Legislation has been instrumental in the protection, or denial, of Indigenous Americans' right to practice their religion, as well as their rights in general. This page provides a brief history on the legislation that has been the most impactful on Native Americans' religious freedoms. This legislation includes United States laws and applicable International law recognizing the rights of indigenous peoples.
United States legislation
AMERICAN INDIAN RELIGIOUS FREEDOM ACT (1978, AMENDED IN 1994)
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The American Indian Religious Freedom Act, commonly referred to as AIRFA, was passed by the United States Congress in 1977 and signed into law by President Carter in 1978. The legislation seems to be a monumental shift in United States policy towards the religious practices of Native Americans. To provide excerpts from the legislation: "Whereas the United States has traditionally rejected the concept of a government denying individuals the right to practice their religion and, as a result, has benefited from a rich variety of religious heritages in this country"... "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." [1] The legislation was later amended in 1994, and allows the use of peyote for religious ceremonies. [2] This legislation is complicated and as the page over sacred sites shows, has little correlation to the actuality of the situation, that Native Americans are still denied access to sacred sites and to exercise their religion.
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EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH (1990)
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The United States Supreme Court ruled in April of 1990 that the use of peyote in a religious ceremony is not protected under the First Amendment, specifically in regards to freedom of religion. The Court ruled that because the use of peyote was illegal within the state of Oregon, then practice of using peyote in religious ceremonies was therefore illegal as well and the state had the rights to deny Smith et al, unemployment benefits. The Supreme Court of the United States reversed the ruling of the Supreme Court of Oregon, who ruled in favor of Smith et al. [3]
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To listen to the decision of the Supreme Court on Employment Division v. Smith, please click the download link below [3]
Employment Division v. Smith Decision | |
File Size: | 1271 kb |
File Type: | mp3 |
EXECUTIVE ORDER 13007 (1996)
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In 1996, President Bill Clinton issued Executive Order 13007 which furthered, in theory, the United States Federal protections over the sacred sites of Indigenous Americans. The executive order goes into detail stating, "Accomodation of Sacred Sites. (a) In managing
Federal lands, each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions,(1) accomodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites." [4] However, Executive Order 13007 has not stopped the Keystone XL Pipeline from being approved, which has been contested by the Rosebud Sioux Tribe and the Fort Belknap Indian Community as being on sacred grounds. [5] |
NOTABLE INTERNATIONAL LEGISLATION
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On September 13, 2007, history was made when the United Nations Declaration On the Rights of Indigenous Peoples passed through the General Assembly, the United Nations main deliberating body. [6] Commonly annotated as UNDRIP, the Declaration was adopted by 144 countries. The only countries that voted against the adoption of UNDRIP were Australia, Canada, New Zealand, and the United States. [6] It is not surprising that the United States voted against the adoption of UNDRIP given their extensive history of denying spiritual lands and religious practices to Indigenous Americans. UNDRIP includes this passage:
"Article 12 1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains." [7] |
Click here to listen to a short description on Article 12 of the United Nations Declaration on the Rights of Indigenous Peoples [8]
Sources:
[1] United States Congress. 1978, August 11. Joint Resolution: American Indian Religious Freedom. 95th Congress. Retrieved from: https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg469.pdf
[2] Richardson, Bill. 1994, October 6. American Indian Religious Freedom Act Amendments of 1994. 103rd Congress. Retrieved from: https://www.congress.gov/bill/103rd-congress/house-bill/4230/text/enr
[3] Oyez. Employment Division, Department of Human Resources of Oregon v. Smith. Retrieved from: www.oyez.org/cases/1989/88-1213
[4] Office of the President. 1996, May 24. Executive Order 13007: Indian Sacred Sites. Retrieved from: https://www.energy.gov/sites/prod/files/EO%2013007%20Indian%20Sacred%20Sites.pdf
[5] Native American Rights Fund. 2019, April 23. Keystone XL Pipeline. Retrieved from: https://www.narf.org/cases/keystone/
[6] United Nations. 2007, September 13. United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from: https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
[7] United Nations. 2007, September 13. United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
[8] https://soundcloud.com/culturalsurvival/undrip-article-12-spiritual?in=culturalsurvival/sets/the-un-declaration-on-the-rights-of-indigenous-peoples
[1] United States Congress. 1978, August 11. Joint Resolution: American Indian Religious Freedom. 95th Congress. Retrieved from: https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg469.pdf
[2] Richardson, Bill. 1994, October 6. American Indian Religious Freedom Act Amendments of 1994. 103rd Congress. Retrieved from: https://www.congress.gov/bill/103rd-congress/house-bill/4230/text/enr
[3] Oyez. Employment Division, Department of Human Resources of Oregon v. Smith. Retrieved from: www.oyez.org/cases/1989/88-1213
[4] Office of the President. 1996, May 24. Executive Order 13007: Indian Sacred Sites. Retrieved from: https://www.energy.gov/sites/prod/files/EO%2013007%20Indian%20Sacred%20Sites.pdf
[5] Native American Rights Fund. 2019, April 23. Keystone XL Pipeline. Retrieved from: https://www.narf.org/cases/keystone/
[6] United Nations. 2007, September 13. United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from: https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
[7] United Nations. 2007, September 13. United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
[8] https://soundcloud.com/culturalsurvival/undrip-article-12-spiritual?in=culturalsurvival/sets/the-un-declaration-on-the-rights-of-indigenous-peoples