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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2269 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Native American 
Cultural Protection and Free Exercise of Religion Act of 1994''.
    (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.
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.

SEC. 2. POLICY.

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

SEC. 3. DEFINITIONS.

    For the purposes of this Act:
            (1) The term ``adverse impact'' means any action or any 
        potential action which has the effect or which will have the 
        effect of--
                    (A) altering, disturbing, desecrating or destroying 
                a Native American sacred site;
                    (B) inhibiting, infringing upon or interfering with 
                Native American traditional cultural practices; or
                    (C) imposing a burden upon the free exercise of a 
                Native American religion.
            (2) The term ``aggrieved party'' means any Native American, 
        Indian tribe, Native Hawaiian organization, Native American 
        practitioner or Native American traditional leader as defined 
        by this Act, and to whom the provisions of this Act apply.
            (3) The term ``consultation'' means, at a minimum, agency-
        initiated outreach activities which will result in a meaningful 
        process for face-to-face deliberations and conferral with all 
        Indian tribes, Native Hawaiian organizations and Native 
        American traditional leaders that should be consulted and which 
        is conducted in a realistic manner that is cognizant of the 
        cultural values, socioeconomic factors and administrative 
        structures, if any, of the Indian tribes or Native Hawaiian 
        organizations with an interest in the land in question.
            (4) The term ``covered Federal activity'' means--
                    (A) any new or reauthorized project, program or 
                activity, or any new phase of existing projects, 
                programs and activities, under the direct or indirect 
                jurisdiction of a Federal agency including but not 
                limited to--
                            (i) those carried out by or on behalf of 
                        the agency, on Federal or State lands, or 
                        involving navigable waters;
                            (ii) those activities on Federal or State 
                        lands, or involving navigable waters, requiring 
                        a Federal permit, license or approval;
                            (iii) those taking place on Federal or 
                        State lands, or involving navigable waters, 
                        subject to state regulation pursuant to a 
                        delegation or approval by a Federal agency;
                            (iv) those carried out with more than de 
                        minimis Federal financial assistance;
                            (v) renewals, reauthorizations, 
                        relicensing, and similar decisions;
                            (vi) regular and cyclical reviews of land 
                        management plans by agencies;
                            (vii) programs funded by Federal highway 
                        funds;
                            (viii) activities subject to licensing by 
                        the Federal Energy Regulatory Commission, or 
                        the Nuclear Regulatory Commission;
                            (ix) the siting of hazardous, low-level 
                        nuclear or transuranic waste or toxic waste 
                        disposal, and disposal facilities, and the 
                        disposal of such materials; or
                            (x) those activities that would not be 
                        covered Federal activities by virtue of section 
                        3(4)(B)(i), if an Indian tribe affirmatively 
                        elects to have the provisions of this Act apply 
                        to a particular covered Federal activity on 
                        Indian lands which are subject to the tribe's 
                        jurisdiction;
                    (B) the term ``covered Federal activity'' does not 
                include--
                            (i) regulations, projects, activities, or 
                        programs operated, approved, or sponsored by 
                        Indian tribes, including, but not limited to, 
                        those projects, activities, or programs which 
                        are funded in whole or in part by Federal funds 
                        pursuant to contract, compact, grant or 
                        agreement, or which require Federal permits, 
                        licenses or approvals, unless the Indian tribe 
                        invokes section 3(4)(A)(x);
                            (ii) ongoing and continuing activities 
                        underway prior to enactment of this Act, or 
                        activities for which a final commitment has 
                        been made prior to enactment of this Act and 
                        for which substantial funds have been spent or 
                        implementation is substantially underway;
                            (iii) routine activities that an agency 
                        determines through negotiations with Indian 
                        tribes or Native Hawaiian organizations to be 
                        unlikely to affect Native American sacred sites 
                        or traditional cultural practices, and 
                        maintenance activities involving structures or 
                        projects existing at the time of enactment of 
                        this Act or later constructed in compliance 
                        with this Act which do not change the size or 
                        scale or the existing use of those projects or 
                        structures;
                            (iv) activity on State land with de minimis 
                        Federal funding and no other Federal role;
                            (v) any actions on private lands, other 
                        than those enumerated in subsection (A), even 
                        though those actions are subject to Federal 
                        permit, license, or approval, or State 
                        regulation of private lands under a Federal 
                        delegation of authority, or conducted with de 
                        minimis Federal funding; or
                            (vi) direct Federal loans and Federal loan 
                        guarantees to private entities.
            (5) The term `` Federal agency'' means any department, 
        agency, or instrumentality of the United States Government.
            (6) The term ``governmental agency'' means any agency, 
        department, or instrumentality of--
                    (A) the United States; or
                    (B) a State, in the case of a covered Federal 
                activity described in paragraph (4)(A)(iii).
        The term ``governmental agency'' does not include an agency, 
        department, or instrumentality of an Indian tribe.
            (7) The term ``Indian'' means an individual who is a member 
        of an Indian tribe; an Alaska Native, or an individual who 
        meets the definition in section 809(b) of the Indian Health 
        Care Improvement Act (25 U.S.C. 1679(b)), except that an Indian 
        community need not be served by a local program of the Indian 
        Health Service in order to qualify as an Indian community for 
        purposes of this definition.
            (8) The term ``Indian lands'' means all lands within the 
        limits of any Indian reservation notwithstanding the issuance 
        of any patent; public domain Indian allotments; all other lands 
        title to which is either held in trust by the United States for 
        the benefit of any Indian tribe or individual or held by any 
        Indian tribe or individual subject to restriction by the United 
        States against alienation; all dependent Indian communities; 
        and all fee lands owned by an Indian tribe.
            (9) The term ``Indian tribe'' means any tribe, band, 
        nation, pueblo, or other organized group or community of 
        Indians, including any Alaska Native village (as defined in, or 
        established pursuant to, the Alaska Native Claims Settlement 
        Act (43 U.S.C. 1601 et seq.)), which is recognized as eligible 
        for the special programs and services provided by the United 
        States to Indians because of their status as Indians.
            (10) The term ``land'' or ``lands'' means surface and 
        subsurface land within the jurisdiction of the United States or 
        the respective States, including submerged land of any kind or 
        interest therein, and all water and waterways occupying, 
        adjacent to, or running through the land.
            (11) With respect to the cultural protections provided 
        under this Act, the term ``Native American'' means any Indian 
        or Native Hawaiian.
            (12) With respect to the cultural protections provided 
        under this Act, the term ``Native American practitioner'' means 
        any Native American who practices a Native American religion as 
        part of a Native American traditional culture.
            (13) With respect to the cultural protections provided 
        under this Act, the term ``Native American religion'' means any 
        traditional religion which is practiced by Native Americans, 
        the origin and interpretation of which is deeply embedded or 
        rooted in a Native American traditional culture.
            (14) With respect to the cultural protections provided 
        under this Act, the term ``Native American Sacred Site'' means 
        any geophysical or geographical area or feature which is sacred 
        by virtue of its traditional cultural or religious significance 
        or ceremonial use, or by virtue of a ceremonial or cultural 
        requirement, including a religious requirement, that a natural 
        substance or product for use in Native American traditional 
        ceremonies be gathered from that particular location.
            (15) The term ``Native American traditional culture'' means 
        the traditional practices, customs, belief systems, lifeways, 
        ceremonies, and rituals, including religious practices and 
        beliefs, that are integral to and unique aspects of Native 
        American cultural traditions and heritage.
            (16) With respect to the cultural protections provided 
        under this Act, the term ``Native American traditional leader'' 
        means any Native American practitioner who is recognized by an 
        Indian tribe or traditional tribal community or Native Hawaiian 
        community as being responsible for performing duties relating 
        to the cultural traditions, including religious traditions of 
        the tribe or traditional tribal community or Native Hawaiian 
        community or as having a leadership role in an Indian tribe or 
        traditional tribal community or Native Hawaiian community based 
        upon its traditional cultural or ceremonial practices, 
        including religious practices.
            (17) With respect to the cultural protections provided 
        under this Act, the term ``Native Hawaiian'' means any 
        individual who is a descendant of the aboriginal Polynesian 
        people who, prior to 1778, occupied and exercised sovereignty 
        and self-determination in the area that now comprises the State 
        of Hawaii, and who is recognized as eligible for the special 
        programs and services provided by the United States to Native 
        Hawaiians because of their status as Native Hawaiians or Native 
        Americans.
            (18) With respect to the cultural protections provided 
        under this Act, the term ``Native Hawaiian organization'' means 
        any organization which is composed primarily of Native 
        Hawaiians, and serves and represents the traditional cultural 
        interests of Native Hawaiians and whose members--
                    (A) practice a Native American culture, including a 
                Native American religion, or conduct traditional 
                ceremonial rituals, or
                    (B) utilize, preserve and protect Native American 
                sacred sites.
            (19) The term ``public land'' means any land as defined in 
        section 3(10) of this Act which is owned by the United States, 
        or the respective States, or political subdivisions thereof, 
        but shall not include Indian lands as defined in section 3(8).
            (20) The term ``State'' means any State of the United 
        States and any and all political subdivisions thereof, and the 
        District of Columbia.

