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A BILL

To assure religious freedom to Native Americans.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

1. SHORT TITLE.--This Act may be cited as the "Native American Free Exercise of Religion Act of 1993".

2. TABLE OF CONTENTS.--
   Sec. 1. Short title; table of contents.
   Sec. 2. Policy.
   Sec. 3. Definitions.
   

TITLE I--PROTECTION OF SACRED SITES

Sec. 101. Findings.
Sec. 102. Federal land management; use and preservation.
Sec. 103. Notice.
Sec. 104. Consultation.
Sec. 105. Burden of proof.
Sec. 106. Tribal authority over Native American religious sites on Indian lands.
Sec. 107. Application of other laws.
Sec. 108. Confidentiality.
Sec. 109. Criminal sanctions.

TITLE II--TRADITIONAL USE OF PEYOTE

Sec. 201. Findings.
Sec. 202. Traditional use of peyote.

TITLE III--PRISONERS' RIGHTS

Sec. 301. Rights.

TITLE IV--RELIGIOUS USE OF EAGLES AND OTHER ANIMALS AND PLANTS

Sec. 401. Religious use of eagles.
Sec. 402. Other animals and plants.

TITLE V--JURISDICTION AND REMEDIES

Sec. 501. Jurisdiction and remedies.

TITLE VI--MISCELLANEOUS

Sec. 601. Savings clause.
Sec. 602. Severability.
Sec. 603. Authorization of appropriations.
Sec. 604. Effective date.

SEC. 2. POLICY.

It is the policy of the United States, in furtherance of the policy established in the joint resolution entitled "Joint Resolution American Indian Religious Freedom", approved August 11, 1978 (42 U.S.C. 1996), to protect and preserve the inherent right of any Native American to believe, express, and exercise his or her traditional religion, including, but not limited to, access to any Native American religious site, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.

SEC. 3. DEFINITIONS.

For the purposes of this Act, the following definitions shall apply:

(1) AGGRIEVED PARTY.

--The term "aggrieved party" means any Native American practitioner, Native American traditional leader, Indian tribe, or Native Hawaiian organization as defined by this Act.

(2) FEDERAL AGENCY.

--The term "Federal agency" means any department, agency, or instrumentality of the Federal Government.

(3) FEDERAL OR FEDERALLY ASSISTED UNDERTAKING.

--The term "Federal or federally assisted undertaking" means any regulation relating to or any project, activity, or program pertaining to the management, use, or preservation of land (including continuing and new projects, activities, or programs) which is funded in whole or in part by, or under the direct or indirect jurisdiction of, a Federal agency, including--

(A) those carried out by or on behalf of the agency;

(B) those carried out with Federal financial assistance;

(C) those requiring a Federal permit, license or approval; and

(D) those subject to State regulation administered pursuant to a delegation or approval by a Federal agency.

The term "Federal or federally assisted undertakings" does not include regulations, projects, activities, or programs operated, approved, or sponsored by Indian tribes, including, but not limited to, those projects, activities, or programs which are funded in whole or in part by Federal funds pursuant to contract, grant or agreement, or which require Federal permits, licenses or approvals.

(4) GOVERNMENTAL AGENCY.--The term "governmental agency" means any agency, department, or instrumentality of--

(A) the United States; or

(B) a State,

in the case of a Federal or federally assisted undertaking described in paragraph (3)(D). The term "governmental agency" does not include an agency, department, or instrumentality of an Indian tribe.

(5) INDIAN.--The term "Indian" means--

(A) an individual of aboriginal ancestry who is a member of an Indian tribe,

(B) an individual who is an Alaska Native, or

(C) in the case of California Indians, an individual who meets the definition in section 809(b) of the Indian Health Care Improvement Act (25 U.S.C. 1679(b)), except that an Indian community need not be served by a local program of the Indian Health Service in order to qualify as an Indian community for purposes of this definition.

(6) INDIAN LANDS.

--The term "Indian lands" means all lands within the limits of any Indian reservation; public domain Indian allotments; all other lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against a nation; all dependent Indian communities; and all fee lands owned by an Indian tribe.

(7) INDIAN TRIBE.--The term "Indian tribe" means--

(A) 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. 1601 et seq.)), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians,

(B) any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority,

(C) any Indian tribe whose federally recognized status has been terminated, and

(D) any non-federally recognized tribe that has--

(i) filed a petition for acknowledgement with the Branch of Federal Acknowledgement of the Bureau of Indian Affairs of the Department of the Interior or is the subject of pending legislation in the Congress seeking federally recognized status, and

(ii) is recognized as an Indian tribe by other Indian tribes, communities or groups.

The definition contained in subparagraph (D) shall not apply if the Department of the Interior has acted to deny such tribe's petition for acknowledgement and all appeals of the Department's determination have been exhausted and have been decided in support of the Department's determination.

(8) LAND.--The terms "land", "lands", or "public lands" mean surface and subsurface land within the jurisdiction of the United States or the respective States, including submerged land of any kind or interest therein and all water and waterways occupying, adjacent to, or running through the land.

(9) NATIVE AMERICAN.--The term "Native American" means any Indian or Native Hawaiian.

(10) NATIVE AMERICAN PRACTITIONER.--The term "Native American practitioner" means--

(A) any Native American who practices a Native American religion, or

(B) any Native Hawaiian with an obligation to protect a Native Hawaiian religious site, or any Native Hawaiian who practices a Native Hawaiian religion or engages in a Native Hawaiian ceremonial or ritual undertaking.

