II

★(Star Print)

103D CONGRESS

2D SESSION S. 2269

To protect Native American cultures and to guarantee the free exercise

of religion by Native Americans.

IN THE SENATE OF THE UNITED STATES

JULY 1 (legislative day, JUNE 7), 1994

Mr. INOUYE introduced the following bill; which was read twice and referred

to the Committee on Indian Affairs

A BILL

To protect Native American cultures and to guarantee the

free exercise of religion by 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 Cultural Protection and Free Exercise

6 of Religion Act of 1994’’.

7 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Policy.

Sec. 3. Definitions.

TITLE I—PROTECTION OF NATIVE AMERICAN SACRED SITES

Sec. 101. Findings.

Sec. 102. Federal Lands Access.
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Sec. 103. Land management decisions; planning, identification, and notice.

Sec. 104. Consultation.

Sec. 105. Administrative proceeding.

Sec. 106. Tribal authority over Native American sacred 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—CULTURAL AND RELIGIOUS USE OF EAGLES AND

OTHER ANIMALS AND PLANTS

Sec. 401. Cultural and 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. Regulations.

Sec. 605. Protections.

Sec. 606. 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, exercise and practice his or her tradi8 tional culture and religion, including, but not limited to,

9 access to any Native American sacred site, use and posses-
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1 sion of sacred objects, and the freedom to worship through

2 ceremonial and traditional rites.

3 SEC. 3. DEFINITIONS.

4 For the purposes of this Act:

5 (1) The term ‘‘adverse impact’’ means any ac6 tion or any potential action which has the effect or

7 which will have the effect of—

8 (A) altering, disturbing, desecrating or de9 stroying a Native American sacred site;

10 (B) inhibiting, infringing upon or interfer11 ing with Native American traditional cultural

12 practices; or

13 (C) imposing a burden upon the free exer14 cise of a Native American religion.

15 (2) The term ‘‘aggrieved party’’ means any Na16 tive American, Indian tribe, Native Hawaiian organi17 zation, Native American practitioner or Native

18 American traditional leader as defined by this Act,

19 and to whom the provisions of this Act apply.

20 (3) The term ‘‘consultation’’ means, at a mini21 mum, agency-initiated outreach activities which will

22 result in a meaningful process for face-to-face delib23 erations and conferral with all Indian tribes, Native

24 Hawaiian organizations and Native American tradi25 tional leaders that should be consulted and which is
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1 conducted in a realistic manner that is cognizant of

2 the cultural values, socioeconomic factors and ad3 ministrative structures, if any, of the Indian tribes

4 or Native Hawaiian organizations with an interest in

5 the land in question.

6 (4) The term ‘‘covered Federal activity’’

7 means—

8 (A) any new or reauthorized project, pro9 gram or activity, or any new phase of existing

10 projects, programs and activities, under the di11 rect or indirect jurisdiction of a Federal agency

12 including but not limited to—

13 (i) those carried out by or on behalf

14 of the agency, on Federal or State lands,

15 or involving navigable waters;

16 (ii) those activities on Federal or

17 State lands, or involving navigable waters,

18 requiring a Federal permit, license or ap19 proval;

20 (iii) those taking place on Federal or

21 State lands, or involving navigable waters,

22 subject to state regulation pursuant to a

23 delegation or approval by a Federal

24 agency;
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1 (iv) those carried out with more than

2 de minimis Federal financial assistance;

3 (v) renewals, reauthorizations, reli4 censing, and similar decisions;

5 (vi) regular and cyclical reviews of

6 land management plans by agencies;

7 (vii) programs funded by Federal

8 highway funds;

9 (viii) activities subject to licensing by

10 the Federal Energy Regulatory Commis11 sion, or the Nuclear Regulatory Commis12 sion;

13 (ix) the siting of hazardous, low-level

14 nuclear or transuranic waste or toxic waste

15 disposal, and disposal facilities, and the

16 disposal of such materials; or

17 (x) those activities that would not be

18 covered Federal activities by virtue of sec19 tion 3(4)(B)(i), if an Indian tribe affirma20 tively elects to have the provisions of this

21 Act apply to a particular covered Federal

22 activity on Indian lands which are subject

23 to the tribe’s jurisdiction;

24 (B) the term ‘‘covered Federal activity’’

25 does not include—
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1 (i) regulations, projects, activities, or

2 programs operated, approved, or sponsored

3 by Indian tribes, including, but not limited

4 to, those projects, activities, or programs

5 which are funded in whole or in part by

6 Federal funds pursuant to contract, com7 pact, grant or agreement, or which require

8 Federal permits, licenses or approvals, un9 less the Indian tribe invokes section

10 3(4)(A)(x);

11 (ii) ongoing and continuing activities

12 underway prior to enactment of this Act,

13 or activities for which a final commitment

14 has been made prior to enactment of this

15 Act and for which substantial funds have

16 been spent or implementation is substan17 tially underway;

18 (iii) routine activities that an agency

19 determines through negotiations with In20 dian tribes or Native Hawaiian organiza21 tions to be unlikely to affect Native Amer22 ican sacred sites or traditional cultural

23 practices, and maintenance activities in24 volving structures or projects existing at

25 the time of enactment of this Act or later
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1 constructed in compliance with this Act

2 which do not change the size or scale or

3 the existing use of those projects or struc4 tures;

5 (iv) activity on State land with de

6 minimis Federal funding and no other

7 Federal role;

8 (v) any actions on private lands, other

9 than those enumerated in subsection (A),

10 even though those actions are subject to

11 Federal permit, license, or approval, or

12 State regulation of private lands under a

13 Federal delegation of authority, or con14 ducted with de minimis Federal funding;

15 or

16 (vi) direct Federal loans and Federal

17 loan guarantees to private entities.

18 (5) The term ‘‘ Federal agency’’ means any de19 partment, agency, or instrumentality of the United

20 States Government.

21 (6) The term ‘‘governmental agency’’ means

22 any agency, department, or instrumentality of—

23 (A) the United States; or

24 (B) a State, in the case of a covered Fed25 eral activity described in paragraph (4)(A)(iii).
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1 The term ‘‘governmental agency’’ does not include

2 an agency, department, or instrumentality of an In3 dian tribe.

4 (7) The term ‘‘Indian’’ means an individual

5 who is a member of an Indian tribe; an Alaska Na6 tive, or an individual who meets the definition in

7 section 809(b) of the Indian Health Care Improve8 ment Act (25 U.S.C. 1679(b)), except that an In9 dian community need not be served by a local pro10 gram of the Indian Health Service in order to qual11 ify as an Indian community for purposes of this defi12 nition.

13 (8) The term ‘‘Indian lands’’ means all lands

14 within the limits of any Indian reservation notwith15 standing the issuance of any patent; public domain

16 Indian allotments; all other lands title to which is ei17 ther held in trust by the United States for the bene18 fit of any Indian tribe or individual or held by any

19 Indian tribe or individual subject to restriction by

20 the United States against alienation; all dependent

21 Indian communities; and all fee lands owned by an

22 Indian tribe.

23 (9) The term ‘‘Indian tribe’’ means any tribe,

24 band, nation, pueblo, or other organized group or

25 community of Indians, including any Alaska Native
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1 village (as defined in, or established pursuant to, the

2 Alaska Native Claims Settlement Act (43 U.S.C.

3 1601 et seq.)), which is recognized as eligible for the

4 special programs and services provided by the Unit5 ed States to Indians because of their status as Indi6 ans.

7 (10) The term ‘‘land’’ or ‘‘lands’’ means surface

8 and subsurface land within the jurisdiction of the

9 United States or the respective States, including

10 submerged land of any kind or interest therein, and

11 all water and waterways occupying, adjacent to, or

12 running through the land.

13 (11) With respect to the cultural protections

14 provided under this Act, the term ‘‘Native Amer15 ican’’ means any Indian or Native Hawaiian.

16 (12) With respect to the cultural protections

17 provided under this Act, the term ‘‘Native American

18 practitioner’’ means any Native American who prac19 tices a Native American religion as part of a Native

20 American traditional culture.

21 (13) With respect to the cultural protections

22 provided under this Act, the term ‘‘Native American

23 religion’’ means any traditional religion which is

24 practiced by Native Americans, the origin and inter-
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1 pretation of which is deeply embedded or rooted in

2 a Native American traditional culture.

