Calendar No. 722

103D CONGRESS

2D SESSION S. 2269

[Report No. 103–411]

A BILL

To protect Native American cultures and to guarOAmericans. antee the free exercise of religion by Native CTOBER 8 (legislative day, SEPTEMBER 12), 1994

Reported with an amendment
II

Calendar No. 722

103D CONGRESS

2D SESSION S. 2269

[Report No. 103–411]

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

OCTOBER 8 (legislative day, SEPTEMBER 12), 1994

Reported by Mr. INOUYE, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

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’’.
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1 (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.

2 SEC. 2. POLICY.

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

4 of the policy established in the joint resolution entitled

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

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

7 and preserve the inherent right of any Native American
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1 to believe, express, exercise and practice his or her tradi2 tional culture and religion, including, but not limited to,

3 access to any Native American sacred site, use and posses4 sion of sacred objects, and the freedom to worship through

5 ceremonial and traditional rites.

6 SEC. 3. DEFINITIONS.

7 For the purposes of this Act:

8 (1) The term ‘‘adverse impact’’ means any ac9 tion or any potential action which has the effect or

10 which will have the effect of—

11 (A) altering, disturbing, desecrating or de12 stroying a Native American sacred site;

13 (B) inhibiting, infringing upon or interfer14 ing with Native American traditional cultural

15 practices; or

16 (C) imposing a burden upon the free exer17 cise of a Native American religion.

18 (2) The term ‘‘aggrieved party’’ means any Na19 tive American, Indian tribe, Native Hawaiian organi20 zation, Native American practitioner or Native

21 American traditional leader as defined by this Act,

22 and to whom the provisions of this Act apply.

23 (3) The term ‘‘consultation’’ means, at a mini24 mum, agency-initiated outreach activities which will

25 result in a meaningful process for face-to-face delib-
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1 erations and conferral with all Indian tribes, Native

2 Hawaiian organizations and Native American tradi3 tional leaders that should be consulted and which is

4 conducted in a realistic manner that is cognizant of

5 the cultural values, socioeconomic factors and ad6 ministrative structures, if any, of the Indian tribes

7 or Native Hawaiian organizations with an interest in

8 the land in question.

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

10 means—

11 (A) any new or reauthorized project, pro12 gram or activity, or any new phase of existing

13 projects, programs and activities, under the di14 rect or indirect jurisdiction of a Federal agency

15 including but not limited to—

16 (i) those carried out by or on behalf

17 of the agency, on Federal or State lands,

18 or involving navigable waters;

19 (ii) those activities on Federal or

20 State lands, or involving navigable waters,

21 requiring a Federal permit, license or ap22 proval;

23 (iii) those taking place on Federal or

24 State lands, or involving navigable waters,

25 subject to state regulation pursuant to a
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1 delegation or approval by a Federal

2 agency;

3 (iv) those carried out with more than

4 de minimis Federal financial assistance;

5 (v) renewals, reauthorizations, reli6 censing, and similar decisions;

7 (vi) regular and cyclical reviews of

8 land management plans by agencies;

9 (vii) programs funded by Federal

10 highway funds;

11 (viii) activities subject to licensing by

12 the Federal Energy Regulatory Commis13 sion, or the Nuclear Regulatory Commis14 sion;

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

16 nuclear or transuranic waste or toxic waste

17 disposal, and disposal facilities, and the

18 disposal of such materials; or

19 (x) those activities that would not be

20 covered Federal activities by virtue of sec21 tion 3(4)(B)(i), if an Indian tribe affirma22 tively elects to have the provisions of this

23 Act apply to a particular covered Federal

24 activity on Indian lands which are subject

25 to the tribe’s jurisdiction;
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1 (B) the term ‘‘covered Federal activity’’

2 does not include—

3 (i) regulations, projects, activities, or

4 programs operated, approved, or sponsored

5 by Indian tribes, including, but not limited

6 to, those projects, activities, or programs

7 which are funded in whole or in part by

8 Federal funds pursuant to contract, com9 pact, grant or agreement, or which require

10 Federal permits, licenses or approvals, un11 less the Indian tribe invokes section

12 3(4)(A)(x);

13 (ii) ongoing and continuing activities

14 underway prior to enactment of this Act,

15 or activities for which a final commitment

16 has been made prior to enactment of this

17 Act and for which substantial funds have

18 been spent or implementation is substan19 tially underway;

20 (iii) routine activities that an agency

21 determines through negotiations with In22 dian tribes or Native Hawaiian organiza23 tions to be unlikely to affect Native Amer24 ican sacred sites or traditional cultural

25 practices, and maintenance activities in-
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1 volving structures or projects existing at

2 the time of enactment of this Act or later

3 constructed in compliance with this Act

4 which do not change the size or scale or

5 the existing use of those projects or struc6 tures;

7 (iv) activity on State land with de

8 minimis Federal funding and no other

9 Federal role;

10 (v) any actions on private lands, other

11 than those enumerated in subsection (A),

12 even though those actions are subject to

13 Federal permit, license, or approval, or

14 State regulation of private lands under a

15 Federal delegation of authority, or con16 ducted with de minimis Federal funding;

17 or

18 (vi) direct Federal loans and Federal

19 loan guarantees to private entities.

20 (5) The term ‘‘ Federal agency’’ means any de21 partment, agency, or instrumentality of the United

22 States Government.

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

24 any agency, department, or instrumentality of—

25 (A) the United States; or
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1 (B) a State, in the case of a covered Fed2 eral activity described in paragraph (4)(A)(iii).

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

4 an agency, department, or instrumentality of an In5 dian tribe.

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

7 who is a member of an Indian tribe; an Alaska Na8 tive, or an individual who meets the definition in

9 section 809(b) of the Indian Health Care Improve10 ment Act (25 U.S.C. 1679(b)), except that an In11 dian community need not be served by a local pro12 gram of the Indian Health Service in order to qual13 ify as an Indian community for purposes of this defi14 nition.

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

16 within the limits of any Indian reservation notwith17 standing the issuance of any patent; public domain

18 Indian allotments; all other lands title to which is ei19 ther held in trust by the United States for the bene20 fit of any Indian tribe or individual or held by any

21 Indian tribe or individual subject to restriction by

22 the United States against alienation; all dependent

23 Indian communities; and all fee lands owned by an

24 Indian tribe.
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1 (9) The term ‘‘Indian tribe’’ means any tribe,

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

3 community of Indians, including any Alaska Native

4 village (as defined in, or established pursuant to, the

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

6 1601 et seq.)), which is recognized as eligible for the

7 special programs and services provided by the Unit8 ed States to Indians because of their status as Indi9 ans.

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

11 and subsurface land within the jurisdiction of the

12 United States or the respective States, including

13 submerged land of any kind or interest therein, and

14 all water and waterways occupying, adjacent to, or

15 running through the land.

16 (11) With respect to the cultural protections

17 provided under this Act, the term ‘‘Native Amer18 ican’’ means any Indian or Native Hawaiian.

19 (12) With respect to the cultural protections

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

21 practitioner’’ means any Native American who prac22 tices a Native American religion as part of a Native

23 American traditional culture.

24 (13) With respect to the cultural protections

25 provided under this Act, the term ‘‘Native American
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1 religion’’ means any traditional religion which is

2 practiced by Native Americans, the origin and inter3 pretation of which is deeply embedded or rooted in

4 a Native American traditional culture.

5 (14) With respect to the cultural protections

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

7 Sacred Site’’ means any geophysical or geographical

8 area or feature which is sacred by virtue of its tradi9 tional cultural or religious significance or ceremonial

10 use, or by virtue of a ceremonial or cultural require11 ment, including a religious requirement, that a natu12 ral substance or product for use in Native American

13 traditional ceremonies be gathered from that par14 ticular location.

15 (15) The term ‘‘Native American traditional

16 culture’’ means the traditional practices, customs,

17 belief systems, lifeways, ceremonies, and rituals, in18 cluding religious practices and beliefs, that are inte19 gral to and unique aspects of Native American cul20 tural traditions and heritage.

21 (16) With respect to the cultural protections

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

23 traditional leader’’ means any Native American

24 practitioner who is recognized by an Indian tribe or

25 traditional tribal community or Native Hawaiian
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1 community as being responsible for performing du2 ties relating to the cultural traditions, including reli3 gious traditions of the tribe or traditional tribal

4 community or Native Hawaiian community or as

5 having a leadership role in an Indian tribe or tradi6 tional tribal community or Native Hawaiian commu7 nity based upon its traditional cultural or ceremonial

8 practices, including religious practices.

9 (17) With respect to the cultural protections

10 provided under this Act, the term ‘‘Native Hawai11 ian’’ means any individual who is a descendant of

12 the aboriginal Polynesian people who, prior to 1778,

13 occupied and exercised sovereignty and self-deter14 mination in the area that now comprises the State

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

16 special programs and services provided by the Unit17 ed States to Native Hawaiians because of their sta18 tus as Native Hawaiians or Native Americans.

19 (18) With respect to the cultural protections

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

21 organization’’ means any organization which is com22 posed primarily of Native Hawaiians, and serves and

23 represents the traditional cultural interests of Native

24 Hawaiians and whose members—
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1 (A) practice a Native American culture, in2 cluding a Native American religion, or conduct

3 traditional ceremonial rituals, or

4 (B) utilize, preserve and protect Native

5 American sacred sites.

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

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

8 by the United States, or the respective States, or po9 litical subdivisions thereof, but shall not include In10 dian lands as defined in section 3(8).

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

12 United States and any and all political subdivisions

13 thereof, and the District of Columbia.

14 TITLE I—PROTECTION OF NA15 TIVE AMERICAN SACRED

16 SITES

17 SEC. 101. FINDINGS.

18 The Congress finds that—

19 (1) the traditional cultural practices, including

20 religious practices, of Native Americans are integral

21 and inseparable parts of their cultures, traditions

22 and heritages which greatly enhance the vitality of

23 Native American communities and tribes and the

24 well-being of Native Americans in general;
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1 (2) the European concept that religion is an ac2 tivity or belief that is separate from all other aspects

3 of daily life, or that religion is separable from cul4 ture, is a concept that has no application in the tra5 ditional cultures of Native Americans;

6 (3) throughout American history, the mani7 festation of Native American traditional cultures, in8 cluding the free exercise of Native American reli9 gions, has been infringed upon, interfered with, and

10 even prohibited by the Federal Government and the

11 devastating impact of these governmental actions

12 continues to the present day;

13 (4) the United States has a unique, govern14 ment-to-government relationship with Indian tribes

15 and a special historic trust relationship, which per16 mits the United States to take measures to protect

17 against interference with the continuing cultural co18 hesiveness and integrity of Indian tribes and Native

19 American traditional cultures;

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

21 relationship it is the intent of the United States to

22 pursue enforceable Federal policies which will pro23 tect the Native American community and tribal vi24 tality and cultural integrity, and which will not in25 hibit, interfere with or infringe upon Native Amer-
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1 ican traditional cultural practices or impose a bur2 den on the free exercise of Native American reli3 gions;

4 (6) many Native American traditional cultures,

5 including Native American religions, hold certain

6 lands or natural formations in the United States to

7 be sacred, and in order for those sites to be in a con8 dition appropriate for cultural use, including reli9 gious or ceremonial use, the physical environment,

10 water, plants and animals associated with those sites

11 must be protected;

12 (7) such Native American sacred sites are an

13 integral and vital part of, and inextricably inter14 twined with, many Native American traditional cul15 tures, including Native American religions, and the

16 practices associated with such traditional cultures;

17 (8) the traditional use and gathering, harvest18 ing, or maintaining of natural substances or natural

19 products for cultural purposes, including religious

20 and ceremonial purposes, are an integral and vital

21 part of, and are inextricably intertwined with, many

22 Native American traditional cultures, including Na23 tive American religions;

24 (9) many of these Native American sacred sites

25 are found on lands which were part of the aboriginal
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1 territory of Indians or Native Hawaiians, but which

2 now are held by the United States, or are the sub3 ject of Federal activities;

4 (10) governmental land use decisions have the

5 potential to have an adverse impact on Native Amer6 ican traditional cultural practices, including Native

7 American religions;

8 (11) many Native American traditional cultural

9 practices, including religious and ceremonial prac10 tices, require a measure of privacy and isolation; and

11 certain traditional cultural ceremonies and activities

12 cannot be performed if nonparticipants can observe

13 the practices or ceremonies or activities, even from

14 a distance, and in some situations the lack of pri15 vacy or isolation inhibits, infringes upon, interferes

16 with, or precludes certain Native American tradi17 tional cultural practices, including traditional reli18 gious practices;

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

20 New Mexico, as well as some aspects of Native Ha21 waiian culture, have traditional cultural and reli22 gious tenets which prohibit disclosure of information

23 concerning their sacred sites and their traditional

24 beliefs and practices, mandate secrecy and impose

25 internal sanctions to enforce these prohibitions,
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1 making it impossible for them to identify the man2 ner in which any particular governmental activity

3 would have an adverse impact on their traditional

4 cultures or impose a burden on the free exercise of

5 their religions;

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

7 Native American traditional cultures, including Na8 tive American religions has resulted in the absence

9 of a coherent policy for the protection of Native

10 American sacred sites and the failure to consider the

11 impacts of Federal activities upon Native American

12 sacred sites;

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

14 in the case of Lyng v. Northwest Indian Cemetery

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

16 that the free exercise clause of the First Amendment

17 does not restrict the Government’s management of

18 its lands, even if certain governmental actions would

19 infringe upon or destroy the ability to practice reli20 gion, so long as the Government’s action does not

21 compel individuals to act in a manner which is con22 trary to their religious beliefs;

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

24 Lyng v. Northwest Indian Cemetery Protective Asso25 ciation creates a chilling and discriminatory effect
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1 on Native American traditional cultures and on the

2 free exercise of Native American religions;

3 (16) the Congress has enacted numerous laws

4 which regulate and restrict the discretion of Federal

5 agencies for the sake of environmental, historical,

6 economic, and cultural concerns, but has never en7 acted a judicially enforceable law comparably re8 stricting agency discretion for the sake of the site9 protective requirements specifically associated with

10 the protection of Native American traditional cul11 tural practices, including the free exercise of Native

12 American religions;

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

14 law and of a coherent Federal policy to accommo15 date the uniqueness of Native American traditional

16 cultures, including Native American religions, results

17 in unique and adverse impacts on Native American

18 traditional cultures, burdens the free exercise of Na19 tive American religions, and impairs the vitality of

20 Indian tribes, traditional tribal communities, and

21 Native Hawaiian communities; and

22 (18) the Congress has the authority to enact

23 laws to assure the protection and preservation of

24 Native American traditional cultures, including the

25 free exercise of Native American religions, based
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1 upon the special trust relationship, and pursuant to

2 section 8, article I of the United States Constitution

3 and the first, fifth, and fourteenth amendments to

4 the United States Constitution.