(11) NATIVE AMERICAN RELIGION.--The term "Native American religion" means any religion--

(A) which is practiced by Native Americans, and

(B) the origin and interpretation of which is from within a traditional Native American culture or community.

(12) NATIVE AMERICAN RELIGIOUS SITE.--The term "Native American religious site" means any place or area, including, but not limited to, any geophysical or geographical area or feature--

(A) which is sacred to a Native American religion;

(B) where Native American practitioners are required by their religion to gather, harvest, or maintain natural substances or natural products for use in Native American religious ceremonies or rituals or for spiritual purposes, including all places or areas where such natural substances or products are located; or

(C) which is utilized by Native American religious practitioners for ceremonies, rituals, or other spiritual practices.

(13) NATIVE AMERICAN TRADITIONAL LEADER.--The term "Native American traditional leader" means any Native American who--

(A) is recognized by an Indian tribe, Native Hawaiian organization, or Native American traditional organization as being responsible for performing cultural duties relating to the ceremonial or religious traditions of the tribe or traditional organization, or

(B) exercises a leadership role in an Indian tribe, Native Hawaiian organization or Native American traditional organization based upon its cultural, ceremonial, or religious practices.

(14) NATIVE HAWAIIAN.--The term "Native Hawaiian" means any individual who is a descendant of the aboriginal Polynesian people who, prior to 1778, occupied and exercised sovereignty and self-determination in the area that now comprises the State of Hawaii.

(15) NATIVE HAWAIIAN ORGANIZATION.--The term "Native Hawaiian organization" means any organization which is composed primarily of Native Hawaiians, serves and represents the interests of Native Hawaiians and whose members--

(A)practice a Native American religion or conduct traditional ceremonial rituals, or

(B) utilize, preserve and protect Native American religious sites.

(16) STATE.--The term "State" means any State of the United States and any and all political subdivisions thereof.

TITLE I--PROTECTION OF SACRED SITES

SEC. 101. FINDINGS.

The Congress finds that--

1. throughout American history, the free exercise of traditional Native American religions has been intruded upon, interfered with, and, in some instances, banned by the Federal Government and the devastating impact of these governmental actions continues to the present day;
2. the religious practices of Native Americans are integral parts of their cultures, traditions and heritages and greatly enhance the vitality of Native American communities and tribes and the well-being of Native Americans in general;
3. as part of its historic trust responsibility, the Federal Government has the obligation to enact enforceable Federal policies which will protect Native American community and tribal vitality and cultural integrity, and which will not inhibit or interfere with the free exercise of Native American religions;
4. just as other religions consider certain sites in other parts of the world to be sacred, many Native American religions hold certain lands or natural formations in the United States to be sacred, and, in order for those sites to be in a condition appropriate for religious use, the physical environment, water, plants and animals associated with those sites must be protected;
5. such Native American religious sites are an integral and vital part of, and inextricably intertwined with, many Native American religions and the religious practices associated with such religions, including the ceremonial use and gathering, harvesting, or maintaining of natural substances or natural products for those purposes;
6. many of these Native American religious sites are found on lands which were part of the aboriginal territory of the Indians but which now are held by the Federal Government, or are the subject of Federal or federally assisted undertakings;
7. lack of sensitivity to, or understanding of, Native American religions on the part of Federal agencies has resulted in the absence of a coherent policy for the protection of Native American religious sites and the failure by Federal agencies to consider the impacts of Federal and federally assisted undertakings upon Native American religious sites;
8. the Supreme Court of the United States, in the case of Lyng v. Northwest Indian Cemetery Association, 485 U.S. 439 (1988) ruled that the free exercise clause of the First Amendment does not restrict the Government's management of its lands, even if certain governmental actions would infringe upon or destroy the ability to practice religion, so long as the Government's action does not compel individuals to act in a manner which is contrary to their religious beliefs;
9. the holding in the case of Lyng v. Northwest Indian Cemetery Association creates a chilling and discriminatory effect on the free exercise of Native American religions;
10. the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990) extended the Lyng doctrine to all "valid and neutral laws of general applicability" not intended to specifically infringe upon religious practice and held that the First Amendment does not exempt practitioners who use peyote in Native American religious ceremonies from complying with "neutral" State laws prohibiting peyote use, notwithstanding the chilling effect of such laws upon their right to freely practice their religion;
11. Native Hawaiians have distinct rights under Federal law as beneficiaries of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108) and the Act entitled "An Act to provide for the admission of the State of Hawaii into the Union", approved March 18, 1959 (73 Stat. 4);
12. the United States trust responsibility for lands set aside for the benefit of Native Hawaiians has never been extinguished;
13. the Federal policy of self-determination and self-governance is recognized to extend to all Native Americans;
14. Congress has enacted numerous laws which regulate and restrict the discretion of Federal agencies for the sake of environmental, historical, economic, and cultural concerns, but has never enacted a judicially enforceable law comparably restricting agency discretion for the sake of the site-specific requirements associated with the free exercise of Native American religions;
15. the lack of a judicially enforceable Federal law and of a coherent Federal policy to accommodate the uniqueness of Native American religions imposes unique and unequal disadvantages on Native American religions, gravely restricting the free exercise of Native American religions and impairing the vitality of Native American communities and Indian tribes; and
16. Congress has the authority to enact such a law pursuant to section 8, Article I, of the Constitution and the First and Fourteenth Amendments.

SEC. 102. FEDERAL LAND MANAGEMENT; USE AND PRESERVATION.