          TITLE I--PROTECTION OF NATIVE AMERICAN SACRED SITES

SEC. 101. FINDINGS.

    The Congress finds that--
            (1) the traditional cultural practices, including religious 
        practices, of Native Americans are integral and inseparable 
        parts of their cultures, traditions and heritages which greatly 
        enhance the vitality of Native American communities and tribes 
        and the well-being of Native Americans in general;
            (2) the European concept that religion is an activity or 
        belief that is separate from all other aspects of daily life, 
        or that religion is separable from culture, is a concept that 
        has no application in the traditional cultures of Native 
        Americans;
            (3) throughout American history, the manifestation of 
        Native American traditional cultures, including the free 
        exercise of Native American religions, has been infringed upon, 
        interfered with, and even prohibited by the Federal Government 
        and the devastating impact of these governmental actions 
        continues to the present day;
            (4) the United States has a unique, government-to-
        government relationship with Indian tribes and a special 
        historic trust relationship, which permits the United States to 
        take measures to protect against interference with the 
        continuing cultural cohesiveness and integrity of Indian tribes 
        and Native American traditional cultures;
            (5) as part of the historic Federal-Indian trust 
        relationship it is the intent of the United States to pursue 
        enforceable Federal policies which will protect the Native 
        American community and tribal vitality and cultural integrity, 
        and which will not inhibit, interfere with or infringe upon 
        Native American traditional cultural practices or impose a 
        burden on the free exercise of Native American religions;
            (6) many Native American traditional cultures, including 
        Native American religions, hold certain lands or natural 
        formations in the United States to be sacred, and in order for 
        those sites to be in a condition appropriate for cultural use, 
        including religious or ceremonial use, the physical 
        environment, water, plants and animals associated with those 
        sites must be protected;
            (7) such Native American sacred sites are an integral and 
        vital part of, and inextricably intertwined with, many Native 
        American traditional cultures, including Native American 
        religions, and the practices associated with such traditional 
        cultures;
            (8) the traditional use and gathering, harvesting, or 
        maintaining of natural substances or natural products for 
        cultural purposes, including religious and ceremonial purposes, 
        are an integral and vital part of, and are inextricably 
        intertwined with, many Native American traditional cultures, 
        including Native American religions;
            (9) many of these Native American sacred sites are found on 
        lands which were part of the aboriginal territory of Indians or 
        Native Hawaiians, but which now are held by the United States, 
        or are the subject of Federal activities;
            (10) governmental land use decisions have the potential to 
        have an adverse impact on Native American traditional cultural 
        practices, including Native American religions;
            (11) many Native American traditional cultural practices, 
        including religious and ceremonial practices, require a measure 
        of privacy and isolation; and certain traditional cultural 
        ceremonies and activities cannot be performed if 
        nonparticipants can observe the practices or ceremonies or 
        activities, even from a distance, and in some situations the 
        lack of privacy or isolation inhibits, infringes upon, 
        interferes with, or precludes certain Native American 
        traditional cultural practices, including traditional religious 
        practices;
            (12) some Indian tribes, such as the Pueblos of New Mexico, 
        as well as some aspects of Native Hawaiian culture, have 
        traditional cultural and religious tenets which prohibit 
        disclosure of information concerning their sacred sites and 
        their traditional beliefs and practices, mandate secrecy and 
        impose internal sanctions to enforce these prohibitions, making 
        it impossible for them to identify the manner in which any 
        particular governmental activity would have an adverse impact 
        on their traditional cultures or impose a burden on the free 
        exercise of their religions;
            (13) lack of sensitivity to, or understanding of, Native 
        American traditional cultures, including Native American 
        religions has resulted in the absence of a coherent policy for 
        the protection of Native American sacred sites and the failure 
        to consider the impacts of Federal activities upon Native 
        American sacred sites;
            (14) the Supreme Court of the United States, in the case of 
        Lyng v. Northwest Indian Cemetery Protective Association, 485 
        U.S. 439 (1988) ruled that the free exercise clause of the 
        First Amendment does not restrict the Government's management 
        of its lands, even if certain governmental actions would 
        infringe upon or destroy the ability to practice religion, so 
        long as the Government's action does not compel individuals to 
        act in a manner which is contrary to their religious beliefs;
            (15) the Supreme Court's holding in the case of Lyng v. 
        Northwest Indian Cemetery Protective Association creates a 
        chilling and discriminatory effect on Native American 
        traditional cultures and on the free exercise of Native 
        American religions;
            (16) the Congress has enacted numerous laws which regulate 
        and restrict the discretion of Federal agencies for the sake of 
        environmental, historical, economic, and cultural concerns, but 
        has never enacted a judicially enforceable law comparably 
        restricting agency discretion for the sake of the site-
        protective requirements specifically associated with the 
        protection of Native American traditional cultural practices, 
        including the free exercise of Native American religions;
            (17) the lack of a judicially-enforceable Federal law and 
        of a coherent Federal policy to accommodate the uniqueness of 
        Native American traditional cultures, including Native American 
        religions, results in unique and adverse impacts on Native 
        American traditional cultures, burdens the free exercise of 
        Native American religions, and impairs the vitality of Indian 
        tribes, traditional tribal communities, and Native Hawaiian 
        communities; and
            (18) the Congress has the authority to enact laws to assure 
        the protection and preservation of Native American traditional 
        cultures, including the free exercise of Native American 
        religions, based upon the special trust relationship, and 
        pursuant to section 8, article I of the United States 
        Constitution and the first, fifth, and fourteenth amendments to 
        the United States Constitution.

SEC. 102. ACCESS TO FEDERAL LANDS.

