II

103D CONGRESS

1ST SESSION S. 1021

To assure religious freedom to Native Americans.

IN THE SENATE OF THE UNITED STATES

MAY 25 (legislative day, APRIL 19), 1993

Mr. INOUYE (for himself, Mr. BAUCUS, Mr. CAMPBELL, Mr. FEINGOLD, Mr.

HATFIELD, Mr. PELL, and Mr. WELLSTONE) introduced the following

bill; which was read twice and referred to the Committee on Indian

Affairs

A BILL

To assure religious freedom to Native Americans.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Native American Free Exercise of Religion Act of 1993’’.

6 (b) 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.
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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.

1 SEC. 2. POLICY.

2 It is the policy of the United States, in furtherance

3 of the policy established in the joint resolution entitled

4 ‘‘Joint Resolution American Indian Religious Freedom’’,

5 approved August 11, 1978 (42 U.S.C. 1996), to protect

6 and preserve the inherent right of any Native American

7 to believe, express, and exercise his or her traditional reli8 gion, including, but not limited to, access to any Native

9 American religious site, use and possession of sacred ob10 jects, and the freedom to worship through ceremonials and

11 traditional rites.
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1 SEC. 3. DEFINITIONS.

2 For the purposes of this Act, the following definitions

3 shall apply:

4 (1) AGGRIEVED PARTY.—The term ‘‘aggrieved

5 party’’ means any Native American practitioner, Na6 tive American traditional leader, Indian tribe, or Na7 tive Hawaiian organization as defined by this Act.

8 (2) FEDERAL AGENCY.—The term ‘‘Federal

9 agency’’ means any department, agency, or instru10 mentality of the Federal Government.

11 (3) FEDERAL OR FEDERALLY ASSISTED UN12 DERTAKING.—The term ‘‘Federal or federally as13 sisted undertaking’’ means any regulation relating to

14 or any project, activity, or program pertaining to the

15 management, use, or preservation of land (including

16 continuing and new projects, activities, or programs)

17 which is funded in whole or in part by, or under the

18 direct or indirect jurisdiction of, a Federal agency,

19 including—

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

21 agency;

22 (B) those carried out with Federal finan23 cial assistance;

24 (C) those requiring a Federal permit, li25 cense or approval; and
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1 (D) those subject to State regulation ad2 ministered pursuant to a delegation or approval

3 by a Federal agency.

4 The term ‘‘Federal or federally assisted undertak5 ings’’ does not include regulations, projects, activi6 ties, or programs operated, approved, or sponsored

7 by Indian tribes, including, but not limited to, those

8 projects, activities, or programs which are funded in

9 whole or in part by Federal funds pursuant to con10 tract, grant or agreement, or which require Federal

11 permits, licenses or approvals.

12 (4) GOVERNMENTAL AGENCY.—The term ‘‘gov13 ernmental agency’’ means any agency, department,

14 or instrumentality of—

15 (A) the United States; or

16 (B) a State, in the case of a Federal or

17 federally assisted undertaking described in

18 paragraph (3)(D).

19 The term ‘‘governmental agency’’ does not include

20 an agency, department, or instrumentality of an

21 Indian tribe.

22 (5) INDIAN.—The term ‘‘Indian’’ means—

23 (A) an individual of aboriginal ancestry

24 who is a member of an Indian tribe,
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1 (B) an individual who is an Alaska Native,

2 or

3 (C) in the case of California Indians, an

4 individual who meets the definition in section

5 809(b) of the Indian Health Care Improvement

6 Act (25 U.S.C. 1679(b)), except that an Indian

7 community need not be served by a local pro8 gram of the Indian Health Service in order to

9 qualify as an Indian community for purposes of

10 this definition.

11 (6) INDIAN LANDS.—The term ‘‘Indian lands’’

12 means all lands within the limits of any Indian res13 ervation; public domain Indian allotments; all other

14 lands title to which is either held in trust by the

15 United States for the benefit of any Indian tribe or

16 individual or held by any Indian tribe or individual

17 subject to restriction by the United States against

18 alienation; all dependent Indian communities; and all

19 fee lands owned by an Indian tribe.

20 (7) INDIAN TRIBE.—The term ‘‘Indian tribe’’

21 means—

22 (A) any tribe, band, nation, pueblo, or

23 other organized group or community of Indians,

24 including any Alaska Native village (as defined

25 in, or established pursuant to, the Alaska Na-
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1 tive Claims Settlement Act (43 U.S.C. 1601 et

2 seq.)), which is recognized as eligible for the

3 special programs and services provided by the

4 United States to Indians because of their status

5 as Indians,

6 (B) any Indian group that has been for7 mally recognized as an Indian tribe by a State

8 legislature or by a State commission or similar

9 organization legislatively vested with State trib10 al recognition authority,

11 (C) any Indian tribe whose federally recog12 nized status has been terminated, and

13 (D) any non-federally recognized tribe that

14 has—

15 (i) filed a petition for acknowledge16 ment with the Branch of Federal Acknowl17 edgement of the Bureau of Indian Affairs

18 of the Department of the Interior or is the

19 subject of pending legislation in the Con20 gress seeking federally recognized status,

21 and

22 (ii) is recognized as an Indian tribe by

23 other Indian tribes, communities or

24 groups.
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1 The definition contained in subparagraph (D)

2 shall not apply if the Department of the Inte3 rior has acted to deny such tribe’s petition for

4 acknowledgement and all appeals of the Depart5 ment’s determination have been exhausted and

6 have been decided in support of the Depart7 ment’s determination.

8 (8) LAND.—The terms ‘‘land’’, ‘‘lands’’, or

9 ‘‘public lands’’ mean surface and subsurface land

10 within the jurisdiction of the United States or the

11 respective States, including submerged land of any

12 kind or interest therein and all water and waterways

13 occupying, adjacent to, or running through the land.

14 (9) NATIVE AMERICAN.—The term ‘‘Native

15 American’’ means any Indian or Native Hawaiian.

16 (10) NATIVE AMERICAN PRACTITIONER.—The

17 term ‘‘Native American practitioner’’ means—

18 (A) any Native American who practices a

19 Native American religion, or

20 (B) any Native Hawaiian with an obliga21 tion to protect a Native Hawaiian religious site,

22 or any Native Hawaiian who practices a Native

23 Hawaiian religion or engages in a Native

24 Hawaiian ceremonial or ritual undertaking.
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1 (11) NATIVE AMERICAN RELIGION.—The term

2 ‘‘Native American religion’’ means any religion—

3 (A) which is practiced by Native Ameri4 cans, and

5 (B) the origin and interpretation of which

6 is from within a traditional Native American

7 culture or community.