(a) IN GENERAL.--Notwithstanding any other provision of law each Federal agency shall manage any lands under its jurisdiction in a manner that complies with the provisions of this Act.

(b) PLANNING PROCESS.--Each Federal agency involved in Federal or federally assisted undertakings, including, but not limited to, activities pursuant to the National Forest Management Act (16 U.S.C. 1600 et seq.), and the Federal Land Policy and Management Act (43 U.S.C. 1701 et seq.), shall as part of its planning process--

1. consult with Indian tribes and Native Hawaiian organizations identified pursuant to section 103, as well as Native American traditional leaders who can be identified by the agency to have an interest in the land in question;
2. provide for notice of all Federal or federally assisted undertakings with the potential to have an impact on certain specified lands to an Indian tribe, Native Hawaiian organization, or Native American traditional leader if such tribe, organization, or leader places the agency on notice, in writing, that it is interested in receiving notice of all such undertakings;
3. ensure that its land management plans are consistent with the provisions and policies of this Act; and
4. maintain the confidentiality of specific details of a Native American religion or the significance of a Native American religious site to that religion in accordance with the procedures specified in sections 107 and 108 of this Act.

(c) ACCESS.--

1. IN GENERAL.--Unless the President determines that national security concerns are directly affected, in which case the provisions of section 105 shall apply, Native American practitioners shall be permitted access to Native American religious sites located on Federal lands at all times, including the right to gather, harvest, or maintain natural substances or natural products for Native American religious purposes.
2. PROHIBITION AGAINST VEHICLES.--Paragraph (1) does not authorize the use of motorized vehicles or other forms of mechanized transport in roadless areas where such use is prohibited by law, nor affect the application of the Endangered Species Act, except as provided for by section 501(b) of this Act.
3. TEMPORARY CLOSING.--Upon the request of an Indian tribe, Native Hawaiian organization, or Native American traditional leader, the Secretary of the department whose land is involved may from time to time temporarily close to general public use one or more specific portions of Federal land in order to protect the privacy of religious cultural activities in such areas by Native Americans. Any such closure shall be made so as to affect the smallest practicable area for the minimum period necessary for such purposes.

(d) REGULATIONS.--The Secretary of the Interior, in consultation with Indian tribes and Native Hawaiian organizations, shall promulgate uniform regulations relating to--

1. Federal planning processes pertaining to the management, use or preservation of land; and
2. notice to and consultation with Indian tribes, Native Hawaiian organizations, Native American traditional leaders and Native American practitioners as required by sections 103 and 104 of this Act.

The regulations shall be sufficiently flexible to enable consultation to meet the unique needs of Indian tribes, Native Hawaiian organizations, Native American traditional leaders and Native American practitioners.

SEC. 103. NOTICE.

(a) IDENTIFICATION OF LANDS BY SECRETARY.--

1. IN GENERAL.--For the purpose of assuring that a governmental agency properly determines whether a proposed undertaking will have an impact on the exercise of a Native American religion and which affected parties should be provided notice of a proposed undertaking, the Secretary of the Interior, in conjunction with tribal governments, shall identify land areas with which an Indian tribe has aboriginal, historic, or religious ties.
2. ONGOING IDENTIFICATION.--Paragraph (1) does not preclude a tribal government from continuing to conduct an ongoing identification process, which may supplement the process required by this subsection.

(b) DUTY OF AGENCIES.--

1. TRIBAL LANDS.--Before a governmental agency proceeds on lands identified pursuant to subsection (a) with any Federal or federally assisted undertaking that may have an impact on the exercise of a Native American religion, the agency shall provide a geographical description of the lands affected by the undertaking (including information on metes and bounds of the lands in question, where available) and a description of the undertaking to--

   (A) the Secretary of the Interior;

   (B) each Indian tribe which has aboriginal, historic, or religious ties to the land affected by a proposed Federal or federally assisted undertaking; and

   (C) each Native American traditional leader known by the agency who may have an interest in the land affected by the proposed undertaking.

2. LANDS IN HAWAII.--Before a governmental agency proceeds on lands in the State of Hawaii with any Federal or federally assisted undertaking that may have an impact on the exercise of a Native American religion, the agency shall publish a geographical description of the lands affected by the undertaking (including information on metes and bounds of lands in question, where available) and a description of the undertaking in a newspaper of general circulation for a period of 2 weeks.
3. DOCUMENTATION.--The governmental agency shall fully document the efforts made to provide the information to Indian tribes, Native Hawaiian organizations and Native American traditional leaders as required by this section or any applicable regulations, guidelines, or policies.

(c) NOTICE BY TRIBE.--

1. IN GENERAL.--Within 90 days of receiving the notice provided under subsection (b), or within the time limit of any comment period permitted or required by any Federal law applicable to the Federal or federally assisted undertaking, whichever is later, an Indian tribe, Native Hawaiian organization, or Native American traditional leader invoking the protection of this title may provide notice to the governmental agency whether the proposed Federal or federally assisted undertaking may result in changes in the character or use of one or more Native American religious sites which are located on lands with which the Indian tribe or Native Hawaiian organization has aboriginal, historic, or religious ties.
2. NO DUTY TO RESPOND.--Paragraph (1) does not impose a duty upon any Indian tribe, Native Hawaiian organization, or Native American traditional leader to respond to any notice under this section.
3. ADDITIONAL INFORMATION.--The Indian tribe, Native Hawaiian organization, or Native American traditional leader acting pursuant to paragraph (1) may also provide the agency with information as to any Native American traditional leaders or practitioners who should be included in the notice and consultation requirements of this section and section 104.