    (a) In General.--Native American practitioners shall be permitted 
access to Federal lands at all times for Native American traditional 
cultural, or ceremonial or religious purposes, including access to 
gather, harvest, or maintain natural substances or natural products for 
Native American traditional cultural purposes.
    (b) Federal agencies may take reasonable and narrowly tailored 
measures to assure that access and use of lands under this Act do not--
            (1) have a direct, significant and negative impact upon 
        specific national security interests or the implementation of 
        the Endangered Species Act; or
            (2) present an immediate threat of serious bodily harm to 
        any person or immediate and serious harm to the environment.
Where other feasible means are available for avoiding adverse impacts 
on Native American sacred sites, Native American traditional cultural 
practices, and the free exercise of Native American religions, those 
means shall be utilized before access is restricted.
    (c) Terms of access may be included in a memorandum of agreement 
pursuant to section 104(a)(3)(B).
    (d) Limitations Against Vehicles.--Paragraph (a) does not authorize 
the use of motorized vehicles or other forms of mechanized transport in 
roadless areas where such use is prohibited by law.
    (e) Temporary Protective Measures.--Upon the request of an Indian 
tribe, a Native Hawaiian organization or a Native American traditional 
leader, the Secretary of the department whose land is involved, or a 
local land manager where such authority has been delegated, may from 
time to time temporarily close to the general public use of one or more 
specific portions of Federal land and may take such other reasonable 
and temporary measures as necessary in order to protect the privacy of 
traditional cultural, ceremonial or religious activities in such areas 
by Native Americans. Any such measures shall be taken so as to affect 
the smallest practicable area for the minimum period necessary for such 
purposes.

SEC. 103. FEDERAL LAND MANAGEMENT, IDENTIFICATION OF LANDS, PLANNING 
              AND NOTICE.

    (a) In General.--Each Federal agency shall manage any lands under 
its jurisdiction in a manner that complies with the provisions of this 
Act.
    (b) Identification of Lands by Secretary.--
            (1) In general.--(A) For the purpose of assuring that a 
        governmental agency properly determines whether a proposed 
        cover Federal activity will have an adverse impact on a Native 
        American sacred site and which affected parties should be 
        provided notice of a proposed activity, the head of each land 
        managing agency, in conjunction with the Secretary of the 
        Interior and tribal governments and Native Hawaiian 
        organizations, shall identify land areas with which a tribe or 
        Native Hawaiians have aboriginal, historic, cultural or 
        religious ties.
            (B) For purposes of this section, within 90 days following 
        the date of enactment of this Act, Native Hawaiian 
        organizations shall notify the Secretary of their desire to 
        receive notice of proposed covered Federal activities.
            (2) As part of its obligations pursuant to this section, 
        within 90 days following the date of enactment of this Act, the 
        Secretary of the Interior shall contact all Indian tribes, and 
        Native Hawaiian organizations to request a broad geographic 
        description of the lands as to which each Indian tribe or 
        Native Hawaiian organization desires notice of covered Federal 
        activity and, upon receipt of responses from Indian tribes and 
        Native Hawaiian organizations, shall provide such land 
        descriptions to all Federal agencies.
            (3) Within 18 months following the date of enactment of 
        this Act, the Secretary shall establish a list of all Indian 
        tribes and Native Hawaiian organizations who have responded and 
        the lands they have identified. Such lists shall not be 
        published but shall be made available to agencies for the 
        purpose of identifying Indian tribes and Native Hawaiian 
        organizations and areas for which notice of covered Federal 
        activities shall be provided.
            (4) While the list is being developed, each Federal land 
        managing agency shall also research its own sources, including 
        agency contacts with Indian tribes, Native Hawaiian 
        organizations, or Native American traditional leaders and 
        written sources, to collect information as to Native American 
        traditional cultures and regions potentially affected by 
        activities on land which it manages and shall make a good faith 
        effort to identify and notify Indian tribes. Native Hawaiian 
        organizations, and Native American traditional leaders who may 
        have an interest in proposed covered Federal activities.
            (5) Ongoing Identification.--Nothing in this section shall 
        preclude an agency or a tribal government or a Native Hawaiian 
        organization from continuing to conduct an ongoing 
        identification process, which may supplement the process 
        required by this subsection.
    (c) Planning Process.--Each Federal agency managing lands under its 
jurisdiction including, but not limited to, activities pursuant to the 
National Forest Management Act (16 U.S.C. 1600 et seq.), and the 
Federal Land Policy and Management Act (43 U.S.C. 1701 et seq.), shall 
as part of its planning process--
            (1) consult, during the earliest possible part of the 
        planning process, with Indian tribes, Native Hawaiian 
        organizations and Native American traditional leaders who have 
        notified the agency of their interest in the land in question 
        pursuant to subsection (b);
            (2) in addition to the notices required in regard to 
        covered Federal activity required by subsection (d), provide 
        for notice of all covered Federal activity with the potential 
        to have an adverse impact on land areas specified by an Indian 
        tribe or Native Hawaiian organization, in writing, as land 
        areas that are of direct interest to the Indian tribe or Native 
        Hawaiians, whether or not the agency believes that such 
        activity will or may have an adverse impact on a Native 
        American sacred site;
            (3) ensure that its land management plans are consistent 
        with the provisions and policies of this Act; and
            (4) maintain the confidentiality of specific details of a 
        Native American traditional culture or religion or the 
        significance of a Native American sacred site to that culture 
        or religion in accordance with the procedures specified in 
        sections 107 and 108 of this Act.
    (d) Notice and Documentation--Duty of Agencies.--
            (1) Notice to tribes or native hawaiian organizations.--
        Before a governmental agency proceeds on lands identified 
        pursuant to subsection (b) with any covered Federal activity 
        that may have an adverse impact on a Native American sacred 
        site, the governmental agency shall consult with potentially-
        affected Indian tribes, Native Hawaiian organizations and 
        Native American traditional leaders, and after the consultation 
        has occurred and the agency has taken into account the 
        information obtained through that process, formally provide a 
        written notice containing a geographical description of the 
        lands affected by the activity (including information on metes 
        and bounds of the lands in question, where available), a map 
        illustrating the lands affected and a description of the 
        proposed action to each Indian tribe, Native Hawaiian 
        organization, or Native American traditional leader which has 
        been identified pursuant to this section as having an interest 
        in the land affected by the proposed covered Federal activity 
        and any other Indian tribe, Native Hawaiian organization or 
        Native American traditional leader known by the agency that may 
        have an interest in the land affected by the proposed covered 
        Federal activity.
            (2) The governmental agency shall fully document the 
        efforts made to provide the information to Indian tribes, 
        Native Hawaiian organizations, and Native American traditional 
        leaders as required by this section or any applicable 
        regulations, guidelines, or policies.
    (e) Response to Notice.--
            (1) In general.--Within 90 days of receiving the notice 
        provided under subsection (d), or within the time limit of any 
        comment period permitted or required by any Federal law 
        applicable to the covered Federal activity, whichever is later, 
        an Indian tribe, Native Hawaiian organization, or Native 
        American traditional leader invoking the protection of this 
        title may provide notice in writing to the governmental agency 
        that the proposed covered Federal activity may have an adverse 
        impact on a Native American sacred site.
            (2) Modification of time.--Such time period may be extended 
        by the agency at its discretion, including at the request of a 
        noticed party, or may be extended or shortened by an agreement 
        negotiated pursuant to section 104(a)(3)(B).
            (3) No duty to respond.--Paragraph (1) does not impose a 
        duty upon any Indian tribe, Native Hawaiian organization, or 
        Native American traditional leader to respond to any notice 
        under this section.
            (4) Additional information.--The Indian tribe or Native 
        Hawaiian organization or its designee acting pursuant to 
        paragraph (1) may also provide the agency with information as 
        to any Native American traditional leaders or practitioners who 
        should be included in the notice and consultation requirements 
        of this section and section 104.
    (f) Response Period and Limitation on Activity Following Notice.--
            (1) In order to allow a full investigation of a proposed 
        covered Federal activity no action to approve, commence, or 
        complete an activity that is subject to this section shall be 
        taken by a governmental agency for a period of 90 days 
        following the date on which notice is provided under subsection 
        (d) to Indian tribes, Native Hawaiian organizations or Native 
        American traditional leaders unless or until--
                    (A) the period of consultation required under 
                section 104 has been completed;
                    (B) a sacred sites protection agreement pursuant to 
                section 104(a)(3)(B) has been entered into by the 
                affected Indian tribe or tribes or Native Hawaiian 
                organization and the governmental agency; or
                    (C) all parties entitled to such notice consent to 
                a shorter time period.
            (2) During the notice and consultation periods under 
        section 103 and section 104, the governmental agencies 
        responsible for the covered Federal activity may continue to 
        engage in planning, studies, or other preparatory matters 
        provided that such activities do not constitute a commitment to 
        proceed with the proposed activity or project.
            (3) During the 90-day period following formal notice to 
        Indian tribes, Native Hawaiian organizations and Native 
        American traditional leaders, the governmental agency shall 
        have the continuing duty to seek to consult with Indian tribes, 
        Native Hawaiian organizations and Native American traditional 
        leaders potentially affected by the proposed covered Federal 
        activity.