8 (12) NATIVE AMERICAN RELIGIOUS SITE.—The

9 term ‘‘Native American religious site’’ means any

10 place or area, including, but not limited to, any

11 geophysical or geographical area or feature—

12 (A) which is sacred to a Native American

13 religion;

14 (B) where Native American practitioners

15 are required by their religion to gather, harvest,

16 or maintain natural substances or natural prod17 ucts for use in Native American religious cere18 monies or rituals or for spiritual purposes, in19 cluding all places or areas where such natural

20 substances or products are located; or

21 (C) which is utilized by Native American

22 religious practitioners for ceremonies, rituals, or

23 other spiritual practices.
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1 (13) NATIVE AMERICAN TRADITIONAL LEAD2 ER.—The term ‘‘Native American traditional leader’’

3 means any Native American who—

4 (A) is recognized by an Indian tribe, Na5 tive Hawaiian organization, or Native American

6 traditional organization as being responsible for

7 performing cultural duties relating to the cere8 monial or religious traditions of the tribe or tra9 ditional organization, or

10 (B) exercises a leadership role in an Indian

11 tribe, Native Hawaiian organization or Native

12 American traditional organization based upon

13 its cultural, ceremonial, or religious practices.

14 (14) NATIVE HAWAIIAN.—The term ‘‘Native

15 Hawaiian’’ means any individual who is a descend16 ant of the aboriginal Polynesian people who, prior to

17 1778, occupied and exercised sovereignty and self18 determination in the area that now comprises the

19 State of Hawaii.

20 (15) NATIVE HAWAIIAN ORGANIZATION.—The

21 term ‘‘Native Hawaiian organization’’ means any or22 ganization which is composed primarily of Native

23 Hawaiians, serves and represents the interests of

24 Native Hawaiians and whose members—
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1 (A) practice a Native American religion or

2 conduct traditional ceremonial rituals, or

3 (B) utilize, preserve and protect Native

4 American religious sites.

5 (16) STATE.—The term ‘‘State’’ means any

6 State of the United States and any and all political

7 subdivisions thereof.

8 TITLE I—PROTECTION OF

9 SACRED SITES

10 SEC. 101. FINDINGS.

11 The Congress finds that—

12 (1) throughout American history, the free exer13 cise of traditional Native American religions has

14 been intruded upon, interfered with, and, in some in15 stances, banned by the Federal Government and the

16 devastating impact of these governmental actions

17 continues to the present day;

18 (2) the religious practices of Native Americans

19 are integral parts of their cultures, traditions and

20 heritages and greatly enhance the vitality of Native

21 American communities and tribes and the well-being

22 of Native Americans in general;

23 (3) as part of its historic trust responsibility,

24 the Federal Government has the obligation to enact

25 enforceable Federal policies which will protect Native
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1 American community and tribal vitality and cultural

2 integrity, and which will not inhibit or interfere with

3 the free exercise of Native American religions;

4 (4) just as other religions consider certain sites

5 in other parts of the world to be sacred, many Na6 tive American religions hold certain lands or natural

7 formations in the United States to be sacred, and,

8 in order for those sites to be in a condition appro9 priate for religious use, the physical environment,

10 water, plants and animals associated with those sites

11 must be protected;

12 (5) such Native American religious sites are an

13 integral and vital part of, and inextricably inter14 twined with, many Native American religions and

15 the religious practices associated with such religions,

16 including the ceremonial use and gathering, harvest17 ing, or maintaining of natural substances or natural

18 products for those purposes;

19 (6) many of these Native American religious

20 sites are found on lands which were part of the ab21 original territory of the Indians but which now are

22 held by the Federal Government, or are the subject

23 of Federal or federally assisted undertakings;

24 (7) lack of sensitivity to, or understanding of,

25 Native American religions on the part of Federal
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1 agencies has resulted in the absence of a coherent

2 policy for the protection of Native American reli3 gious sites and the failure by Federal agencies to

4 consider the impacts of Federal and federally as5 sisted undertakings upon Native American religious

6 sites;

7 (8) the Supreme Court of the United States, in

8 the case of Lyng v. Northwest Indian Cemetery As9 sociation, 485 U.S. 439 (1988) ruled that the free

10 exercise clause of the First Amendment does not re11 strict the Government’s management of its lands,

12 even if certain governmental actions would infringe

13 upon or destroy the ability to practice religion, so

14 long as the Government’s action does not compel in15 dividuals to act in a manner which is contrary to

16 their religious beliefs;

17 (9) the holding in the case of Lyng v. North18 west Indian Cemetery Association creates a chilling

19 and discriminatory effect on the free exercise of

20 Native American religions;

21 (10) the Supreme Court of the United States,

22 in the case of Employment Division v. Smith, 494

23 U.S. 872 (1990) extended the Lyng doctrine to all

24 ‘‘valid and neutral laws of general applicability’’ not

25 intended to specifically infringe upon religious prac-
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1 tice and held that the First Amendment does not ex2 empt practitioners who use peyote in Native Amer3 ican religious ceremonies from complying with ‘‘neu4 tral’’ State laws prohibiting peyote use, notwith5 standing the chilling effect of such laws upon their

6 right to freely practice their religion;

7 (11) Native Hawaiians have distinct rights

8 under Federal law as beneficiaries of the Hawaiian

9 Homes Commission Act, 1920 (42 Stat. 108) and

10 the Act entitled ‘‘An Act to provide for the admis11 sion of the State of Hawaii into the Union’’,

12 approved March 18, 1959 (73 Stat. 4);

13 (12) the United States trust responsibility for

14 lands set aside for the benefit of Native Hawaiians

15 has never been extinguished;

16 (13) the Federal policy of self-determination

17 and self-governance is recognized to extend to all

18 Native Americans;

19 (14) Congress has enacted numerous laws

20 which regulate and restrict the discretion of Federal

21 agencies for the sake of environmental, historical,

22 economic, and cultural concerns, but has never en23 acted a judicially enforceable law comparably re24 stricting agency discretion for the sake of the site-
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1 specific requirements associated with the free exer2 cise of Native American religions;

3 (15) the lack of a judicially enforceable Federal

4 law and of a coherent Federal policy to accommo5 date the uniqueness of Native American religions

6 imposes unique and unequal disadvantages on Na7 tive American religions, gravely restricting the free

8 exercise of Native American religions and impairing

9 the vitality of Native American communities and

10 Indian tribes; and

11 (16) Congress has the authority to enact such

12 a law pursuant to section 8, Article I, of the Con13 stitution and the First and Fourteenth Amend14 ments.