5 SEC. 102. ACCESS TO FEDERAL LANDS.

6 (a) IN GENERAL.—Native American practitioners

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

8 Native American traditional cultural, or ceremonial or reli9 gious purposes, including access to gather, harvest, or

10 maintain natural substances or natural products for Na11 tive American traditional cultural purposes.

12 (b) Federal agencies may take reasonable and nar13 rowly tailored measures to assure that access and use of

14 lands under this Act do not—

15 (1) have a direct, significant and negative im16 pact upon specific national security interests or the

17 implementation of the Endangered Species Act; or

18 (2) present an immediate threat of serious bod19 ily harm to any person or immediate and serious

20 harm to the environment.

21 Where other feasible means are available for avoiding ad22 verse impacts on Native American sacred sites, Native

23 American traditional cultural practices, and the free exer24 cise of Native American religions, those means shall be

25 utilized before access is restricted.
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1 (c) Terms of access may be included in a memoran2 dum of agreement pursuant to section 104(a)(3)(B).

3 (d) LIMITATIONS AGAINST VEHICLES.—Paragraph

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

5 other forms of mechanized transport in roadless areas

6 where such use is prohibited by law.

7 (e) TEMPORARY PROTECTIVE MEASURES.—Upon the

8 request of an Indian tribe, a Native Hawaiian organization

9 or a Native American traditional leader, the Secretary of

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

11 manager where such authority has been delegated, may

12 from time to time temporarily close to the general public

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

14 may take such other reasonable and temporary measures

15 as necessary in order to protect the privacy of traditional

16 cultural, ceremonial or religious activities in such areas

17 by Native Americans. Any such measures shall be taken

18 so as to affect the smallest practicable area for the mini19 mum period necessary for such purposes.

20 SEC. 103. FEDERAL LAND MANAGEMENT, IDENTIFICATION

21 OF LANDS, PLANNING AND NOTICE.

22 (a) IN GENERAL.—Each Federal agency shall man23 age any lands under its jurisdiction in a manner that com24 plies with the provisions of this Act.

25 (b) IDENTIFICATION OF LANDS BY SECRETARY.—
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1 (1) IN GENERAL.—(A) For the purpose of as2 suring that a governmental agency properly deter3 mines whether a proposed cover Federal activity will

4 have an adverse impact on a Native American sacred

5 site and which affected parties should be provided

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

7 managing agency, in conjunction with the Secretary

8 of the Interior and tribal governments and Native

9 Hawaiian organizations, shall identify land areas

10 with which a tribe or Native Hawaiians have aborigi11 nal, historic, cultural or religious ties.

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

13 following the date of enactment of this Act, Native

14 Hawaiian organizations shall notify the Secretary of

15 their desire to receive notice of proposed covered

16 Federal activities.

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

18 section, within 90 days following the date of enact19 ment of this Act, the Secretary of the Interior shall

20 contact all Indian tribes, and Native Hawaiian orga21 nizations to request a broad geographic description

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

23 Hawaiian organization desires notice of covered Fed24 eral activity and, upon receipt of responses from In25 dian tribes and Native Hawaiian organizations, shall
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1 provide such land descriptions to all Federal agen2 cies.

3 (3) Within 18 months following the date of en4 actment of this Act, the Secretary shall establish a

5 list of all Indian tribes and Native Hawaiian organi6 zations who have responded and the lands they have

7 identified. Such lists shall not be published but shall

8 be made available to agencies for the purpose of

9 identifying Indian tribes and Native Hawaiian orga10 nizations and areas for which notice of covered Fed11 eral activities shall be provided.

12 (4) While the list is being developed, each Fed13 eral land managing agency shall also research its

14 own sources, including agency contacts with Indian

15 tribes, Native Hawaiian organizations, or Native

16 American traditional leaders and written sources, to

17 collect information as to Native American traditional

18 cultures and regions potentially affected by activities

19 on land which it manages and shall make a good

20 faith effort to identify and notify Indian tribes. Na21 tive Hawaiian organizations, and Native American

22 traditional leaders who may have an interest in pro23 posed covered Federal activities.

24 (5) ONGOING IDENTIFICATION.—Nothing in

25 this section shall preclude an agency or a tribal gov-
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1 ernment or a Native Hawaiian organization from

2 continuing to conduct an ongoing identification proc3 ess, which may supplement the process required by

4 this subsection.

5 (c) PLANNING PROCESS.—Each Federal agency man6 aging lands under its jurisdiction including, but not lim7 ited to, activities pursuant to the National Forest Manage8 ment Act (16 U.S.C. 1600 et seq.), and the Federal Land

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

10 shall as part of its planning process—

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

12 the planning process, with Indian tribes, Native Ha13 waiian organizations and Native American tradi14 tional leaders who have notified the agency of their

15 interest in the land in question pursuant to sub16 section (b);

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

18 to covered Federal activity required by subsection

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

20 with the potential to have an adverse impact on land

21 areas specified by an Indian tribe or Native Hawai22 ian organization, in writing, as land areas that are

23 of direct interest to the Indian tribe or Native Ha24 waiians, whether or not the agency believes that
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1 such activity will or may have an adverse impact on

2 a Native American sacred site;

3 (3) ensure that its land management plans are

4 consistent with the provisions and policies of this

5 Act; and

6 (4) maintain the confidentiality of specific de7 tails of a Native American traditional culture or reli8 gion or the significance of a Native American sacred

9 site to that culture or religion in accordance with the

10 procedures specified in sections 107 and 108 of this

11 Act.

12 (d) NOTICE AND DOCUMENTATION—DUTY OF AGEN13 CIES.—

14 (1) NOTICE TO TRIBES OR NATIVE HAWAIIAN

15 ORGANIZATIONS.—Before a governmental agency

16 proceeds on lands identified pursuant to subsection

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

18 an adverse impact on a Native American sacred site,

19 the governmental agency shall consult with poten20 tially-affected Indian tribes, Native Hawaiian orga21 nizations and Native American traditional leaders,

22 and after the consultation has occurred and the

23 agency has taken into account the information ob24 tained through that process, formally provide a writ25 ten notice containing a geographical description of
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1 the lands affected by the activity (including informa2 tion on metes and bounds of the lands in question,

3 where available), a map illustrating the lands af4 fected and a description of the proposed action to

5 each Indian tribe, Native Hawaiian organization, or

6 Native American traditional leader which has been

7 identified pursuant to this section as having an in8 terest in the land affected by the proposed covered

9 Federal activity and any other Indian tribe, Native

10 Hawaiian organization or Native American tradi11 tional leader known by the agency that may have an

12 interest in the land affected by the proposed covered

13 Federal activity.

14 (2) The governmental agency shall fully docu15 ment the efforts made to provide the information to

16 Indian tribes, Native Hawaiian organizations, and

17 Native American traditional leaders as required by

18 this section or any applicable regulations, guidelines,

19 or policies.

20 (e) RESPONSE TO NOTICE.—

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

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

23 the time limit of any comment period permitted or

24 required by any Federal law applicable to the cov25 ered Federal activity, whichever is later, an Indian
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1 tribe, Native Hawaiian organization, or Native

2 American traditional leader invoking the protection

3 of this title may provide notice in writing to the gov4 ernmental agency that the proposed covered Federal

5 activity may have an adverse impact on a Native

6 American sacred site.

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

8 may be extended by the agency at its discretion, in9 cluding at the request of a noticed party, or may be

10 extended or shortened by an agreement negotiated

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

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

13 does not impose a duty upon any Indian tribe, Na14 tive Hawaiian organization, or Native American tra15 ditional leader to respond to any notice under this

16 section.

17 (4) ADDITIONAL INFORMATION.—The Indian

18 tribe or Native Hawaiian organization or its des19 ignee acting pursuant to paragraph (1) may also

20 provide the agency with information as to any Na21 tive American traditional leaders or practitioners

22 who should be included in the notice and consulta23 tion requirements of this section and section 104.

24 (f) RESPONSE PERIOD AND LIMITATION ON ACTIV25 ITY FOLLOWING NOTICE.—
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1 (1) In order to allow a full investigation of a

2 proposed covered Federal activity no action to ap3 prove, commence, or complete an activity that is

4 subject to this section shall be taken by a govern5 mental agency for a period of 90 days following the

6 date on which notice is provided under subsection

7 (d) to Indian tribes, Native Hawaiian organizations

8 or Native American traditional leaders unless or

9 until—

10 (A) the period of consultation required

11 under section 104 has been completed;

12 (B) a sacred sites protection agreement

13 pursuant to section 104(a)(3)(B) has been en14 tered into by the affected Indian tribe or tribes

15 or Native Hawaiian organization and the gov16 ernmental agency; or

17 (C) all parties entitled to such notice con18 sent to a shorter time period.

19 (2) During the notice and consultation periods

20 under section 103 and section 104, the governmental

21 agencies responsible for the covered Federal activity

22 may continue to engage in planning, studies, or

23 other preparatory matters provided that such activi24 ties do not constitute a commitment to proceed with

25 the proposed activity or project.
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1 (3) During the 90-day period following formal

2 notice to Indian tribes, Native Hawaiian organiza3 tions and Native American traditional leaders, the

4 governmental agency shall have the continuing duty

5 to seek to consult with Indian tribes, Native Hawai6 ian organizations and Native American traditional

7 leaders potentially affected by the proposed covered

8 Federal activity.

9 SEC. 104. CONSULTATION.

10 (a) IN GENERAL.—

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

12 full investigation of the consequences of a proposed

13 covered Federal activity, if an Indian tribe, Native

14 Hawaiian organization or Native American tradi15 tional leader responds in writing within 90 days of

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

17 within the time limit of any comment period per18 mitted or required by any Federal law which is ap19 plicable to the covered Federal activity, whichever is

20 later, the governmental agency shall immediately

21 discontinue such activity until the agency performs

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

23 (2) AFTER ACTION DISCOVERY.—If after a cov24 ered Federal activity is underway—
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1 (A) the governmental agency becomes

2 aware that the activity may have an adverse im3 pact on a Native American sacred site, the

4 agency engaged in the activity shall immediately

5 discontinue such activity until the agency per6 forms the duties set forth in paragraphs (3)

7 and (4); or

8 (B) an Indian tribe or Native Hawaiian or9 ganization that did not receive notice and did

10 not know of the covered Federal activity, be11 comes aware that the activity may have an ad12 verse impact on a Native American sacred site

13 and notifies the governmental agency, the agen14 cy engaged in the activity shall immediately dis15 continue such activity until the agency performs

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

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

18 agency shall consult with any interested party with

19 a direct interest in the Native American traditional

20 culture or religion in question concerning the nature

21 of the adverse impact, and consult about alternatives

22 which can be identified that would minimize or pre23 vent the adverse impact, including any alternatives

24 identified by an Indian tribe, Native Hawaiian orga-
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1 nization or Native American traditional leader that

2 has filed a written objection under this subsection.

3 (B) NEGOTIATED AGREEMENTS.—

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

5 tribes or Native Hawaiian organization, each

6 Federal agency or agencies involved in covered

7 Federal activities shall enter into negotiations

8 to identify appropriate land management proce9 dures for addressing that tribe’s or that Native

10 Hawaiian organization’s interest in the protec11 tion and preservation of its sacred sites and to

12 avoid any adverse impact on such sites as may

13 be located on public lands within the jurisdic14 tion of such agencies. Consistent with the public

15 mission of such agencies and the responsibility

16 of the United States to support Indian tribes

17 and tribal members and Native Hawaiians in

18 the preservation of their sacred sites, each Fed19 eral agency is authorized to enter into sacred

20 sites protection agreements with Indian tribes

21 or Native Hawaiian organizations for the pur22 pose of memorializing the land management

23 procedures that result from consultations and

24 negotiations. Such agreements may supersede

25 the planning provisions of section 103(c), the
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1 notice provisions of section 103(d), the con2 sultation provisions of section 103(d)(1) and

3 section 104, and the access provisions of section

4 102 of this Act as they relate to Indian tribes

5 or Native Hawaiian organizations that are par6 ties to such an agreement if the agreement spe7 cifically and explicitly includes a provision over8 riding those sections of the Act, or any parts

9 thereof. The agreements may also include provi10 sion for the delegation by Federal agency offi11 cials of land management responsibilities to the

12 Indian tribe(s) or Native Hawaiian

13 organization(s) for designated public lands de14 scribed in the agreement.

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

16 such a delegation of management functions is

17 included in such agreements, the Federal agen18 cy and the tribe may also agree to use the pro19 cedures and regulations employed under the In20 dian Self-Determination Act, Public Law 93–

21 638. The agreement may also address the appli22 cation of all or part of title I of this Act to In23 dian lands within the tribe’s jurisdiction.

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

25 resolution of the claims asserted by an aggrieved
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1 party pursuant to subsection (3), the governmental

2 agency shall prepare and make available to an In3 dian tribe, a Native Hawaiian organization or a Na4 tive American traditional leader who has been in5 volved in the consultation process, a document re6 sponding to the comments received. The document

7 shall—

8 (i) set forth the adverse impact which has

9 been asserted by the aggrieved party,

10 (ii) assess whether the interest of the gov11 ernment in proceeding with the action is com12 pelling; and

13 (iii) assess whether, based on an analysis

14 of the alternatives to the proposed action, in15 cluding any alternatives offered by an Indian

16 tribe, Native Hawaiian organization or Native

17 American traditional leader that the proposed

18 activity is the least restrictive means of further19 ing that compelling interest.

20 Where an agency determines to commence a covered

21 Federal activity, notwithstanding notice from an ag22 grieved party pursuant to section 104(a), it shall

23 issue a written opinion providing the basis for its de24 cision. The issuance of this decision shall constitute

25 final agency action for purposes of judicial review
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1 pursuant to section 501, unless the agency estab2 lishes additional administrative review procedures

3 under section 105.