3 (14) With respect to the cultural protections

4 provided under this Act, the term ‘‘Native American

5 Sacred Site’’ means any geophysical or geographical

6 area or feature which is sacred by virtue of its tradi7 tional cultural or religious significance or ceremonial

8 use, or by virtue of a ceremonial or cultural require9 ment, including a religious requirement, that a natu10 ral substance or product for use in Native American

11 traditional ceremonies be gathered from that par12 ticular location.

13 (15) The term ‘‘Native American traditional

14 culture’’ means the traditional practices, customs,

15 belief systems, lifeways, ceremonies, and rituals, in16 cluding religious practices and beliefs, that are inte17 gral to and unique aspects of Native American cul18 tural traditions and heritage.

19 (16) With respect to the cultural protections

20 provided under this Act, the term ‘‘Native American

21 traditional leader’’ means any Native American

22 practitioner who is recognized by an Indian tribe or

23 traditional tribal community or Native Hawaiian

24 community as being responsible for performing du25 ties relating to the cultural traditions, including reli-
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1 gious traditions of the tribe or traditional tribal

2 community or Native Hawaiian community or as

3 having a leadership role in an Indian tribe or tradi4 tional tribal community or Native Hawaiian commu5 nity based upon its traditional cultural or ceremonial

6 practices, including religious practices.

7 (17) With respect to the cultural protections

8 provided under this Act, the term ‘‘Native Hawai9 ian’’ means any individual who is a descendant of

10 the aboriginal Polynesian people who, prior to 1778,

11 occupied and exercised sovereignty and self-deter12 mination in the area that now comprises the State

13 of Hawaii, and who is recognized as eligible for the

14 special programs and services provided by the Unit15 ed States to Native Hawaiians because of their sta16 tus as Native Hawaiians or Native Americans.

17 (18) With respect to the cultural protections

18 provided under this Act, the term ‘‘Native Hawaiian

19 organization’’ means any organization which is com20 posed primarily of Native Hawaiians, and serves and

21 represents the traditional cultural interests of Native

22 Hawaiians and whose members—

23 (A) practice a Native American culture, in24 cluding a Native American religion, or conduct

25 traditional ceremonial rituals, or
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1 (B) utilize, preserve and protect Native

2 American sacred sites.

3 (19) The term ‘‘public land’’ means any land as

4 defined in section 3(10) of this Act which is owned

5 by the United States, or the respective States, or po6 litical subdivisions thereof, but shall not include In7 dian lands as defined in section 3(8).

8 (20) The term ‘‘State’’ means any State of the

9 United States and any and all political subdivisions

10 thereof, and the District of Columbia.

11 TITLE I—PROTECTION OF NA12 TIVE AMERICAN SACRED

13 SITES

14 SEC. 101. FINDINGS.

15 The Congress finds that—

16 (1) the traditional cultural practices, including

17 religious practices, of Native Americans are integral

18 and inseparable parts of their cultures, traditions

19 and heritages which greatly enhance the vitality of

20 Native American communities and tribes and the

21 well-being of Native Americans in general;

22 (2) the European concept that religion is an ac23 tivity or belief that is separate from all other aspects

24 of daily life, or that religion is separable from cul-
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1 ture, is a concept that has no application in the tra2 ditional cultures of Native Americans;

3 (3) throughout American history, the mani4 festation of Native American traditional cultures, in5 cluding the free exercise of Native American reli6 gions, has been infringed upon, interfered with, and

7 even prohibited by the Federal Government and the

8 devastating impact of these governmental actions

9 continues to the present day;

10 (4) the United States has a unique, govern11 ment-to-government relationship with Indian tribes

12 and a special historic trust relationship, which per13 mits the United States to take measures to protect

14 against interference with the continuing cultural co15 hesiveness and integrity of Indian tribes and Native

16 American traditional cultures;

17 (5) as part of the historic Federal-Indian trust

18 relationship it is the intent of the United States to

19 pursue enforceable Federal policies which will pro20 tect the Native American community and tribal vi21 tality and cultural integrity, and which will not in22 hibit, interfere with or infringe upon Native Amer23 ican traditional cultural practices or impose a bur24 den on the free exercise of Native American reli25 gions;
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1 (6) many Native American traditional cultures,

2 including Native American religions, hold certain

3 lands or natural formations in the United States to

4 be sacred, and in order for those sites to be in a con5 dition appropriate for cultural use, including reli6 gious or ceremonial use, the physical environment,

7 water, plants and animals associated with those sites

8 must be protected;

9 (7) such Native American sacred sites are an

10 integral and vital part of, and inextricably inter11 twined with, many Native American traditional cul12 tures, including Native American religions, and the

13 practices associated with such traditional cultures;

14 (8) the traditional use and gathering, harvest15 ing, or maintaining of natural substances or natural

16 products for cultural purposes, including religious

17 and ceremonial purposes, are an integral and vital

18 part of, and are inextricably intertwined with, many

19 Native American traditional cultures, including Na20 tive American religions;

21 (9) many of these Native American sacred sites

22 are found on lands which were part of the aboriginal

23 territory of Indians or Native Hawaiians, but which

24 now are held by the United States, or are the sub25 ject of Federal activities;
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1 (10) governmental land use decisions have the

2 potential to have an adverse impact on Native Amer3 ican traditional cultural practices, including Native

4 American religions;

5 (11) many Native American traditional cultural

6 practices, including religious and ceremonial prac7 tices, require a measure of privacy and isolation; and

8 certain traditional cultural ceremonies and activities

9 cannot be performed if nonparticipants can observe

10 the practices or ceremonies or activities, even from

11 a distance, and in some situations the lack of pri12 vacy or isolation inhibits, infringes upon, interferes

13 with, or precludes certain Native American tradi14 tional cultural practices, including traditional reli15 gious practices;

16 (12) some Indian tribes, such as the Pueblos of

17 New Mexico, as well as some aspects of Native Ha18 waiian culture, have traditional cultural and reli19 gious tenets which prohibit disclosure of information

20 concerning their sacred sites and their traditional

21 beliefs and practices, mandate secrecy and impose

22 internal sanctions to enforce these prohibitions,

23 making it impossible for them to identify the man24 ner in which any particular governmental activity

25 would have an adverse impact on their traditional
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1 cultures or impose a burden on the free exercise of

2 their religions;

3 (13) lack of sensitivity to, or understanding of,

4 Native American traditional cultures, including Na5 tive American religions has resulted in the absence

6 of a coherent policy for the protection of Native

7 American sacred sites and the failure to consider the

8 impacts of Federal activities upon Native American

9 sacred sites;

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

11 in the case of Lyng v. Northwest Indian Cemetery

12 Protective Association, 485 U.S. 439 (1988) ruled

13 that the free exercise clause of the First Amendment

14 does not restrict the Government’s management of

15 its lands, even if certain governmental actions would

16 infringe upon or destroy the ability to practice reli17 gion, so long as the Government’s action does not

18 compel individuals to act in a manner which is con19 trary to their religious beliefs;

20 (15) the Supreme Court’s holding in the case of

21 Lyng v. Northwest Indian Cemetery Protective Asso22 ciation creates a chilling and discriminatory effect

23 on Native American traditional cultures and on the

24 free exercise of Native American religions;
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1 (16) the Congress has enacted numerous laws

2 which regulate and restrict the discretion of Federal

3 agencies for the sake of environmental, historical,

4 economic, and cultural concerns, but has never en5 acted a judicially enforceable law comparably re6 stricting agency discretion for the sake of the site7 protective requirements specifically associated with

8 the protection of Native American traditional cul9 tural practices, including the free exercise of Native

10 American religions;

11 (17) the lack of a judicially-enforceable Federal

12 law and of a coherent Federal policy to accommo13 date the uniqueness of Native American traditional

14 cultures, including Native American religions, results

15 in unique and adverse impacts on Native American

16 traditional cultures, burdens the free exercise of Na17 tive American religions, and impairs the vitality of

18 Indian tribes, traditional tribal communities, and

19 Native Hawaiian communities; and

20 (18) the Congress has the authority to enact

21 laws to assure the protection and preservation of

22 Native American traditional cultures, including the

23 free exercise of Native American religions, based

24 upon the special trust relationship, and pursuant to

25 section 8, article I of the United States Constitution
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1 and the first, fifth, and fourteenth amendments to

2 the United States Constitution.