(d) 90-DAY PROHIBITION AGAINST ACTIVITY FOLLOWING NOTICE TO TRIBES.--No action to approve, commence, or complete a Federal or federally assisted undertaking that is subject to this section shall be taken by a governmental agency for a period of 90 days following the date on which notice is provided under subsection (b) to Indian tribes and Native Hawaiian organizations unless or until--

1. the matter is resolved pursuant to the procedures of this Act;
2. the period of consultation required under section 104 has been completed; or
3. all parties entitled to such notice consent to a shorter time period.

SEC. 104. CONSULTATION.

(a) IN GENERAL.--

1. EFFECT OF NOTICE BY TRIBE.--If an Indian tribe, Native Hawaiian organization, or Native American traditional leader indicates in writing within 90 days of receiving notice under section 102, or within the time limit of any comment period permitted or required by any Federal law applicable to the Federal or federally assisted undertaking, whichever is later, that a Federal or federally assisted undertaking will or may alter or disturb the integrity of Native American religious sites or the sanctity thereof, or interfere with the access thereto, or adversely impact upon the exercise of a Native American religion or the conduct of a Native American religious practice, except as provided in paragraph (2), the environmental agency engaged in the Federal or federally assisted undertaking shall immediately discontinue such undertaking until the agency performs the duties described in paragraphs (3) and (4).
2. INADVERTENT DISCOVERY.--If in the process of a Federal or federally assisted undertaking, a Native American religious site is inadvertently discovered, the governmental agency engaged in the undertaking shall immediately discontinue such undertaking until the agency performs the duties set forth in paragraphs (3) and (4).
3. CONSULTATION.--The governmental agency shall consult with any interested party, including Native American practitioners with a direct interest in the Native American religious site in question, concerning the nature of the adverse impact and alternatives that would minimize or prevent an adverse impact, including any alternatives identified by an Indian tribe, Native Hawaiian organization, or Native American traditional leader that has filed a written objection under this subsection.
4. EVALUATION OF COMMENTS.--The governmental agency shall prepare and make available to the tribe, organization or traditional leader, as well as Native American practitioners who have been involved in the consultation process, a document evaluating and responding to the comments received. The document shall include an analysis of adverse impacts upon the site and the use thereof and an analysis of alternatives to the proposed action, including any alternative offered by an Indian tribe, Native Hawaiian organization, or Native American traditional leader submitting a written objection under paragraph (1) and a no action alternative.
5. ADDITIONAL INFORMATION.--In any case where the governmental agency is also required to prepare a document analyzing the impact of its undertaking or decision pursuant to the National Environmental Policy Act (43 U.S.C 4321 et seq.), the National Historic Preservation Act (16 U.S.C. 470 et seq.) or any other applicable law, such agency shall incorporate the analysis required by this section into the contents of the document.

(b) CASES WHERE SECRECY IS REQUIRED.--

1. IN GENERAL.--In the case of those Indian tribes whose traditional religious tenets prohibit disclosure of information concerning their Native American religious sites or religious beliefs or practices, and mandate secrecy and internal sanctions to enforce those prohibitions, and where the tribal government of the affected Indian tribe so certifies and invokes this subsection--

   (A) the tribal government shall not be required to reveal the location of the Native American religious site or in what manner the undertaking would have an impact on the site or any information concerning their religious beliefs or practices;

   (B) the tribal government shall not be required to explain in what manner any proposed alternative is or is not less intrusive upon the adversely affected Native American religious practice or religious sites which may be adversely affected than the original proposed Federal or federally assisted undertaking; and

   (C) in engaging in consultation and preparing any document required by this Act, the governmental agency shall not include an analysis of adverse impacts upon the site or the use thereof or the Indian tribe's religious beliefs and practices.

2. AFTER CONSULTATION.--If after consultation--

   (A) the governmental agency agrees to pursue a less intrusive alternative proposed by the Indian tribe or some other alternative which the Indian tribe agrees would be less intrusive; or

   (B) if no alternative is identified which the Indian tribe agrees is less intrusive;

   the governmental agency shall be deemed to have met its obligation to consider and pursue the least intrusive alternative under this Act in regard to the objection raised to the Federal or federally assisted undertaking by the Indian tribe invoking this subsection.
   (c) RULE OF CONSTRUCTION.--Where the provisions of subsection (b) have been invoked, those requirements shall control in all circumstances and shall supersede any conflicting provisions in this Act or any other provision of law.
   (d) DISCLOSURE REQUIRED.--Within 30 days of receipt of any written objection under subsection (a), the governmental agency proposing the Federal or federally assisted undertaking which gave rise to that notice shall disclose to and shall make available to the objecting party, all plats, maps, plans, specifications, socioeconomic, environmental, scientific, archaeological or historical studies, and comments and information in that agency's possession bearing on said undertaking.
   (e) SPECIAL RULE FOR PUEBLOS REGARDING STANDING.--In the case of a proposed Federal or federally assisted undertaking affecting the management, use, or preservation of public land involving potential adverse religious impacts on any of the Indian pueblos of New Mexico or any of their religious sites, the only party with standing to file an objection or participate in consultation under this section, or to file an action under section 105 or 501, shall be the governor of the affected pueblo or the governor's designee.

SEC. 105. BURDEN OF PROOF.