4 (5) ADDITIONAL INFORMATION.—In any case

5 where the governmental agency is also required to

6 prepare a document analyzing the impact of a cov7 ered Federal activity or a decision pursuant to the

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

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

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

11 agency may incorporate the analysis required by this

12 section into the contents of the document.

13 (b) CASES WHERE SECRECY IS REQUIRED.—

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

15 tribes or Native Hawaiians whose traditional cul16 tural or religious tenets prohibit disclosure of infor17 mation concerning their Native American sacred

18 sites or cultural or religious beliefs or practices, and

19 mandate secrecy and internal sanctions to enforce

20 those prohibitions, and where the tribal government

21 of the affected Indian tribe or a Native Hawaiian or22 ganization so certifies and invokes this subsection—

23 (A) the tribal government or Native Ha24 waiian organization shall not be required to re25 veal the location of the Native American sacred
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1 site or in what manner the covered Federal ac2 tivity would have an adverse impact on the site

3 or any information concerning their cultural or

4 religious beliefs or practices;

5 (B) the tribal government or Native Ha6 waiian organization shall not be required to ex7 plain in what manner any proposed alternative

8 is or is not less intrusive upon the Native

9 American cultural or religious practice or sa10 cred sites which may be adversely impacted

11 than the original proposed covered Federal ac12 tivity; and

13 (C) in engaging in consultation and pre14 paring any document required by this Act, the

15 governmental agency shall not be required to

16 include an analysis of adverse impacts upon the

17 sacred site or the use thereof or the Indian

18 tribe’s or Native Hawaiian organization’s cul19 tural or religious beliefs and practices.

20 (2) AFTER CONSULTATION.—If after consulta21 tion—

22 (A) the governmental agency agrees to

23 pursue a less intrusive alternative proposed by

24 the Indian tribe or Native Hawaiian organiza25 tion or some other alternative to which the In-
34

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1 dian tribe or Native Hawaiian organization

2 agrees; or

3 (B) if no reasonable alternative acceptable

4 to the tribe or Native Hawaiian organization is

5 identified, the governmental agency shall be

6 deemed to have met its obligation under sec7 tions 104 and 105 to consider and pursue the

8 least intrusive alternative under this Act in re9 gard to the objection raised to the covered Fed10 eral activity by the Indian tribe or Native Ha11 waiian organization invoking this subsection.

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

13 no resolution of the claims asserted by a tribe

14 or Native Hawaiian organization pursuant to

15 this subsection, the governmental agency shall

16 prepare and make available to the tribe or Na17 tive Hawaiian organization a document re18 sponding to the comments received. The docu19 ment shall—

20 (i) set forth the adverse impact which

21 is asserted by the Indian tribe or Native

22 Hawaiian organization;

23 (ii) assess whether the interest of the

24 government in proceeding with the activity

25 is compelling;
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1 (iii) assess whether based on an anal2 ysis of the alternatives the activity is a rea3 sonable means of furthering that compel4 ling interest; and

5 (iv) assess whether the alternatives

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

7 Where an agency determines to commence a covered

8 Federal activity, notwithstanding notice from an ag9 grieved party pursuant to 104 (a) and (b) it shall

10 issue a written opinion providing the basis for its de11 cision. The issuance of this decision shall constitute

12 final agency action for purposes of judicial review

13 pursuant to section 501, unless the agency estab14 lishes additional administrative review procedures

15 under section 105.

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

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

18 shall control in all circumstances and shall supersede any

19 conflicting provisions in this Act or any other provision

20 of law.

21 (d) DISCLOSURE REQUIRED.—Within 30 days of re22 ceipt of any written objection under subsection (a) or (b),

23 the governmental agency proposing the covered Federal

24 activity which gave rise to that notice shall make available

25 to the aggrieved party, all plats, maps, plans, specifica-
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1 tions, socioeconomic, environmental, scientific, archae2 ological or historical studies, and comments and informa3 tion in that agency’s possession directly relating to said

4 activity. The agency may withhold—

5 (1) attorney work product prepared in anticipa6 tion of litigation; and

7 (2) information the release of which would jeop8 ardize the litigating position of the United States on

9 behalf of another tribe.

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

11 proposed covered Federal activity affecting the manage12 ment, use, or preservation of public land, or any other ac13 tivity or violation under this Act involving potential ad14 verse impacts on any of the Indian pueblos of New Mexico

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

16 an objection or participate in consultation under this sec17 tion, or file an action under section 105 or 501, shall be

18 the governor of the affected pueblo or the governor’s des19 ignee.

20 (f) EMERGENCY PROVISION.—The process required

21 by sections 103 and 104 shall not apply if the govern22 mental agency determines that adherence to the process

23 will—
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1 (1) have a direct, significant and negative im2 pact upon specific national security interests or the

3 implementation of the Endangered Species Act; or

4 (2) present an immediate threat of serious bod5 ily harm to any person or immediate and serious

6 harm to the environment.

7 SEC. 105. ADMINISTRATIVE PROCEDURES.

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

9 regulation, establish an administrative procedure to imple10 ment the requirements of this title.

11 (b) EXHAUSTION REQUIREMENT.—An aggrieved

12 party must use a procedure established under paragraph

13 (a) before filing an action in a Federal district court pur14 suant to section 501 of this Act.

15 (c) BURDEN ON AGENCY.—

16 (1) In the case of any administrative proceeding

17 in which an aggrieved Indian tribe or Native Hawai18 ian organization objects to the covered Federal activ19 ity or an action by a State on the grounds that it

20 is or will have an adverse impact on a Native Amer21 ican sacred site, the governmental agency shall have

22 the burden of proving by a preponderance of the evi23 dence that a covered Federal activity does not or will

24 not have an adverse impact on a Native American

25 sacred site.
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1 (2) The governmental agency’s determination

2 that a covered Federal activity does not pose or will

3 not have an adverse impact on a Native American

4 sacred site, shall constitute a final agency action for

5 purposes of judicial review under section 501 of this

6 Act.

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

8 that a covered Federal activity does pose or will have

9 an adverse impact on a Native American sacred site,

10 the governmental agency shall have the burden of

11 proving by a preponderance of the evidence that the

12 covered Federal activity—

13 (i) is in furtherance of a compelling gov14 ernmental interest;

15 (ii) is a reasonable means of furthering

16 that compelling governmental interest; and

17 (iii) in circumstances set forth in section

18 104(b)(1), the alternatives identified under sec19 tion 104(b)(2) are not reasonable.

20 (B) The agency determination under this para21 graph shall constitute final agency action for pur22 poses of judicial review under section 501 of this

23 Act.

24 (d) FAILURE OF AGENCY TO MEET BURDEN.—
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1 (1) The governmental agency shall retain its

2 burden of proof at all stages of any proceeding or

3 decisionmaking process pursuant to this title.

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

5 burden of proof under this section, it shall not pro6 ceed with the proposed covered Federal activity.

7 (3) For purposes of this section the phrase

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

9 and the burden of persuasion.

10 (e) For purposes of this section—

11 (1) a finding of an adverse impact does not re12 quire that an aggrieved party be coerced to act con13 trary to religious beliefs or traditional cultural prac14 tices, and may include consideration of disturbing

15 the integrity of a sacred site;

16 (2) land management activities, undertakings

17 and actions which have the potential to have an ad18 verse impact on a Native American sacred site, or

19 which make a Native American traditional cultural

20 practice or exercise of a Native American religion

21 more difficult shall be deemed to constitute an ad22 verse impact; and

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

24 does not establish a compelling government interest.
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1 (f) SPECIAL RULE FOR NATIVE AMERICAN PRACTI2 TIONERS.—For purposes of any administrative proceeding

3 conducted under this section, Native American practition4 ers may elect to provide testimony about their beliefs in

5 camera or in some other protective procedure.

6 SEC. 106. NATIVE AMERICAN SACRED SITES ON INDIAN

7 LANDS.

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

9 regulate and protect Native American sacred sites located

10 on Indian lands within their jurisdiction. Nothing in this

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

12 existence or scope of tribal jurisdiction or the application

13 of tribal law regarding protection of or access to Native

14 American sacred sites on Indian lands. Nothing in this

15 Act shall be construed to grant authority to one Indian

16 tribe to regulate Native American sacred sites which are

17 within the jurisdiction of another Indian tribe.

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

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

20 with jurisdiction over those lands affirmatively elects to

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

22 affected or potentially affected. Where an Indian tribe

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

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

25 of the Interior regarding the lands to be subject to the
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1 provisions of title I and the Secretary shall publish the

2 information in the Federal Register.

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

4 a governmental agency of any duty pursuant to section

5 103 to notify an Indian tribe of a covered Federal activity

6 on Indian lands which may result in changes in the char7 acter or use of a Native American sacred site.

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

9 section shall not apply if the President determines that

10 national security concerns are directly affected by a cov11 ered Federal activity.

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

13 (1) When a governmental agency proposes a

14 covered Federal activity on Indian lands of one In15 dian tribe which may result in changes in the char16 acter or use of a Native American sacred site of an17 other Indian tribe, and the Indian tribe whose sa18 cred site is affected and the Indian tribe on whose

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

20 Secretary of the Interior shall convene a committee

21 of tribal representatives for the purpose of entering

22 into negotiations concerning the nature of any ad23 verse impact on the character or use of a Native

24 American sacred site and alternatives that would

25 minimize or prevent such an adverse impact.
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1 (2) The committee shall consist of tribal rep2 resentatives of the affected Indian tribe or tribes

3 and tribal representatives of the Indian tribe upon

4 whose lands the sacred site is located, and commit5 tee members shall be selected by the respective In6 dian tribes.

7 (3) The committee shall be convened for the du8 ration of the consultation and negotiation period and

9 shall meet at the call of the Secretary upon the re10 quest of the affected Indian tribe or tribes and the

11 Indian tribe upon whose lands the sacred site is

12 located.

13 SEC. 107. APPLICATION OF OTHER LAWS.

14 (a) IN GENERAL.—Nothing in this title shall be con15 strued to deprive any person or entity of any other rights

16 which might be provided under the laws, regulations,

17 guidelines, or policies of the Federal, State, and tribal gov18 ernments, including but not limited to the National His19 toric Preservation Act (16 U.S.C. 470 et seq.), to receive

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

21 decisionmaking process regarding a covered Federal

22 activity.

23 (b) EXISTING PROCEDURES.—To the maximum ex24 tent possible, the procedures required by this Act shall be

25 incorporated into existing procedures applicable to the
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1 management of Federal lands and decisionmaking proc2 esses of Federal agencies engaged in covered Federal

3 activities.

4 SEC. 108. CONFIDENTIALITY.

5 (a) IN GENERAL.—Notwithstanding any other provi6 sion of law, whenever information has been obtained as

7 a result of or in connection with a proceeding pursuant

8 to sections 105 or 501 or consultation pursuant to sections

9 103 and 104, all references pertaining to specific details

10 of a Native American traditional cultural practice or reli11 gion, or the significance of a Native American sacred site,

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

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

14 general public pursuant to the Freedom of Information

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

16 (b) SUPPLEMENTATION OF RECORD.—The govern17 mental agency or court shall supplement the record de18 scribed in subsection (a) to include the general results and

19 conclusions of the administrative proceeding pursuant to

20 section 105 or judicial review process pursuant to section

21 501 to the extent necessary to provide other interested

22 parties with sufficient information to understand the na23 ture of, and basis for, a decision by the governmental

24 agency or court.
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1 (c) EXCEPTION.—This section shall not apply where

2 all parties to a proceeding (excluding the United States

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

4 Native Hawaiian sacred site, where the information is

5 sought by a Native Hawaiian organization for the purpose

6 of protecting such site.

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

8 organizations seeking to maintain the confidentiality of in9 formation relating to Native American sacred sites may

10 also seek redress through existing laws requiring that cer11 tain information be withheld from the public, including,

12 but not limited to the National Historic Preservation Act

13 (16 U.S.C. 470w–3) and the Archaeological Resources

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

15 SEC. 109. CRIMINAL SANCTIONS.

16 (a) DAMAGING SACRED SITES.—

17 (1) INITIAL VIOLATION.—Any person who in18 tentionally damages, defaces, desecrates or destroys

19 a Native American sacred site located on land as de20 fined in section 3(10) of this Act with knowledge

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

22 covered Federal activity authorized by a govern23 mental agency with the authority to approve such

24 activity, shall, upon conviction, be fined not more
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1 than $10,000, or imprisoned not more than 1 year,

2 or both.

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

4 a second or subsequent violation, a person shall be

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

6 more than 5 years, or both.

7 (b) RELEASE OF INFORMATION.—

8 (1) INITIAL VIOLATION.—Any person who in9 tentionally releases any information knowing that it

10 is required to be held confidential pursuant to this

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

12 $10,000, or imprisoned not more than 1 year, or

13 both.

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

15 a second or subsequent violation, be fined not more

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

17 years, or both.

18 TITLE II—TRADITIONAL USE OF

19 PEYOTE

20 SEC. 201. FINDINGS.

21 The Congress finds that—

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

23 Native American Church, have used the peyote cac24 tus in religious ceremonies for sacramental and heal25 ing purposes for many generations, and such uses
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1 have been significant in perpetuating Indian tribes

2 and cultures by promoting and strengthening the

3 unique cultural cohesiveness of Indian tribes;

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

5 peyote by Indians in bona fide religious ceremonies

6 of the Native American Church has been protected

7 by Federal regulation, which exempts such use from

8 Federal laws governing controlled substances, and

9 the Drug Enforcement Administration has mani10 fested its continuing support of this Federal regu11 latory system;

12 (3) the State of Texas encompasses virtually

13 the sole area in the United States in which peyote

14 grows, and for many years has administered an ef15 fective regulatory system which limits the distribu16 tion of peyote to Indians for ceremonial purposes;

17 (4) while 28 States have enacted laws which

18 protect the ceremonial use of peyote by Indians, 22

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

20 laws, Indians from different tribes located in dif21 ferent States, as well as from different tribes within

22 the same State, are treated differently regarding the

23 religious use of peyote. Legislation is therefore need24 ed to assure comprehensive, equal and uniform pro25 tection of the religious use of peyote by Indians
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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;
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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—
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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
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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—
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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
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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-
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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
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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

24 shall not bar application of the Act to new phases of exist25 ing projects.
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the ‘‘Na3 tive American Cultural Protection and Free Exercise of Re4 ligion Act of 1994’’.