3 SEC. 102. ACCESS TO FEDERAL LANDS.

4 (a) IN GENERAL.—Native American practitioners

5 shall be permitted access to Federal lands at all times for

6 Native American traditional cultural, or ceremonial or reli7 gious purposes, including access to gather, harvest, or

8 maintain natural substances or natural products for Na9 tive American traditional cultural purposes.

10 (b) Federal agencies may take reasonable and nar11 rowly tailored measures to assure that access and use of

12 lands under this Act do not—

13 (1) have a direct, significant and negative im14 pact upon specific national security interests or the

15 implementation of the Endangered Species Act; or

16 (2) present an immediate threat of serious bod17 ily harm to any person or immediate and serious

18 harm to the environment.

19 Where other feasible means are available for avoiding ad20 verse impacts on Native American sacred sites, Native

21 American traditional cultural practices, and the free exer22 cise of Native American religions, those means shall be

23 utilized before access is restricted.

24 (c) Terms of access may be included in a memoran25 dum of agreement pursuant to section 104(a)(3)(B).
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1 (d) LIMITATIONS AGAINST VEHICLES.—Paragraph

2 (a) does not authorize the use of motorized vehicles or

3 other forms of mechanized transport in roadless areas

4 where such use is prohibited by law.

5 (e) TEMPORARY PROTECTIVE MEASURES.—Upon the

6 request of an Indian tribe, a Native Hawaiian organization

7 or a Native American traditional leader, the Secretary of

8 the department whose land is involved, or a local land

9 manager where such authority has been delegated, may

10 from time to time temporarily close to the general public

11 use of one or more specific portions of Federal land and

12 may take such other reasonable and temporary measures

13 as necessary in order to protect the privacy of traditional

14 cultural, ceremonial or religious activities in such areas

15 by Native Americans. Any such measures shall be taken

16 so as to affect the smallest practicable area for the mini17 mum period necessary for such purposes.

18 SEC. 103. FEDERAL LAND MANAGEMENT, IDENTIFICATION

19 OF LANDS, PLANNING AND NOTICE.

20 (a) IN GENERAL.—Each Federal agency shall man21 age any lands under its jurisdiction in a manner that com22 plies with the provisions of this Act.

23 (b) IDENTIFICATION OF LANDS BY SECRETARY.—

24 (1) IN GENERAL.—(A) For the purpose of as25 suring that a governmental agency properly deter-
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1 mines whether a proposed cover Federal activity will

2 have an adverse impact on a Native American sacred

3 site and which affected parties should be provided

4 notice of a proposed activity, the head of each land

5 managing agency, in conjunction with the Secretary

6 of the Interior and tribal governments and Native

7 Hawaiian organizations, shall identify land areas

8 with which a tribe or Native Hawaiians have aborigi9 nal, historic, cultural or religious ties.

10 (B) For purposes of this section, within 90 days

11 following the date of enactment of this Act, Native

12 Hawaiian organizations shall notify the Secretary of

13 their desire to receive notice of proposed covered

14 Federal activities.

15 (2) As part of its obligations pursuant to this

16 section, within 90 days following the date of enact17 ment of this Act, the Secretary of the Interior shall

18 contact all Indian tribes, and Native Hawaiian orga19 nizations to request a broad geographic description

20 of the lands as to which each Indian tribe or Native

21 Hawaiian organization desires notice of covered Fed22 eral activity and, upon receipt of responses from In23 dian tribes and Native Hawaiian organizations, shall

24 provide such land descriptions to all Federal agen25 cies.
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1 (3) Within 18 months following the date of en2 actment of this Act, the Secretary shall establish a

3 list of all Indian tribes and Native Hawaiian organi4 zations who have responded and the lands they have

5 identified. Such lists shall not be published but shall

6 be made available to agencies for the purpose of

7 identifying Indian tribes and Native Hawaiian orga8 nizations and areas for which notice of covered Fed9 eral activities shall be provided.

10 (4) While the list is being developed, each Fed11 eral land managing agency shall also research its

12 own sources, including agency contacts with Indian

13 tribes, Native Hawaiian organizations, or Native

14 American traditional leaders and written sources, to

15 collect information as to Native American traditional

16 cultures and regions potentially affected by activities

17 on land which it manages and shall make a good

18 faith effort to identify and notify Indian tribes. Na19 tive Hawaiian organizations, and Native American

20 traditional leaders who may have an interest in pro21 posed covered Federal activities.

22 (5) ONGOING IDENTIFICATION.—Nothing in

23 this section shall preclude an agency or a tribal gov24 ernment or a Native Hawaiian organization from

25 continuing to conduct an ongoing identification proc-
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1 ess, which may supplement the process required by

2 this subsection.

3 (c) PLANNING PROCESS.—Each Federal agency man4 aging lands under its jurisdiction including, but not lim5 ited to, activities pursuant to the National Forest Manage6 ment Act (16 U.S.C. 1600 et seq.), and the Federal Land

7 Policy and Management Act (43 U.S.C. 1701 et seq.),

8 shall as part of its planning process—

9 (1) consult, during the earliest possible part of

10 the planning process, with Indian tribes, Native Ha11 waiian organizations and Native American tradi12 tional leaders who have notified the agency of their

13 interest in the land in question pursuant to sub14 section (b);

15 (2) in addition to the notices required in regard

16 to covered Federal activity required by subsection

17 (d), provide for notice of all covered Federal activity

18 with the potential to have an adverse impact on land

19 areas specified by an Indian tribe or Native Hawai20 ian organization, in writing, as land areas that are

21 of direct interest to the Indian tribe or Native Ha22 waiians, whether or not the agency believes that

23 such activity will or may have an adverse impact on

24 a Native American sacred site;
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1 (3) ensure that its land management plans are

2 consistent with the provisions and policies of this

3 Act; and

4 (4) maintain the confidentiality of specific de5 tails of a Native American traditional culture or reli6 gion or the significance of a Native American sacred

7 site to that culture or religion in accordance with the

8 procedures specified in sections 107 and 108 of this

9 Act.

10 (d) NOTICE AND DOCUMENTATION—DUTY OF AGEN11 CIES.—

12 (1) NOTICE TO TRIBES OR NATIVE HAWAIIAN

13 ORGANIZATIONS.—Before a governmental agency

14 proceeds on lands identified pursuant to subsection

15 (b) with any covered Federal activity that may have

16 an adverse impact on a Native American sacred site,

17 the governmental agency shall consult with poten18 tially-affected Indian tribes, Native Hawaiian orga19 nizations and Native American traditional leaders,

20 and after the consultation has occurred and the

21 agency has taken into account the information ob22 tained through that process, formally provide a writ23 ten notice containing a geographical description of

24 the lands affected by the activity (including informa25 tion on metes and bounds of the lands in question,
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1 where available), a map illustrating the lands af2 fected and a description of the proposed action to

3 each Indian tribe, Native Hawaiian organization, or

4 Native American traditional leader which has been

5 identified pursuant to this section as having an in6 terest in the land affected by the proposed covered

7 Federal activity and any other Indian tribe, Native

8 Hawaiian organization or Native American tradi9 tional leader known by the agency that may have an

10 interest in the land affected by the proposed covered

11 Federal activity.

12 (2) The governmental agency shall fully docu13 ment the efforts made to provide the information to

14 Indian tribes, Native Hawaiian organizations, and

15 Native American traditional leaders as required by

16 this section or any applicable regulations, guidelines,

17 or policies.

18 (e) RESPONSE TO NOTICE.—

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

20 the notice provided under subsection (d), or within

21 the time limit of any comment period permitted or

22 required by any Federal law applicable to the cov23 ered Federal activity, whichever is later, an Indian

24 tribe, Native Hawaiian organization, or Native

25 American traditional leader invoking the protection
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1 of this title may provide notice in writing to the gov2 ernmental agency that the proposed covered Federal

3 activity may have an adverse impact on a Native

4 American sacred site.

5 (2) MODIFICATION OF TIME.—Such time period

6 may be extended by the agency at its discretion, in7 cluding at the request of a noticed party, or may be

8 extended or shortened by an agreement negotiated

9 pursuant to section 104(a)(3)(B).

10 (3) NO DUTY TO RESPOND.—Paragraph (1)

11 does not impose a duty upon any Indian tribe, Na12 tive Hawaiian organization, or Native American tra13 ditional leader to respond to any notice under this

14 section.