SEC. 104. CONSULTATION.

    (a) In General.--
            (1) Effect of notice.--In order to allow a full 
        investigation of the consequences of a proposed covered Federal 
        activity, if an Indian tribe, Native Hawaiian organization or 
        Native American traditional leader responds in writing within 
        90 days of receiving notice as provided in section 103(e), or 
        within the time limit of any comment period permitted or 
        required by any Federal law which is applicable to the covered 
        Federal activity, whichever is later, the governmental agency 
        shall immediately discontinue such activity until the agency 
        performs the duties described in paragraphs (3) and (4).
            (2) After action discovery.--If after a covered Federal 
        activity is underway--
                    (A) the governmental agency becomes aware that the 
                activity may have an adverse impact on a Native 
                American sacred site, the agency engaged in the 
                activity shall immediately discontinue such activity 
                until the agency performs the duties set forth in 
                paragraphs (3) and (4); or
                    (B) an Indian tribe or Native Hawaiian organization 
                that did not receive notice and did not know of the 
                covered Federal activity, becomes aware that the 
                activity may have an adverse impact on a Native 
                American sacred site and notifies the governmental 
                agency, the agency engaged in the activity shall 
                immediately discontinue such activity until the agency 
                performs the duties set forth in paragraphs (3) and 
                (4).
            (3)(A) Consultation.--The governmental agency shall consult 
        with any interested party with a direct interest in the Native 
        American traditional culture or religion in question concerning 
        the nature of the adverse impact, and consult about 
        alternatives which can be identified that would minimize or 
        prevent the adverse impact, including any alternatives 
        identified by an Indian tribe, Native Hawaiian organization or 
        Native American traditional leader that has filed a written 
        objection under this subsection.
            (B) Negotiated agreements.--
                    (i) Upon the request of an Indian tribe or tribes 
                or Native Hawaiian organization, each Federal agency or 
                agencies involved in covered Federal activities shall 
                enter into negotiations to identify appropriate land 
                management procedures for addressing that tribe's or 
                that Native Hawaiian organization's interest in the 
                protection and preservation of its sacred sites and to 
                avoid any adverse impact on such sites as may be 
                located on public lands within the jurisdiction of such 
                agencies. Consistent with the public mission of such 
                agencies and the responsibility of the United States to 
                support Indian tribes and tribal members and Native 
                Hawaiians in the preservation of their sacred sites, 
                each Federal agency is authorized to enter into sacred 
                sites protection agreements with Indian tribes or 
                Native Hawaiian organizations for the purpose of 
                memorializing the land management procedures that 
                result from consultations and negotiations. Such 
                agreements may supersede the planning provisions of 
                section 103(c), the notice provisions of section 
                103(d), the consultation provisions of section 
                103(d)(1) and section 104, and the access provisions of 
                section 102 of this Act as they relate to Indian tribes 
                or Native Hawaiian organizations that are parties to 
                such an agreement if the agreement specifically and 
                explicitly includes a provision overriding those 
                sections of the Act, or any parts thereof. The 
                agreements may also include provision for the 
                delegation by Federal agency officials of land 
                management responsibilities to the Indian tribe(s) or 
                Native Hawaiian organization(s) for designated public 
                lands described in the agreement.
                    (ii) In the case of Indian tribes, where such a 
                delegation of management functions is included in such 
                agreements, the Federal agency and the tribe may also 
                agree to use the procedures and regulations employed 
                under the Indian Self-Determination Act, Public Law 93-
                638. The agreement may also address the application of 
                all or part of title I of this Act to Indian lands 
                within the tribe's jurisdiction.
            (4) Response to comments.--If there is no resolution of the 
        claims asserted by an aggrieved party pursuant to subsection 
        (3), the governmental agency shall prepare and make available 
        to an Indian tribe, a Native Hawaiian organization or a Native 
        American traditional leader who has been involved in the 
        consultation process, a document responding to the comments 
        received. The document shall--
                    (i) set forth the adverse impact which has been 
                asserted by the aggrieved party,
                    (ii) assess whether the interest of the government 
                in proceeding with the action is compelling; and
                    (iii) assess whether, based on an analysis of the 
                alternatives to the proposed action, including any 
                alternatives offered by an Indian tribe, Native 
                Hawaiian organization or Native American traditional 
                leader that the proposed activity is the least 
                restrictive means of furthering that compelling 
                interest.
        Where an agency determines to commence a covered Federal 
        activity, notwithstanding notice from an aggrieved party 
        pursuant to section 104(a), it shall issue a written opinion 
        providing the basis for its decision. The issuance of this 
        decision shall constitute final agency action for purposes of 
        judicial review pursuant to section 501, unless the agency 
        establishes additional administrative review procedures under 
        section 105.
            (5) Additional information.--In any case where the 
        governmental agency is also required to prepare a document 
        analyzing the impact of a covered Federal activity or a 
        decision pursuant to the National Environmental Policy Act (43 
        U.S.C. 4321 et seq.), the National Historic Preservation Act 
        (16 U.S.C. 470 et seq.) or any other applicable law, such 
        agency may incorporate the analysis required by this section 
        into the contents of the document.
    (b) Cases Where Secrecy is Required.--
            (1) In general.--In the case of those Indian tribes or 
        Native Hawaiians whose traditional cultural or religious tenets 
        prohibit disclosure of information concerning their Native 
        American sacred sites or cultural or religious beliefs or 
        practices, and mandate secrecy and internal sanctions to 
        enforce those prohibitions, and where the tribal government of 
        the affected Indian tribe or a Native Hawaiian organization so 
        certifies and invokes this subsection--
                    (A) the tribal government or Native Hawaiian 
                organization shall not be required to reveal the 
                location of the Native American sacred site or in what 
                manner the covered Federal activity would have an 
                adverse impact on the site or any information 
                concerning their cultural or religious beliefs or 
                practices;
                    (B) the tribal government or Native Hawaiian 
                organization shall not be required to explain in what 
                manner any proposed alternative is or is not less 
                intrusive upon the Native American cultural or 
                religious practice or sacred sites which may be 
                adversely impacted than the original proposed covered 
                Federal activity; and
                    (C) in engaging in consultation and preparing any 
                document required by this Act, the governmental agency 
                shall not be required to include an analysis of adverse 
                impacts upon the sacred site or the use thereof or the 
                Indian tribe's or Native Hawaiian organization's 
                cultural or religious beliefs and practices.
            (2) After consultation.--If after consultation--
                    (A) the governmental agency agrees to pursue a less 
                intrusive alternative proposed by the Indian tribe or 
                Native Hawaiian organization or some other alternative 
                to which the Indian tribe or Native Hawaiian 
                organization agrees; or
                    (B) if no reasonable alternative acceptable to the 
                tribe or Native Hawaiian organization is identified, 
                the governmental agency shall be deemed to have met its 
                obligation under sections 104 and 105 to consider and 
                pursue the least intrusive alternative under this Act 
                in regard to the objection raised to the covered 
                Federal activity by the Indian tribe or Native Hawaiian 
                organization invoking this subsection.
                    (C) Response to comments.--If there is no 
                resolution of the claims asserted by a tribe or Native 
                Hawaiian organization pursuant to this subsection, the 
                governmental agency shall prepare and make available to 
                the tribe or Native Hawaiian organization a document 
                responding to the comments received. The document 
                shall--
                            (i) set forth the adverse impact which is 
                        asserted by the Indian tribe or Native Hawaiian 
                        organization;
                            (ii) assess whether the interest of the 
                        government in proceeding with the activity is 
                        compelling;
                            (iii) assess whether based on an analysis 
                        of the alternatives the activity is a 
                        reasonable means of furthering that compelling 
                        interest; and
                            (iv) assess whether the alternatives 
                        identified in 104(b)(2) are reasonable.
        Where an agency determines to commence a covered Federal 
        activity, notwithstanding notice from an aggrieved party 
        pursuant to 104 (a) and (b) it shall issue a written opinion 
        providing the basis for its decision. The issuance of this 
        decision shall constitute final agency action for purposes of 
        judicial review pursuant to section 501, unless the agency 
        establishes additional administrative review procedures under 
        section 105.
    (c) Rule of Construction.--Where the provisions of subsection (b) 
have been invoked, those requirements shall control in all 
circumstances and shall supersede any conflicting provisions in this 
Act or any other provision of law.
    (d) Disclosure Required.--Within 30 days of receipt of any written 
objection under subsection (a) or (b), the governmental agency 
proposing the covered Federal activity which gave rise to that notice 
shall make available to the aggrieved party, all plats, maps, plans, 
specifications, socioeconomic, environmental, scientific, 
archaeological or historical studies, and comments and information in 
that agency's possession directly relating to said activity. The agency 
may withhold--
            (1) attorney work product prepared in anticipation of 
        litigation; and
            (2) information the release of which would jeopardize the 
        litigating position of the United States on behalf of another 
        tribe.
    (e) Special Rule for Pueblos.--In the case of a proposed covered 
Federal activity affecting the management, use, or preservation of 
public land, or any other activity or violation under this Act 
involving potential adverse impacts on any of the Indian pueblos of New 
Mexico or any of their sacred sites, the only party who may file an 
objection or participate in consultation under this section, or file an 
action under section 105 or 501, shall be the governor of the affected 
pueblo or the governor's designee.
    (f) Emergency Provision.--The process required by sections 103 and 
104 shall not apply if the governmental agency determines that 
adherence to the process will--
            (1) have a direct, significant and negative impact upon 
        specific national security interests or the implementation of 
        the Endangered Species Act; or
            (2) present an immediate threat of serious bodily harm to 
        any person or immediate and serious harm to the environment.