5 (b) TABLE OF CONTENTS.—The table of contents for

6 this Act is as follows:

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. Access to Federal lands.

Sec. 103. Federal land management, identification of lands, planning and notice.

Sec. 104. Consultation.

Sec. 105. Administrative procedures.

Sec. 106. Native American sacred sites on Indian lands.

Sec. 107. Applicability of other laws.

Sec. 108. Confidentiality.

Sec. 109. Criminal sanctions.

TITLE II—PRISONERS’ RIGHTS

Sec. 201. Rights.

TITLE III—RELIGIOUS USE OF EAGLES AND OTHER ANIMALS AND

PLANTS

Sec. 301. Religious use of eagles.

Sec. 302. Other animals and plants.

TITLE IV—JURISDICTION AND REMEDIES

Sec. 401. Jurisdiction and remedies.

TITLE V—MISCELLANEOUS

Sec. 501. Statutory construction.

Sec. 502. Severability.

Sec. 503. Authorization of appropriations.

Sec. 504. Regulations.

Sec. 505. Protections.

Sec. 506. Applicability of Federal Advisory Committee Act.

Sec. 507. Effective date.
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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 and

6 preserve the cultural patrimony of Native Americans and

7 the inherent right of any Native American to believe, ex8 press, exercise and practice his or her traditional culture

9 and religion, including, but not limited to, access to Native

10 American sacred sites, use and possession of sacred objects,

11 and the freedom to worship through traditional ceremonies

12 and traditional rites.

13 SEC. 3. DEFINITIONS.

14 For the purposes of this Act:

15 (1) ADVERSE IMPACT.—The term ‘‘adverse im16 pact’’ means any action or any potential action

17 which has the effect or which will have the effect of—

18 (A) substantially altering or disturbing a

19 Native American sacred site;

20 (B) desecrating or destroying a Native

21 American sacred site;

22 (C) inhibiting, infringing upon, or interfer23 ing with Native American traditional cultural

24 ceremonies or rituals conducted at a Native

25 American sacred site; or
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1 (D) imposing a substantial burden upon the

2 free exercise of a Native American religion.

3 (2) AGGRIEVED PARTY.—The term ‘‘aggrieved

4 party’’ means any Indian tribe, Native American

5 practitioner, Native American traditional leader, or

6 Native Hawaiian organization, as defined by this

7 Act, to whom the provisions of this Act apply, who al8 leges a potential adverse impact on a Native Amer9 ican sacred site or the traditional cultural and reli10 gious practices associated with a Native American sa11 cred site or alleges a violation of rights protected by

12 this Act.

13 (3) CONSULTATION.—The term ‘‘consultation’’

14 means, at a minimum, agency-initiated outreach ac15 tivities which will result in a meaningful process for

16 face-to-face deliberations and conferral with all In17 dian tribes, Native Hawaiian organizations, and Na18 tive American traditional leaders that should be con19 sulted with respect to the provisions of this Act and

20 which is conducted in a realistic manner that is cog21 nizant of the cultural values, socioeconomic factors,

22 and administrative structures, if any, of the Indian

23 tribes or Native Hawaiian organizations with an in24 terest in the land in question.
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1 (4) COVERED FEDERAL ACTIVITY.—The term

2 ‘‘covered Federal activity’’ means—

3 (A) any new or reauthorized project, pro4 gram, or activity, or any new phase of existing

5 projects, programs and activities, under the di6 rect or indirect jurisdiction of a Federal agency,

7 including but not limited to—

8 (i) those carried out by or on behalf of

9 the agency, on Federal or State lands;

10 (ii) those activities on Federal or State

11 lands, requiring a Federal permit, license or

12 approval;

13 (iii) those taking place on Federal or

14 State lands, subject to State regulation pur15 suant to a delegation or approval by a Fed16 eral agency;

17 (iv) those carried out with more than

18 de minimis Federal financial assistance;

19 (v) renewals, reauthorizations, relicens20 ing, and similar decisions involving activi21 ties enumerated in this subsection;

22 (vi) regular and cyclical reviews of

23 land management plans by agencies involv24 ing activities covered by this section;
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1 (vii) programs and projects funded by

2 Federal highway funds;

3 (viii) activities subject to licensing by

4 the Federal Energy Regulatory Commission,

5 or the Nuclear Regulatory Commission;

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

7 nuclear or transuranic waste or toxic waste

8 disposal, and disposal facilities, and the

9 disposal of such materials; or

10 (x) in the absence of a tribal law which

11 provides for the free exercise of religion,

12 those activities that would not be covered

13 Federal activities by virtue of section

14 3(4)(B)(i);

15 (B) The term ‘‘covered Federal activity’’

16 does not include—

17 (i) in any case in which a tribal law

18 which provides for the free exercise of reli19 gion is in effect, regulations, projects, ac20 tivities, or programs operated, approved, or

21 sponsored by Indian tribes, including, but

22 not limited to, those projects, activities, or

23 programs which are funded in whole or in

24 part by Federal funds pursuant to a con25 tract, compact, grant or agreement, or
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1 which require Federal permits, licenses or

2 approvals;

3 (ii) ongoing and continuing activities

4 underway prior to the date of enactment of

5 this Act, or activities for which a final com6 mitment has been made prior to the date of

7 enactment of this Act and with respect to

8 which substantial funds have been spent or

9 implementation is substantially underway;

10 (iii) routine activities that an agency

11 determines, through negotiations with In12 dian tribes or Native Hawaiian organiza13 tions, to be unlikely to affect Native Amer14 ican sacred sites or traditional cultural

15 practices associated with such sites, and

16 maintenance activities involving structures

17 or projects, existing at the time of the enact18 ment of this Act or later constructed in

19 compliance with this Act, which do not

20 change the size or scale or the existing use

21 of those projects or structures;

22 (iv) activity on State or Indian land

23 with de minimis Federal funding and no

24 other Federal role;
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1 (v) any actions on private or Indian

2 lands, other than those enumerated in

3 clauses (vii), (viii), and (ix) of this sub4 paragraph; or

5 (vi) direct Federal loans and Federal

6 loan guarantees to private entities or Fed7 eral loan guarantees to an Indian tribe.

8 (5) FEDERAL AGENCY.—The term ‘‘Federal agen9 cy’’ means any department, agency, or instrumental10 ity of the United States Government.

11 (6) GOVERNMENTAL AGENCY.—The term ‘‘gov12 ernmental agency’’ means any agency, department, or

13 instrumentality of—

14 (A) the United States; or

15 (B) a State, in the case of a covered Federal

16 activity described in paragraph (4)(A)(iii).

17 Such term does not include an agency, department, or

18 instrumentality of an Indian tribe.

19 (7) INDIAN.—The term ‘‘Indian’’ means an indi20 vidual who is a member of an Indian tribe, an Alas21 ka Native, or an individual who meets the require22 ments for eligibility under section 809(b) of the In23 dian Health Care Improvement Act (25 U.S.C.

24 1679(b)), except that an Indian community shall not

25 be required to be served by a local program of the In-
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1 dian Health Service in order to qualify as an Indian

2 community for purposes of this definition.

3 (8) INDIAN LANDS.—The term ‘‘Indian lands’’

4 means—

5 (A) all lands within the limits of any In6 dian reservation notwithstanding the issuance of

7 any patent;

8 (B) public domain Indian allotments;

9 (C) other lands with respect to which title

10 is either—

11 (i) held in trust by the United States

12 for the benefit of any Indian tribe or indi13 vidual; or

14 (ii) held by any Indian tribe or indi15 vidual subject to restriction by the United

16 States against alienation;

17 (D) all dependent Indian communities; and

18 (E) all fee lands owned by an Indian tribe.

19 (9) INDIAN TRIBE.—The term ‘‘Indian tribe’’

20 means any tribe, band, nation, pueblo, or other orga21 nized group or community of Indians, including any

22 Alaska Native village (as defined in, or established

23 pursuant to, the Alaska Native Claims Settlement Act

24 (43 U.S.C. 1601 et seq.)), which is recognized as eligi25 ble for the special programs and services provided by
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1 the United States to Indians because of their status

2 as Indians.

3 (10) LAND.—The terms ‘‘land’’ or ‘‘lands’’ mean

4 surface and subsurface land within the jurisdiction of

5 the United States or the respective States, including

6 submerged land of any kind or interest therein, and

7 all water and waterways occupying, adjacent to, or

8 running through the land.

9 (11) NATIVE AMERICAN.—With respect to the cul10 tural protections provided under this Act, the term

11 ‘‘Native American’’ means any Indian or Native Ha12 waiian.

13 (12) NATIVE AMERICAN PRACTITIONER.—With

14 respect to the cultural protections provided under this

15 Act, the term ‘‘Native American practitioner’’ means

16 any Native American who practices a Native Amer17 ican religion as part of a Native American tradi18 tional culture.

19 (13) NATIVE AMERICAN RELIGION.—With respect

20 to the cultural protections provided under this Act,

21 the term ‘‘Native American religion’’ means any tra22 ditional religion which is practiced by Native Ameri23 cans, the origin and interpretation of which is deeply

24 embedded or rooted in a Native American traditional

25 culture.
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1 (14) NATIVE AMERICAN SACRED SITE.—With re2 spect to the cultural protections provided under this

3 Act, the term ‘‘Native American Sacred Site’’ means

4 any natural or manmade feature or geographical area

5 which is sacred by virtue of—

6 (A) the traditional religious or cultural

7 practices associated with the feature or geo8 graphical area; and

9 (B) its significance to a Native American

10 religion or traditional cultural or ceremonial

11 practice, including a requirement that a natural

12 substance or product for use in Native American

13 traditional ceremonies be gathered from that

14 particular location.

15 (15) NATIVE AMERICAN TRADITIONAL CUL16 TURE.—The term ‘‘Native American traditional cul17 ture’’ means the traditional cultural patrimony asso18 ciated with the traditional cultural practices, cus19 toms, belief systems, lifeways, ceremonies, and rituals,

20 including religious practices and beliefs, that are in21 tegral to and unique aspects of Native American cul22 tural traditions and heritage.

23 (16) NATIVE AMERICAN TRADITIONAL LEADER.—

24 With respect to the cultural protections provided

25 under this Act, the term ‘‘Native American tradi-
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1 tional leader’’ means any Native American practi2 tioner who is recognized by an Indian tribe or tradi3 tional tribal community or Native Hawaiian commu4 nity—

5 (A) as being responsible for performing du6 ties relating to the cultural traditions, including

7 religious traditions of the tribe or traditional

8 tribal community or Native Hawaiian commu9 nity; or

10 (B) as having a leadership role in an In11 dian tribe or traditional tribal community or

12 Native Hawaiian community based upon the

13 traditional cultural or ceremonial practices of

14 the community.

15 (17) NATIVE HAWAIIAN.—With respect to the cul16 tural protections provided under this Act, the term

17 ‘‘Native Hawaiian’’ means any individual who—

18 (A) is a descendant of the aboriginal Poly19 nesian people who occupied and exercised sov20 ereignty and self-determination in the area that

21 now comprises the State of Hawaii; and

22 (B) is recognized as eligible for the special

23 programs and services provided by the United

24 States to Native Hawaiians because of their sta25 tus as Native Hawaiians or Native Americans.
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1 (18) NATIVE HAWAIIAN ORGANIZATION.—With

2 respect to the cultural protections provided under this

3 Act, the term ‘‘Native Hawaiian organization’’ means

4 any organization which is composed of Native Ha5 waiians, and serves and represents the traditional

6 cultural interests of Native Hawaiians and whose

7 members—

8 (A) practice a Native American culture, in9 cluding a Native American religion, or conduct

10 traditional ceremonial rituals;

11 (B) utilize, preserve, and protect Native

12 American sacred sites; and

13 (C) include kumu (source, foundation) who

14 are Native Hawaiian, fluent in the Hawaiian

15 language, and are trained in traditional cultural

16 beliefs and practices.

17 (19) PUBLIC LAND.—The term ‘‘public land’’

18 means any land, as defined in paragraph (10), which

19 is owned by the United States, or the respective

20 States, or political subdivisions thereof. Such term

21 does not include Indian lands as defined in para22 graph (8).

23 (20) STATE.—The term ‘‘State’’ means any

24 State of the United States, any political subdivision

25 thereof, and the District of Columbia.
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1 TITLE I—PROTECTION OF NA2 TIVE AMERICAN SACRED

3 SITES

4 SEC. 101. FINDINGS.

5 The Congress finds the following:

6 (1) The Congress has the authority to enact laws

7 to assure the protection and preservation of Native

8 American traditional cultures, including the free exer9 cise of Native American religions, based upon treaties

10 with the Indian nations, the United States special

11 trust relationship, and pursuant to section 8, article

12 I, of the Constitution and the 1st, 5th, and 14th

13 amendments to the Constitution.

14 (2) Clause 3 of section 8 of article I of the Con15 stitution vests the Congress with authority to ‘‘regu16 late commerce with foreign nations, and among the

17 several States, and with the Indian tribes’’. As ana18 lyzed by the renowned scholar Felix S. Cohen in the

19 Handbook for Federal Indian Law, that clause ‘‘com20 prehends transactions with individual tribal Indians

21 as well as with tribes, . . .’’ (Ch. 3. sec. A, page 208)

22 just as ‘‘Commerce with foreign nations, without

23 doubt, means commerce between citizens of the United

24 States and citizens or subjects of foreign governments

25 as individuals.’’ Cohen’s analysis concludes: ‘‘And so
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1 commerce with the Indian tribes, means commerce

2 with the individuals composing those tribes.’’ (Ch. 3.

3 sec. B, note 11, page 213).

4 (3) In Missouri v. Holland, 252 U.S. 416 (1920),

5 the Supreme Court found that the treaty-making

6 power of the United States provides the Congress with

7 the authority to enact statutes which endorse and

8 carry out the purposes of negotiated treaties and

9 agreements.

