion in the United States and the inconsistent extension of that right to Native Americans, Congress acknowledged its obligation 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 Hawaiian, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.” AIRFA also required all federal agencies to examine their regulations and practices for any inherent conflict with the practice of Native American religions. These agencies were required to report back to Congress and recommend areas in which changes in policies and procedures were needed to ensure that American Indians’ religious freedoms were protected.
The American Indian Religious Freedom Act is a key element in self-determination and cultural freedom in the United States. However, even with passage of this act, Native Americans continued to experience problems in access to sacred sites and the use of peyote. The right of Native Americans to use peyote is an unsettled issue in both federal and state courts. Although peyote is subject to control under the Comprehensive Drug Abuse Prevention and Control Act,
The U.S. Supreme Court has ruled that AIRFA is a policy statement only, and it does not allow Native Americans to sue when federal agencies disregard their traditional religious practices or when agencies pursue plans that will have adverse impacts on Native American religion or beliefs. In 1988, in Lyng v. Northwest Indian Cemetery Protective Association,
The extension of full religious freedom to Native Americans is an evolving concept in U.S. jurisprudence, and the American Indian Religious Freedom Act constitutes an important philosophical foundation concerning Native Americans’ free exercise of religion and access to sacred areas.
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Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretation of Sacred Land. Westport, Conn.: Greenwood Press, 1999. Discusses a series of court cases from the 1980’s regarding American Indians’ religion-based claims on ancestrally revered lands. -
Deloria, Vine, Jr., ed. American Indian Policy in the Twentieth Century. Norman: University of Oklahoma Press, 1985. Contributors to this volume interpret American Indian policy through important legal decisions. One essay explores AIRFA and its ineffectiveness in protecting access to sacred sites. -
Deloria, Vine, Jr., and Clifford Lytle. The Nations Within: The Past and Future of American Indian Sovereignty. 1984. Reprint. Austin: University of Texas Press, 1998. Provides a thorough examination of the Collier years and their impact on later American Indian policy. -
Echo-Hawk, Walter E. “Loopholes in Religious Liberty: The Need for a Federal Law to Protect Freedom of Worship for Native American Peoples.” NARF Legal Review 14 (Summer, 1991): 7-14. Presents an important analysis of what AIRFA should provide in the way of legal protection of religious freedoms for Native Americans. -
Josephy, Alvin M. Now That the Buffalo’s Gone: A Study of Today’s American Indians. Norman: University of Oklahoma Press, 1984. Contains a chapter on American Indians’ efforts to retain their spiritual heritage. -
Long, Carolyn N. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. Lawrence: University Press of Kansas, 2000. Presents details of the Oregon court case regarding Native Americans’ use of peyote as a religious practice. -
Niezen, Ronald. Spirit Wars: Native North American Religions in the Age of Nation Building. Berkeley: University of California Press, 2000. Argues that the destruction of traditional spiritual practices has led to conditions of collective suffering among Native American peoples. Includes discussion of AIRFA.
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