15 SEC. 102. FEDERAL LAND MANAGEMENT; USE AND PRESER16 VATION.

17 (a) IN GENERAL.—Notwithstanding any other provi18 sion of law each Federal agency shall manage any lands

19 under its jurisdiction in a manner that complies with the

20 provisions of this Act.

21 (b) PLANNING PROCESS.—Each Federal agency in22 volved in Federal or federally assisted undertakings, in23 cluding, but not limited to, activities pursuant to the Na24 tional Forest Management Act (16 U.S.C. 1600 et seq.),

25 and the Federal Land Policy and Management Act (43
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1 U.S.C. 1701 et seq.), shall as part of its planning proc2 ess—

3 (1) consult with Indian tribes and Native Ha4 waiian organizations identified pursuant to section

5 103, as well as Native American traditional leaders

6 who can be identified by the agency to have an inter7 est in the land in question;

8 (2) provide for notice of all Federal or federally

9 assisted undertakings with the potential to have an

10 impact on certain specified lands to an Indian tribe,

11 Native Hawaiian organization, or Native American

12 traditional leader if such tribe, organization, or lead13 er places the agency on notice, in writing, that it is

14 interested in receiving notice of all such undertak15 ings;

16 (3) ensure that its land management plans are

17 consistent with the provisions and policies of this

18 Act; and

19 (4) maintain the confidentiality of specific de20 tails of a Native American religion or the signifi21 cance of a Native American religious site to that re22 ligion in accordance with the procedures specified in

23 sections 107 and 108 of this Act.

24 (c) ACCESS.—
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1 (1) IN GENERAL.—Unless the President deter2 mines that national security concerns are directly af3 fected, in which case the provisions of section 105

4 shall apply, Native American practitioners shall be

5 permitted access to Native American religious sites

6 located on Federal lands at all times, including the

7 right to gather, harvest, or maintain natural sub8 stances or natural products for Native American

9 religious purposes.

10 (2) PROHIBITION AGAINST VEHICLES.—Para11 graph (1) does not authorize the use of motorized

12 vehicles or other forms of mechanized transport in

13 roadless areas where such use is prohibited by law,

14 nor affect the application of the Endangered Species

15 Act, except as provided for by section 501(b) of this

16 Act.

17 (3) TEMPORARY CLOSING.—Upon the request

18 of an Indian tribe, Native Hawaiian organization, or

19 Native American traditional leader, the Secretary of

20 the department whose land is involved may from

21 time to time temporarily close to general public use

22 one or more specific portions of Federal land in

23 order to protect the privacy of religious cultural ac24 tivities in such areas by Native Americans. Any such

25 closure shall be made so as to affect the smallest
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1 practicable area for the minimum period necessary

2 for such purposes.

3 (d) REGULATIONS.—The Secretary of the Interior, in

4 consultation with Indian tribes and Native Hawaiian orga5 nizations, shall promulgate uniform regulations relating

6 to—

7 (1) Federal planning processes pertaining to

8 the management, use or preservation of land; and

9 (2) notice to and consultation with Indian

10 tribes, Native Hawaiian organizations, Native Amer11 ican traditional leaders and Native American practi12 tioners as required by sections 103 and 104 of this

13 Act.

14 The regulations shall be sufficiently flexible to enable con15 sultation to meet the unique needs of Indian tribes, Native

16 Hawaiian organizations, Native American traditional lead17 ers and Native American practitioners.

18 SEC. 103. NOTICE.

19 (a) IDENTIFICATION OF LANDS BY SECRETARY.—

20 (1) IN GENERAL.—For the purpose of assuring

21 that a governmental agency properly determines

22 whether a proposed undertaking will have an impact

23 on the exercise of a Native American religion and

24 which affected parties should be provided notice of

25 a proposed undertaking, the Secretary of the Inte-
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1 rior, in conjunction with tribal governments, shall

2 identify land areas with which an Indian tribe has

3 aboriginal, historic, or religious ties.

4 (2) ONGOING IDENTIFICATION.—Paragraph (1)

5 does not preclude a tribal government from continu6 ing to conduct an ongoing identification process,

7 which may supplement the process required by this

8 subsection.

9 (b) DUTY OF AGENCIES.—

10 (1) TRIBAL LANDS.—Before a governmental

11 agency proceeds on lands identified pursuant to sub12 section (a) with any Federal or federally assisted un13 dertaking that may have an impact on the exercise

14 of a Native American religion, the agency shall pro15 vide a geographical description of the lands affected

16 by the undertaking (including information on metes

17 and bounds of the lands in question, where avail18 able) and a description of the undertaking to—

19 (A) the Secretary of the Interior;

20 (B) each Indian tribe which has aboriginal,

21 historic, or religious ties to the land affected by

22 a proposed Federal or federally assisted under23 taking; and

24 (C) each Native American traditional lead25 er known by the agency who may have an inter-
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1 est in the land affected by the proposed under2 taking.

3 (2) LANDS IN HAWAII.—Before a governmental

4 agency proceeds on lands in the State of Hawaii

5 with any Federal or federally assisted undertaking

6 that may have an impact on the exercise of a Native

7 American religion, the agency shall publish a geo8 graphical description of the lands affected by the un9 dertaking (including information on metes and

10 bounds of lands in question, where available) and a

11 description of the undertaking in a newspaper of

12 general circulation for a period of 2 weeks.

13 (3) DOCUMENTATION.—The governmental

14 agency shall fully document the efforts made to pro15 vide the information to Indian tribes, Native Hawai16 ian organizations and Native American traditional

17 leaders as required by this section or any applicable

18 regulations, guidelines, or policies.

19 (c) NOTICE BY TRIBE.—

20 (1) IN GENERAL.—Within 90 days of receiving

21 the notice provided under subsection (b), or within

22 the time limit of any comment period permitted or

23 required by any Federal law applicable to the Fed24 eral or federally assisted undertaking, whichever is

25 later, an Indian tribe, Native Hawaiian organization,
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1 or Native American traditional leader invoking the

2 protection of this title may provide notice to the gov3 ernmental agency whether the proposed Federal or

4 federally assisted undertaking may result in changes

5 in the character or use of one or more Native Amer6 ican religious sites which are located on lands with

7 which the Indian tribe or Native Hawaiian organiza8 tion has aboriginal, historic, or religious ties.

9 (2) NO DUTY TO RESPOND.—Paragraph (1)

10 does not impose a duty upon any Indian tribe, Na11 tive Hawaiian organization, or Native American tra12 ditional leader to respond to any notice under this

13 section.