10 (4) The Congress has the authority to enact a

11 law which is consistent with—

12 (A) the policy established in the Act com13 monly known as the ‘‘Taos Blue Lake Act’’ (Pub14 lic Law 91–550); the American Indian Religious

15 Freedom Act (42 U.S.C. 1996); the Act com16 monly known as the ‘‘Zuni Heaven Act’’ (Public

17 Law 98–401); the National Museum of the Amer18 ican Indian Act (20 U.S.C. 80q et seq.); the Na19 tive American Graves Protection and Repatri20 ation Act (Public Law 101–601); the National

21 Historic Preservation Act (16 U.S.C. 470 et

22 seq.); and the Religious Freedom Restoration Act

23 of 1993 (42 U.S.C. 2000bb et seq.);

24 (B) rulings of Federal courts (including

25 Washington v. Fishing Vessel Association, 443
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1 U.S. 658 (1979), Lac Courte Oreilles v. Voigt,

2 700 F.2d 341 (7th Cir.) 1983, cert. denied, 464

3 U.S. 805 (1983), United States v. Michigan, 653

4 F.2d 277 (6th Cir.) 1981)); and

5 (C) Executive orders (including Executive

6 Order No. 11670, which was issued on May 20,

7 1972, and which provides for the return of cer8 tain lands to the Yakima Indian Reservation).

9 (5) From the earliest times of contact with the

10 native peoples of the United States, European settlers

11 ascribed their concepts of ‘‘religion’’ and ‘‘religious

12 beliefs’’ to the traditional cultural and religious be13 liefs and practices of the native peoples and, notwith14 standing the subsequently adopted prohibitions of the

15 1st amendment to the Constitution, the Federal Gov16 ernment sought to suppress and did suppress the free

17 exercise by native peoples of their traditional ways.

18 (6) The policy of the United States toward, and

19 treatment of, the traditional cultural practices of na20 tive peoples is unique in the history of the United

21 States. The following activities of the Federal Govern22 ment are part of such history:

23 (A) The Federal Government appropriated

24 funds that were allocated to religious groups so
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1 that they might ‘‘civilize’’ and ‘‘christianize’’ the

2 native peoples.

3 (B) The Federal Government authorized its

4 military forces and courts to prevent the exercise

5 of traditional cultural practices by the native

6 peoples, by means of incarceration, starvation,

7 and even murder of those who engaged in tradi8 tional ceremonial practices and rituals, includ9 ing such manifestations of traditional cultural

10 beliefs as the Ghost Dance, and specifically out11 lawed the Sun Dance ‘‘and all other similar

12 dances and so-called religious ceremonies,’’ as

13 well as the use by spiritual leaders of ‘‘any of the

14 arts of a conjurer to prevent the Indians from

15 abandoning their heathenish rites and customs’’

16 (as stated in section 584 of the regulations of the

17 Indian Office, Code of Indian Offenses, U.S.

18 Dept. of the Interior, Code of 1894; reissued in

19 1904) and more recently issued prohibitions on

20 the manifestation of Indian cultural practices

21 (Commissioner Circular No. 1665, Indian Danc22 ing, Office of Indian Affairs, U.S. Dept. of the

23 Interior, April 26, 1921; Supplement to Commis24 sioner Circular No. 1665, February 14, 1923;
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1 Letter Supplement to Commissioner Circular No.

2 1665, February 24, 1923).

3 (C) Federal and federally funded denomina4 tional schools were established and Native chil5 dren were removed from their families and co6 erced to attend government and denominational

7 schools in the ongoing effort to ‘‘civilize’’ the na8 tive peoples.

9 (D) Federal laws (including regulations)

10 prohibited native peoples not only from practic11 ing their traditional cultures, but also from

12 speaking their native languages, or wearing their

13 hair in a manner consistent with traditional

14 cultural beliefs, and Native students were sub15 jected to corporal punishment in the government

16 and denominational schools, and expelled from

17 the public schools, for failing to conform with

18 such laws.

19 (E) The Federal Government instituted a

20 policy of forced removal of the native peoples

21 from their traditional homelands, and did not

22 allow Indians ‘‘to roam away from their reserva23 tions’’ or ‘‘to trespass upon the public domain,’’

24 precluding the access of native peoples to most of
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1 those sites which were central to the exercise of

2 their cultures, and therefore sacred to them.

3 (F) The Federal Government required and

4 encouraged the disestablishment of most of the

5 traditional tribal theocratic governments, and

6 instead instituted secular tribal governance sys7 tems. The laws such governance systems were en8 couraged to adopt either do not or cannot ad9 dress matters of traditional cultural practices or

10 religious exercise.

11 (G) The strong policies and practices of the

12 Federal Government that discouraged and pro13 hibited the manifestation of traditional cultural

14 practices and religious exercise by Native Ameri15 cans forced many Native American cultural and

16 religious leaders and practitioners to conduct

17 their worship activities in secret, and added a

18 now century-old layer of secrecy requirements to

19 ancient tenets and practices requiring that cer20 tain ceremonies and activities not be publicly re21 vealed.

22 (H) As of the date of enactment of this Act,

23 some of the sites that continue to be central to

24 the traditional cultural practices of native peo25 ples because they are essential and integral to
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1 their belief systems and lifeways are located on

2 the public and Federal lands that once con3 stituted the traditional homelands of the native

4 peoples and many of these sites have been or are

5 in danger of being damaged, destroyed, or dese6 crated.

7 (I) Efforts by governmental agencies to ac8 commodate the access of native peoples to the cul9 turally significant sites described in subpara10 graph (H), and to protect the sites, are not guid11 ed by any clearly defined Federal standards that

12 would enable the Federal Government to address

13 affirmatively a long and pervasive pattern of

14 discrimination against Native Americans in the

15 free exercise of their culture and religion in the

16 context of the contemporary management respon17 sibilities for public lands of the Federal Govern18 ment.

19 (7) The traditional cultural and religious prac20 tices of Native Americans are integral and insepa21 rable parts of their lifeways, traditions, and cultural

22 heritages, upon which the vitality of Native American

23 communities depends.

24 (8) The United States has a responsibility to

25 remedy a historical and pervasive pattern of dis-
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1 crimination against the manifestation of the tradi2 tional cultural practices of native peoples.

3 (9) As part of the historical Federal-Indian trust

4 and treaty relationship, it is the intent of the United

5 States to pursue enforceable Federal policies that—

6 (A) will protect the vitality and cultural in7 tegrity of Native American communities; and

8 (B) will not—

9 (i) inhibit, interfere with, or infringe

10 upon, Native American traditional cultural

11 practices associated with Native American

12 sacred sites; or

13 (ii) impose a substantial burden on the

14 free exercise of Native American religions.

15 (10) Native American traditional cultures and

16 religions existed long before the establishment of the

17 United States. There is not just one Native American

18 traditional culture or just one Native American reli19 gion, but rather these cultures and religions are di20 verse and vary significantly among groups of Native

21 Americans.

22 (11) Native American sacred sites located on

23 public lands are few in number, and the assurance of

24 a right of access to those sites by Native Americans

25 and the protection of Native American sacred sites
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1 and the cultural and religious practices associated

2 with such sites will not burden other uses of public

3 lands.

4 (12) The United States has a unique, govern5 ment-to-government relationship with Indian tribes

6 and a special historic trust relationship which per7 mits the United States to take measures to protect

8 against interference with the continuing cultural co9 hesiveness and integrity of Indian tribes and Native

10 American traditional cultures.

11 (13) Many Native American traditional cultures,

12 including Native American religions, hold certain

13 lands or natural formations in the United States to

14 be sacred, and in order for those sites to be in a con15 dition appropriate for cultural use, including reli16 gious or ceremonial use, the physical environment,

17 water, plants, and animals associated with those sites

18 must be protected.

19 (14) Such Native American sacred sites are an

20 integral and vital part of, and inextricably inter21 twined with, many Native American traditional cul22 tures, including Native American religions, and the

23 practices associated with such traditional cultures.

24 (15) The traditional use and gathering, harvest25 ing, or maintaining of natural substances, natural
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1 products, and wildlife for cultural purposes, including

2 religious and ceremonial purposes, are an integral

3 and vital part of, and are inextricably intertwined

4 with, many Native American traditional cultures, in5 cluding Native American religions.

6 (16) Governmental land use decisions have the

7 potential to have an adverse impact on Native Amer8 ican traditional cultural practices, including Native

9 American religions, associated with Native American

10 sacred sites.

11 (17) Many Native American traditional cultural

12 practices, including religious and ceremonial prac13 tices, require a measure of privacy and isolation; and

14 certain traditional cultural ceremonies and activities

15 cannot be performed if nonparticipants can observe

16 the practices or ceremonies or activities, even from a

17 distance. In some situations the lack of privacy or

18 isolation inhibits, infringes upon, interferes with, or

19 precludes certain Native American traditional cul20 tural practices, including traditional religious prac21 tices, associated with Native American sacred sites.

22 (18) Because some Indian tribes, such as the

23 Pueblos of New Mexico, and some Native Hawaiian

24 cultures have traditional cultural and religious tenets

25 which prohibit the disclosure of information concern-
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1 ing their sacred sites and their traditional beliefs and

2 practices mandate secrecy, and impose internal sanc3 tions to enforce such prohibitions, it is impossible for

4 such tribes and Native Hawaiians to identify the

5 manner in which any particular governmental activ6 ity would have an adverse impact on their traditional

7 cultures or impose a burden on the free exercise of

8 their religions.

9 (19) The lack of sensitivity to, or understanding

10 of, Native American traditional cultures, including

11 Native American religions, has resulted in the absence

12 of a coherent policy of the Federal Government for the

13 protection of Native American sacred sites and the

14 failure to consider the impacts of Federal activities

15 upon Native American sacred sites.

16 (20) The Supreme Court, in Lyng v. Northwest

17 Indian Cemetery Protective Association (485 U.S.

18 439 (1988)), ruled that the free exercise clause of the

19 1st amendment does not restrict the management by

20 the Federal Government of Federal lands, even if cer21 tain governmental actions would infringe upon or de22 stroy the ability to practice religion, if the action by

23 the Federal Government does not compel individuals

24 to act in a manner which is contrary to their reli25 gious beliefs.
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1 (21) The holding of the Supreme Court described

2 in paragraph (20) creates a chilling and discrimina3 tory effect on Native American traditional cultures

4 and on the free exercise of Native American religions.

5 (22) The Congress has enacted numerous laws

6 which regulate and restrict the discretion of Federal

7 agencies for the sake of environmental, historical, eco8 nomic, and cultural concerns, but has not enacted a

9 judicially enforceable law comparably restricting the

10 discretion of Federal agencies for the general protec11 tion of Native American sacred sites and the Native

12 American traditional cultural and religious practices

13 associated with Native American sacred sites.

14 (23) The lack of a judicially enforceable Federal

15 law and of a coherent Federal policy to accommodate

16 Native American traditional cultural and religious

17 practices associated with Native American sacred

18 sites has resulted in unique and adverse impacts on

19 Native American traditional cultures, that burden the

20 free exercise of Native American religions and impair

21 the vitality of Indian tribes, traditional tribal com22 munities, and Native Hawaiian communities.

23 SEC. 102. ACCESS TO FEDERAL LANDS.

24 (a) IN GENERAL.—Native American practitioners

25 shall be permitted access to public lands for Native Amer-
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1 ican traditional cultural, ceremonial, or religious purposes

2 or practices associated with a Native American sacred site,

3 including access to gather, harvest, or maintain natural

4 substances or natural products for Native American tradi5 tional cultural purposes.

6 (b) MEASURES.—

7 (1) IN GENERAL.—Federal agencies may take

8 reasonable and narrowly tailored measures to ensure

9 that access to and the use of lands pursuant to this

10 Act do not—

11 (A) have a direct, significant, and negative

12 impact upon specific national security interests

13 or the implementation of the Endangered Species

14 Act of 1973;

15 (B) significantly impair ecosystems or wild16 life or habitats; or

17 (C) present an immediate threat of serious

18 bodily harm to any person or immediate and se19 rious harm to the environment.

20 (2) FEASIBLE MEANS.—In any case in which

21 feasible means are available for avoiding the impacts

22 described in paragraph (1), the Federal agency shall

23 ensure that such means are utilized before restricting

24 access to the lands.
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1 (c) CONSULTATION.—In any case in which consulta2 tion is practicable, the appropriate official of a Federal

3 agency shall, in carrying out any measure described in sub4 section (b), consult with the following persons, as follows:

5 (1) The appropriate official shall consult with

6 those persons who seek access to public lands for the

7 purposes enumerated in subsection (a) and enter into

8 memoranda of agreement to provide for the terms of

9 access to public lands. Terms of access may be in10 cluded in a memorandum of agreement pursuant to

11 section 104(a)(3)(B).

12 (2) The appropriate official shall consult with

13 any lessee or other legitimate occupant of public lands

14 who may be affected by the terms of access sought

15 pursuant to subsection (a). Nothing in this section

16 shall require a lessee or legitimate occupant of public

17 lands to vacate such lands if the terms of access

18 agreed to pursuant to this section do not require such

19 action.

20 (d) LIMITATIONS AGAINST VEHICLES.—Subsection (a)

21 does not authorize the use of motorized vehicles or other

22 forms of mechanized transport in roadless areas where such

23 use is prohibited by law.

24 (e) TEMPORARY PROTECTIVE MEASURES.—Upon the

25 request of an Indian tribe, a Native Hawaiian organiza-
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1 tion, or a Native American traditional leader, the Secretary

2 of the department with jurisdiction over the land involved,

3 or a local land manager who has been delegated authority

4 to carry out this subsection, may from time to time tempo5 rarily close to the general public use of one or more specific

6 portions of public lands and may take such other reasonable

7 and temporary measures as are necessary to protect the pri8 vacy of traditional cultural, ceremonial or religious activi9 ties by Native Americans associated with a Native Amer10 ican sacred site located in such areas. Any measures taken

11 pursuant to the preceding sentence shall be taken in such

12 manner as to affect the smallest practicable area for the

13 minimum period necessary for such purposes.

14 SEC. 103. FEDERAL LAND MANAGEMENT, IDENTIFICATION

15 OF LANDS, PLANNING AND NOTICE.

16 (a) IN GENERAL.—Each Federal agency shall manage

17 any lands under the jurisdiction of the Federal agency in

18 a manner that complies with this Act.

19 (b) IDENTIFICATION OF LANDS BY SECRETARY.—

20 (1) IN GENERAL.—(A) For the purpose of ensur21 ing that a governmental agency properly determines

22 whether a proposed covered Federal activity will have

23 an adverse impact on a Native American sacred site

24 and which affected parties should be provided notice

25 of a proposed activity, the head of each land manag-
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1 ing agency, in conjunction with the Secretary of the

2 Interior, tribal governments, and Native Hawaiian

3 organizations, shall identify land areas with respect

4 to which a tribe or Native Hawaiians have aborigi5 nal, historic, cultural or religious ties.

