A Bill to Amend the American Indian Religious Freedom Act to Include the Protection of Sacred Places

A BILL To amend the American Indian Religious Freedom Act to ensure that federal laws protecting the free exercise of religion include protection of traditional Native American Sacred Places where ceremonies, commemorations, observances or worship are conducted or occur, and to provide a right of action to protect Native American Sacred Places.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION I. SHORT TITLE; DEFINITIONS (a) SHORT TITLE - This Act may be cited as “American Indian Religious Freedom Act Amendments of 2010." (b) DEFINITIONS (1) NATIVE AMERICAN SACRED PLACE means a ceremonial, commemorative, observance or worship place which is needed by traditional Native American religious leaders for the practice of traditional Native American or Native Hawaiian religions by their present day Native American or Native Hawaiian adherents; (NOTE: Taken from NAGPRA Def. of “Sacred Object”) (2) NATIVE AMERICAN means a person within the meaning of the American Indian Religious Freedom Act, 42 U.S.C. 1996; (3) NATIVE HAWAIIAN means a person as defined in the Native American Graves Protection Act, 25 U.S.C. 3001(10); (4) NATIVE HAWAIIAN ORGANIZATION means a “Native Hawaiian organization” as defined in the Native American Graves Protection Act, 25 U.S.C. 3001(11); (5) INDIAN TRIBE or NATIVE NATION means an “Indian tribe” as defined in the Indian Arts and Crafts Act, 25 U.S.C. 305e(d)(3)(A)-(B); (6) FEDERAL UNDERTAKING means “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those – (a) carried out by or behalf of the agency; (b) carried out with federal financial assistance; (c) requiring a federal permit, license, or approval; or, (d) subject to state or local regulation administered pursuant to a delegation or approval by a federal agency;” (NOTE: Taken from NHPA) (7) DEMONSTRATES means “meets the burdens of going forward with the evidence and of persuasion;” (NOTE: Taken from RFRA) (8) EXERCISE OF A TRADITIONAL NATIVE AMERICAN RELIGION means “the exercise of religion by a Native American under the First Amendment to the Constitution or the American Indian Religious Freedom Act, including any exercise by a Native American of a traditional Native American religion, whether or not compelled by, or central to, a system of traditional Native American religious belief; and the use of a traditional Native American religious place by a Native American for the purpose of religious exercise shall be considered to be religious exercise of the Native American person that uses or intends to use the place for that purpose.” (NOTE: Taken from RFRA and RLUIPA) SECTION II. FINDINGS, DECLARATIONS AND PURPOSES (a) THE CONGRESS FINDS AND DECLARES THAT -

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(1) for many Native American nations and people, the ceremonies, commemorations, observations and worship at traditional Native American Sacred Places are important aspects of their free exercise of religion; (2) in Lyng v. Northwest Cemetery Association, 485 U.S. 439 (1989) and Employment Division v. Smith, 494 U.S. 872 (1989), two Supreme Court cases involving the free exercise of religion by Native Americans, the Court virtually eliminated the requirement that the government justify burdens on the free exercise of religion, especially by Native American people at traditional Native American Sacred Places, and in the process weakened American religious liberty in general; (3) Since the Lyng and Smith decisions, Congress has enacted the American Indian Religious Freedom Act Amendments of 1994, 42 U.S.C. 1996a, Religious Freedom Restoration Act, 42 U.S.C. 2000bb1-4, and Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc1-5 to protect the free exercise of religion, but it has not enacted a statute that the Supreme Court has accepted as a right of action to protect Native American Sacred Places; and, (4) there is a need to ensure and clarify that federal laws protecting the free exercise of religion include traditional Native American Sacred Places where ceremonies, commemorations, observances or worship are conducted or occur. (b) THE PURPOSES OF THIS ACT ARE TO (1) implement the United States’ policy declared in the American Indian Religious Freedom Act, 42 U.S.C. 1996; (2) afford Native American nations and people equal protection of the federal laws protecting free exercise of religion; (3) strengthen federal laws protecting the free exercise of religion by ensuring and clarifying that they: (i) are inclusive of Native American religious practices; and (ii) do not favor one set of religions over Native American religions, as required by the Establishment Clause of the First Amendment to the United States Constitution; and, (4) provide a right of action for protection of Native American Sacred Places.

SECTION III. PROTECTION OF NATIVE AMERICAN SACRED PLACES WHERE CEREMONIES, COMMEMORATIONS, OBSERVANCES AND WORSHIP ARE CONDUCTED OR OCCUR (a) CONSTRUCTION OF THE RELIGIOUS FREEDOM RESTORATION ACT. 42 U.S.C. 2000bb1-4 shall not be construed or applied to exclude free exercise claims involving Native American ceremonies, commemorations, observances or worship at traditional Native American Sacred Places.

(2) AMENDMENT OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT. 42 U.S.C. 2000cc-5(5), is amended to add the following to the last sentence thereof: “provided that the interest of traditional Native American religious practitioners in ceremonies, commemorations, observances or worship at traditional Native American Sacred Places located on federal land shall constitute a sufficient “property interest” for purposes of this statute.”