15 (4) ADDITIONAL INFORMATION.—The Indian

16 tribe or Native Hawaiian organization or its des17 ignee acting pursuant to paragraph (1) may also

18 provide the agency with information as to any Na19 tive American traditional leaders or practitioners

20 who should be included in the notice and consulta21 tion requirements of this section and section 104.

22 (f) RESPONSE PERIOD AND LIMITATION ON ACTIV23 ITY FOLLOWING NOTICE.—

24 (1) In order to allow a full investigation of a

25 proposed covered Federal activity no action to ap-
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1 prove, commence, or complete an activity that is

2 subject to this section shall be taken by a govern3 mental agency for a period of 90 days following the

4 date on which notice is provided under subsection

5 (d) to Indian tribes, Native Hawaiian organizations

6 or Native American traditional leaders unless or

7 until—

8 (A) the period of consultation required

9 under section 104 has been completed;

10 (B) a sacred sites protection agreement

11 pursuant to section 104(a)(3)(B) has been en12 tered into by the affected Indian tribe or tribes

13 or Native Hawaiian organization and the gov14 ernmental agency; or

15 (C) all parties entitled to such notice con16 sent to a shorter time period.

17 (2) During the notice and consultation periods

18 under section 103 and section 104, the governmental

19 agencies responsible for the covered Federal activity

20 may continue to engage in planning, studies, or

21 other preparatory matters provided that such activi22 ties do not constitute a commitment to proceed with

23 the proposed activity or project.

24 (3) During the 90-day period following formal

25 notice to Indian tribes, Native Hawaiian organiza-
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1 tions and Native American traditional leaders, the

2 governmental agency shall have the continuing duty

3 to seek to consult with Indian tribes, Native Hawai4 ian organizations and Native American traditional

5 leaders potentially affected by the proposed covered

6 Federal activity.

7 SEC. 104. CONSULTATION.

8 (a) IN GENERAL.—

9 (1) EFFECT OF NOTICE.—In order to allow a

10 full investigation of the consequences of a proposed

11 covered Federal activity, if an Indian tribe, Native

12 Hawaiian organization or Native American tradi13 tional leader responds in writing within 90 days of

14 receiving notice as provided in section 103(e), or

15 within the time limit of any comment period per16 mitted or required by any Federal law which is ap17 plicable to the covered Federal activity, whichever is

18 later, the governmental agency shall immediately

19 discontinue such activity until the agency performs

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

21 (2) AFTER ACTION DISCOVERY.—If after a cov22 ered Federal activity is underway—

23 (A) the governmental agency becomes

24 aware that the activity may have an adverse im25 pact on a Native American sacred site, the
28

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1 agency engaged in the activity shall immediately

2 discontinue such activity until the agency per3 forms the duties set forth in paragraphs (3)

4 and (4); or

5 (B) an Indian tribe or Native Hawaiian or6 ganization that did not receive notice and did

7 not know of the covered Federal activity, be8 comes aware that the activity may have an ad9 verse impact on a Native American sacred site

10 and notifies the governmental agency, the agen11 cy engaged in the activity shall immediately dis12 continue such activity until the agency performs

13 the duties set forth in paragraphs (3) and (4).

14 (3)(A) CONSULTATION.—The governmental

15 agency shall consult with any interested party with

16 a direct interest in the Native American traditional

17 culture or religion in question concerning the nature

18 of the adverse impact, and consult about alternatives

19 which can be identified that would minimize or pre20 vent the adverse impact, including any alternatives

21 identified by an Indian tribe, Native Hawaiian orga22 nization or Native American traditional leader that

23 has filed a written objection under this subsection.

24 (B) NEGOTIATED AGREEMENTS.—
29

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1 (i) Upon the request of an Indian tribe or

2 tribes or Native Hawaiian organization, each

3 Federal agency or agencies involved in covered

4 Federal activities shall enter into negotiations

5 to identify appropriate land management proce6 dures for addressing that tribe’s or that Native

7 Hawaiian organization’s interest in the protec8 tion and preservation of its sacred sites and to

9 avoid any adverse impact on such sites as may

10 be located on public lands within the jurisdic11 tion of such agencies. Consistent with the public

12 mission of such agencies and the responsibility

13 of the United States to support Indian tribes

14 and tribal members and Native Hawaiians in

15 the preservation of their sacred sites, each Fed16 eral agency is authorized to enter into sacred

17 sites protection agreements with Indian tribes

18 or Native Hawaiian organizations for the pur19 pose of memorializing the land management

20 procedures that result from consultations and

21 negotiations. Such agreements may supersede

22 the planning provisions of section 103(c), the

23 notice provisions of section 103(d), the con24 sultation provisions of section 103(d)(1) and

25 section 104, and the access provisions of section
30

S 2269 IS1S

1 102 of this Act as they relate to Indian tribes

2 or Native Hawaiian organizations that are par3 ties to such an agreement if the agreement spe4 cifically and explicitly includes a provision over5 riding those sections of the Act, or any parts

6 thereof. The agreements may also include provi7 sion for the delegation by Federal agency offi8 cials of land management responsibilities to the

9 Indian tribe(s) or Native Hawaiian

10 organization(s) for designated public lands de11 scribed in the agreement.

12 (ii) In the case of Indian tribes, where

13 such a delegation of management functions is

14 included in such agreements, the Federal agen15 cy and the tribe may also agree to use the pro16 cedures and regulations employed under the In17 dian Self-Determination Act, Public Law 93–

18 638. The agreement may also address the appli19 cation of all or part of title I of this Act to In20 dian lands within the tribe’s jurisdiction.

21 (4) RESPONSE TO COMMENTS.—If there is no

22 resolution of the claims asserted by an aggrieved

23 party pursuant to subsection (3), the governmental

24 agency shall prepare and make available to an In25 dian tribe, a Native Hawaiian organization or a Na-
31

S 2269 IS1S

1 tive American traditional leader who has been in2 volved in the consultation process, a document re3 sponding to the comments received. The document

4 shall—

5 (i) set forth the adverse impact which has

6 been asserted by the aggrieved party,

7 (ii) assess whether the interest of the gov8 ernment in proceeding with the action is com9 pelling; and

10 (iii) assess whether, based on an analysis

11 of the alternatives to the proposed action, in12 cluding any alternatives offered by an Indian

13 tribe, Native Hawaiian organization or Native

14 American traditional leader that the proposed

15 activity is the least restrictive means of further16 ing that compelling interest.

17 Where an agency determines to commence a covered

18 Federal activity, notwithstanding notice from an ag19 grieved party pursuant to section 104(a), it shall

20 issue a written opinion providing the basis for its de21 cision. The issuance of this decision shall constitute

22 final agency action for purposes of judicial review

23 pursuant to section 501, unless the agency estab24 lishes additional administrative review procedures

25 under section 105.
32

S 2269 IS1S

1 (5) ADDITIONAL INFORMATION.—In any case

2 where the governmental agency is also required to

3 prepare a document analyzing the impact of a cov4 ered Federal activity or a decision pursuant to the

5 National Environmental Policy Act (43 U.S.C. 4321

6 et seq.), the National Historic Preservation Act (16

7 U.S.C. 470 et seq.) or any other applicable law, such

8 agency may incorporate the analysis required by this

9 section into the contents of the document.

10 (b) CASES WHERE SECRECY IS REQUIRED.—

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

12 tribes or Native Hawaiians whose traditional cul13 tural or religious tenets prohibit disclosure of infor14 mation concerning their Native American sacred

15 sites or cultural or religious beliefs or practices, and

16 mandate secrecy and internal sanctions to enforce

17 those prohibitions, and where the tribal government

18 of the affected Indian tribe or a Native Hawaiian or19 ganization so certifies and invokes this subsection—

20 (A) the tribal government or Native Ha21 waiian organization shall not be required to re22 veal the location of the Native American sacred

23 site or in what manner the covered Federal ac24 tivity would have an adverse impact on the site
33

S 2269 IS1S

1 or any information concerning their cultural or

2 religious beliefs or practices;

3 (B) the tribal government or Native Ha4 waiian organization shall not be required to ex5 plain in what manner any proposed alternative

6 is or is not less intrusive upon the Native

7 American cultural or religious practice or sa8 cred sites which may be adversely impacted

9 than the original proposed covered Federal ac10 tivity; and

11 (C) in engaging in consultation and pre12 paring any document required by this Act, the

13 governmental agency shall not be required to

14 include an analysis of adverse impacts upon the

15 sacred site or the use thereof or the Indian

16 tribe’s or Native Hawaiian organization’s cul17 tural or religious beliefs and practices.