6 (B) For purposes of this section, not later than

7 90 days after the date of enactment of this Act, Native

8 Hawaiian organizations shall notify the Secretary of

9 the desire of such organizations to receive notice of

10 proposed covered Federal activities.

11 (2) NOTIFICATION.—(A) As part of the obliga12 tions of the Federal Government under this section,

13 not later than 90 days after the date of enactment of

14 this Act, the Secretary of the Interior shall notify, in

15 writing, all Indian tribes and Native Hawaiian orga16 nizations to request a broad geographic description of

17 the lands of each such Indian tribe or Native Hawai18 ian organization with respect to which the Indian

19 tribe or Native Hawaiian organization desires notice

20 of covered Federal activities. Upon receipt of written

21 responses to such notification from Indian tribes and

22 Native Hawaiian organizations, the Secretary shall

23 provide such land descriptions to all Federal agencies.

24 (B) In responding to the Secretary, Indian tribes

25 and Native Hawaiian organizations may also provide
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1 the Secretary with notice that the location of their sa2 cred sites or the practices associated with such sites

3 are subject to the secrecy provisions of this Act.

4 (3) LIST.—Not later than 18 months after the

5 date of enactment of this Act, the Secretary shall es6 tablish a list of all Indian tribes and Native Hawai7 ian organizations who have responded to the notice

8 provided pursuant to paragraph (2) and the lands

9 such tribes and organizations have identified. Such

10 list shall not be published, but shall be made available

11 to Federal agencies for the purpose of identifying In12 dian tribes and Native Hawaiian organizations and

13 areas for which notice of covered Federal activities

14 shall be provided.

15 (4) DUTIES OF FEDERAL LAND MANAGING AGEN16 CY.—While the list described in paragraph (3) is

17 being developed, each Federal land managing agency

18 shall—

19 (A) also research—

20 (i) the sources of such land managing

21 agency, including agency contacts, with In22 dian tribes, Native Hawaiian organiza23 tions, or Native American traditional lead24 ers; and

25 (ii) written sources,
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1 to collect information concerning Native Amer2 ican sacred sites potentially affected by activities

3 on land managed by such land management

4 agency; and

5 (B) make a good faith effort to identify and

6 notify Indian tribes, Native Hawaiian organiza7 tions, and Native American traditional leaders

8 who may have an interest in proposed covered

9 Federal activities.

10 (5) ONGOING IDENTIFICATION.—Nothing in this

11 section shall preclude a Federal agency, tribal govern12 ment, or a Native Hawaiian organization from con13 tinuing to conduct an ongoing identification process,

14 which may supplement the process required by this

15 subsection.

16 (c) PLANNING PROCESS.—Each Federal agency man17 aging lands under the jurisdiction of the Federal agency

18 including, but not limited to, activities conducted pursuant

19 to the National Forest Management Act of 1976, the Forest

20 and Rangeland Renewable Resources Act of 1974 (16 U.S.C.

21 1600 et seq.), and the Federal Land Policy and Manage22 ment Act of 1976 (43 U.S.C. 1701 et seq.), shall as part

23 of the planning process of such Federal agency—

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

25 the planning process, with Indian tribes, Native Ha-
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1 waiian organizations, and Native American tradi2 tional leaders who have notified the agency of their

3 interest in the land in question pursuant to sub4 section (b);

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

6 to covered Federal activity required by subsection (d),

7 provide for written notice of all covered Federal ac8 tivities with the potential to have an adverse impact

9 on Native American sacred sites located on land areas

10 specified by an Indian tribe or Native Hawaiian or11 ganization, as land areas that are of direct interest

12 to the Indian tribe or Native Hawaiians, whether or

13 not the Federal agency believes that such activity will,

14 or may have, an adverse impact on a Native Amer15 ican sacred site;

16 (3) ensure that the land management plans of

17 the Federal Government are consistent with the provi18 sions and policies of this Act; and

19 (4) maintain the confidentiality of specific de20 tails of a Native American traditional culture or reli21 gion or the significance of a Native American sacred

22 site to that culture or religion in accordance with the

23 procedures specified in sections 107 and 108.

24 (d) NOTICE AND DOCUMENTATION; DUTY OF AGEN25 CIES.—
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1 (1) NOTICE TO TRIBES OR NATIVE HAWAIIAN OR2 GANIZATIONS.—Before a governmental agency pro3 ceeds on lands identified pursuant to subsection (b)

4 with any covered Federal activity that may have an

5 adverse impact on a Native American sacred site or

6 the traditional cultural or religious practices associ7 ated with a Native American sacred site, the govern8 mental agency shall consult with potentially affected

9 Indian tribes, Native Hawaiian organizations, and

10 Native American traditional leaders. After such con11 sultation has occurred and the governmental agency

12 has taken into account the information obtained

13 through such process, the governmental agency shall

14 formally provide a written notice containing a geo15 graphical description of the lands affected by the ac16 tivity (including information on metes and bounds of

17 the lands in question, if available), a map illustrating

18 the lands affected and a description of the proposed

19 action to each affected Indian tribe, Native Hawaiian

20 organization, or Native American traditional leader

21 which has been identified pursuant to this section as

22 having an interest in the land affected by the pro23 posed covered Federal activity and any other Indian

24 tribe, Native Hawaiian organization, or Native

25 American traditional leader known by the govern-
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1 mental agency that may have an interest in the land

2 affected by the proposed covered Federal activity.

3 (2) DOCUMENTATION OF EFFORTS.—The govern4 mental agency shall fully document the efforts that

5 the governmental agency made to provide the infor6 mation to Indian tribes, Native Hawaiian organiza7 tions, and Native American traditional leaders, as re8 quired by this section or any applicable regulations,

9 guidelines, or policies.

10 (e) RESPONSE TO NOTICE.—

11 (1) IN GENERAL.—Not later than 90 days after

12 receiving the notice provided under subsection (d), or

13 by the date specified in the time limit of any com14 ment period permitted or required by any Federal

15 law applicable to the covered Federal activity, which16 ever is later, an Indian tribe, Native Hawaiian orga17 nization, or Native American traditional leader in18 voking the protection of this title may provide notice

19 in writing to the governmental agency that the pro20 posed covered Federal activity may have an adverse

21 impact on a Native American sacred site or the tradi22 tional cultural or religious practices associated with

23 a Native American sacred site.

24 (2) MODIFICATION OF TIME.—The period speci25 fied in paragraph (1) may be extended by the govern-
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1 mental agency at its discretion, including at the re2 quest of a noticed party, or may be extended or short3 ened by an agreement negotiated pursuant to section

4 104(a)(3)(B).

5 (3) NO DUTY TO RESPOND.—Paragraph (1) does

6 not impose a duty upon any Indian tribe, Native Ha7 waiian organization, or Native American traditional

8 leader to respond to any notice under this section.

9 (4) ADDITIONAL INFORMATION.—The Indian

10 tribe or its designee, or Native Hawaiian organiza11 tion or its designee, acting pursuant to paragraph (1)

12 may also provide the governmental agency with infor13 mation concerning any Native American traditional

14 leaders or practitioners who should be included in the

15 notice and consultation requirements of this section

16 and section 104.

17 (f) RESPONSE PERIOD AND LIMITATION ON ACTIVITY

18 FOLLOWING NOTICE.—(1) In order to allow a full inves19 tigation of a proposed covered Federal activity, no action

20 to approve, commence, or complete an activity that is sub21 ject to this section shall be taken by a governmental agency

22 for a period of 90 days following the date on which notice

23 is provided under subsection (d) to Indian tribes, Native

24 Hawaiian organizations, or Native American traditional

25 leaders, unless:
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1 (A) The period of consultation required under

2 section 104 has tolled.

3 (B) A sacred site’s protection agreement has been

4 entered into by the affected Indian tribe or tribes or

5 Native Hawaiian organization and the governmental

6 agency pursuant to section 104(a)(3)(B).

7 (C) All parties entitled to such notice consent to

8 a time period other than the 90-day period.

9 (2) During the notice and consultation periods under

10 sections 103 and 104, and consistent with the provisions

11 of paragraph (1), the governmental agencies responsible for

12 the covered Federal activity may continue to engage in

13 planning, studies, or other preparatory matters on the con14 dition that such activities do not constitute a commitment

15 to proceed with the proposed activity or project.

16 (3) During the 90-day period following formal notice

17 to Indian tribes, Native Hawaiian organizations, and Na18 tive American traditional leaders, the governmental agency

19 shall have the continuing duty to seek to consult with In20 dian tribes, Native Hawaiian organizations, and Native

21 American traditional leaders potentially affected by the

22 proposed covered Federal activity.

23 SEC. 104. CONSULTATION.

24 (a) IN GENERAL.—
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1 (1) EFFECT OF NOTICE.—In order to allow a full

2 investigation of the consequences of a proposed covered

3 Federal activity, if an Indian tribe, Native Hawaiian

4 organization, or Native American traditional leader

5 responds in writing within 90 days after receiving

6 notice, as provided in section 103(e), or by the date

7 specified in the time limit of any comment period

8 permitted or required by any Federal law which is

9 applicable to the covered Federal activity, whichever

10 is later, and the Secretary of the department with ju11 risdiction over the land involved or a local land man12 ager (if such authority has been delegated), makes a

13 threshold determination that there may exist a valid

14 claim that a proposed covered Federal activity will

15 have an adverse impact on a Native American sacred

16 site or the traditional cultural or religious practices

17 associated with a Native American sacred site, the

18 Secretary or the local land manager shall direct that

19 the activity be immediately discontinued until such

20 time as the governmental agency has performed the

21 duties described in paragraphs (3) and (4).

22 (2) AFTER ACTION DISCOVERY.—If after a cov23 ered Federal activity is underway, and—

24 (A) the governmental agency becomes aware

25 that the activity may have an adverse impact on
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1 a Native American sacred site, the agency en2 gaged in the activity shall immediately dis3 continue such activity until such time as the

4 governmental agency has performed the duties

5 described in subsections (d) and (f) of section

6 103; or

7 (B) an Indian tribe or Native Hawaiian

8 organization that did not receive notice and did

9 not know of the covered Federal activity, becomes

10 aware that the activity may have an adverse im11 pact on a Native American sacred site and noti12 fies the governmental agency, and the Secretary

13 of the department with jurisdiction over the land

14 involved or a local land manager (if such au15 thority has been delegated), makes a threshold de16 termination that there may exist a valid claim

17 that a proposed covered Federal activity will

18 have an adverse impact on a Native American

19 sacred site or the traditional cultural or religious

20 practices associated with a Native American sa21 cred site, the head of the Federal agency or the

22 local land manager shall direct that the activity

23 be immediately discontinued until such time the

24 governmental agency has performed the duties

25 described in paragraphs (3) and (4).
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1 (3) CONSULTATION AND NEGOTIATED AGREE2 MENTS.—

3 (A) CONSULTATION.—The governmental

4 agency shall consult with any potentially ag5 grieved party with a direct interest in the Native

6 American sacred site in question concerning the

7 nature of the adverse impact, and consult about

8 alternatives which can be identified that would

9 minimize or prevent the adverse impact, includ10 ing any alternatives identified by an Indian

11 tribe, Native Hawaiian organization, or Native

12 American traditional leader that has filed a

13 written objection under this subsection.

14 (B) NEGOTIATED AGREEMENTS.—(i) Upon

15 the request of an Indian tribe or tribes or Native

16 Hawaiian organization, each Federal agency in17 volved in any covered Federal activity shall enter

18 into negotiations to identify appropriate land

19 management procedures for addressing the inter20 est of such tribe or Native Hawaiian organiza21 tion in the protection and preservation of its sa22 cred sites and to avoid any adverse impact on

23 such sites or practices associated with such sites

24 as may be located on public lands within the ju25 risdiction of such Federal agencies. In a manner
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1 consistent with the public mission of such Fed2 eral agencies and the responsibility of the United

3 States to support Indian tribes and tribal mem4 bers and Native Hawaiians in the preservation

5 of their sacred sites, each Federal agency is au6 thorized to enter into sacred sites protection

7 agreements with Indian tribes or Native Hawai8 ian organizations for the purpose of adopting the

9 land management procedures that result from

10 consultations and negotiations. Such agreements

11 may supersede the planning provisions of section

12 103(c), the notice provisions of section 103(d),

13 the consultation provisions of section 103(d)(1),

14 and section 104, and the access provisions of sec15 tion 102 as such provisions relate to Indian

16 tribes or Native Hawaiian organizations that

17 are parties to such an agreement if the agree18 ment specifically and explicitly includes a provi19 sion overriding those sections of this Act, or any

20 portions thereof. An agreement entered into

21 under this subparagraph may also include a

22 provision for the delegation by officials of the

23 Federal agency of land management responsibil24 ities to each Indian tribe or Native Hawaiian

25 organization that is the subject of the agreement
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1 for designated public lands described in the

2 agreement.

3 (ii) In the case of any Indian tribe, if such

4 a delegation of management functions is in5 cluded in an agreement under clause (i), the

6 Federal agency and the tribe may also agree to

7 use the procedures and regulations employed

8 under the Indian Self-Determination and Edu9 cation Assistance Act (Public Law 93–638).

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

11 resolution of the claims asserted by an aggrieved

12 party pursuant to paragraph (3), the governmental

13 agency shall prepare and make available to an In14 dian tribe, a Native Hawaiian organization, or a Na15 tive American traditional leader who has been in16 volved in the consultation process, a document re17 sponding to the comments received by the govern18 mental agency. The document shall—

19 (A) analyze the adverse impact which has

20 been identified by the aggrieved party;

21 (B) assess whether the interest of the govern22 ment in proceeding with the action is compel23 ling; and

24 (C) assess whether, based on an analysis of

25 the alternatives to the proposed action, including
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1 any alternatives offered by an Indian tribe, Na2 tive Hawaiian organization, or Native American

3 traditional leader, the proposed activity is the

4 least restrictive means of furthering that compel5 ling interest.

