American Indian Religious Freedom and Native American Graves Protection and Repatriation Acts
Purpose and Organization
American Indian Religious Freedom Act
The American Indian Religious Freedom Act (AIRFA), passed in 1978, clarifies U.S. policy pertaining to the protection of Native Americans' religious freedom. (In spite of its title, the law explicitly states that it includes "the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians.") The special nature of Native American religions has frequently resulted in conflicts between federal laws and policies and religious freedom. Some federal laws, such as those protecting wilderness areas or endangered species, have inadvertently given rise to problems such as denial of access to sacred sites or prohibitions on possession of animal-derived sacred objects by Native Americans.
AIRFA acknowledged prior infringement on the right of freedom of religion for Native Americans. Furthermore, it stated in a clear, comprehensive, and consistent fashion the federal policy that laws passed for other purposes were not meant to restrict the rights of Native Americans. The act established a policy of protecting and preserving the inherent right of individual Native Americans to believe, express, and exercise their traditional religions.
AIRFA is primarily a policy statement. Approximately half of the brief statute is devoted to congressional findings. Following those findings, the act makes a general policy statement regarding Native American religious freedom:
...henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right to 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 ceremonial and traditional rites [42 United States Code (U.S.C.) 1996].
The final section of the act requires the President to order agencies to review their policies and procedures in consultation with traditional native religious leaders.
Native American Graves Protection and Repatriation Act
The Native American Graves Protection and Repatriation Act (NAGPRA), enacted on November 16, 1990, established a means for Native Americans, including members of Indian Tribes, Native Hawaiian organizations, and Native Alaskan villages and corporations, to request the return or "repatriation" of human remains and other sensitive cultural items held by federal agencies or federally assisted museums or institutions. NAGPRA also contains provisions regarding the intentional excavation and removal of, inadvertent discovery of, and illegal trafficking in Native American human remains and sensitive cultural items.
All federal agencies that manage land and/or are responsible for archaeological collections from their lands or generated by their activities must comply with NAGPRA. U.S. Department of Energy (DOE) managers of ground-disturbing activities on federal and tribal lands should be aware of the statutory and regulatory provisions treating inadvertent discoveries of Native American remains and sensitive cultural objects.
On October 31, 2000, the Secretary of Energy issued DOE's American Indian & Alaska Native Tribal Government Policy. The seven-point policy revised a 1992 DOE policy that formalized a government-to-government relationship between DOE and the federally recognized tribes. As one key element of the policy, DOE pledged to consult with tribes when their interests or treaty rights might be affected by DOE activities. The policy also directed DOE managers to encourage tribal participation in DOE program planning, decision-making, and other activities and to identify any regulatory, statutory, or procedural impediments that reduce the effectiveness of DOE programs with tribal governments. Please click here to view an Information Brief on Consultation with Native Americans.
DOE O 1230.2, American Indian Tribal Government Policy, was issued April 8, 1992, by the Office of Congressional and Intergovernmental Affairs. This order established the responsibilities and roles of DOE managers and organizations in carrying out the policy. The issuing office serves as the principal contact for relations with tribal governments. It can be of assistance to DOE project managers in determining the effect of DOE activities on Native Americans because it maintains ongoing contact with major Native American organizations and individual tribes. Please click here to see a list of those DOE staff members who serve as the Indian Issues Points of Contacts for their office or site.
There are no specific regulations implementing AIRFA. Regulations implementing NAGPRA are found in Title 43 Part 10 of the Code of Federal Regulations.