18 (2) AFTER CONSULTATION.—If after consulta19 tion—

20 (A) the governmental agency agrees to

21 pursue a less intrusive alternative proposed by

22 the Indian tribe or Native Hawaiian organiza23 tion or some other alternative to which the In24 dian tribe or Native Hawaiian organization

25 agrees; or
34

S 2269 IS1S

1 (B) if no reasonable alternative acceptable

2 to the tribe or Native Hawaiian organization is

3 identified, the governmental agency shall be

4 deemed to have met its obligation under sec5 tions 104 and 105 to consider and pursue the

6 least intrusive alternative under this Act in re7 gard to the objection raised to the covered Fed8 eral activity by the Indian tribe or Native Ha9 waiian organization invoking this subsection.

10 (C) RESPONSE TO COMMENTS.—If there is

11 no resolution of the claims asserted by a tribe

12 or Native Hawaiian organization pursuant to

13 this subsection, the governmental agency shall

14 prepare and make available to the tribe or Na15 tive Hawaiian organization a document re16 sponding to the comments received. The docu17 ment shall—

18 (i) set forth the adverse impact which

19 is asserted by the Indian tribe or Native

20 Hawaiian organization;

21 (ii) assess whether the interest of the

22 government in proceeding with the activity

23 is compelling;

24 (iii) assess whether based on an anal25 ysis of the alternatives the activity is a rea-
35

S 2269 IS1S

1 sonable means of furthering that compel2 ling interest; and

3 (iv) assess whether the alternatives

4 identified in 104(b)(2) are reasonable.

5 Where an agency determines to commence a covered

6 Federal activity, notwithstanding notice from an ag7 grieved party pursuant to 104 (a) and (b) it shall

8 issue a written opinion providing the basis for its de9 cision. The issuance of this decision shall constitute

10 final agency action for purposes of judicial review

11 pursuant to section 501, unless the agency estab12 lishes additional administrative review procedures

13 under section 105.

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) or (b),

21 the governmental agency proposing the covered Federal

22 activity which gave rise to that notice shall make available

23 to the aggrieved party, all plats, maps, plans, specifica24 tions, socioeconomic, environmental, scientific, archae25 ological or historical studies, and comments and informa-
36

S 2269 IS1S

1 tion in that agency’s possession directly relating to said

2 activity. The agency may withhold—

3 (1) attorney work product prepared in anticipa4 tion of litigation; and

5 (2) information the release of which would jeop6 ardize the litigating position of the United States on

7 behalf of another tribe.

8 (e) SPECIAL RULE FOR PUEBLOS.—In the case of a

9 proposed covered Federal activity affecting the manage10 ment, use, or preservation of public land, or any other ac11 tivity or violation under this Act involving potential ad12 verse impacts on any of the Indian pueblos of New Mexico

13 or any of their sacred sites, the only party who may file

14 an objection or participate in consultation under this sec15 tion, or file an action under section 105 or 501, shall be

16 the governor of the affected pueblo or the governor’s des17 ignee.

18 (f) EMERGENCY PROVISION.—The process required

19 by sections 103 and 104 shall not apply if the govern20 mental agency determines that adherence to the process

21 will—

22 (1) have a direct, significant and negative im23 pact upon specific national security interests or the

24 implementation of the Endangered Species Act; or
37

S 2269 IS1S

1 (2) present an immediate threat of serious bod2 ily harm to any person or immediate and serious

3 harm to the environment.

4 SEC. 105. ADMINISTRATIVE PROCEDURES.

5 (a) IN GENERAL.—A governmental agency, shall, by

6 regulation, establish an administrative procedure to imple7 ment the requirements of this title.

8 (b) EXHAUSTION REQUIREMENT.—An aggrieved

9 party must use a procedure established under paragraph

10 (a) before filing an action in a Federal district court pur11 suant to section 501 of this Act.

12 (c) BURDEN ON AGENCY.—

13 (1) In the case of any administrative proceeding

14 in which an aggrieved Indian tribe or Native Hawai15 ian organization objects to the covered Federal activ16 ity or an action by a State on the grounds that it

17 is or will have an adverse impact on a Native Amer18 ican sacred site, the governmental agency shall have

19 the burden of proving by a preponderance of the evi20 dence that a covered Federal activity does not or will

21 not have an adverse impact on a Native American

22 sacred site.

23 (2) The governmental agency’s determination

24 that a covered Federal activity does not pose or will

25 not have an adverse impact on a Native American
38

S 2269 IS1S

1 sacred site, shall constitute a final agency action for

2 purposes of judicial review under section 501 of this

3 Act.

4 (3)(A) If a governmental agency determines

5 that a covered Federal activity does pose or will have

6 an adverse impact on a Native American sacred site,

7 the governmental agency shall have the burden of

8 proving by a preponderance of the evidence that the

9 covered Federal activity—

10 (i) is in furtherance of a compelling gov11 ernmental interest;

12 (ii) is a reasonable means of furthering

13 that compelling governmental interest; and

14 (iii) in circumstances set forth in section

15 104(b)(1), the alternatives identified under sec16 tion 104(b)(2) are not reasonable.

17 (B) The agency determination under this para18 graph shall constitute final agency action for pur19 poses of judicial review under section 501 of this

20 Act.

21 (d) FAILURE OF AGENCY TO MEET BURDEN.—

22 (1) The governmental agency shall retain its

23 burden of proof at all stages of any proceeding or

24 decisionmaking process pursuant to this title.
39

S 2269 IS1S

1 (2) If a governmental agency does not meet its

2 burden of proof under this section, it shall not pro3 ceed with the proposed covered Federal activity.

4 (3) For purposes of this section the phrase

5 ‘‘burden of proof’’ means the burden of production

6 and the burden of persuasion.

7 (e) For purposes of this section—

8 (1) a finding of an adverse impact does not re9 quire that an aggrieved party be coerced to act con10 trary to religious beliefs or traditional cultural prac11 tices, and may include consideration of disturbing

12 the integrity of a sacred site;

13 (2) land management activities, undertakings

14 and actions which have the potential to have an ad15 verse impact on a Native American sacred site, or

16 which make a Native American traditional cultural

17 practice or exercise of a Native American religion

18 more difficult shall be deemed to constitute an ad19 verse impact; and

20 (3) government ownership of land, by itself,

21 does not establish a compelling government interest.

22 (f) SPECIAL RULE FOR NATIVE AMERICAN PRACTI23 TIONERS.—For purposes of any administrative proceeding

24 conducted under this section, Native American practition-
40

S 2269 IS1S

1 ers may elect to provide testimony about their beliefs in

2 camera or in some other protective procedure.

3 SEC. 106. NATIVE AMERICAN SACRED SITES ON INDIAN

4 LANDS.

5 (a) JURISDICTION OF TRIBES.—Indian tribes may

6 regulate and protect Native American sacred sites located

7 on Indian lands within their jurisdiction. Nothing in this

8 Act shall be construed to alter, increase or decrease the

9 existence or scope of tribal jurisdiction or the application

10 of tribal law regarding protection of or access to Native

11 American sacred sites on Indian lands. Nothing in this

12 Act shall be construed to grant authority to one Indian

13 tribe to regulate Native American sacred sites which are

14 within the jurisdiction of another Indian tribe.

15 (b) TRIBAL OPTION.—None of the provisions of title

16 I of this Act shall apply on Indian lands unless the tribe

17 with jurisdiction over those lands affirmatively elects to

18 have those provisions apply to all or any part of the lands

19 affected or potentially affected. Where an Indian tribe

20 elects to have the provisions of title I apply to all or any

21 part of its lands, the Indian tribe shall notify the Secretary

22 of the Interior regarding the lands to be subject to the

23 provisions of title I and the Secretary shall publish the

24 information in the Federal Register.
41

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1 (c) DUTY TO NOTIFY.—This section does not relieve

2 a governmental agency of any duty pursuant to section

3 103 to notify an Indian tribe of a covered Federal activity

4 on Indian lands which may result in changes in the char5 acter or use of a Native American sacred site.

6 (d) NATIONAL SECURITY.—The provisions of this

7 section shall not apply if the President determines that

8 national security concerns are directly affected by a cov9 ered Federal activity.