6 If a governmental agency determines to commence a

7 covered Federal activity, notwithstanding notice from

8 an aggrieved party pursuant to this subsection, the

9 governmental agency shall issue a written opinion

10 providing the basis for its decision. The issuance of

11 such decision shall constitute final agency action for

12 purposes of judicial review pursuant to section 401

13 and administrative review procedures under section

14 105.

15 (5) ADDITIONAL INFORMATION.—In any case in

16 which the governmental agency is also required to

17 prepare a document analyzing the impact of a cov18 ered Federal activity or a decision pursuant to the

19 National Environmental Policy Act of 1969 (43

20 U.S.C. 4321 et seq.), the National Historic Preserva21 tion Act (16 U.S.C. 470 et seq.) or any other applica22 ble law, such agency may incorporate the analysis re23 quired by this section into the contents of the docu24 ment.

25 (b) CASES IN WHICH SECRECY IS REQUIRED.—
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1 (1) IN GENERAL.—In the case of those Indian

2 tribes or Native Hawaiians whose traditional cultural

3 or religious tenets prohibit disclosure of information

4 concerning their Native American sacred sites or cul5 tural or religious beliefs or practices, and mandate se6 crecy and internal sanctions to enforce those prohibi7 tions, if the tribal government of the affected Indian

8 tribe or a Native Hawaiian organization so certifies

9 and invokes this subsection—

10 (A) the tribal government or Native Hawai11 ian organization shall not be required to reveal

12 the location of the Native American sacred site

13 or in what manner the covered Federal activity

14 would have an adverse impact on the site or any

15 information concerning their cultural or reli16 gious beliefs or practices;

17 (B) the tribal government or Native Hawai18 ian organization shall not be required to explain

19 in what manner any proposed alternative is or

20 is not less intrusive upon the Native American

21 cultural or religious practice associated with a

22 sacred site or upon sacred sites which may be

23 adversely impacted than the original proposed

24 covered Federal activity; and
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1 (C) in engaging in consultation and pre2 paring any document required by this Act, the

3 governmental agency shall not be required to in4 clude an analysis of adverse impacts upon the

5 sacred site or the use thereof or the cultural or

6 religious beliefs and practices of the Indian tribe

7 or Native Hawaiian organization associated

8 with a sacred site.

9 (2) CONSULTATION.—When a certification made

10 pursuant to paragraph (1) is received by a govern11 mental agency, the agency shall engage in consulta12 tion with the affected Indian tribe or Native Hawai13 ian organization that made the certification. During

14 such consultation, the governmental agency shall con15 sider any alternatives proposed by the Indian tribe or

16 Native Hawaiian organization and shall provide the

17 Indian tribe or Native Hawaiian organization with

18 the opportunity to review any other alternatives that

19 the governmental agency may propose.

20 (3) RESPONSE TO COMMENTS.—If there is no

21 resolution of the claims asserted by an Indian tribe

22 or Native Hawaiian organization pursuant to this

23 subsection, the governmental agency shall prepare and

24 make available to the Indian tribe or Native Hawai25 ian organization a document responding to the com-
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1 ments received by the governmental agency. The docu2 ment shall—

3 (A) assess whether the interest of the govern4 ment in proceeding with the activity is compel5 ling;

6 (B) assess whether, on the basis of an anal7 ysis of the alternatives, the activity is a reason8 able means of furthering that compelling interest;

9 and

10 (C) set forth the reasons why the alter11 natives identified in subsection (b)(2) are not

12 reasonable.

13 In any case in which a governmental agency deter14 mines to commence a covered Federal activity, not15 withstanding notice from an aggrieved party pursu16 ant to subsections (a) and (b), the governmental agen17 cy shall issue a written opinion providing the basis

18 for its decision. The issuance of such decision shall

19 constitute final agency action for purposes of judicial

20 review pursuant to section 401 and administrative re21 view procedures under section 105.

22 (c) RULE OF CONSTRUCTION.—In any case in which

23 the provisions of subsection (b) have been invoked pursuant

24 to such subsection, the requirements of such subsection shall

25 control in all circumstances.
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1 (d) DISCLOSURE REQUIRED.—Not later than 30 days

2 after receiving any written objection under subsection (a)

3 or (b), the governmental agency proposing the covered Fed4 eral activity which gave rise to a notice of objection shall

5 make available to the aggrieved party, all plats, maps,

6 plans, specifications, socioeconomic, environmental, sci7 entific, archaeological or historical studies, and comments

8 and information in the possession of such agency directly

9 relating to such activity, except that such agency may with10 hold—

11 (1) attorney work product prepared in anticipa12 tion of litigation;

13 (2) proprietary or confidential business informa14 tion;

15 (3) information which is subject to statutory re16 quirements of confidentiality; and

17 (4) information the release of which would jeop18 ardize the litigating position of the United States on

19 behalf of another Indian tribe.

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

21 proposed covered Federal activity affecting the manage22 ment, use, or preservation of public land, or any other ac23 tivity or violation under this Act involving potential ad24 verse impacts on any of the Indian pueblos of New Mexico

25 or any of their sacred sites, the only party who may file
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1 an objection or participate in consultation under this sec2 tion, or file an action under section 105 or 401, shall be

3 the governor of the affected pueblo or the governor’s designee.

4 (f) EMERGENCY PROVISION.—The process required by

5 section 103 and this section shall not apply if the govern6 mental agency determines that adherence to the process

7 will—

8 (1) have a direct, significant and negative im9 pact upon specific national security interests or the

10 implementation of the Endangered Species Act of

11 1973;

12 (2) present an immediate threat of serious bodily

13 harm to any person or immediate and serious harm

14 to the environment; or

15 (3) interfere with urgent law enforcement activi16 ties.

17 SEC. 105. ADMINISTRATIVE PROCEDURES.

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

19 regulation, establish an administrative procedure to imple20 ment the requirements of this title.

21 (b) EXHAUSTION REQUIREMENT.—An aggrieved party

22 shall use a procedure established under subsection (a) before

23 filing an action in a Federal district court pursuant to sec24 tion 401.

25 (c) BURDEN.—
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1 (1) BURDEN ON AGGRIEVED PARTY.—Except as

2 provided in subsection (d), the aggrieved party shall

3 have the burden of establishing that the covered Fed4 eral activity having an impact upon the manage5 ment, use or preservation of public land, is or will

6 have an adverse impact on a Native American sacred

7 site.

8 (2) BURDEN ON AGENCY.—If the aggrieved party

9 meets its burden of proof under paragraph (1), the

10 agency may proceed with the action only if the agen11 cy has determined by a preponderance of the evidence

12 that the covered Federal activity—

13 (A) is in furtherance of a compelling gov14 ernmental interest; and

15 (B) is the least restrictive means of further16 ing that compelling interest.

17 (3) FINAL AGENCY ACTION.—An agency deter18 mination under this subsection shall constitute final

19 agency action for purposes of judicial review under

20 section 401.

21 (d) SECRECY.—

22 (1) CASES WHERE SECRECY IS REQUIRED.—In

23 the case of any proceeding in which an aggrieved In24 dian tribe or Native Hawaiian organization invokes

25 section 104(b), if the Indian tribe or Native Hawai-
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1 ian organization objects to the covered Federal activ2 ity on the grounds that the activity is or will have

3 an adverse impact on a Native American sacred site,

4 the governmental agency shall have the burden of

5 proof to prove by a preponderance of the evidence that

6 the covered Federal activity—

7 (A) is in furtherance of a compelling gov8 ernmental interest;

9 (B) is a reasonable means of furthering that

10 compelling governmental interest; and

11 (C) the alternatives identified under section

12 104(b)(2) are not reasonable.

13 (2) FINAL AGENCY ACTION.—The agency deter14 mination under this paragraph shall constitute final

15 agency action for purposes of judicial review under

16 section 401.

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

18 (1) IN GENERAL.—The governmental agency

19 shall retain its burden of proof at all stages of any

20 proceeding or decisionmaking process pursuant to this

21 title.

22 (2) FAILURE TO MEET BURDEN OF PROOF.—If a

23 governmental agency does not meet its burden of proof

24 under this section, the governmental agency shall not
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1 proceed with the proposed covered Federal activity

2 that is the subject of the proceeding or process.

3 (3) BURDEN OF PROOF DEFINED.—For purposes

4 of this section the term ‘‘burden of proof’’ means the

5 burden of production and the burden of persuasion.

6 (f) ADVERSE IMPACT.—For purposes of this section—

7 (1) a finding of an adverse impact may—

8 (A) be made even if no person has been co9 erced to act contrary to his or her religious be10 liefs; and

11 (B) be based on a disturbance to the integ12 rity 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 as18 sociated with a sacred site more difficult, shall be

19 deemed to constitute an adverse impact; and

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

21 not establish a compelling government interest.

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

24 conducted under this section, Native American practitioners
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1 may elect to provide testimony concerning 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 ex9 istence or scope of tribal jurisdiction or the application of

10 tribal law regarding the free exercise of religion or the pro11 tection of or access to Native American sacred sites on In12 dian lands. Nothing in this Act shall be construed to grant

13 authority to one Indian tribe to regulate Native American

14 sacred sites which are within the jurisdiction of another In15 dian tribe. Nothing in this Act shall be construed to grant

16 authority to a tribal government to regulate sacred sites on

17 lands not within their jurisdiction.

18 (b) DUTY TO NOTIFY.—This section does not relieve

19 a governmental agency of any duty under section 103 to

20 notify an Indian tribe of a covered Federal activity on In21 dian lands which may have an adverse impact on a Native

22 American sacred site.

23 (c) NATIONAL SECURITY.—The provisions of this sec24 tion shall not apply if the Federal agency that proposes to

25 carry out a covered Federal activity determines that na-
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1 tional security concerns are directly affected by the covered

2 Federal activity.

3 (d) DISPUTES BETWEEN TWO OR MORE TRIBES.—

4 (1) IN GENERAL.—When a governmental agency

5 proposes a covered Federal activity on Indian lands

6 of one Indian tribe which may have an adverse im7 pact on a Native American sacred site of another In8 dian tribe, and the Indian tribe whose sacred site is

9 affected and the Indian tribe on whose land the site

10 is located agree and so request, the Secretary of the

11 Interior shall convene a committee of tribal represent12 atives for the purpose of entering into negotiations

13 concerning—

14 (A) the nature of any adverse impact on the

15 Native American sacred site;

16 (B) alternatives that would minimize or

17 prevent such an adverse impact; and

18 (C) any free exercise of religion claim that

19 does not fall within the scope of this Act.

20 (2) MEMBERS OF COMMITTEE.—The committee

21 shall consist of tribal representatives of each affected

22 Indian tribe and tribal representatives of the Indian

23 tribe upon whose lands the sacred site is located.

24 Committee members shall be selected by the respective

25 Indian tribes.
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1 (3) MEETINGS.—The committee shall—

2 (A) be convened for the duration of the con3 sultation and negotiation period; and

4 (B) meet at the call of the Secretary upon

5 the request of the affected Indian tribe or tribes

6 and the Indian tribe upon whose lands the sa7 cred site is located.

8 SEC. 107. APPLICABILITY OF OTHER LAWS.

9 (a) IN GENERAL.—Nothing in this title shall be con10 strued to deprive any person or entity of any other rights

11 which might be provided under the laws, regulations, guide12 lines, or policies of the Federal, State, and tribal govern13 ments, including but not limited to the National Historic

14 Preservation Act (16 U.S.C. 470 et seq.), to receive notice

15 of, comment on, or otherwise participate in the decision16 making process regarding a covered Federal activity.

17 (b) EXISTING PROCEDURES.—To the maximum extent

18 possible, the procedures required by this Act shall be incor19 porated into existing procedures applicable to the manage20 ment of Federal lands and decision making processes of

21 Federal agencies engaged in covered Federal activities.

22 SEC. 108. CONFIDENTIALITY.

23 (a) IN GENERAL.—Notwithstanding any other provi24 sion of law, whenever information has been obtained as a

25 result of or in connection with a proceeding pursuant to
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1 section 105 or 401 or consultation pursuant to sections 103

2 and 104, no reference pertaining to a specific detail of a

3 Native American traditional cultural practice or religion,

4 or the significance of a Native American sacred site, or the

5 location of that sacred site, shall be released by a govern6 mental agency or court to any party or the general public

7 pursuant to section 5 of title 5, United States Code, com8 monly known as the ‘‘Freedom of Information Act’’, or any

9 other applicable law.

10 (b) SUPPLEMENTATION OF RECORD.—The govern11 mental agency in the case of an administrative proceeding

12 conducted pursuant to section 105, or court, in the case of

13 a judicial review process conducted pursuant to section 401,

14 shall supplement the record described in subsection (a) to

15 include the general results and conclusions to the extent nec16 essary to provide other interested parties with sufficient in17 formation to understand the nature of, and basis for, a deci18 sion by the governmental agency or court.

19 (c) EXCEPTION.—This section shall not apply—

20 (1) in any case in which all parties to a proceed21 ing (excluding the United States Government) waive

22 the application of this section; and

23 (2) in the case of a Native Hawaiian sacred site,

24 if the information that is otherwise subject to this sec-
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1 tion is sought by a Native Hawaiian organization for

2 the purpose of protecting such site.

3 (d) OTHER LAWS.—Indian tribes or Native Hawaiian

4 organizations seeking to maintain the confidentiality of in5 formation relating to Native American sacred sites may

6 also seek redress through existing laws (in effect at the time

7 the tribe or organization seeks such redress) requiring that

8 certain information be withheld from the public, including,

9 but not limited to, the National Historic Preservation Act

10 (16 U.S.C. 470 et seq.) and the Archaeological Resources

11 Protection Act of 1979 (16 U.S.C. 470aa et seq.).

12 SEC. 109. CRIMINAL SANCTIONS.

13 (a) DAMAGING SACRED SITES.—

14 (1) INITIAL VIOLATION.—Any person who inten15 tionally damages, defaces, desecrates, or destroys a

16 Native American sacred site located on land, as de17 fined in section 3(10), with knowledge that such site

18 is a sacred site, except as part of an approved Federal

19 activity authorized by a governmental agency with

20 the authority to approve such activity after consulta21 tion with affected parties pursuant to sections 103

22 and 104, shall, upon conviction, be fined not more

23 than $100,000, or imprisoned not more than 1 year,

24 or both.
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1 (2) SUBSEQUENT VIOLATIONS.—In the case of a

2 second or subsequent violation, a person described in

3 paragraph (1) shall, upon conviction, be fined not

4 more than $250,000, or imprisoned not more than 5

5 years, or both.