(a) IN GENERAL.--

1. BURDEN ON AGGRIEVED PARTY.--Except as provided in subsection (b), in any action brought under section 501(a), the aggrieved party shall have the burden of proving that the Federal or federally assisted undertaking or the State action having an impact upon the management, use, or preservation of public land, is posing or will pose a substantial threat of undermining or frustrating a Native American religion or a Native American religious practice.
2. BURDEN ON AGENCY.--If the aggrieved party meets its burden of proof under paragraph (1), the Federal agency or State shall have the burden of proving that the governmental interest in the Federal or federally assisted undertaking or the State action is compelling.
3. LEAST INTRUSIVE COURSE OF ACTION.--If the aggrieved party fails to meet its burden of proof under paragraph (1), but establishes that the Federal or federally assisted undertaking or the State action will alter or disturb the integrity of a Native American religious site or the sanctity thereof, or will have an adverse impact upon the exercise of a Native American religion or the conduct of a Native American religious practice, or if the Federal agency or State meets its burden of proof in paragraph (2), the Federal agency or State shall have the burden of proving that it has selected the course of action least intrusive on the Native American religious site or the Native American religion or religious practice.

(b) CASES WHERE SECRECY IS REQUIRED.--In the case of any proceeding involving a Native American religious site or associated religious practices of an Indian tribe described in section 104(b), if the Indian tribe objects to the Federal or federally assisted undertaking or State action based upon any of the grounds specified in section 104(a), the provisions of section 104(b) shall apply and the Federal agency or State shall have the burden of proving that--

1. it has a compelling interest in pursuing the Federal or federally assisted undertaking or the State action as originally proposed;
2. it is essential that the Federal agency's or State's compelling interest be furthered as originally proposed; and
3. none of the less intrusive alternatives (if any) identified in the consultation process, or by the Indian tribe, will adequately advance that compelling governmental interest.

The Federal agency or State shall retain this burden of proof at all stages of any proceeding or decisionmaking process involving an Indian tribe described in section 104(b) as to objections raised by that Indian tribe.

(c) FAILURE OF AGENCY TO MEET BURDEN.--If a Federal agency or State does not meet its burden of proof under this section, it shall not proceed with the proposed undertaking. For purposes of this section and section 501, the phrase "burden of proof" means the burden of production and the burden of persuasion.

(d) ESTABLISHMENT OF ADMINISTRATIVE PROCEDURE.--

1. IN GENERAL.--A Federal agency may, by regulation, establish an administrative procedure to implement the requirements of this section.
2. EXHAUSTION REQUIREMENT.--An aggrieved party must use a procedure established under paragraph (1) before filing an action in a Federal court pursuant to section 501(a).
3. NEW FACTUAL FINDINGS.--If an action is filed in Federal court after exhaustion of administrative remedies, the court shall not defer to the factual findings of the Federal agency, but shall make its own factual findings based upon the record compiled by the Federal agency as well as other evidence that may be permitted by the court under Federal law.

SEC. 106. TRIBAL AUTHORITY OVER NATIVE AMERICAN RELIGIOUS SITES ON INDIAN LANDS.

(a) RIGHT OF TRIBE.--All Federal or federally assisted undertakings on Indian lands which may result in changes in the character or use of a Native American religious site or which may have an impact on access to a Native American religious site shall, unless requested otherwise by the Indian tribe on whose lands the undertakings will take place, be conducted in conformance with the laws or customs of the tribe.

(b) AGREEMENTS.--Any governmental agency proposing a Federal or federally assisted undertaking on Indian lands which may result in changes in the character or use of a Native American religious site or which may have an impact upon access to a Native American religious site, may enter into an agreement with the Indian tribe on whose lands the undertaking will take place for purposes of assuring conformance with the laws or customs of the tribe.

(c) PROTECTION BY TRIBES.--Indian tribes may regulate and protect Native American religious sites located on Indian lands.

(d) OTHER AUTHORITIES.--

1. SOVEREIGN AUTHORITY OF TRIBES.--The provisions of this section are in addition to and not in lieu of the inherent sovereign authority of Indian tribes to regulate and protect Native American religious sites located on Indian lands.
2. NATIONAL SECURITY.--The provisions of this section shall not apply if the President determines that national security concerns are directly affected by a Federal or federally assisted undertaking.
3. DUTY TO NOTIFY.--This section does not relieve a governmental agency of any duty pursuant to section 103 to notify an Indian tribe of a Federal or federally assisted undertaking on Indian lands which may result in changes in the character or use of a Native American religious site.

SEC. 107. APPLICATION OF OTHER LAWS.

(a) IN GENERAL.--Nothing in this title shall be construed to deprive any person or entity of any other rights which might be provided under the laws, regulations, guidelines, or policies of the Federal, State, and tribal governments, including but not limited to the National Historic Preservation Act (16 U.S.C. 470 et seq.), to receive notice of, comment upon, or otherwise participate in the decisionmaking process regarding a Federal or federally assisted undertaking.

(b) EXISTING PROCEDURES.--To the maximum extent possible, the procedures required by this Act shall be incorporated into existing procedures applicable to the management of Federal lands and decisionmaking processes of Federal agencies engaged in Federal or federally assisted undertakings.

SEC. 108. CONFIDENTIALITY.

(a) IN GENERAL.--Notwithstanding any other provision of law, whenever information has been obtained as a result of or in connection with a proceeding pursuant to section 105 or 501 or consultation pursuant to sections 102 and 104, all references pertaining to--

1. specific details of a Native American religion or the significance of a Native American religious site to that religion; or
2. the location of that religious site;

shall be deleted from the record of a Federal agency or court before the record is released to any party or the general public pursuant to the Freedom of Information Act (5 U.S.C. 552) or any other applicable law.