(3) LIMITATION ON FEDERAL UNDERTAKINGS. (NOTE: Taken from RLUIPA) No federal undertaking may be carried out in a manner that imposes a substantial burden on the exercise of a traditional Native American religion by a Native American religious practitioner concerning ceremonies, commemorations, observances or worship at a traditional Native American Sacred Place, even if the burden results from a rule of general application, unless the federal agency involved demonstrates that imposition

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of the burden on the Native American person – (A) is in furtherance of a compelling governmental interest; and, (B) is the least restrictive means of furthering that compelling governmental interest.

(4) JUDICIAL RELIEF FOR SUBSECTION (3). A Native American person whose religious exercise has been burdened in violation of subsection (3) of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a federal agency or government. The United States District Courts shall have jurisdiction over any action brought by any Native American person or Indian nation or Indian tribe on behalf of Native American tribal citizens or members alleging a violation of subsection (3) of this section and shall have authority to issue such orders as may be necessary to enforce the provisions of subsection (3). Standing to assert a claim or defense under this subsection shall be governed by the general rules of standing under article III of the Constitution, including parens patriae principles, which may be applicable to Indian tribes or Native nations. (NOTE: Taken from RFRA, RLUIPA and NAGPRA) SECTION IV. TRANSFER OF FEDERAL LAND (a) AUTHORITY - The head of the department or agency with administrative jurisdiction over federal land which contains a Native American Sacred Place may transfer the federal land in trust for the benefit of one or more Indian tribe(s), Native nation(s) or Native Hawaiian organization(s) which consider the land sacred, and develop a management or co-management, or stewardship or co-stewardship agreement with the tribe(s), nation(s) or organization(s) for which it is taken into trust for management or stewardship of the land in perpetuity for the purpose of protecting its integrity as a Native American Sacred Place. (b) REVERTER - If the head of the department or agency that has taken federal land into trust under this section determines that the land is not being managed or stewarded in accordance with the agreement, as required in subsection (a), the department or agency shall work with the Indian tribe(s), Native nation(s) or Native Hawaiian organization(s) to restore the agreed upon purposes or conditions; should such restoration fail, the land shall be removed from trust and shall be managed under this Act by the head of the department or agency that transferred land under subsection (a).

SECTION V. COOPERATIVE AGREEMENTS (a) AUTHORITY- The head of the department or agency with administrative jurisdiction over federal land which contains a Native American Sacred Place may enter into cooperative agreements with one or more Indian tribe(s), Native nation(s) or Native Hawaiian organization(s) which consider the land sacred to provide for the Indian tribe(s), Native nation(s) or Native Hawaiian organization(s) to manage or comanage, or to steward or co-steward– (1) that federal land; and, (2) any adjacent or nearby federal land, if including the adjacent or nearby federal land would facilitate the management or co-management, or the stewardship or co-stewardship of the Native American Sacred Place by the Indian tribe(s), Native nation(s) or Native Hawaiian organization(s). (b) RULES AND REGULATIONS - The head of departments managing federal lands shall develop regulations to implement this section and in developing such regulations shall use (1) an effective process for Native American governmental and religious leaders and traditional Native American and Native Hawaiian religious practitioners to provide meaningful and effective input; and,

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(2) where appropriate, consensual mechanisms, included negotiated rulemaking. (c) EFFECTIVE DATE - This Act shall become effective on the date of the approval of this Act. Any failure by any head of departments to promulgate regulations under this section shall not effect such effective date.

SECTION VI. REPORT TO CONGRESS MANDATED The President shall direct each federal agency subject to the American Indian Religious Freedom Act (1978) or Executive Order No. 13007 (1996) to identify and evaluate all implementation measures, in consultation with Native American traditional religious leaders, and identify any outstanding problems or obstacles in achieving the goals and purposes of the Order. Twelve months after the date of this statute, the President shall report back to Congress the results of his evaluation, including a summary of implementation steps taken, an evaluation of their effectiveness, an identification of outstanding problems in achieving the purposes of the Order, and any recommendations he may have for administrative or legislative action. (NOTE: Taken from AIRFA and EO #13007) SECTION VII. CONSTRUCTION AND SAVINGS (NOTE: Taken from RFRA, RLUIPA, NAGPRA and AIRFA Amendments of 1994) (a) CONSTRUCTION - This Act shall be construed in favor of a broad protection of religious exercise and in favor of preserving and protecting traditional Native American cultures. Nothing in this Act shall be construed to – (1) limit, abrogate or diminish any Native American religious exercise, the inherent right of Indian tribes or Native nations or their citizens to practice their traditional religions, or the right of Native Americans to practice their religions under any federal, state or tribal law; (2) authorize any government to burden any Native American religious belief; (3) limit, abrogate, diminish or otherwise affect the rights, express or implicit, of any Indian tribe or Native nation or their citizens which exist under treaties, executive orders, agreements and laws of the United States or the inherent rights of any Indian tribe or Native nation; (4) affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion. (b) SPECIAL RELATIONSHIPS BETWEEN THE UNITED STATES AND INDIAN TRIBES AND NATIVE NATIONS OR NATIVE HAWAIIANS - This Act reflects the unique trust relationship between the federal government and Indian tribes and Native nations and their citizens, and its special relationship with Native Hawaiians. The federal government’s fiduciary and special obligations to Native Americans should not be construed to establish a precedent with respect to any other individual or group.

(NOTE: Taken from NAGPRA) (c) Severability. If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected. (NOTE: Taken from RFRA and RLUIPA) ***

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