10 (e) DISPUTES BETWEEN TWO OR MORE TRIBES.—

11 (1) When a governmental agency proposes a

12 covered Federal activity on Indian lands of one In13 dian tribe which may result in changes in the char14 acter or use of a Native American sacred site of an15 other Indian tribe, and the Indian tribe whose sa16 cred site is affected and the Indian tribe on whose

17 land the site is located agree and so request, the

18 Secretary of the Interior shall convene a committee

19 of tribal representatives for the purpose of entering

20 into negotiations concerning the nature of any ad21 verse impact on the character or use of a Native

22 American sacred site and alternatives that would

23 minimize or prevent such an adverse impact.

24 (2) The committee shall consist of tribal rep25 resentatives of the affected Indian tribe or tribes
42

S 2269 IS1S

1 and tribal representatives of the Indian tribe upon

2 whose lands the sacred site is located, and commit3 tee members shall be selected by the respective In4 dian tribes.

5 (3) The committee shall be convened for the du6 ration of the consultation and negotiation period and

7 shall meet at the call of the Secretary upon the re8 quest of the affected Indian tribe or tribes and the

9 Indian tribe upon whose lands the sacred site is

10 located.

11 SEC. 107. APPLICATION OF OTHER LAWS.

12 (a) IN GENERAL.—Nothing in this title shall be con13 strued to deprive any person or entity of any other rights

14 which might be provided under the laws, regulations,

15 guidelines, or policies of the Federal, State, and tribal gov16 ernments, including but not limited to the National His17 toric Preservation Act (16 U.S.C. 470 et seq.), to receive

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

19 decisionmaking process regarding a covered Federal

20 activity.

21 (b) EXISTING PROCEDURES.—To the maximum ex22 tent possible, the procedures required by this Act shall be

23 incorporated into existing procedures applicable to the

24 management of Federal lands and decisionmaking proc-
43

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1 esses of Federal agencies engaged in covered Federal

2 activities.

3 SEC. 108. CONFIDENTIALITY.

4 (a) IN GENERAL.—Notwithstanding any other provi5 sion of law, whenever information has been obtained as

6 a result of or in connection with a proceeding pursuant

7 to sections 105 or 501 or consultation pursuant to sections

8 103 and 104, all references pertaining to specific details

9 of a Native American traditional cultural practice or reli10 gion, or the significance of a Native American sacred site,

11 or the location of that sacred site, shall not be released

12 by a governmental agency or court to any party or the

13 general public pursuant to the Freedom of Information

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

15 (b) SUPPLEMENTATION OF RECORD.—The govern16 mental agency or court shall supplement the record de17 scribed in subsection (a) to include the general results and

18 conclusions of the administrative proceeding pursuant to

19 section 105 or judicial review process pursuant to section

20 501 to the extent necessary to provide other interested

21 parties with sufficient information to understand the na22 ture of, and basis for, a decision by the governmental

23 agency or court.

24 (c) EXCEPTION.—This section shall not apply where

25 all parties to a proceeding (excluding the United States
44

S 2269 IS1S

1 Government) waive its application, and in the case of a

2 Native Hawaiian sacred site, where the information is

3 sought by a Native Hawaiian organization for the purpose

4 of protecting such site.

5 (d) OTHER LAW.—Indian tribes or Native Hawaiian

6 organizations seeking to maintain the confidentiality of in7 formation relating to Native American sacred sites may

8 also seek redress through existing laws requiring that cer9 tain information be withheld from the public, including,

10 but not limited to the National Historic Preservation Act

11 (16 U.S.C. 470w–3) and the Archaeological Resources

12 Protection Act (16 U.S.C. 470hh).

13 SEC. 109. CRIMINAL SANCTIONS.

14 (a) DAMAGING SACRED SITES.—

15 (1) INITIAL VIOLATION.—Any person who in16 tentionally damages, defaces, desecrates or destroys

17 a Native American sacred site located on land as de18 fined in section 3(10) of this Act with knowledge

19 that it is a sacred site, except as part of an approved

20 covered Federal activity authorized by a govern21 mental agency with the authority to approve such

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

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

24 or both.
45

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

2 a second or subsequent violation, a person shall be

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

4 more than 5 years, or both.

5 (b) RELEASE OF INFORMATION.—

6 (1) INITIAL VIOLATION.—Any person who in7 tentionally releases any information knowing that it

8 is required to be held confidential pursuant to this

9 title shall, upon conviction, be fined not more than

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

11 both.

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

13 a second or subsequent violation, be fined not more

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

15 years, or both.

16 TITLE II—TRADITIONAL USE OF

17 PEYOTE

18 SEC. 201. FINDINGS.

19 The Congress finds that—

20 (1) some Indian people, such as members of the

21 Native American Church, have used the peyote cac22 tus in religious ceremonies for sacramental and heal23 ing purposes for many generations, and such uses

24 have been significant in perpetuating Indian tribes
46

S 2269 IS1S

1 and cultures by promoting and strengthening the

2 unique cultural cohesiveness of Indian tribes;

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

4 peyote by Indians in bona fide religious ceremonies

5 of the Native American Church has been protected

6 by Federal regulation, which exempts such use from

7 Federal laws governing controlled substances, and

8 the Drug Enforcement Administration has mani9 fested its continuing support of this Federal regu10 latory system;

11 (3) the State of Texas encompasses virtually

12 the sole area in the United States in which peyote

13 grows, and for many years has administered an ef14 fective regulatory system which limits the distribu15 tion of peyote to Indians for ceremonial purposes;

16 (4) while 28 States have enacted laws which

17 protect the ceremonial use of peyote by Indians, 22

18 others have not; as a result of the diverse State

19 laws, Indians from different tribes located in dif20 ferent States, as well as from different tribes within

21 the same State, are treated differently regarding the

22 religious use of peyote. Legislation is therefore need23 ed to assure comprehensive, equal and uniform pro24 tection of the religious use of peyote by Indians
47

S 2269 IS1S

1 throughout the United States, without regard to

2 State or reservation or residence, or tribal affiliation;

3 (5) the traditional ceremonial use by Indians of

4 the peyote cactus is integral to a way of life, and the

5 use of peyote plays a significant role in combating

6 the scourge of alcohol and drug abuse among some

7 Indian people;

8 (6) the United States has a unique, govern9 ment-to-government relationship with Indian tribes

10 and special historic Federal-Indian trust relation11 ship, which permits the United States to take meas12 ures to protect against interference with the continu13 ing cultural cohesiveness and integrity of Indian

14 tribes and cultures; and as part of this relationship

15 it is the intent of the Federal Government to pursue

16 enforceable Federal policies which will protect Indian

17 community and tribal vitality and cultural integrity,

18 and which will not inhibit or interfere with the free

19 exercise of Native American religions;

20 (7) general prohibitions against the abusive use

21 of peyote, without an exception for the bona fide re22 ligious use of peyote by Indians, lead to discrimina23 tion against Indians by reason of their religious be24 liefs and practices;
48

S 2269 IS1S

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

2 the case of Employment Division v. Smith, 494 U.S.

3 872 (1990), held that the first amendment does not

4 protect Indian practitioners who use peyote in In5 dian religious ceremonies, and raised uncertainty as

6 to whether this religious practice would be protected

7 under the compelling State interest standard; and

8 (9) the lack of adequate and clear protection for

9 the religious use of peyote by Indians may serve to

10 stigmatize and marginalize Indian tribes and cul11 tures and increase the risk that they will be exposed

12 to discriminatory treatment.

13 SEC. 202. TRADITIONAL USE OF PEYOTE.

14 (a) IN GENERAL.—Notwithstanding any other provi15 sion of law, the use, possession, or transportation of pe16 yote by an Indian for bona fide traditional ceremonial pur17 poses in connection with the practice of a Native American

18 religion is lawful and shall not be prohibited by the Fed19 eral Government or any State. No Indian shall be penal20 ized or discriminated against on the basis of such use, pos21 session or transportation, including, but not limited to, de22 nial of otherwise applicable benefits under public assist23 ance programs.