(b) SUPPLEMENTATION OF RECORD.--The agency or court shall supplement the record described in subsection (a) to include the general results and conclusions of the administrative or judicial review to the extent necessary to provide other interested parties with sufficient information to understand the nature of, and basis for, a decision by the Federal agency or court.

(c) EXCEPTIONS.--This section shall not apply--

1. where all parties to a proceeding (excluding the Federal Government) waive its application, and
2. in case of a Native Hawaiian religious site, where the information is sought by a Native Hawaiian organization for the purpose of protecting such site.

(d) OTHER LAW.--Indian tribes, Native Hawaiian organizations, Native American traditional leaders, and Native American practitioners seeking to maintain the confidentiality of information relating to Native American religious sites may also seek redress through existing laws requiring that certain information be withheld from the public, including, but not limited to the National Historic Preservation Act (16 U.) and the Archaeological Resources Protection Act (16 U.S.C. huh).

SEC. 109. CRIMINAL SANCTIONS.

(a) DAMAGING RELIGIOUS SITES.--

1. INITIAL VIOLATION.--Any person who knowingly damages or defaces a known Native American religious site located on Federal land, except as part of an approved Federal or federally assisted undertaking or an action authorized by a governmental agency with the authority to approve such activity, shall, upon conviction, be fined not more than $10,000, or imprisoned not more than 1 year, or both.
2. SUBSEQUENT VIOLATIONS.--In the case of a second or subsequent violation, a person shall be fined not more than $100,000, or imprisoned not more than 5 years, or both.

(b) RELEASE OF INFORMATION.--

1. INITIAL VIOLATION.--Any person who knowingly releases any information required to be held confidential pursuant to this title shall, upon conviction, be fined not more than $10,000, or imprisoned not more than 1 year, or both.
2. SUBSEQUENT VIOLATIONS.--In the case of a second or subsequent violation, be fined not more than $100,000, or imprisoned not more than 5 years, or both.

TITLE II--TRADITIONAL USE OF PEYOTE

SEC. 201. FINDINGS.

The Congress finds that--

1. some Indian people have used the peyote cactus in religious ceremonies for sacramental and healing purposes for many generations, and such uses have been significant in perpetuating Indian tribes and cultures by promoting and strengthening the unique cultural cohesiveness of Indian tribes;
2. since 1965, this religious ceremonial use of peyote by Indians has been protected by Federal regulation, which exempts such use from Federal laws governing controlled substances, and the Drug Enforcement Administration has manifested its continuing support of this Federal regulatory system;
3. the State of Texas encompasses virtually the sole area in the United States in which peyote grows, and for many years has administered an effective regulatory system which limits the distribution of peyote to Indians for ceremonial purposes;
4. while numerous States have enacted a variety of laws which protect the ceremonial use of peyote by Indians, many others have not, and this lack of uniformity has created hardships for Indian people who participate in such ceremonies;
5. the traditional ceremonial use by Indians of the peyote cactus is integral to a way of life that plays a significant role in combating the scourge of alcohol and drug abuse among some Indian people;
6. the United States has a unique and special historic trust responsibility for the protection and preservation of Indian tribes and cultures, and the duty to protect the continuing cultural cohesiveness and integrity of Indian tribes and cultures;
7. it is the duty of the United States to protect and preserve tribal values and standards through its special historic trust responsibility to Indian tribes and cultures;
8. existing Federal and State laws, regulations and judicial decisions are inadequate to fully protect the ongoing traditional uses of the peyote cactus in Indian ceremonies;
9. general prohibitions against the abusive use of peyote, without an exception for the bona fide religious use of peyote by Indians, lead to discrimination against Indians by reason of their religious beliefs and practices; and
10. as applied to the traditional use of peyote for religious purposes by Indians, otherwise neutral laws and regulations may serve to stigmatize and marginalize Indian tribes and cultures and increase the risk that they will be exposed to discriminatory treatment.

SEC. 202. TRADITIONAL USE OF PEYOTE.

(a) IN GENERAL.--Notwithstanding any other provision of law, the use, possession, or transportation by an Indian of peyote for bona fide ceremonial purposes in connection with the practice of a Native American religion by an Indian is lawful and shall not be prohibited by the Federal Government 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.

(b) REGULATION AUTHORIZED.--This section does not prohibit such reasonable regulation and registration of those persons who import, cultivate, harvest or distribute peyote as may be consistent with the purpose of this title.

(c) TEXAS LAW.--This section does not prohibit application of the provisions of section 481.111(a) of Vernon's Texas Code Annotated, in effect on the date of enactment of this Act, insofar as those provisions pertain to the cultivation, harvest or distribution of peyote.

TITLE III--PRISONERS' RIGHTS

SEC. 301. RIGHTS.

(a) IN GENERAL.--

1. ACCESS.--Notwithstanding any other provision of law, Native American prisoners who practice a Native American religion shall have, on a regular basis comparable to that access afforded prisoners who practice Judeo-Christian religions, access to--

   (A) Native American traditional leaders who shall be afforded the same status, rights and privileges as religious leaders of Judeo-Christian faiths;

   (B) subject to paragraph (6), items and materials utilized in religious ceremonies; and

   (C) Native American religious facilities.