14 (3) ADDITIONAL INFORMATION.—The Indian

15 tribe, Native Hawaiian organization, or Native

16 American traditional leader acting pursuant to para17 graph (1) may also provide the agency with informa18 tion as to any Native American traditional leaders or

19 practitioners who should be included in the notice

20 and consultation requirements of this section and

21 section 104.

22 (d) 90-DAY PROHIBITION AGAINST ACTIVITY FOL23 LOWING NOTICE TO TRIBES.—No action to approve, com24 mence, or complete a Federal or federally assisted under25 taking that is subject to this section shall be taken by a
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1 governmental agency for a period of 90 days following the

2 date on which notice is provided under subsection (b) to

3 Indian tribes and Native Hawaiian organizations unless

4 or until—

5 (1) the matter is resolved pursuant to the pro6 cedures of this Act;

7 (2) the period of consultation required under

8 section 104 has been completed; or

9 (3) all parties entitled to such notice consent to

10 a shorter time period.

11 SEC. 104. CONSULTATION.

12 (a) IN GENERAL.—

13 (1) EFFECT OF NOTICE BY TRIBE.—If an In14 dian tribe, Native Hawaiian organization, or Native

15 American traditional leader indicates in writing

16 within 90 days of receiving notice under section 102,

17 or within the time limit of any comment period per18 mitted or required by any Federal law applicable to

19 the Federal or federally assisted undertaking, which20 ever is later, that a Federal or federally assisted un21 dertaking will or may alter or disturb the integrity

22 of Native American religious sites or the sanctity

23 thereof, or interfere with the access thereto, or ad24 versely impact upon the exercise of a Native Amer25 ican religion or the conduct of a Native American re-
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1 ligious practice, except as provided in paragraph (2),

2 the governmental agency engaged in the Federal or

3 federally assisted undertaking shall immediately dis4 continue such undertaking until the agency performs

5 the duties described in paragraphs (3) and (4).

6 (2) INADVERTENT DISCOVERY.—If in the proc7 ess of a Federal or federally assisted undertaking, a

8 Native American religious site is inadvertently dis9 covered, the governmental agency engaged in the un10 dertaking shall immediately discontinue such under11 taking until the agency performs the duties set forth

12 in paragraphs (3) and (4).

13 (3) CONSULTATION.—The governmental agency

14 shall consult with any interested party, including

15 Native American practitioners with a direct interest

16 in the Native American religious site in question,

17 concerning the nature of the adverse impact and al18 ternatives that would minimize or prevent an ad19 verse impact, including any alternatives identified by

20 an Indian tribe, Native Hawaiian organization, or

21 Native American traditional leader that has filed a

22 written objection under this subsection.

23 (4) EVALUATION OF COMMENTS.—The govern24 mental agency shall prepare and make available to

25 the tribe, organization or traditional leader, as well
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1 as Native American practitioners who have been in2 volved in the consultation process, a document evalu3 ating and responding to the comments received. The

4 document shall include an analysis of adverse im5 pacts upon the site and the use thereof and an anal6 ysis of alternatives to the proposed action, including

7 any alternative offered by an Indian tribe, Native

8 Hawaiian organization, or Native American tradi9 tional leader submitting a written objection under

10 paragraph (1) and a no action alternative.

11 (5) ADDITIONAL INFORMATION.—In any case

12 where the governmental agency is also required to

13 prepare a document analyzing the impact of its un14 dertaking or decision pursuant to the National Envi15 ronmental Policy Act (43 U.S.C 4321 et seq.), the

16 National Historic Preservation Act (16 U.S.C. 470

17 et seq.) or any other applicable law, such agency

18 shall incorporate the analysis required by this sec19 tion into the contents of the document.

20 (b) CASES WHERE SECRECY IS REQUIRED.—

21 (1) IN GENERAL.—In the case of those Indian

22 tribes whose traditional religious tenets prohibit dis23 closure of information concerning their Native Amer24 ican religious sites or religious beliefs or practices,

25 and mandate secrecy and internal sanctions to en-
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1 force those prohibitions, and where the tribal govern2 ment of the affected Indian tribe so certifies and

3 invokes this subsection—

4 (A) the tribal government shall not be re5 quired to reveal the location of the Native

6 American religious site or in what manner the

7 undertaking would have an impact on the site

8 or any information concerning their religious

9 beliefs or practices;

10 (B) the tribal government shall not be re11 quired to explain in what manner any proposed

12 alternative is or is not less intrusive upon the

13 adversely affected Native American religious

14 practice or religious sites which may be ad15 versely affected than the original proposed Fed16 eral or federally assisted undertaking; and

17 (C) in engaging in consultation and pre18 paring any document required by this Act, the

19 governmental agency shall not include an analy20 sis of adverse impacts upon the site or the use

21 thereof or the Indian tribe’s religious beliefs

22 and practices.

23 (2) AFTER CONSULTATION.—If after consulta24 tion—
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1 (A) the governmental agency agrees to

2 pursue a less intrusive alternative proposed by

3 the Indian tribe or some other alternative which

4 the Indian tribe agrees would be less intrusive;

5 or

6 (B) if no alternative is identified which the

7 Indian tribe agrees is less intrusive;

8 the governmental agency shall be deemed to have

9 met its obligation to consider and pursue the least

10 intrusive alternative under this Act in regard to the

11 objection raised to the Federal or federally assisted

12 undertaking by the Indian tribe invoking this sub13 section.

14 (c) RULE OF CONSTRUCTION.—Where the provisions

15 of subsection (b) have been invoked, those requirements

16 shall control in all circumstances and shall supersede any

17 conflicting provisions in this Act or any other provision

18 of law.

19 (d) DISCLOSURE REQUIRED.—Within 30 days of re20 ceipt of any written objection under subsection (a), the

21 governmental agency proposing the Federal or federally

22 assisted undertaking which gave rise to that notice shall

23 disclose to and shall make available to the objecting party,

24 all plats, maps, plans, specifications, socioeconomic, envi25 ronmental, scientific, archaeological or historical studies,
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1 and comments and information in that agency’s possession

2 bearing on said undertaking.

3 (e) SPECIAL RULE FOR PUEBLOS REGARDING

4 STANDING.—In the case of a proposed Federal or feder5 ally assisted undertaking affecting the management, use,

6 or preservation of public land involving potential adverse

7 religious impacts on any of the Indian pueblos of New

8 Mexico or any of their religious sites, the only party with

9 standing to file an objection or participate in consultation

10 under this section, or to file an action under section 105

11 or 501, shall be the governor of the affected pueblo or

12 the governor’s designee.

