AIRFA

The American Indian Religious Freedom Act, along with the subsequent amendments, make it very clear that all American Native people of federally recognized tribes, along with bona fide incorporated, tribally connected Native American Church (Native American Indigenous Church) are qualified for the exceptions to all laws of the United States that concern the American Native Culture (American Native Tribal Spiritual Leaders and Spiritual Leaders of Native American Church, est. 1918).

August 11, 1978
Public Law 95-341
92 Stat. 469
95th Congress – Joint Resolution
American Indian Religious Freedom
[S.J. Res. 102]

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That 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. 42 USC 1996.

The Native American Free Exercise of Religion Act of 1993 had provisions for sacred site protections. This act was dropped but ceremonial use of peyote was protected with the American Indian Religious Freedom Act Amendments of 1994 (below).

American Indian Religious Freedom Act Amendments of 1994
Oct 6, 1994
Public Law 103-344
108 Stat. 3124
Passed by 103rd Congress
[H.R. 4230]

AN ACT

To emend the American Indian Religious Freedom Act to provide for the traditional use of peyote by Indians for religious purposes, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 SECTION 1. SHORT TITLE.

This Act may be cited as the “American Indian Religious Freedom Act Amendments of 1994”.

SECTION 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT.

The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the “American Indian Religious Freedom Act”, is amended by adding at the end thereof the following new section:

SECTION 3

A.The Congress finds and declares that

.    1.for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures;
.    2.since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation;
.    3.while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies;
.    4.the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling State interest standard; and
.    5.the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment.

B.

.    1.Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.

.    2.This section does not prohibit such reasonable regulation and registration by the Drug Enforcement Administration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act.

.    3.This section does not prohibit application of the provisions of section 481.111 of Vernon’s Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote.

.    4.Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing reasonable limitations on the use or ingestion of peyote prior to or during the performance of duties by sworn law enforcement officers or personnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2OOObb-1).

.    5.This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities.

.    6.Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1), this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations.

.    7.Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 USC 2000bb-1), this section does not prohibit the Secretary of Defense from promulgating regulations establishing reasonable limitations on the use, possession, transportation, or distribution of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice.
.
.    C.For purposes of this section–

.    1.the term ‘Indian’ means a member of an Indian tribe;
.    2.the term ‘Indian tribe’ means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. l601 et seq.)), which is recognized as eligible for the special programs and services provide by the United States to Indians because of their status as Indians;
.    3.the term ‘Indian religion’ means any religion–
.    1.which is practiced by Indians; and
.    2.the origin and interpretation of which is from within a traditional Indian culture or community; and
.    4.the term ‘State’ means any State of the United States and any political subdivision thereof.
.
.    D.Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting–

.    1.the inherent rights of any Indian tribe;
.    2.the rights, express or implicit, of any Indian tribe which exist under treaties, Executive orders, and laws of the United States;
.    3.the inherent right of Indians to practice their religions; and
.    4.the right of Indians to practice their religions under any Federal or State law.”.
.
.
.    Approved October 6, 1994.

For Legislative History of Act, see Report for P.L. 103-344 in U.S.C.C. & A.N. Legislative History Section.

 

Additional Articles and Briefs:

A) UNC School of Government, Land-Use Regulation of Religious Uses: The University of North Carolina at Chapel Hill, Planning and Zoning: Brief

B) Land Use Regulation of Religious Uses: Jenkins & Olson, P.C.: Brief

C) Zoning Religion: The Battle over RLUIPA: First Amendment Center: Brief

D) the religious land utilization and institutionalized persons act…

E) American University Law Review, October, 1995 “ZONING AND RELIGION: WILL THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993 SHIFT THE LINE TOWARD RELIGIOUS LIBERTY?

F) George Mason Law Review, Summer 2001, Article “*929 THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000: A CONSTITUTIONAL RESPONSE TO UNCONSTITUTIONAL ZONING PRACTICES