SEC. 105. ADMINISTRATIVE PROCEDURES.

    (a) In General.--A governmental agency, shall, by regulation, 
establish an administrative procedure to implement the requirements of 
this title.
    (b) Exhaustion Requirement.--An aggrieved party must use a 
procedure established under paragraph (a) before filing an action in a 
Federal district court pursuant to section 501 of this Act.
    (c) Burden on Agency.--
            (1) In the case of any administrative proceeding in which 
        an aggrieved Indian tribe or Native Hawaiian organization 
        objects to the covered Federal activity or an action by a State 
        on the grounds that it is or will have an adverse impact on a 
        Native American sacred site, the governmental agency shall have 
        the burden of proving by a preponderance of the evidence that a 
        covered Federal activity does not or will not have an adverse 
        impact on a Native American sacred site.
            (2) The governmental agency's determination that a covered 
        Federal activity does not pose or will not have an adverse 
        impact on a Native American sacred site, shall constitute a 
        final agency action for purposes of judicial review under 
        section 501 of this Act.
            (3)(A) If a governmental agency determines that a covered 
        Federal activity does pose or will have an adverse impact on a 
        Native American sacred site, the governmental agency shall have 
        the burden of proving by a preponderance of the evidence that 
        the covered Federal activity--
                    (i) is in furtherance of a compelling governmental 
                interest;
                    (ii) is a reasonable means of furthering that 
                compelling governmental interest; and
                    (iii) in circumstances set forth in section 
                104(b)(1), the alternatives identified under section 
                104(b)(2) are not reasonable.
            (B) The agency determination under this paragraph shall 
        constitute final agency action for purposes of judicial review 
        under section 501 of this Act.
    (d) Failure of Agency To Meet Burden.--
            (1) The governmental agency shall retain its burden of 
        proof at all stages of any proceeding or decisionmaking process 
        pursuant to this title.
            (2) If a governmental agency does not meet its burden of 
        proof under this section, it shall not proceed with the 
        proposed covered Federal activity.
            (3) For purposes of this section the phrase ``burden of 
        proof'' means the burden of production and the burden of 
        persuasion.
    (e) For purposes of this section--
            (1) a finding of an adverse impact does not require that an 
        aggrieved party be coerced to act contrary to religious beliefs 
        or traditional cultural practices, and may include 
        consideration of disturbing the integrity of a sacred site;
            (2) land management activities, undertakings and actions 
        which have the potential to have an adverse impact on a Native 
        American sacred site, or which make a Native American 
        traditional cultural practice or exercise of a Native American 
        religion more difficult shall be deemed to constitute an 
        adverse impact; and
            (3) government ownership of land, by itself, does not 
        establish a compelling government interest.
    (f) Special Rule for Native American Practitioners.--For purposes 
of any administrative proceeding conducted under this section, Native 
American practitioners may elect to provide testimony about their 
beliefs in camera or in some other protective procedure.

SEC. 106. NATIVE AMERICAN SACRED SITES ON INDIAN LANDS.

    (a) Jurisdiction of Tribes.--Indian tribes may regulate and protect 
Native American sacred sites located on Indian lands within their 
jurisdiction. Nothing in this Act shall be construed to alter, increase 
or decrease the existence or scope of tribal jurisdiction or the 
application of tribal law regarding protection of or access to Native 
American sacred sites on Indian lands. Nothing in this Act shall be 
construed to grant authority to one Indian tribe to regulate Native 
American sacred sites which are within the jurisdiction of another 
Indian tribe.
    (b) Tribal Option.--None of the provisions of title I of this Act 
shall apply on Indian lands unless the tribe with jurisdiction over 
those lands affirmatively elects to have those provisions apply to all 
or any part of the lands affected or potentially affected. Where an 
Indian tribe elects to have the provisions of title I apply to all or 
any part of its lands, the Indian tribe shall notify the Secretary of 
the Interior regarding the lands to be subject to the provisions of 
title I and the Secretary shall publish the information in the Federal 
Register.
    (c) Duty To Notify.--This section does not relieve a governmental 
agency of any duty pursuant to section 103 to notify an Indian tribe of 
a covered Federal activity on Indian lands which may result in changes 
in the character or use of a Native American sacred site.
    (d) National Security.--The provisions of this section shall not 
apply if the President determines that national security concerns are 
directly affected by a covered Federal activity.
    (e) Disputes Between Two or More Tribes.--
            (1) When a governmental agency proposes a covered Federal 
        activity on Indian lands of one Indian tribe which may result 
        in changes in the character or use of a Native American sacred 
        site of another Indian tribe, and the Indian tribe whose sacred 
        site is affected and the Indian tribe on whose land the site is 
        located agree and so request, the Secretary of the Interior 
        shall convene a committee of tribal representatives for the 
        purpose of entering into negotiations concerning the nature of 
        any adverse impact on the character or use of a Native American 
        sacred site and alternatives that would minimize or prevent 
        such an adverse impact.
            (2) The committee shall consist of tribal representatives 
        of the affected Indian tribe or tribes and tribal 
        representatives of the Indian tribe upon whose lands the sacred 
        site is located, and committee members shall be selected by the 
        respective Indian tribes.
            (3) The committee shall be convened for the duration of the 
        consultation and negotiation period and shall meet at the call 
        of the Secretary upon the request of the affected Indian tribe 
        or tribes and the Indian tribe upon whose lands the sacred site 
        is located.