13 SEC. 105. BURDEN OF PROOF.

14 (a) IN GENERAL.—

15 (1) BURDEN ON AGGRIEVED PARTY.—Except as

16 provided in subsection (b), in any action brought

17 under section 501(a), the aggrieved party shall have

18 the burden of proving that the Federal or federally

19 assisted undertaking or the State action having an

20 impact upon the management, use, or preservation

21 of public land, is posing or will pose a substantial

22 threat of undermining or frustrating a Native Amer23 ican religion or a Native American religious practice.

24 (2) BURDEN ON AGENCY.—If the aggrieved

25 party meets its burden of proof under paragraph
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1 (1), the Federal agency or State shall have the bur2 den of proving that the governmental interest in the

3 Federal or federally assisted undertaking or the

4 State action is compelling.

5 (3) LEAST INTRUSIVE COURSE OF ACTION.—If

6 the aggrieved party fails to meet its burden of proof

7 under paragraph (1), but establishes that the Fed8 eral or federally assisted undertaking or the State

9 action will alter or disturb the integrity of a Native

10 American religious site or the sanctity thereof, or

11 will have an adverse impact upon the exercise of a

12 Native American religion or the conduct of a Native

13 American religious practice, or if the Federal agency

14 or State meets its burden of proof in paragraph (2),

15 the Federal agency or State shall have the burden

16 of proving that it has selected the course of action

17 least intrusive on the Native American religious site

18 or the Native American religion or religious practice.

19 (b) CASES WHERE SECRECY IS REQUIRED.—In the

20 case of any proceeding involving a Native American reli21 gious site or associated religious practices of an Indian

22 tribe described in section 104(b), if the Indian tribe ob23 jects to the Federal or federally assisted undertaking or

24 State action based upon any of the grounds specified in

25 section 104(a), the provisions of section 104(b) shall apply
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1 and the Federal agency or State shall have the burden

2 of proving that—

3 (1) it has a compelling interest in pursuing the

4 Federal or federally assisted undertaking or the

5 State action as originally proposed;

6 (2) it is essential that the Federal agency’s or

7 State’s compelling interest be furthered as originally

8 proposed; and

9 (3) none of the less intrusive alternatives (if

10 any) identified in the consultation process, or by the

11 Indian tribe, will adequately advance that compelling

12 governmental interest.

13 The Federal agency or State shall retain this burden of

14 proof at all stages of any proceeding or decisionmaking

15 process involving an Indian tribe described in section

16 104(b) as to objections raised by that Indian tribe.

17 (c) FAILURE OF AGENCY TO MEET BURDEN.—If a

18 Federal agency or State does not meet its burden of proof

19 under this section, it shall not proceed with the proposed

20 undertaking. For purposes of this section and section 501,

21 the phrase ‘‘burden of proof’’ means the burden of produc22 tion and the burden of persuasion.

23 (d) ESTABLISHMENT OF ADMINISTRATIVE PROCE24 DURE.—
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1 (1) IN GENERAL.—A Federal agency may, by

2 regulation, establish an administrative procedure to

3 implement the requirements of this section.

4 (2) EXHAUSTION REQUIREMENT.—An ag5 grieved party must use a procedure established

6 under paragraph (1) before filing an action in a

7 Federal court pursuant to section 501(a).

8 (3) NEW FACTUAL FINDINGS.—If an action is

9 filed in Federal court after exhaustion of administra10 tive remedies, the court shall not defer to the factual

11 findings of the Federal agency, but shall make its

12 own factual findings based upon the record compiled

13 by the Federal agency as well as other evidence that

14 may be permitted by the court under Federal law.

15 SEC. 106. TRIBAL AUTHORITY OVER NATIVE AMERICAN RE16 LIGIOUS SITES ON INDIAN LANDS.

17 (a) RIGHT OF TRIBE.—All Federal or federally as18 sisted undertakings on Indian lands which may result in

19 changes in the character or use of a Native American reli20 gious site or which may have an impact on access to a

21 Native American religious site shall, unless requested oth22 erwise by the Indian tribe on whose lands the undertak23 ings will take place, be conducted in conformance with the

24 laws or customs of the tribe.
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1 (b) AGREEMENTS.—Any governmental agency pro2 posing a Federal or federally assisted undertaking on In3 dian lands which may result in changes in the character

4 or use of a Native American religious site or which may

5 have an impact upon access to a Native American religious

6 site, may enter into an agreement with the Indian tribe

7 on whose lands the undertaking will take place for pur8 poses of assuring conformance with the laws or customs

9 of the tribe.

10 (c) PROTECTION BY TRIBES.—Indian tribes may reg11 ulate and protect Native American religious sites located

12 on Indian lands.

13 (d) OTHER AUTHORITIES.—

14 (1) SOVEREIGN AUTHORITY OF TRIBES.—The

15 provisions of this section are in addition to and not

16 in lieu of the inherent sovereign authority of Indian

17 tribes to regulate and protect Native American reli18 gious sites located on Indian lands.

19 (2) NATIONAL SECURITY.—The provisions of

20 this section shall not apply if the President deter21 mines that national security concerns are directly af22 fected by a Federal or federally assisted undertak23 ing.

24 (3) DUTY TO NOTIFY.—This section does not

25 relieve a governmental agency of any duty pursuant
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1 to section 103 to notify an Indian tribe of a Federal

2 or federally assisted undertaking on Indian lands

3 which may result in changes in the character or use

4 of a Native American religious site.

5 SEC. 107. APPLICATION OF OTHER LAWS.

6 (a) IN GENERAL.—Nothing in this title shall be con7 strued to deprive any person or entity of any other rights

8 which might be provided under the laws, regulations,

9 guidelines, or policies of the Federal, State, and tribal gov10 ernments, including but not limited to the National His11 toric Preservation Act (16 U.S.C. 470 et seq.), to receive

12 notice of, comment upon, or otherwise participate in the

13 decisionmaking process regarding a Federal or federally

14 assisted undertaking.

15 (b) EXISTING PROCEDURES.—To the maximum ex16 tent possible, the procedures required by this Act shall be

17 incorporated into existing procedures applicable to the

18 management of Federal lands and decisionmaking proc19 esses of Federal agencies engaged in Federal or federally

20 assisted undertakings.

21 SEC. 108. CONFIDENTIALITY.

22 (a) IN GENERAL.—Notwithstanding any other provi23 sion of law, whenever information has been obtained as

24 a result of or in connection with a proceeding pursuant
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1 to section 105 or 501 or consultation pursuant to sections

2 102 and 104, all references pertaining to—

3 (1) specific details of a Native American reli4 gion or the significance of a Native American reli5 gious site to that religion; or

6 (2) the location of that religious site;

7 shall be deleted from the record of a Federal agency or

8 court before the record is released to any party or the gen9 eral public pursuant to the Freedom of Information Act

10 (5 U.S.C. 552) or any other applicable law.

