The American Indian Religious Freedom Act turns 25 on Aug. 11, and there is every reason to both celebrate it and complete its unfinished agenda.
AIRFA articulates 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.”
After generations of traditional Native religions being federally driven underground or to extinction, it was a needed and welcome policy.
AIRFA laid the groundwork for federal museums returning Native human remains and sacred objects, and led to the repatriation laws in 1989 and 1990.
During the religious freedom law’s initial implementation, the ceremonial use of peyote was recognized as a traditional Native religious practice and Congress amended AIRFA in 1993 to codify protections for its use by Native American Church members.
Over the quarter-century life of AIRFA, numerous traditional and customary areas have been returned or protected through co-management agreements. During the same time, however, other sacred places have been damaged or destroyed, and far too many are under attack today.
Native traditional religious leaders and practitioners started the movement for the religious freedom law in 1967 after ceremonies at Bear Butte in South Dakota. As the group expanded, its annual regional meetings increased to seasonal ones held in various parts of Indian country and Hawaii.
Participants in these meetings were happy about achieving land returns, access agreements and protections for the use of feathers and other sacred objects.
At the same time, each meeting was followed by the death of one participant. People joked about who the sacrifice person would be, but adhered ever more closely to traditional admonitions to greet and leave others as if it were the last chance to do so. Those meetings and that phenomenon would continue through the enactment of the repatriation and the peyote laws.
The Agriculture, Interior and Justice departments in the Nixon and Ford administrations opposed religious freedom legislation. Candidate Jimmy Carter made a campaign promise to Indian leaders the week before the election that he would sign religious freedom legislation.
Among AIRFA’s original co-sponsors were the most conservative and most liberal senators – Barry Goldwater, Republican of Arizona, and Edward M. Kennedy, Democrat of Massachusetts. The measure moved along at a rapid clip until it hit the House floor. The Forest Service successfully lobbied Agriculture Committee Chair Thomas S. Foley, Democrat of Washington, to neuter AIRFA on sacred lands or kill it.
AIRFA’s House champion, Morris K. Udall, Democrat of Arizona, had to do the dirty work and say that the bill was a fine policy statement but had no teeth to protect sacred sites. We’ll go back and pick up the cause of action later, he said.
President Carter kept his word and signed AIRFA. His top political advisors said that the administration would ask Congress for the sacred sites cause of action during the second Carter term. There was no second term, of course. Foley went on to House leadership positions, the Supreme Court ruled that AIRFA carried no cause of action and Udall retired without being able to amend AIRFA to add the needed door to the courthouse.
Indian traditional and tribal leaders tried to get a legislative cause of action during the Clinton administration, but Interior politicos and natural resources lawyers in Justice and the pollsters in the White House opposed it.
Native leaders negotiated a substantive executive order on sacred sites, but it was changed unilaterally to a mere shadow of AIRFA.
Now comes a shadow of that shadow in the form of a bill in the House that purports to “codify” that executive order. Sadly, the main thing it would do is make mischief.
It would disenfranchise the traditional religious leaders and practitioners, who are the ones who hold these places sacred. It would put the tribal governments in charge with nothing to guarantee that they won’t turn a sacred place into a casino or a mine.
For those Indian nations that are theocracies, it makes sense for their traditional governments to have sole standing. For the other 99 percent of the tribes that are not theocracies, it is nonsensical and backward to recognize the secular entities to the exclusion of the traditional religious entities and practitioners.
While the bill in the House includes even those tribes that have no traditional religions, it excludes those non-federally-recognized tribes and Native Hawaiians who do have traditional sacred places to protect.
The House bill contains a virtually unusable cause of action. It sets the bar at the lowest possible standard – arbitrary and capricious – which means that a federal agency would have to laugh in your face and at the law, and all in writing, with witnesses, before you could take it to court.
It has a clumsy definition of sacred site that demonstrates the danger in attempting to define the sacred. It would do much harm by leaving out whole categories of sacred places and forcing proof that others are included. No other people in America have to define the sacred. Native Americans should not have to do so.
Proponents of the bill use the known sacred places that are under attack now – including Bear Butte and burial grounds and ceremonial areas along the Missouri River – to justify the need for their bill. Sadly, it would do nothing about any of those places. The bill’s boosters also seem to be making it a Democrat bill, a strategy destined to fail at a time when both Houses of Congress and the White House are under Republican leadership.
What is needed is a bill with a substantive cause of action to defend sacred places in court and to serve as incentive for serious negotiations for the return, co-management or protected status of sacred places – one that does not try to define or limit the sacred.
Not nine months ago, traditional and tribal leaders, practitioners and advocates who are among the most knowledgeable on these issues developed clear, concise lists of essential elements and objectionable elements for any public policy on Native sacred places.
Those lists are being turned into draft legislation that includes all segments of Native America with traditional and customary sacred places to protect, leaving out no category of sacred places and respecting traditional religious tenets and tribal law regarding non-disclosure of confidential and private information about the sacred.
Following those guidelines would not only keep faith with the people who reached consensus on these sacred places matters last year, but would honor AIRFA and the myriad people who sacrificed to achieve it and its follow-on laws. This is a good thing to do in AIRFA’s 25th anniversary year.
Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.