SEC. 107. APPLICATION OF OTHER LAWS.

    (a) In General.--Nothing in this title shall be construed to 
deprive any person or entity of any other rights which might be 
provided under the laws, regulations, guidelines, or policies of the 
Federal, State, and tribal governments, including but not limited to 
the National Historic Preservation Act (16 U.S.C. 470 et seq.), to 
receive notice of, comment upon, or otherwise participate in the 
decisionmaking process regarding a covered Federal activity.
    (b) Existing Procedures.--To the maximum extent possible, the 
procedures required by this Act shall be incorporated into existing 
procedures applicable to the management of Federal lands and 
decisionmaking processes of Federal agencies engaged in covered Federal 
activities.

SEC. 108. CONFIDENTIALITY.

    (a) In General.--Notwithstanding any other provision of law, 
whenever information has been obtained as a result of or in connection 
with a proceeding pursuant to sections 105 or 501 or consultation 
pursuant to sections 103 and 104, all references pertaining to specific 
details of a Native American traditional cultural practice or religion, 
or the significance of a Native American sacred site, or the location 
of that sacred site, shall not be released by a governmental agency or 
court to any party or the general public pursuant to the Freedom of 
Information Act (5 U.S.C. 552) or any other applicable law.
    (b) Supplementation of Record.--The governmental agency or court 
shall supplement the record described in subsection (a) to include the 
general results and conclusions of the administrative proceeding 
pursuant to section 105 or judicial review process pursuant to section 
501 to the extent necessary to provide other interested parties with 
sufficient information to understand the nature of, and basis for, a 
decision by the governmental agency or court.
    (c) Exception.--This section shall not apply where all parties to a 
proceeding (excluding the United States Government) waive its 
application, and in the case of a Native Hawaiian sacred site, where 
the information is sought by a Native Hawaiian organization for the 
purpose of protecting such site.
    (d) Other Law.--Indian tribes or Native Hawaiian organizations 
seeking to maintain the confidentiality of information relating to 
Native American sacred sites may also seek redress through existing 
laws requiring that certain information be withheld from the public, 
including, but not limited to the National Historic Preservation Act 
(16 U.S.C. 470w-3) and the Archaeological Resources Protection Act (16 
U.S.C. 470hh).

SEC. 109. CRIMINAL SANCTIONS.

    (a) Damaging Sacred Sites.--
            (1) Initial violation.--Any person who intentionally 
        damages, defaces, desecrates or destroys a Native American 
        sacred site located on land as defined in section 3(10) of this 
        Act with knowledge that it is a sacred site, except as part of 
        an approved covered Federal activity authorized by a 
        governmental agency with the authority to approve such 
        activity, shall, upon conviction, be fined not more than 
        $10,000, or imprisoned not more than 1 year, or both.
            (2) Subsequent violations.--In the case of a second or 
        subsequent violation, a person shall be fined not more than 
        $100,000, or imprisoned not more than 5 years, or both.
    (b) Release of Information.--
            (1) Initial violation.--Any person who intentionally 
        releases any information knowing that it is required to be held 
        confidential pursuant to this title shall, upon conviction, be 
        fined not more than $10,000, or imprisoned not more than 1 
        year, or both.
            (2) Subsequent violations.--In the case of a second or 
        subsequent violation, be fined not more than $100,000, or 
        imprisoned not more than 5 years, or both.

                  TITLE II--TRADITIONAL USE OF PEYOTE

SEC. 201. FINDINGS.

    The Congress finds that--
            (1) some Indian people, such as members of the Native 
        American Church, have used the peyote cactus in religious 
        ceremonies for sacramental and healing purposes for many 
        generations, and such uses have been significant in 
        perpetuating Indian tribes and cultures by promoting and 
        strengthening the unique cultural cohesiveness of Indian 
        tribes;
            (2) since 1965, this religious ceremonial use of peyote by 
        Indians in bona fide religious ceremonies of the Native 
        American Church has been protected by Federal regulation, which 
        exempts such use from Federal laws governing controlled 
        substances, and the Drug Enforcement Administration has 
        manifested its continuing support of this Federal regulatory 
        system;
            (3) the State of Texas encompasses virtually the sole area 
        in the United States in which peyote grows, and for many years 
        has administered an effective regulatory system which limits 
        the distribution of peyote to Indians for ceremonial purposes;
            (4) while 28 States have enacted laws which protect the 
        ceremonial use of peyote by Indians, 22 others have not; as a 
        result of the diverse State laws, Indians from different tribes 
        located in different States, as well as from different tribes 
        within the same State, are treated differently regarding the 
        religious use of peyote. Legislation is therefore needed to 
        assure comprehensive, equal and uniform protection of the 
        religious use of peyote by Indians throughout the United 
        States, without regard to State or reservation or residence, or 
        tribal affiliation;
            (5) the traditional ceremonial use by Indians of the peyote 
        cactus is integral to a way of life, and the use of peyote 
        plays a significant role in combating the scourge of alcohol 
        and drug abuse among some Indian people;
            (6) the United States has a unique, government-to-
        government relationship with Indian tribes and special historic 
        Federal-Indian trust relationship, which permits the United 
        States to take measures to protect against interference with 
        the continuing cultural cohesiveness and integrity of Indian 
        tribes and cultures; and as part of this relationship it is the 
        intent of the Federal Government to pursue enforceable Federal 
        policies which will protect Indian community and tribal 
        vitality and cultural integrity, and which will not inhibit or 
        interfere with the free exercise of Native American religions;
            (7) general prohibitions against the abusive use of peyote, 
        without an exception for the bona fide religious use of peyote 
        by Indians, lead to discrimination against Indians by reason of 
        their religious beliefs and practices;
            (8) the Supreme Court of the United States, in the case of 
        Employment Division v. Smith, 494 U.S. 872 (1990), held that 
        the first amendment does not protect Indian practitioners who 
        use peyote in Indian religious ceremonies, and raised 
        uncertainty as to whether this religious practice would be 
        protected under the compelling State interest standard; and
            (9) the lack of adequate and clear protection for the 
        religious use of peyote by Indians may serve to stigmatize and 
        marginalize Indian tribes and cultures and increase the risk 
        that they will be exposed to discriminatory treatment.

SEC. 202. TRADITIONAL USE OF PEYOTE.