11 (b) SUPPLEMENTATION OF RECORD.—The agency or

12 court shall supplement the record described in subsection

13 (a) to include the general results and conclusions of the

14 administrative or judicial review to the extent necessary

15 to provide other interested parties with sufficient informa16 tion to understand the nature of, and basis for, a decision

17 by the Federal agency or court.

18 (c) EXCEPTIONS.—This section shall not apply—

19 (1) where all parties to a proceeding (excluding

20 the Federal Government) waive its application, and

21 (2) in case of a Native Hawaiian religious site,

22 where the information is sought by a Native Hawai23 ian organization for the purpose of protecting such

24 site.
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1 (d) OTHER LAW.—Indian tribes, Native Hawaiian

2 organizations, Native American traditional leaders, and

3 Native American practitioners seeking to maintain the

4 confidentiality of information relating to Native American

5 religious sites may also seek redress through existing laws

6 requiring that certain information be withheld from the

7 public, including, but not limited to the National Historic

8 Preservation Act (16 U.S.C. 47Ow–3) and the Archae9 ological Resources Protection Act (16 U.S.C. huh).

10 SEC. 109. CRIMINAL SANCTIONS.

11 (a) DAMAGING RELIGIOUS SITES.—

12 (1) INITIAL VIOLATION.—Any person who

13 knowingly damages or defaces a known Native

14 American religious site located on Federal land, ex15 cept as part of an approved Federal or federally as16 sisted undertaking or an action authorized by a gov17 ernmental agency with the authority to approve such

18 activity, shall, upon conviction, be fined not more

19 than $10,000, or imprisoned not more than 1 year,

20 or both.

21 (2) SUBSEQUENT VIOLATIONS.—In the case of

22 a second or subsequent violation, a person shall be

23 fined not more than $100,000, or imprisoned not

24 more than 5 years, or both.

25 (b) RELEASE OF INFORMATION.—
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1 (1) INITIAL VIOLATION.—Any person who

2 knowingly releases any information required to be

3 held confidential pursuant to this title shall, upon

4 conviction, be fined not more than $10,000, or

5 imprisoned not more than 1 year, or both.

6 (2) SUBSEQUENT VIOLATIONS.—In the case of

7 a second or subsequent violation, be fined not more

8 than $100,000, or imprisoned not more than 5

9 years, or both.

10 TITLE II—TRADITIONAL USE OF

11 PEYOTE

12 SEC. 201. FINDINGS.

13 The Congress finds that—

14 (1) some Indian people have used the peyote

15 cactus in religious ceremonies for sacramental and

16 healing purposes for many generations, and such

17 uses have been significant in perpetuating Indian

18 tribes and cultures by promoting and strengthening

19 the unique cultural cohesiveness of Indian tribes;

20 (2) since 1965, this religious ceremonial use of

21 peyote by Indians has been protected by Federal

22 regulation, which exempts such use from Federal

23 laws governing controlled substances, and the Drug

24 Enforcement Administration has manifested its con25 tinuing support of this Federal regulatory system;
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1 (3) the State of Texas encompasses virtually

2 the sole area in the United States in which peyote

3 grows, and for many years has administered an ef4 fective regulatory system which limits the distribu5 tion of peyote to Indians for ceremonial purposes;

6 (4) while numerous States have enacted a vari7 ety of laws which protect the ceremonial use of pe8 yote by Indians, many others have not, and this lack

9 of uniformity has created hardships for Indian peo10 ple who participate in such ceremonies;

11 (5) the traditional ceremonial use by Indians of

12 the peyote cactus is integral to a way of life that

13 plays a significant role in combating the scourge of

14 alcohol and drug abuse among some Indian people;

15 (6) the United States has a unique and special

16 historic trust responsibility for the protection and

17 preservation of Indian tribes and cultures, and the

18 duty to protect the continuing cultural cohesiveness

19 and integrity of Indian tribes and cultures;

20 (7) it is the duty of the United States to pro21 tect and preserve tribal values and standards

22 through its special historic trust responsibility to

23 Indian tribes and cultures;

24 (8) existing Federal and State laws, regulations

25 and judicial decisions are inadequate to fully protect
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1 the ongoing traditional uses of the peyote cactus in

2 Indian ceremonies;

3 (9) general prohibitions against the abusive use

4 of peyote, without an exception for the bona fide re5 ligious use of peyote by Indians, lead to discrimina6 tion against Indians by reason of their religious

7 beliefs and practices; and

8 (10) as applied to the traditional use of peyote

9 for religious purposes by Indians, otherwise neutral

10 laws and regulations may serve to stigmatize and

11 marginalize Indian tribes and cultures and increase

12 the risk that they will be exposed to discriminatory

13 treatment.

14 SEC. 202. TRADITIONAL USE OF PEYOTE.

15 (a) IN GENERAL.—Notwithstanding any other provi16 sion of law, the use, possession, or transportation by an

17 Indian of peyote for bona fide ceremonial purposes in con18 nection with the practice of a Native American religion

19 by an Indian is lawful and shall not be prohibited by the

20 Federal Government or any State. No Indian shall be pe21 nalized or discriminated against on the basis of such use,

22 possession or transportation, including, but not limited to,

23 denial of otherwise applicable benefits under public assist24 ance programs.
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1 (b) REGULATION AUTHORIZED.—This section does

2 not prohibit such reasonable regulation and registration

3 of those persons who import, cultivate, harvest or distrib4 ute peyote as may be consistent with the purpose of this

5 title.

6 (c) TEXAS LAW.—This section does not prohibit ap7 plication of the provisions of section 481.111(a) of

8 Vernon’s Texas Code Annotated, in effect on the date of

9 enactment of this Act, insofar as those provisions pertain

10 to the cultivation, harvest or distribution of peyote.

11 TITLE III—PRISONERS’ RIGHTS

12 SEC. 301. RIGHTS.

13 (a) IN GENERAL.—

14 (1) ACCESS.—Notwithstanding any other provi15 sion of law, Native American prisoners who practice

16 a Native American religion shall have, on a regular

17 basis comparable to that access afforded prisoners

18 who practice Judeo-Christian religions, access to—

19 (A) Native American traditional leaders

20 who shall be afforded the same status, rights

21 and privileges as religious leaders of Judeo22 Christian faiths;

23 (B) subject to paragraph (6), items and

24 materials utilized in religious ceremonies; and

25 (C) Native American religious facilities.
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1 (2) MATERIALS.—Items and materials utilized

2 in religious ceremonies are those items and mate3 rials, including foods for religious diets, identified by

4 a Native American traditional leader. Prison au5 thorities shall treat these items in the same manner

6 as the religious items and materials utilized in cere7 monies of the Judeo-Christian faith.