2. MATERIALS.--Items and materials utilized in religious ceremonies are those items and materials, including foods for religious diets, identified by a Native American traditional leader. Prison authorities shall treat these items in the same manner as the religious items and materials utilized in ceremonies of the Judeo-Christian faith.
3. HAIR.--

   (A) RIGHT OF PRISONER.--Except in those circumstances where subparagraph (B) applies, Native American prisoners who desire to wear their hair according to the religious customs of their Indian tribes may do so provided that the prisoner demonstrates that--

   (i) the practice is rooted in Native American religious beliefs; and

   (ii) these beliefs are sincerely held by the Native American prisoner.

   (B) DENIAL OF REQUEST.--If a Native American prisoner satisfies the criteria in paragraph (3)(A), the prison authorities may deny such request only where they can demonstrate that the legitimate institutional needs of the prison cannot be met by viable less restrictive means which would not create an undue administrative burden.

4. DEFINITION OF "RELIGIOUS FACILITIES".--The term "religious facilities" includes sweat lodges, teepees, and access to other secure, out-of-doors locations within prison grounds if such facilities are identified by a Native American traditional leader to facilitate a religious ceremony.
5. DISCRIMINATION PROHIBITED.--No Native American prisoner shall be penalized or discriminated against on the basis of Native American religious practices, and all prison and parole benefits or privileges extended to prisoners for engaging in religious activity shall be afforded to Native American prisoners who participate in Native American religious practices.
6. SCOPE OF SUBSECTION.--Paragraph (1) shall not be construed as requiring prison authorities to permit (nor prohibit them from permitting) access to peyote or Native American religious sites.

(b) COMMISSION TO INVESTIGATE RELIGIOUS FREEDOM.--

1. IN GENERAL.--The Attorney General shall establish the Commission on the Religious Freedom of Native American Prisoners (hereafter in this section referred to as the "Commission") to investigate the conditions of Native American prisoners in the Federal and State prison systems with respect to the free exercise of Native American religions.
2. REPORT.--Not later than 36 months after the date of enactment of this Act, the Commission shall submit to the Attorney General and the Congress a report containing--

   (A) an institution-by-institution assessment of the recognition, protection, and enforcement of the rights of Native American prisoners to practice their religions under this Act; and

   (B) specific recommendations for the promulgation of regulations to implement this Act.

3. COMPOSITION OF COMMISSION.--The Commission shall consist of 5 members, at least 3 of whom shall be Native Americans and--

   (A) at least 1 of whom shall be a Native American traditional leader;

   (B) at least 1 of whom shall be a Native American ex- offender; and

   (C) at least 1 of whom shall be a Native American woman.

4. NOMINATIONS.--The Native American members selected under paragraph (2) shall be appointed from nominations submitted by Indian tribes, Native Hawaiian organizations and Native American traditional leaders.
5. CHAIRPERSON.--The Commission shall select 1 of its members to serve as Chairperson.
6. COMPENSATION.--Each member of the Commission who is not a Federal employee shall be compensated at a rate equal to the daily equivalent of that prescribed for level V of the Executive Schedule under section 5316 of title 5, United States Code. All members of the Commission while away from home or their place of business, in the performance of the duties of the Commission, shall be allowed travel and other related expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in Government services are allowed expenses under section 5703 of title 5, United States Code.
7. STAFF.--The Commission may hire, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and may pay without regard to the provisions of chapter 51, and subchapter III of chapter 52 of such title relating to classification and General Schedule pay rates, such staff as necessary to fulfill its duties under this section. In addition, the Commission may request any Federal department or agency to make available to the Commission personnel on a nonreimbursable basis, to assist the Commission in fulfilling such duties.
8. TERMINATION.--The Commission shall cease to exist upon the expiration of the 60-day period following the date of Submission of its report to the Congress.

TITLE IV--RELIGIOUS USE OF EAGLES AND OTHER ANIMALS AND PLANTS

SEC. 401. RELIGIOUS USE OF EAGLES.

(a) IN GENERAL.--Within 1 year after the date of enactment of this Act, the Director of the United States Fish and Wildlife Service (hereafter in this section referred to as the "Director") shall, in consultation with Indian tribes and Native American traditional leaders, develop a plan to--

1. ensure the prompt disbursement from Federal repositories of available bald or golden eagles, or their parts, nests, or eggs for the religious use of Indians upon receipt of an application from a Native American practitioner;
2. provide that sufficient numbers of bald or golden eagles are allocated to Native American practitioners to meet the demonstrated need where they are available by reason of accidental deaths, natural deaths, or takings permitted by Federal law; and
3. simplify and shorten the process by which permits are authorized for the taking, possession, and transportation of bald or golden eagles, or their parts, nests, or eggs for the religious use of Indians.

(b) CONSULTATION WITH REGIONAL ADVISORY COUNCILS.--In developing the plan required by subsection (a), the Director shall consult with the Regional Advisory Councils established pursuant to subsection (c) to determine whether these goals might best be met by decentralizing the system for the disbursement of bald or golden eagles or their parts, nests, or eggs for Native American religious purposes.