24 (b) REGULATION AUTHORIZED.—This section does

25 not prohibit—
49

S 2269 IS1S

1 (1) such reasonable regulation and registration

2 by the Drug Enforcement Administration of those

3 persons who import, cultivate, harvest or distribute

4 peyote, as may be consistent with the purpose of this

5 title;

6 (2) military commanders restricting the use or

7 ingestion of peyote by active duty personnel within

8 a reasonable period, but not to exceed 48 hours,

9 prior to the performance of official duties in cir10 cumstances where safety or military readiness may

11 be adversely affected by such use or ingestion;

12 (3) regulations by the Secretary of Transpor13 tation restricting the use or ingestion of peyote by

14 transportation workers in safety sensitive positions,

15 as defined by the Secretary within a reasonable pe16 riod, but not to exceed 48 hours, prior to the per17 formance of official duties, in circumstances where

18 public safety may be adversely affected by such use

19 or ingestion; or

20 (4) regulations by law enforcement administra21 tors restricting the use or ingestion of peyote by

22 sworn law enforcement personnel within a reason23 able period, but not to exceed 48 hours, prior to the

24 performance of official duties in circumstances where
50

S 2269 IS1S

1 public safety may be adversely affected by such use

2 or ingestion.

3 (c) TEXAS LAW.—This section does not prohibit ap4 plication of the provisions of section 481.111(a) of

5 Vernon’s Texas Health and Safety Code Annotated, in ef6 fect on the date of enactment of this Act, insofar as those

7 provisions pertain to the cultivation, harvest, or distribu8 tion of peyote.

9 (d) This section shall not be construed as requiring

10 prison authorities to permit, nor shall it be construed to

11 prohibit prison authorities from permitting access to pe12 yote by Indians while incarcerated within Federal or State

13 prison facilities.

14 (e) For purposes of this title, the term ‘‘Indian’’

15 means a member of an Indian tribe as defined in section

16 3(9).

17 TITLE III—PRISONERS’ RIGHTS

18 SEC. 301. RIGHTS.

19 (a) IN GENERAL.—

20 (1) ACCESS.—Notwithstanding any other provi21 sion of law, Native American prisoners who practice

22 a Native American culture or religion shall have, on

23 a regular basis comparable to that access afforded

24 prisoners who practice Judeo-Christian religions or

25 any other religions, access to—
51

S 2269 IS1S

1 (A) Native American traditional leaders

2 who shall be afforded the same status, rights

3 and privileges as religious leaders of Judeo4 Christian religions or any other religions;

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

6 materials utilized in cultural or religious cere7 monies; and

8 (C) Native American cultural or religious

9 facilities.

10 (2) MATERIALS.—Prison authorities shall treat

11 items and materials utilized in cultural or religious

12 ceremonies, including traditional foods for cultural

13 or religious diets, identified by a Native American

14 traditional leader, in the same manner as the reli15 gious items and materials utilized in ceremonies of

16 the Judeo-Christian religions or any other religions.

17 (3) HAIR.—

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

19 circumstances where subparagraph (B) applies,

20 Native American prisoners who desire to wear

21 their hair according to the customs of a Native

22 American culture or religion may do so provided

23 that the prisoner demonstrates that—

24 (i) the practice is rooted in Native

25 American cultural or religious beliefs; and
52

S 2269 IS1S

1 (ii) these beliefs are sincerely held by

2 the Native American prisoner.

3 (B) DENIAL OF REQUEST.—If a Native

4 American prisoner satisfies the criteria in para5 graph (3)(A), the prison authorities may deny

6 such request only where they can satisfy the

7 criteria of section 3 of the Religious Freedom

8 Restoration Act (Public Law 103–141).

9 (4) DEFINITION OF ‘‘CULTURAL OR RELIGIOUS

10 FACILITIES’’.—The term ‘‘cultural or religious facili11 ties’’ includes sweat lodges, tepees, and access to

12 other secure, out-of-doors locations within prison

13 grounds if such facilities are identified by a Native

14 American traditional leader to facilitate a cultural or

15 religious ceremony.

16 (5) DISCRIMINATION PROHIBITED.—No Native

17 American prisoner shall be penalized or discrimi18 nated against on the basis of Native American cul19 tural or religious practices, and all prison and parole

20 benefits or privileges extended to prisoners for en21 gaging in cultural or religious activities shall be af22 forded to Native American prisoners who participate

23 in Native American cultural or religious practices.

24 (6) SCOPE OF TITLE.—This Title shall not be

25 construed as (i) requiring prison authorities to per-
53

S 2269 IS1S

1 mit nor shall it be construed to prohibit prison au2 thorities from permitting access to peyote or Native

3 American sacred sites; or (ii) altering applicable re4 quirements for exhaustion of administrative rem5 edies.

6 (b) ATTORNEY GENERAL INVESTIGATION.—

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

8 investigate, in consultation with Native American

9 traditional leaders and ex-offenders with corrections

10 experience as may be recommended by Indian tribes

11 and Native Hawaiian organizations, and Federal

12 and State prison administrators, the conditions of

13 Native American prisoners in the Federal and State

14 prison systems with respect to their ability to engage

15 in traditional cultural ceremonies and practices, in16 cluding the free exercise of Native American reli17 gions.

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

19 the date of enactment of this Act, the Attorney Gen20 eral shall submit to the Congress a report contain21 ing—

22 (A) an assessment of the recognition, pro23 tection, and enforcement of the rights of Native

24 American prisoners to practice their cultures or

25 religions under this Act in Federal and State
54

S 2269 IS1S

1 prisons where Native Americans are incarcer2 ated; and

3 (B) specific recommendations for the pro4 mulgation of regulations to implement this Act.

5 TITLE IV—CULTURAL AND RELI6 GIOUS USE OF EAGLES AND

7 OTHER ANIMALS AND PLANTS

8 SEC. 401. CULTURAL AND RELIGIOUS USE OF EAGLES.

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

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

11 Fish and Wildlife Service (hereafter in this section re12 ferred to as the ‘‘Director’’) shall, in consultation with the

13 Indian tribes and Native American traditional leaders, de14 velop a plan to—

15 (1) ensure the prompt disbursement from Fed16 eral repositories of available bald or golden eagles, or

17 their parts, nests, or eggs for the traditional cultural

18 or religious use of Indians upon receipt of an appli19 cation from an Indian practitioner;

20 (2) provide that sufficient numbers of bald or

21 golden eagles are allocated to Indian practitioners to

22 meet the demonstrated need where they are available

23 by reason of accidental deaths, natural deaths, or

24 takings permitted by Federal law;
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1 (3) simplify and shorten the process by which

2 permits are authorized for the taking, possession,

3 and transportation of bald or golden eagles, or their

4 parts, nests, or eggs for the traditional cultural or

5 religious use of Indians;

6 (4) establish a mechanism for tribal disburse7 ment of dead eagles discovered within the exterior

8 boundaries of their own reservation of Native Amer9 ican traditional cultural or religious practitioners;

10 and

11 (5) establish a mechanism for tribal contacts

12 with regional and national offices of the United

13 States Fish and Wildlife Service on fish and wildlife

14 resource issues.

15 SEC. 402. OTHER ANIMALS AND PLANTS.

16 Within two years after the enactment of this Act, the

17 Secretaries of Interior, Agriculture, Commerce and Treas18 ury, and the Administrator of the General Services Admin19 istration shall, in consultation with Indian tribes, Native

20 Hawaiian organizations and Native American traditional

21 leaders, establish a joint uniform set of administrative pro22 cedures to govern the disposition of surplus wildlife and

23 plants or parts thereof which have been confiscated, gath24 ered or are otherwise under the jurisdiction and control

25 of their respective agencies. To the fullest extent allowed
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1 under existing statutory authority, the uniform procedures

2 shall be designed to increase the availability of natural

3 products to Native American traditional cultural and reli4 gious practitioners.

5 TITLE V—JURISDICTION AND

6 REMEDIES

7 SEC. 501. JURISDICTION AND REMEDIES.

8 (a) IN GENERAL.—

9 (1) An aggrieved party shall have the right to

10 file suit against the United States or a State in the

11 appropriate district court to enforce the provisions of

12 this Act.

13 (2) Any appropriate United States district

14 court shall have original jurisdiction over a civil ac15 tion for—

16 (A) equitable relief; or

17 (B) damages arising from any violations of

18 this Act.

19 (3) Nothing herein shall be construed to deprive

20 Indian tribes of jurisdiction they would otherwise

21 have under section 106 of this Act or any other Fed22 eral law.