8 (3) HAIR.—

9 (A) RIGHT OF PRISONER.—Except in those

10 circumstances where subparagraph (B) applies,

11 Native American prisoners who desire to wear

12 their hair according to the religious customs of

13 their Indian tribes may do so provided that the

14 prisoner demonstrates that—

15 (i) the practice is rooted in Native

16 American religious beliefs; and

17 (ii) these beliefs are sincerely held by

18 the Native American prisoner.

19 (B) DENIAL OF REQUEST.—If a Native

20 American prisoner satisfies the criteria in para21 graph (3)(A), the prison authorities may deny

22 such request only where they can demonstrate

23 that the legitimate institutional needs of the

24 prison cannot be met by viable less restrictive
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1 means which would not create an undue admin2 istrative burden.

3 (4) DEFINITION OF ‘‘RELIGIOUS FACILITIES’’.—

4 The term ‘‘religious facilities’’ includes sweat lodges,

5 teepees, and access to other secure, out-of-doors lo6 cations within prison grounds if such facilities are

7 identified by a Native American traditional leader to

8 facilitate a religious ceremony.

9 (5) DISCRIMINATION PROHIBITED.—No Native

10 American prisoner shall be penalized or discrimi11 nated against on the basis of Native American reli12 gious practices, and all prison and parole benefits or

13 privileges extended to prisoners for engaging in reli14 gious activity shall be afforded to Native American

15 prisoners who participate in Native American reli16 gious practices.

17 (6) SCOPE OF SUBSECTION.—Paragraph (1)

18 shall not be construed as requiring prison authorities

19 to permit (nor prohibit them from permitting) access

20 to peyote or Native American religious sites.

21 (b) COMMISSION TO INVESTIGATE RELIGIOUS FREE22 DOM.—

23 (1) IN GENERAL.—The Attorney General shall

24 establish the Commission on the Religious Freedom

25 of Native American Prisoners (hereafter in this sec-
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1 tion referred to as the ‘‘Commission’’) to investigate

2 the conditions of Native American prisoners in the

3 Federal and State prison systems with respect to the

4 free exercise of Native American religions.

5 (2) REPORT.—Not later than 36 months after

6 the date of enactment of this Act, the Commission

7 shall submit to the Attorney General and the Con8 gress a report containing—

9 (A) an institution-by-institution assessment

10 of the recognition, protection, and enforcement

11 of the rights of Native American prisoners to

12 practice their religions under this Act; and

13 (B) specific recommendations for the pro14 mulgation of regulations to implement this Act.

15 (3) COMPOSITION OF COMMISSION.—The Com16 mission shall consist of 5 members, at least 3 of

17 whom shall be Native Americans and—

18 (A) at least 1 of whom shall be a Native

19 American traditional leader;

20 (B) at least 1 of whom shall be a Native

21 American ex-offender; and

22 (C) at least 1 of whom shall be a Native

23 American woman.

24 (4) NOMINATIONS.—The Native American

25 members selected under paragraph (2) shall be ap-
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1 pointed from nominations submitted by Indian

2 tribes, Native Hawaiian organizations and Native

3 American traditional leaders.

4 (5) CHAIRPERSON.—The Commission shall se5 lect 1 of its members to serve as Chairperson.

6 (6) COMPENSATION.—Each member of the

7 Commission who is not a Federal employee shall be

8 compensated at a rate equal to the daily equivalent

9 of that prescribed for level V of the Executive

10 Schedule under section 5316 of title 5, United

11 States Code. All members of the Commission while

12 away from home or their place of business, in the

13 performance of the duties of the Commission, shall

14 be allowed travel and other related expenses, includ15 ing per diem in lieu of subsistence, in the same man16 ner as persons employed intermittently in Govern17 ment services are allowed expenses under section

18 5703 of title 5, United States Code.

19 (7) STAFF.—The Commission may hire, with20 out regard to the provisions of title 5, United States

21 Code, governing appointments in the competitive

22 service, and may pay without regard to the provi23 sions of chapter 51, and subchapter III of chapter

24 52 of such title relating to classification and General

25 Schedule pay rates, such staff as necessary to fulfill
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1 its duties under this section. In addition, the Com2 mission may request any Federal department or

3 agency to make available to the Commission person4 nel on a nonreimbursable basis, to assist the Com5 mission in fulfilling such duties.

6 (8) TERMINATION.—The Commission shall

7 cease to exist upon the expiration of the 60-day pe8 riod following the date of submission of its report to

9 the Congress.

10 TITLE IV—RELIGIOUS USE OF

11 EAGLES AND OTHER ANIMALS

12 AND PLANTS

13 SEC. 401. RELIGIOUS USE OF EAGLES.

14 (a) IN GENERAL.—Within 1 year after the date of

15 enactment of this Act, the Director of the United States

16 Fish and Wildlife Service (hereafter in this section re17 ferred to as the ‘‘Director’’) shall, in consultation with In18 dian tribes and Native American traditional leaders,

19 develop a plan to—

20 (1) ensure the prompt disbursement from Fed21 eral repositories of available bald or golden eagles, or

22 their parts, nests, or eggs for the religious use of In23 dians upon receipt of an application from a Native

24 American practitioner;
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1 (2) provide that sufficient numbers of bald or

2 golden eagles are allocated to Native American prac3 titioners to meet the demonstrated need where they

4 are available by reason of accidental deaths, natural

5 deaths, or takings permitted by Federal law; and

6 (3) simplify and shorten the process by which

7 permits are authorized for the taking, possession,

8 and transportation of bald or golden eagles, or their

9 parts, nests, or eggs for the religious use of Indians.

10 (b) CONSULTATION WITH REGIONAL ADVISORY

11 COUNCILS.—In developing the plan required by subsection

12 (a), the Director shall consult with the Regional Advisory

13 Councils established pursuant to subsection (c) to deter14 mine whether these goals might best be met by decen15 tralizing the system for the disbursement of bald or golden

16 eagles or their parts, nests, or eggs for Native American

17 religious purposes.