    (a) In General.--Notwithstanding any other provision of law, the 
use, possession, or transportation of peyote by an Indian for bona fide 
traditional ceremonial purposes in connection with the practice of a 
Native American religion is lawful and shall not be prohibited by the 
Federal Government or any State. No Indian shall be penalized or 
discriminated against on the basis of such use, possession or 
transportation, including, but not limited to, denial of otherwise 
applicable benefits under public assistance programs.
    (b) Regulation Authorized.--This section does not prohibit--
            (1) such reasonable regulation and registration by the Drug 
        Enforcement Administration of those persons who import, 
        cultivate, harvest or distribute peyote, as may be consistent 
        with the purpose of this title;
            (2) military commanders restricting the use or ingestion of 
        peyote by active duty personnel within a reasonable period, but 
        not to exceed 48 hours, prior to the performance of official 
        duties in circumstances where safety or military readiness may 
        be adversely affected by such use or ingestion;
            (3) regulations by the Secretary of Transportation 
        restricting the use or ingestion of peyote by transportation 
        workers in safety sensitive positions, as defined by the 
        Secretary within a reasonable period, but not to exceed 48 
        hours, prior to the performance of official duties, in 
        circumstances where public safety may be adversely affected by 
        such use or ingestion; or
            (4) regulations by law enforcement administrators 
        restricting the use or ingestion of peyote by sworn law 
        enforcement personnel within a reasonable period, but not to 
        exceed 48 hours, prior to the performance of official duties in 
        circumstances where public safety may be adversely affected by 
        such use or ingestion.
    (c) Texas Law.--This section does not prohibit application of the 
provisions of section 481.111(a) of Vernon's Texas Health and Safety 
Code Annotated, in effect on the date of enactment of this Act, insofar 
as those provisions pertain to the cultivation, harvest, or 
distribution of peyote.
    (d) This section shall not be construed as requiring prison 
authorities to permit, nor shall it be construed to prohibit prison 
authorities from permitting access to peyote by Indians while 
incarcerated within Federal or State prison facilities.
    (e) For purposes of this title, the term ``Indian'' means a member 
of an Indian tribe as defined in section 3(9).

                      TITLE III--PRISONERS' RIGHTS

SEC. 301. RIGHTS.

    (a) In General.--
            (1) Access.--Notwithstanding any other provision of law, 
        Native American prisoners who practice a Native American 
        culture or religion shall have, on a regular basis comparable 
        to that access afforded prisoners who practice Judeo-Christian 
        religions or any other religions, access to--
                    (A) Native American traditional leaders who shall 
                be afforded the same status, rights and privileges as 
                religious leaders of Judeo-Christian religions or any 
                other religions;
                    (B) subject to paragraph (6), items and materials 
                utilized in cultural or religious ceremonies; and
                    (C) Native American cultural or religious 
                facilities.
            (2) Materials.--Prison authorities shall treat items and 
        materials utilized in cultural or religious ceremonies, 
        including traditional foods for cultural or religious diets, 
        identified by a Native American traditional leader, in the same 
        manner as the religious items and materials utilized in 
        ceremonies of the Judeo-Christian religions or any other 
        religions.
            (3) Hair.--
                    (A) Right of prisoner.--Except in those 
                circumstances where subparagraph (B) applies, Native 
                American prisoners who desire to wear their hair 
                according to the customs of a Native American culture 
                or religion may do so provided that the prisoner 
                demonstrates that--
                            (i) the practice is rooted in Native 
                        American cultural or religious beliefs; and
                            (ii) these beliefs are sincerely held by 
                        the Native American prisoner.
                    (B) Denial of request.--If a Native American 
                prisoner satisfies the criteria in paragraph (3)(A), 
                the prison authorities may deny such request only where 
                they can satisfy the criteria of section 3 of the 
                Religious Freedom Restoration Act (Public Law 103-141).
            (4) Definition of ``cultural or religious facilities''.--
        The term ``cultural or religious facilities'' includes sweat 
        lodges, tepees, and access to other secure, out-of-doors 
        locations within prison grounds if such facilities are 
        identified by a Native American traditional leader to 
        facilitate a cultural or religious ceremony.
            (5) Discrimination prohibited.--No Native American prisoner 
        shall be penalized or discriminated against on the basis of 
        Native American cultural or religious practices, and all prison 
        and parole benefits or privileges extended to prisoners for 
        engaging in cultural or religious activities shall be afforded 
        to Native American prisoners who participate in Native American 
        cultural or religious practices.
            (6) Scope of title.--This Title shall not be construed as 
        (i) requiring prison authorities to permit nor shall it be 
        construed to prohibit prison authorities from permitting access 
        to peyote or Native American sacred sites; or (ii) altering 
        applicable requirements for exhaustion of administrative 
        remedies.
    (b) Attorney General Investigation.--
            (1) In general.--The Attorney General shall investigate, in 
        consultation with Native American traditional leaders and ex-
        offenders with corrections experience as may be recommended by 
        Indian tribes and Native Hawaiian organizations, and Federal 
        and State prison administrators, the conditions of Native 
        American prisoners in the Federal and State prison systems with 
        respect to their ability to engage in traditional cultural 
        ceremonies and practices, including the free exercise of Native 
        American religions.
            (2) Report.--Not later than 36 months after the date of 
        enactment of this Act, the Attorney General shall submit to the 
        Congress a report containing--
                    (A) an assessment of the recognition, protection, 
                and enforcement of the rights of Native American 
                prisoners to practice their cultures or religions under 
                this Act in Federal and State prisons where Native 
                Americans are incarcerated; and
                    (B) specific recommendations for the promulgation 
                of regulations to implement this Act.

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

SEC. 401. CULTURAL AND RELIGIOUS USE OF EAGLES.

    (a) In General.--Within 1 year after the date of enactment of this 
Act, the Director of the United States Fish and Wildlife Service 
(hereafter in this section referred to as the ``Director'') shall, in 
consultation with the Indian tribes and Native American traditional 
leaders, develop a plan to--
            (1) ensure the prompt disbursement from Federal 
        repositories of available bald or golden eagles, or their 
        parts, nests, or eggs for the traditional cultural or religious 
        use of Indians upon receipt of an application from an Indian 
        practitioner;
            (2) provide that sufficient numbers of bald or golden 
        eagles are allocated to Indian practitioners to meet the 
        demonstrated need where they are available by reason of 
        accidental deaths, natural deaths, or takings permitted by 
        Federal law;
            (3) simplify and shorten the process by which permits are 
        authorized for the taking, possession, and transportation of 
        bald or golden eagles, or their parts, nests, or eggs for the 
        traditional cultural or religious use of Indians;
            (4) establish a mechanism for tribal disbursement of dead 
        eagles discovered within the exterior boundaries of their own 
        reservation of Native American traditional cultural or 
        religious practitioners; and
            (5) establish a mechanism for tribal contacts with regional 
        and national offices of the United States Fish and Wildlife 
        Service on fish and wildlife resource issues.

SEC. 402. OTHER ANIMALS AND PLANTS.

    Within two years after the enactment of this Act, the Secretaries 
of Interior, Agriculture, Commerce and Treasury, and the Administrator 
of the General Services Administration shall, in consultation with 
Indian tribes, Native Hawaiian organizations and Native American 
traditional leaders, establish a joint uniform set of administrative 
procedures to govern the disposition of surplus wildlife and plants or 
parts thereof which have been confiscated, gathered or are otherwise 
under the jurisdiction and control of their respective agencies. To the 
fullest extent allowed under existing statutory authority, the uniform 
procedures shall be designed to increase the availability of natural 
products to Native American traditional cultural and religious 
practitioners.

                   TITLE V--JURISDICTION AND REMEDIES

SEC. 501. JURISDICTION AND REMEDIES.

