jvahey@cdp.uucp (10/08/89)
/* Written 10:58 pm Oct 5, 1989 by jvahey in cdp:gen.nativeam */
/* ---------- "American Indian Religious Freedom " ---------- */
American Indian Religious Freedom Act and proposed amendments
Included:
American Indian Religious Freedom Act (of 1978)
H.R. 1546 proposed bill by Mr. Udall
S. 1124 proposed bill by Mr. McCain
Please note the differences between the two bills in terms
of what conditions are required to challenge an agency action
and what conditions the agency would then need to meet as
well as the criteria used to make this decision. To my knowledge
at this time, these are in committee. If anyone has any information
on status of either of these bills, or any proposed changes, please
post a reply to this topic and/or send email to jvahey@cdp.uucp.
Select Committee on Indian Affairs
(202) 224-2251
FAX:(202) 224-2309
MAJORITY MEMBERS
Daniel K.Inouye, Hawaii, Chairman
Dennis DeConcini, Ariz.
Quentin N. Burdick, N.D.
Thomas A. Daschle, S.D.
Kent Conrad, N.D.
MINORITY MEMBERS
John McCain, Ariz., Vice Chairman
Frank H. Murkowski, Alaska
Thad Cochran, Miss.
$ 1996. Protection and preservation of traditional reli-
gions of Native Americans.
On and after August 11, 1978, it shall be the
policy of the United States to protect and pre-
serve 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 pos-
session of sacred objects, and the freedom to
worship through ceremonials and traditional
rites.
(Pub.L. 95-341, $ 1, Aug. 11,1978, 92 Stat. 469.)
SHORT TITLE
Pub. L. 95-341, which enacted this section and a pro-
vision set out as a note under this section, is popularly
known as the American Indian Religious Freedom Act.
FEDERAL IMPLEMENTATION OF PROTECTIVE AND PRESER-
VATION FUNCTIONS RELATING TO NATIVE AMERICAN
RELIGIOUS CULTURAL RIGHTS AND PRACTICES; PRES-
DENTIAL REPORT TO CONGRESS
Section 2 of Pub. L. 95-341 provided that the Presi-
dent direct the various Fedral departments, agencies,
and other instrumentalities responsible for adminis-
tering relevant laws to evaluate their policies and pro-
cedures in consultation with native traditional reli-
gious leaders to determine changes necessary to pre-
serve Native American religious cultural rights and
practices and report to the Congress 12 months after
Aug. 11, 1978
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 16 section 470ii.
101st CONGRESS H.R. 1546
1ST Session To amend the American Indian Religious Freedom Act of 1978
------------------------------------
IN THE HOUSE OF REPRESENTATIVES
March 21, 1989
Mr. Udall introduced the following bill; which was referred to the Committee
on Interior and Insular Affairs
====================================
A BILL
To amend the American Indian Religious Freedom Act of 1978.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
Section 1. This Act may be cited as the "American
Indian Religious Freedom Act Amendments of 1989".
Sec. 2. The American Indian Religious Freedom Act
(42 U.S.C. 1996) is amended by adding the following new
section 3:
"Sec. 3. (a) Absent a compelling Federal interest, Fed-
eral lands that have historically been either part of, or neces-
sary to, or been used by, a traditional Native American reli-
gion, shall not be managed in a manner that will pose a sub-
stantial and realistic threat to undermine and frustrate any
traditional Native American religious practices.
"(b) The United States district courts shall have the au-
thority to issue such orders as may be necessary to enforce
the provisions of this section.
"(c) Any party challenging an agency action under this
section will have the burden to prove that the proposed
action will pose a substantial and realistic threat to under-
mine and frustrate a traditional Native American religious
practice.If such threat is established, the Federal agency will
have the burden to demonstrate that the Federal interest is
compelling. If the Federal interest is found to be compelling,
the Federal agency shall have the duty to select the course of
action that is the least intrustive on such Native American
Religious practices.".
***
101st CONGRESS S. 1124
1ST Session
To provide a means to ensure that the management of Federal lands does not
undermine and frustrate traditional Native American religious practices.
----------------------------------------
IN THE SENATE OF THE UNITED STATES
June 6 (legislative day,January 3), 1989
Mr. McCain introduced the following bill;which was read twice and referred to
the Select Committee on Indian Affairs
----------------------------------------
A BILL
To provide a means to ensure that the management of Federal
lands does not undermine and frustrate traditional Native
American religious practices.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. This Act may be cited as the "American
Indian Religious Freedom Act Amendments of 1989".
SEC. 2. The Congress finds that --
(1) unlike any other established religion, many
traditional Native American religions hold certain
lands or natural formations to be sacred;
(2) such sacred sites are an integral and vital part
of the Native American religions and the religious
practices associated with such religions;
(3) many of these sacred sites are found on lands
which were formerly part of the aboriginal territory of
the Indians but which now are held by the Federal
Government; and
(4) lack of sensitivity or understanding of tradi-
tional Native American religions on the part of Federal
agencies vested with the management of Federal lands
has resulted in the lack of a coherent policy for the
management of sacred sites found on Federal lands and
has also resulted in the infringement of religious free-
dom for Native Americans.
SEC. 3. Public Law 95-341 (42 U.S.C. 1996) , popular-
ly known as the American Indian Religious Freedom Act, is
amended by adding at the end thereof the following new sec-
tion:
"SEC. 3. (a) Except as otherwise provided in this sec-
tion, Federal lands that --
"(1) have historically been considered sacred and
indispensable by a traditional Native American reli-
gion, and
"(2) are necessary to the conduct of a Native
American religious practice,
shall not be managed in a manner that will pose a substantial
and realistic threat of undermining and frustrating such reli-
gion or religious practice.
"(b)(1) Subsection (a) shall not apply to management de-
cisions which are necessary to --
"(A) carry out the legal responsibilities of the
Federal Government,
"(B) protect a compelling governmental interest,
or
"(C) protect a vested property right.
"(2) In making management decisions described in para-
graph (1), the Federal agency shall attempt to accommodate
the various competing interests and shall, to the greatest
extent feasible, select the course of action that is the least
intrusive on traditional Native American religions or religious
practices.
"(3) Nothing in this section shall be interpreted as re-
quiring any Federal agency to totally deny public access to
Federal lands.
"(c)(1) The United States district courts shall have juris-
diction over any civil action brought by any person to enforce
the provisions of this section and may issue such orders as
may be necessary to enforce the provisions of this section.
"(2) Any person challenging a decision of a Federal
agency in a civil action brought under this subsection shall
have the burden of proving that the decision of the Federal
agency will pose a substantial and realistic threat of under-
mining and frustrating a traditional Native American religion
or religious practice.If such threat is established, the Federal
agency shall have the burden of demonstrating that the Federal
agency's decision is based on one or more of the criteria
in subsection (b)(1). If the Federal agency's decision is found
to have been based on one or more of the criteria in subsec-
tion (b)(1), then the Federal agency shall have the burden of
proving that it selected the course of action that is the least
intrusive on the Native American religion or religious prac-
tice."
***
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