18 (c) REGIONAL ADVISORY COUNCILS.—

19 (1) ESTABLISHMENT.—Within 120 days after

20 the date of enactment of this Act, the Regional Di21 rectors of the United States Fish and Wildlife

22 Service shall establish Regional Advisory Councils.

23 (2) COMPOSITION.—Each Regional Advisory

24 Council shall consist of 3 Native American tradi25 tional leaders appointed by each Regional Director
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1 of the United States Fish and Wildlife Service from

2 nominations submitted by Indian tribes and Native

3 American traditional leaders located within the re4 gion.

5 (3) DUTIES.—The Regional Directors and the

6 Regional Advisory Councils, in consultation with In7 dian tribes and Native American traditional leaders,

8 shall—

9 (A) develop a plan to—

10 (i) ensure that all bald and golden ea11 gles and their parts, nests, or eggs which

12 are recovered within the region are

13 promptly transmitted to and collected by

14 the United States Fish and Wildlife Serv15 ice and made available for distribution as

16 provided by law and consistent with the

17 plan developed by the Director pursuant to

18 subsection (a); and

19 (ii) expedite the review and approval

20 of permit applications at each regional

21 level;

22 (B) consult with the Director regarding

23 the advisability of decentralizing the distribu24 tion system; and
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1 (C) monitor the operation of the collection,

2 permit, and, if applicable, the distribution sys3 tem at the regional level.

4 (4) COMPENSATION.—Members of the Regional

5 Advisory Councils established under paragraph (1)

6 of this section shall serve without pay, but shall be

7 reimbursed at a rate equal to the daily rate for GS–

8 18 of the General Schedule for each day (including

9 travel time) for which the member is actually en10 gaged in council business. Each member shall re11 ceive travel expenses, including per diem in lieu of

12 subsistence, in accordance with sections 5702 and

13 5703 of title 5, United States Code.

14 (d) TRIBAL LAW.—If bald or golden eagles or their

15 parts, nests, or eggs are discovered on Indian lands and

16 the Indian tribe on whose land the eagles or their parts,

17 nests, or eggs were discovered has established or estab18 lishes, by tribal law or custom, a procedure for—

19 (1) issuance of tribal permits to Native Amer20 ican practitioners, and

21 (2) distribution of bald or golden eagles or their

22 parts, nests, or eggs in accordance with tribal reli23 gious custom,
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1 the Indian tribe may distribute said bald or golden eagles

2 or their parts, nests, or eggs to Native American practi3 tioners in accordance with such tribal law or custom.

4 (e) SCOPE OF SUBSECTION (d).—Subsection (d) ap5 plies only to eagles which have died by reason of accidental

6 deaths or natural deaths and does not authorize the taking

7 of live eagles which, subject to standards established in

8 section 501(b), shall continue to be governed by regula9 tions promulgated by the United States Fish and Wildlife

10 Service. An Indian tribe under subsection (d) shall provide

11 an annual report by March 31 of each year to the United

12 States Fish and Wildlife Service summarizing the number

13 and type of bald and golden eagles and their parts, nests,

14 and eggs that have been discovered and distributed during

15 the previous calendar year.

16 SEC. 402. OTHER ANIMALS AND PLANTS.

17 (a) PLAN.—Within 1 year after the date of enact18 ment of this Act, the Director of the United States Fish

19 and Wildlife Service shall, in consultation with Indian

20 tribes and Native American traditional leaders, develop a

21 plan to implement the recommendations of the President’s

22 1979 American Indian Religious Freedom Task Force Re23 port regarding the disposition of surplus plant and animal

24 products by Federal agencies.
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1 (b) ASSESSMENT.—In developing this plan, the Di2 rector shall—

3 (1) assess the availability of surplus animals,

4 plants or parts from Federal agencies;

5 (2) determine whether there is a need for such

6 parts for religious purposes by Native American

7 practitioners; and

8 (3) evaluate the feasibility of developing a joint

9 uniform set of regulations to govern the disposition

10 of surplus animals, plants or parts which have been

11 confiscated or gathered under the jurisdiction and

12 control of Federal agencies.

13 TITLE V—JURISDICTION AND

14 REMEDIES

15 SEC. 501. JURISDICTION AND REMEDIES.

16 (a) IN GENERAL.—Any appropriate United States

17 district court shall have original jurisdiction over a civil

18 action for equitable or other relief, including damages,

19 brought by an aggrieved party against the United States

20 or a State to enforce the provisions of this Act.

21 (b) BURDEN OF PROOF.—

22 (1) IN GENERAL.—Except as provided in titles

23 I through III, if an aggrieved party meets the bur24 den of proving that a governmental action restricts

25 or would restrict the practitioner’s free exercise of
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1 religion, the governmental authority shall refrain

2 from such action unless it can demonstrate that ap3 plication of the restriction to the practitioner is es4 sential to further a compelling governmental interest

5 and the application is the least restrictive means of

6 furthering that compelling governmental interest.

7 (2) SPECIAL RULE FOR NATIVE AMERICAN

8 PRACTITIONERS.—The burden of proof for a Native

9 American practitioner is a showing of any evidence

10 that a restriction upon the practitioner’s free exer11 cise of religion exists as a result of Federal or State

12 action. Native American practitioners may elect to

13 provide testimony about their beliefs in camera or in

14 some other protective procedure.

15 (c) ATTORNEY’S FEES.—An aggrieved party who is

16 a prevailing party in any administrative or judicial pro17 ceeding brought pursuant to this Act shall be entitled to

18 attorney’s fees, expert witness fees, and costs under the

19 provisions of section 504 of title 5, United States Code,

20 and section 2412 of title 28, United States Code.

21 TITLE VI—MISCELLANEOUS

22 SEC. 601. SAVINGS CLAUSE.

23 Nothing in this Act shall be construed as abrogating,

24 diminishing, or otherwise affecting—

25 (1) the inherent rights of any Indian tribe;
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1 (2) the rights, express or implicit, of any Indian

2 tribe which exist under treaties, Executive Orders

3 and laws of the United States; and

4 (3) the inherent right of Native Americans to

5 practice their religions.

6 SEC. 602. SEVERABILITY.

7 If any title or section of this Act, or any provision

8 or portion thereof, is declared to be unconstitutional, in9 valid, or inoperative in whole or in part, by a court of com10 petent jurisdiction, such title, section, provision or portion

11 thereof shall, to the extent it is not unconstitutional, in12 valid, or inoperative, be enforced and effectuated, and no

13 such determination shall be deemed to invalidate or make

14 ineffectual the remaining provisions of the title, section,

15 or provision.

16 SEC. 603. AUTHORIZATION OF APPROPRIATIONS.

17 There are hereby authorized to be appropriated such

18 sums as may be necessary to carry out the provisions of

19 this Act.

20 SEC. 604. EFFECTIVE DATE.

21 This Act takes effect on the date of its enactment.

22 Application and enforcement of this Act does not depend

23 upon the promulgation of regulations by any governmental

24 agency.
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