(c) REGIONAL ADVISORY COUNCILS.--

1. ESTABLISHMENT.--Within 120 days after the date of enactment of this Act, the Regional Directors of the United States Fish and Wildlife Service shall establish Regional Advisory Councils.
2. COMPOSITION.--Each Regional Advisory Council shall consist of 3 Native American traditional leaders appointed by each Regional Director of the United States Fish and Wildlife Service from nominations submitted by Indian tribes and Native American traditional leaders located within the region.
3. DUTIES.--The Regional Directors and the Regional Advisory Councils, in consultation with Indian tribes and Native American traditional leaders, shall--

   (A) develop a plan to--

   (i) ensure that all bald and golden eagles and their parts, nests, or eggs which are recovered within the region are promptly transmitted to and collected by the United States Fish and Wildlife Service and made available for distribution as provided by law and consistent with the plan developed by the Director pursuant to subsection (a); and

   (ii) expedite the review and approval of permit applications at each regional level;

   (B) consult with the Director regarding the advisability of decentralizing the distribution system; and

   (C) monitor the operation of the collection, permit, and, if applicable, the distribution system at the regional level.

4. COMPENSATION.--Members of the Regional Advisory Councils established under paragraph (1) of this section shall serve without pay, but shall be reimbursed at a rate equal to the daily rate for GS-18 of the General Schedule for each day (including travel time) for which the member is actually engaged in council business. Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(d) TRIBAL LAW.--If bald or golden eagles or their parts, nests, or eggs are discovered on Indian lands and the Indian tribe on whose land the eagles or their parts, nests, or eggs were discovered has established or establishes, by tribal law or custom, a procedure for-

1. issuance of tribal permits to Native American practitioners, and
2. distribution of bald or golden eagles or their parts, nests, or eggs in accordance with tribal religious custom,

the Indian tribe may distribute said bald or golden eagles or their parts, nests, or eggs to Native American practitioners in accordance with such tribal law or custom.

(e) SCOPE OF SUBSECTION (d).--Subsection (d) applies only to eagles which have died by reason of accidental deaths or natural deaths and does not authorize the taking of live eagles which, subject to standards established in section 501(b), shall continue to be governed by regulations promulgated by the United States Fish and Wildlife Service. An Indian tribe under subsection (d) shall provide an annual report by March 31 of each year to the United States Fish and Wildlife Service summarizing the number and type of bald and golden eagles and their parts, nests, and eggs that have been discovered and distributed during the previous calendar year.

SEC. 402. OTHER ANIMALS AND PLANTS.

(a) PLAN.--Within 1 year after the date of enactment of this Act, the Director of the United States Fish and Wildlife Service shall, in consultation with Indian tribes and Native American traditional leaders, develop a plan to implement the recommendations of the President's 1979 American Indian Religious Freedom Task Force Report regarding the disposition of surplus plant and animal products by Federal agencies.

(b) ASSESSMENT.--In developing this plan, the Director shall--

1. assess the availability of surplus animals, plants or parts from Federal agencies;
2. determine whether there is a need for such parts for religious purposes by Native American practitioners; and
3. evaluate the feasibility of developing a joint uniform set of regulations to govern the disposition of surplus animals, plants or parts which have been confiscated or gathered under the jurisdiction and control of Federal agencies.

TITLE V--JURISDICTION AND REMEDIES

SEC. 501. JURISDICTION AND REMEDIES.

(a) IN GENERAL.--Any appropriate United States district court shall have original jurisdiction over a civil action for equitable or other relief, including damages, brought by an aggrieved party against the United States or a State to enforce the provisions of this Act.

(b) BURDEN OF PROOF.--

1. IN GENERAL.--Except as provided in titles I through III, if an aggrieved party meets the burden of proving that a governmental action restricts or would restrict the practitioner's free exercise of religion, the governmental authority shall refrain from such action unless it can demonstrate that application of the restriction to the practitioner is essential to further a compelling governmental interest and the application is the least restrictive means of furthering that compelling governmental interest.
2. SPECIAL RULE FOR NATIVE AMERICAN PRACTITIONERS.--The burden of proof for a Native American practitioner is a showing of any evidence that a restriction upon the practitioner's free exercise of religion exists as a result of Federal or State action. Native American practitioners may elect to provide testimony about their beliefs in camera or in some other protective procedure.

(c) ATTORNEY'S FEES.--An aggrieved party who is a prevailing party in any administrative or judicial proceeding brought pursuant to this Act shall be entitled to attorney's fees, expert witness fees, and costs under the provisions of section 504 of title 5, United States Code, and section 2412 of title 28, United States Code.

TITLE VI--MISCELLANEOUS

SEC. 601. SAVINGS CLAUSE. Nothing in this Act 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; and
3. the inherent right of Native Americans to practice their religions.

SEC. 602. SEVERABILITY.

If any title or section of this Act, or any provision or portion thereof, is declared to be unconstitutional, invalid, or inoperative in whole or in part, by a court of competent jurisdiction, such title, section, provision or portion thereof shall, to the extent it is not unconstitutional, invalid, or inoperative, be enforced and effectuated, and no such determination shall be deemed to invalidate or make ineffectual the remaining provisions of the title, section, or provision.

SEC. 603. AUTHORIZATION OF APPROPRIATIONS.

There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act. This Act takes effect on the date of its enactment. Application and enforcement of this Act does not depend upon the promulgation of regulations by any governmental agency.

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This copy of Senate Bill 1021 was taken from the gopher server at: gopher://scilibx.ucsc.edu/00/The%20Community/Costanoan-Ohlone%20Indian%20Canyon%20Resource/SenateBill1021FreedomOfReligion. That server is maintained by the Costanoan Indians' Gopher, an information resource maintained by Ann-Marie Sayers, an undergraduate UCSC student working with the Mutsun Band of Costanoan People in San Benito County.

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Last Modified - Sun, Oct 29, 2000

Used by Erowid with permission of author

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