23 (b) FACTUAL FINDINGS.—

24 (1) If an action is filed in a United States dis25 trict court after exhaustion of administrative rem-
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1 edies under section 105, the court shall not defer to

2 agency factual findings except where such findings

3 are based on a formal hearing on the record.

4 (2) The court shall review de novo agency legal

5 determinations concerning the extent to any adverse

6 impact, whether the Government’s interest is com7 pelling and whether a particular alternative is the

8 least restrictive.

9 (c) For purposes of an action alleging a violation of

10 the rights protected under title I of this Act and consistent

11 with section 106 of this Act—

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

13 provided in subsection 501(d), the aggrieved party

14 shall have the burden of establishing that the cov15 ered Federal activity or an action by a State having

16 an impact upon the management, use or preserva17 tion of public land, is or will have an adverse impact

18 on a Native American sacred site.

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

20 party meets its burden of proof under paragraph

21 (1), the agency may proceed with the action only if

22 it is determined by clear and convincing evidence

23 that the covered Federal activity—

24 (A) is in furtherance of a compelling gov25 ernment interest; and
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1 (B) is the least restrictive means of fur2 thering that compelling interest.

3 (3) For purposes of decisions pursuant to title

4 I—

5 (A) a finding of adverse impact does not

6 require that an aggrieved party be coerced to

7 act contrary to religious beliefs or traditional

8 cultural practices, and may include consider9 ation of disturbing the integrity of a sacred

10 site;

11 (B) land management activities, undertak12 ings and actions which have the potential to

13 have an adverse impact on a Native American

14 sacred site, or which make a Native American

15 traditional cultural practice or the exercise of a

16 Native American religion more difficult shall be

17 deemed to constitute an adverse impact; and

18 (C) government ownership of land, by it19 self, does not establish a compelling government

20 interest.

21 (d) CASES WHERE SECRECY IS REQUIRED.—In the

22 case of any proceeding in which an aggrieved Indian tribe

23 or Native Hawaiian organization relies on section 104(b),

24 if an Indian tribe or Native Hawaiian organization objects

25 to the covered Federal activity or an action by a State
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1 on the grounds that it is or will an adverse impact on a

2 Native American sacred site, the governmental agency

3 shall have the burden of proving by a preponderance of

4 the evidence that the covered Federal activity—

5 (1) is in furtherance of a compelling govern6 ment interest;

7 (2) is a reasonable means of furthering that

8 compelling interest; and

9 (3) the alternatives identified under section

10 104(b)(2) are not reasonable.

11 (e) FAILURE OF AGENCY TO MEET BURDEN.—

12 (1) The governmental agency shall retain its

13 burden of proof at all stages of any proceeding or

14 decisionmaking process pursuant to title I of this

15 Act.

16 (2) If a governmental agency does not meet its

17 burden of proof under this section, it shall not pro18 ceed with the proposed activity.

19 (3) For purposes of this section the phrase

20 ‘‘burden of proof’’ means the burden of production

21 and the burden of persuasion.

22 (f) SPECIAL RULE FOR NATIVE AMERICAN PRACTI23 TIONERS.—Native American practitioners may elect to

24 provide testimony about their beliefs in camera or in some

25 other protective procedure.
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1 (g) SOVEREIGN IMMUNITY.—Neither the sovereign

2 immunity of the United States nor of any State, including

3 immunity derived from the eleventh amendment to the

4 United States Constitution, shall be a bar or defense to

5 any civil action brought pursuant to this section to enforce

6 the provisions of this Act, including any grant of attor7 ney’s fees pursuant to subsection (h) of this section, and

8 such immunities are hereby waived.

9 (h) ATTORNEY’S FEES.—An aggrieved party who is

10 a prevailing party in any administrative or judicial pro11 ceeding brought pursuant to this Act shall be entitled to

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

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

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

15 TITLE VI—MISCELLANEOUS

16 SEC. 601. SAVINGS CLAUSE.

17 (a) Nothing in this Act shall be construed as abrogat18 ing, diminishing, or otherwise affecting—

19 (1) the inherent rights of any Indian tribe;

20 (2) the rights, express or implicit, of any Indian

21 tribe which exist under treaties, Executive orders

22 and laws of the United States;

23 (3) the inherent right of Native Americans to

24 maintain their cultural integrity and religions;
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1 (4) the trust responsibility of the United States

2 or any legal obligation or remedy resulting there3 from;

4 (5) the right and ability of any Indian tribe

5 upon whose Indian lands a Native American sacred

6 site is located to determine, exclusively pursuant to

7 its own tribal law, whether any other Indian tribe or

8 Native American practitioner shall have a property

9 right in that site or have the authority to limit or

10 prohibit covered Federal activities affecting that site;

11 (6) any traditional cultural or free exercise of

12 religion claim of any person that does not fall within

13 the scope of this Act;

14 (7) the right of Native Americans to obtain pro15 tection for the practice of their traditional cultures

16 or religions under any other Federal, State, or tribal

17 law or constitution; or the authority and responsibil18 ity of any governmental agency to provide protection

19 for Native American sacred sites and the practice of

20 Native American traditional cultures and religions

21 under other laws or constitutions, such as the Na22 tional Historic Preservation Act; and

23 (8) the authority of Federal land and program

24 managers to provide for notice to and consultation

25 with other religious and cultural groups not encom-
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1 passed by this Act for the purpose of protection of

2 cultural, religious, environmental and historical sites

3 and resources under other authority.

4 (b) This Act is supplemental to the Religious Free5 dom Restoration Act of 1993, and is not intended to be

6 limited by that Act, or to limit in any way, rights available

7 under that Act, including the application of that Act to

8 activities which may have an adverse impact upon a Native

9 American sacred site, whether or not said activities are

10 explicitly covered by this Act.

11 SEC. 602. SEVERABILITY.

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

13 or portion thereof, is declared to be unconstitutional, in14 valid, or inoperative in whole or in part, by a court of com15 petent jurisdiction, such title, section, provision of portion

16 thereof shall, to the extent it is not unconstitutional, in17 valid, or inoperative, be enforced and effectuated, and no

18 such determination shall be deemed to invalidate or make

19 ineffectual the remaining provisions of the title, section,

20 or provision.

21 SEC. 603. AUTHORIZATION OF APPROPRIATIONS.

22 There are hereby authorized to be appropriated such

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

24 this Act, including such sums as may be necessary for ex-
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1 penses of Native Americans for consultations with the At2 torney General provided in section 301(b)(1).

3 SEC. 604. REGULATIONS.

4 (a) The head of each land managing agency, in con5 sultation with Indian tribes and Native Hawaiian organi6 zations, shall promulgate regulations relating 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, and Native

11 American traditional leaders as required by sections

12 103 and 104 of this Act.

13 (b) The head of each land managing agency shall con14 sult with the Secretary of the Interior to assure maximum

15 possible consistency in regulations promulgated pursuant

16 to this Act.

17 (c) The regulations shall be sufficiently flexible to en18 able consultation to address the unique needs of Indian

19 tribes, Native Hawaiian organizations, Native American

20 traditional leaders and Native American practitioners. No21 tices and procedures provided for in sections 103 and 104

22 shall not await completion of regulations.

23 SEC. 605. PROTECTIONS.

24 (a) The protections of this Act shall be afforded only

25 to bona fide persons who are defined in subsections (7),
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1 (11), (12), (16), and (17) of section 3 of this Act, and

2 to members of Indian tribes as defined in section 3(9) of

3 this Act.

4 (b) For purposes of determining the bona fide nature

5 of any of the persons defined in section 3, or the bona

6 fide nature of any Native American traditional cultural

7 practice or Native American religion, the Secretary is au8 thorized to consult with Indian tribes, Native Hawaiian

9 organizations, Native American practitioners and Native

10 American traditional leaders.

11 SEC. 606. EFFECTIVE DATE.

12 (a) This Act takes effect on the date of its enactment.

13 Application and enforcement of this Act does not depend

14 upon the promulgation of regulations by any governmental

15 agency. However, with respect to notice and review provi16 sions under sections 103 and 104, agencies shall have a

17 period of six months from enactment to establish applica18 ble procedures.

19 (b) Except as provided in section 104(a)(2) and sec20 tion 3(4)(B)(ii), this Act does not require any Federal

21 agency to reconsider any final action or decision that it

22 made prior to enactment of this Act or that it made in

23 compliance with the provisions of this Act, although this
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1 shall not bar application of the Act to new phases of exist2 ing projects.

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