    (a) In General.--
            (1) An aggrieved party shall have the right to file suit 
        against the United States or a State in the appropriate 
        district court to enforce the provisions of this Act.
            (2) Any appropriate United States district court shall have 
        original jurisdiction over a civil action for--
                    (A) equitable relief; or
                    (B) damages arising from any violations of this 
                Act.
            (3) Nothing herein shall be construed to deprive Indian 
        tribes of jurisdiction they would otherwise have under section 
        106 of this Act or any other Federal law.
    (b) Factual Findings.--
            (1) If an action is filed in a United States district court 
        after exhaustion of administrative remedies under section 105, 
        the court shall not defer to agency factual findings except 
        where such findings are based on a formal hearing on the 
        record.
            (2) The court shall review de novo agency legal 
        determinations concerning the extent to any adverse impact, 
        whether the Government's interest is compelling and whether a 
        particular alternative is the least restrictive.
    (c) For purposes of an action alleging a violation of the rights 
protected under title I of this Act and consistent with section 106 of 
this Act--
            (1) Burden on aggrieved party.--Except as provided in 
        subsection 501(d), the aggrieved party shall have the burden of 
        establishing that the covered Federal activity or an action by 
        a State having an impact upon the management, use or 
        preservation of public land, is or will have an adverse impact 
        on a Native American sacred site.
            (2) Burden on agency.--If the aggrieved party meets its 
        burden of proof under paragraph (1), the agency may proceed 
        with the action only if it is determined by clear and 
        convincing evidence that the covered Federal activity--
                    (A) is in furtherance of a compelling government 
                interest; and
                    (B) is the least restrictive means of furthering 
                that compelling interest.
            (3) For purposes of decisions pursuant to title I--
                    (A) a finding of adverse impact does not require 
                that an aggrieved party be coerced to act contrary to 
                religious beliefs or traditional cultural practices, 
                and may include consideration of disturbing the 
                integrity of a sacred site;
                    (B) land management activities, undertakings and 
                actions which have the potential to have an adverse 
                impact on a Native American sacred site, or which make 
                a Native American traditional cultural practice or the 
                exercise of a Native American religion more difficult 
                shall be deemed to constitute an adverse impact; and
                    (C) government ownership of land, by itself, does 
                not establish a compelling government interest.
    (d) Cases Where Secrecy Is Required.--In the case of any proceeding 
in which an aggrieved Indian tribe or Native Hawaiian organization 
relies on section 104(b), if an Indian tribe or Native Hawaiian 
organization objects to the covered Federal activity or an action by a 
State on the grounds that it is or will an adverse impact on a Native 
American sacred site, the governmental agency shall have the burden of 
proving by a preponderance of the evidence that the covered Federal 
activity--
            (1) is in furtherance of a compelling government interest;
            (2) is a reasonable means of furthering that compelling 
        interest; and
            (3) the alternatives identified under section 104(b)(2) are 
        not reasonable.
    (e) Failure of Agency To Meet Burden.--
            (1) The governmental agency shall retain its burden of 
        proof at all stages of any proceeding or decisionmaking process 
        pursuant to title I of this Act.
            (2) If a governmental agency does not meet its burden of 
        proof under this section, it shall not proceed with the 
        proposed activity.
            (3) For purposes of this section the phrase ``burden of 
        proof'' means the burden of production and the burden of 
        persuasion.
    (f) Special Rule for Native American Practitioners.--Native 
American practitioners may elect to provide testimony about their 
beliefs in camera or in some other protective procedure.
    (g) Sovereign Immunity.--Neither the sovereign immunity of the 
United States nor of any State, including immunity derived from the 
eleventh amendment to the United States Constitution, shall be a bar or 
defense to any civil action brought pursuant to this section to enforce 
the provisions of this Act, including any grant of attorney's fees 
pursuant to subsection (h) of this section, and such immunities are 
hereby waived.
    (h) Attorney's Fees.--An aggrieved party who is a prevailing party 
in any administrative or judicial proceeding brought pursuant to this 
Act shall be entitled to attorney's fees, expert witness fees, and 
costs under the provisions of section 504 of title 5, United States 
Code, and section 2412 of title 28, United States Code.

                        TITLE VI--MISCELLANEOUS

SEC. 601. SAVINGS CLAUSE.

    (a) Nothing in this Act shall be construed as abrogating, 
diminishing, or otherwise affecting--
            (1) the inherent rights of any Indian tribe;
            (2) the rights, express or implicit, of any Indian tribe 
        which exist under treaties, Executive orders and laws of the 
        United States;
            (3) the inherent right of Native Americans to maintain 
        their cultural integrity and religions;
            (4) the trust responsibility of the United States or any 
        legal obligation or remedy resulting therefrom;
            (5) the right and ability of any Indian tribe upon whose 
        Indian lands a Native American sacred site is located to 
        determine, exclusively pursuant to its own tribal law, whether 
        any other Indian tribe or Native American practitioner shall 
        have a property right in that site or have the authority to 
        limit or prohibit covered Federal activities affecting that 
        site;
            (6) any traditional cultural or free exercise of religion 
        claim of any person that does not fall within the scope of this 
        Act;
            (7) the right of Native Americans to obtain protection for 
        the practice of their traditional cultures or religions under 
        any other Federal, State, or tribal law or constitution; or the 
        authority and responsibility of any governmental agency to 
        provide protection for Native American sacred sites and the 
        practice of Native American traditional cultures and religions 
        under other laws or constitutions, such as the National 
        Historic Preservation Act; and
            (8) the authority of Federal land and program managers to 
        provide for notice to and consultation with other religious and 
        cultural groups not encompassed by this Act for the purpose of 
        protection of cultural, religious, environmental and historical 
        sites and resources under other authority.
    (b) This Act is supplemental to the Religious Freedom Restoration 
Act of 1993, and is not intended to be limited by that Act, or to limit 
in any way, rights available under that Act, including the application 
of that Act to activities which may have an adverse impact upon a 
Native American sacred site, whether or not said activities are 
explicitly covered by this Act.

SEC. 602. SEVERABILITY.

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

SEC. 603. AUTHORIZATION OF APPROPRIATIONS.

    There are hereby authorized to be appropriated such sums as may be 
necessary to carry out the provisions of this Act, including such sums 
as may be necessary for expenses of Native Americans for consultations 
with the Attorney General provided in section 301(b)(1).

SEC. 604. REGULATIONS.

    (a) The head of each land managing agency, in consultation with 
Indian tribes and Native Hawaiian organizations, shall promulgate 
regulations relating to--
            (1) Federal planning processes pertaining to the 
        management, use or preservation of land; and
            (2) notice to and consultation with Indian tribes, Native 
        Hawaiian organizations, and Native American traditional leaders 
        as required by sections 103 and 104 of this Act.
    (b) The head of each land managing agency shall consult with the 
Secretary of the Interior to assure maximum possible consistency in 
regulations promulgated pursuant to this Act.
    (c) The regulations shall be sufficiently flexible to enable 
consultation to address the unique needs of Indian tribes, Native 
Hawaiian organizations, Native American traditional leaders and Native 
American practitioners. Notices and procedures provided for in sections 
103 and 104 shall not await completion of regulations.

SEC. 605. PROTECTIONS.

    (a) The protections of this Act shall be afforded only to bona fide 
persons who are defined in subsections (7), (11), (12), (16), and (17) 
of section 3 of this Act, and to members of Indian tribes as defined in 
section 3(9) of this Act.
    (b) For purposes of determining the bona fide nature of any of the 
persons defined in section 3, or the bona fide nature of any Native 
American traditional cultural practice or Native American religion, the 
Secretary is authorized to consult with Indian tribes, Native Hawaiian 
organizations, Native American practitioners and Native American 
traditional leaders.

SEC. 606. EFFECTIVE DATE.

    (a) This Act takes effect on the date of its enactment. Application 
and enforcement of this Act does not depend upon the promulgation of 
regulations by any governmental agency. However, with respect to notice 
and review provisions under sections 103 and 104, agencies shall have a 
period of six months from enactment to establish applicable procedures.
    (b) Except as provided in section 104(a)(2) and section 
3(4)(B)(ii), this Act does not require any Federal agency to reconsider 
any final action or decision that it made prior to enactment of this 
Act or that it made in compliance with the provisions of this Act, 
although this shall not bar application of the Act to new phases of 
existing projects.
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