6 (b) RELEASE OF INFORMATION.—

7 (1) INITIAL VIOLATION.—Any person who inten8 tionally releases any information and who knows that

9 such information is required to be held confidential

10 pursuant to this title shall, upon conviction, be fined

11 not more than $100,000, or imprisoned not more than

12 1 year, or both.

13 (2) SUBSEQUENT VIOLATIONS.—In the case of a

14 second or subsequent violation, a person described in

15 paragraph (1) shall, upon conviction, be fined not

16 more than $250,000, or imprisoned not more than 5

17 years, or both.

18 (c) ORGANIZATIONS.—In the case of a violation of sub19 section (a) or (b) by an organization, the organization shall,

20 upon conviction, be fined not more than $200,000 for the

21 first violation and not more than $500,000 for each subse22 quent violation.

23 TITLE II—PRISONERS’ RIGHTS

24 SEC. 201. RIGHTS.

25 (a) IN GENERAL.—
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1 (1) ACCESS.—Notwithstanding any other provi2 sion of law, Native American prisoners who practice

3 a Native American religion shall have, on a regular

4 basis comparable to that access afforded prisoners who

5 practice other religions, access to—

6 (A) Native American traditional leaders

7 who shall be afforded the same status, rights and

8 privileges as religious leaders of other religions;

9 (B) subject to paragraph (6), items and ma10 terials utilized in religious ceremonies; and

11 (C) Native American religious facilities.

12 (2) MATERIALS.—Prison authorities shall treat

13 items and materials utilized in religious ceremonies,

14 including traditional foods for religious diets, identi15 fied by a Native American traditional leader, in the

16 same manner as the religious items and materials

17 utilized in ceremonies of other religions.

18 (3) HAIR.—

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

20 circumstances where subparagraph (B) applies,

21 Native American prisoners who desire to wear

22 their hair according to the customs of a Native

23 American religion may do so provided that the

24 prisoner demonstrates that—
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1 (i) the practice is rooted in Native

2 American religious beliefs; and

3 (ii) these beliefs are sincerely held by

4 the Native American prisoner.

5 (B) DENIAL OF REQUEST.—If a Native

6 American prisoner satisfies the criteria in sub7 paragraph (A), the prison authorities may deny

8 such request only where they can satisfy the cri9 teria of section 3 of the Religious Freedom Res10 toration Act of 1993 (Public Law 103–141).

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

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

13 tepees, and access to other secure, out-of-doors loca14 tions within prison grounds if such facilities are

15 identified by a Native American traditional leader to

16 facilitate a religious ceremony.

17 (5) DISCRIMINATION PROHIBITED.—No Native

18 American prisoner shall be penalized or discrimi19 nated against on the basis of Native American reli20 gious practices, and all prison and parole benefits or

21 privileges extended to prisoners for engaging in reli22 gious activities shall be afforded to Native American

23 prisoners who participate in Native American reli24 gious practices.
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1 (6) SCOPE OF TITLE.—This title shall not be

2 construed as—

3 (A)(i) requiring prison authorities to per4 mit; or

5 (ii) prohibiting prison authorities from per6 mitting,

7 access to peyote or Native American sacred sites;

8 or

9 (B) altering applicable requirements for ex10 haustion of administrative remedies.

11 (b) ATTORNEY GENERAL INVESTIGATION.—

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

13 investigate, in consultation with Native American

14 traditional leaders and ex-offenders with corrections

15 experience as may be recommended by Indian tribes

16 and Native Hawaiian organizations, and Federal

17 and State prison administrators, the conditions of

18 Native American prisoners in the Federal and State

19 prison systems with respect to the ability of Native

20 American prisoners to engage in religious ceremonies

21 and practices.

22 (2) REPORT.—Not later than 3 years after the

23 date of enactment of this Act, the Attorney General

24 shall submit to the Congress a report containing—
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1 (A) an assessment of the recognition, protec2 tion, and enforcement of the rights of Native

3 American prisoners to practice their religions

4 under this Act in Federal and State prisons

5 where Native Americans are incarcerated; and

6 (B) specific recommendations for the pro7 mulgation of regulations to implement this Act.

8 TITLE III—RELIGIOUS USE OF

9 EAGLES AND OTHER ANIMALS

10 AND PLANTS

11 SEC. 301. RELIGIOUS USE OF EAGLES.

12 Not later than 1 year after the date of enactment of

13 this Act, the Director of the United States Fish and Wildlife

14 Service (hereafter in this section referred to as the ‘‘Direc15 tor’’) shall, in consultation with Indian tribes and Native

16 American traditional leaders, develop a plan to—

17 (1) ensure the prompt disbursement from Federal

18 repositories of available bald or golden eagles, or their

19 parts, nests, or eggs for the traditional religious use

20 of Indians upon receipt of an application from an In21 dian practitioner;

22 (2) provide that sufficient numbers of bald or

23 golden eagles are allocated to Indian practitioners to

24 meet the demonstrated need where they are available
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1 by reason of accidental deaths, natural deaths, or

2 takings permitted by Federal law;

3 (3) simplify and shorten the process by which

4 permits are authorized for the taking, possession, and

5 transportation of bald or golden eagles, or their parts,

6 nests, or eggs for the traditional religious use of Indi7 ans;

8 (4) establish a mechanism for tribal disburse9 ment of dead eagles discovered within the exterior

10 boundaries of their own reservation to Native Amer11 ican traditional practitioners; and

12 (5) establish a mechanism for tribal contacts

13 with regional and national offices of the United

14 States Fish and Wildlife Service on fish and wildlife

15 resource issues.

16 SEC. 302. OTHER ANIMALS AND PLANTS.

17 Not later than 2 years after the date of enactment of

18 this Act, the Secretary of the Interior, the Secretary of Agri19 culture, the Secretary of Commerce, the Secretary of the

20 Treasury, and the Administrator of General Services shall,

21 in consultation with Indian tribes, Native Hawaiian orga22 nizations, and Native American traditional leaders, estab23 lish a joint uniform set of administrative procedures to gov24 ern the disposition of surplus wildlife and plants or parts

25 thereof which have been confiscated, gathered or are other-
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1 wise under the jurisdiction and control of their respective

2 agencies. To the fullest extent allowed under then existing

3 statutory authority, the uniform procedures shall be de4 signed to increase the availability of natural products to

5 Native American practitioners.

6 TITLE IV—JURISDICTION AND

7 REMEDIES

8 SEC. 401. JURISDICTION AND REMEDIES.

9 (a) IN GENERAL.—

10 (1) RIGHT TO ACTION.—An aggrieved party

11 shall have the right to file suit against the United

12 States or a State in the appropriate district court to

13 enforce the provisions of this Act.

14 (2) JURISDICTION.—Any appropriate United

15 States district court shall have original jurisdiction

16 over a civil action for—

17 (A) equitable relief; or

18 (B) damages necessary to remediate harm

19 to a Native American sacred site.

20 (3) STATUTORY CONSTRUCTION.—Nothing in this

21 subsection shall be construed to deprive Indian tribes

22 of jurisdiction that the tribes would otherwise have

23 under section 106 or any other Federal law.

24 (b) FACTUAL FINDINGS AND LEGAL DETERMINA25 TIONS.—
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1 (1) IN GENERAL.—If an action is filed in a

2 United States district court after exhaustion of ad3 ministrative remedies under section 105, the court

4 shall not defer to factual findings of a governmental

5 agency except in any case in which such findings are

6 based on a formal hearing on the record.

7 (2) REVIEW.—The court shall review de novo

8 legal determinations of a governmental agency con9 cerning—

10 (A) an adverse impact;

11 (B) whether the government’s interest is

12 compelling; and

13 (C) whether a particular alternative is the

14 least restrictive.

15 (c) BURDEN OF PROOF AND ADVERSE IMPACT.—For

16 purposes of an action alleging a violation of the rights pro17 tected under title I, and consistent with section 106, the

18 following provisions shall apply:

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

20 provided in subsection (d), the aggrieved party shall

21 have the burden of establishing that the covered Fed22 eral activity or an action by a State having an im23 pact upon the management, use or preservation of

24 public land, is or will have an adverse impact on a

25 Native American sacred site.
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1 (2) BURDEN ON AGENCY.—If the aggrieved party

2 meets its burden of proof under paragraph (1), the

3 governmental agency may proceed with the activity

4 or action described in such paragraph only if the

5 court determines by a preponderance of the evidence

6 that the covered Federal activity—

7 (A) is in furtherance of a compelling gov8 ernment interest; and

9 (B) is the least restrictive means of further10 ing that compelling interest.

11 (3) ADVERSE IMPACT.—For purposes of decisions

12 made pursuant to title I—

13 (A) a finding of an adverse impact may be

14 made even though no person has been coerced to

15 act contrary to his or her religious beliefs, and

16 may be based on a disturbance to the integrity

17 of a sacred site;

18 (B) land management activities, undertak19 ings, and actions which have the potential to

20 have an adverse impact on a Native American

21 sacred site, or which make a Native American

22 traditional cultural practice or exercise of a Na23 tive American religion associated with a sacred

24 site more difficult shall be deemed to constitute

25 an adverse impact; and
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1 (C) government ownership of land, by itself,

2 does not establish a compelling government inter3 est.

4 (d) CASES IN WHICH SECRECY IS REQUIRED.—In the

5 case of any proceeding in which an aggrieved Indian tribe

6 or Native Hawaiian organization invokes section 104(b),

7 if an Indian tribe or Native Hawaiian organization objects

8 to the covered Federal activity or an action by a State on

9 the grounds that the activity or action is or will have an

10 adverse impact on a Native American sacred site, the gov11 ernmental agency shall have the burden of proving by a

12 preponderance of the evidence that the covered Federal ac13 tivity—

14 (1) is in furtherance of a compelling government

15 interest;

16 (2) is a reasonable means of furthering that com17 pelling interest; and

18 (3) the alternatives identified under section

19 104(b)(2) are not reasonable.

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

21 (1) BURDEN OF PROOF.—The governmental

22 agency shall retain its burden of proof at all stages

23 of any proceeding or decisionmaking process pursuant

24 to title I of this Act.
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1 (2) FAILURE TO MEET BURDEN OF PROOF.—If a

2 governmental agency does not meet its burden of proof

3 under this section, the governmental agency shall not

4 proceed with the proposed activity.

5 (3) BURDEN OF PROOF DEFINED.—For purposes

6 of this section, the term ‘‘burden of proof’’ means the

7 burden of production and the burden of persuasion.

8 (f) SPECIAL RULE FOR NATIVE AMERICAN PRACTI9 TIONERS.—Native American practitioners may elect to pro10 vide testimony about their beliefs in camera or in some

11 other protective procedure.

12 (g) SOVEREIGN IMMUNITY.—Neither the sovereign im13 munity of the United States nor of any State, including

14 immunity derived from the 11th amendment to the Con15 stitution, shall be a bar or defense to any civil action

16 brought pursuant to this section to enforce the provisions

17 of this Act, including any grant of attorneys’ fees pursuant

18 to subsection (h). Such immunities are hereby waived.

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

20 prevailing party in any administrative or judicial proceed21 ing brought pursuant to this Act shall be entitled to attor22 ney’s fees, expert witness fees, and costs under the provisions

23 of section 504 of title 5, United States Code, and section

24 2412 of title 28, United States Code.
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1 TITLE V—MISCELLANEOUS

2 SEC. 501. STATUTORY CONSTRUCTION.

3 (a) IN GENERAL.—Nothing in this Act shall be con4 strued as abrogating, diminishing, or otherwise affecting—

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

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

7 tribe which exist under treaties, Executive orders, and

8 other laws of the United States;

9 (3) the inherent right of Native Americans to

10 maintain their cultural integrity and religions;

11 (4) the trust responsibility of the United States

12 or any legal obligation or remedy resulting therefrom;

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

14 upon whose Indian lands a Native American sacred

15 site is located to determine, exclusively pursuant to

16 the tribal law of such Indian tribe, whether any other

17 Indian tribe or Native American practitioner shall

18 have a property right in that site or have the author19 ity to limit or prohibit covered Federal activities af20 fecting that site;

21 (6) any traditional cultural or free exercise of re22 ligious claim of any person that does not fall within

23 the scope of this Act;

24 (7) the right of Native Americans to obtain pro25 tection for the practice of their traditional cultures or
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1 religions under any other Federal, State, or tribal law

2 (including any constitution); or the authority and re3 sponsibility of any governmental agency to provide

4 protection for Native American sacred sites and the

5 practice of Native American traditional cultures and

6 religions under other laws (including any constitu7 tions), such as the National Historic Preservation Act

8 (16 U.S.C. 470 et seq.); and

9 (8) the authority of Federal land and program

10 managers to provide for notice to and consultation

11 with other religious and cultural groups that are not

12 covered under this Act for the purpose of protection

13 of cultural, religious, environmental, and historical

14 sites and resources under other authority.

15 (b) EFFECT OF RELIGIOUS FREEDOM RESTORATION

16 ACT OF 1993.—This Act is supplemental to the Religious

17 Freedom Restoration Act of 1993 (Public Law 103–141),

18 and is not intended to be limited by that Act, or to limit

19 in any way, rights available under that Act, including the

20 application of that Act to activities which may have an

21 adverse impact upon a Native American sacred site, wheth22 er or not such activities are explicitly covered by this Act.

23 SEC. 502. SEVERABILITY.

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

25 or portion thereof, is declared to be unconstitutional, in-
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1 valid, or inoperative in whole or in part, by a court of com2 petent jurisdiction, such title, section, provision, or portion

3 thereof shall, to the extent it is not unconstitutional, in4 valid, or inoperative, be enforced and effectuated, and no

5 such determination shall be deemed to invalidate or make

6 ineffectual the remaining provisions of the title, section, or

7 provision.

8 SEC. 503. AUTHORIZATION OF APPROPRIATIONS.

9 There are authorized to be appropriated such sums as

10 may be necessary to carry out the provisions of this Act,

11 including such sums as may be necessary for expenses of

12 Native Americans for consultations with the Attorney Gen13 eral provided in section 201(b)(1).

14 SEC. 504. REGULATIONS.

15 (a) IN GENERAL.—The head of each land managing

16 agency, in consultation with Indian tribes and Native Ha17 waiian organizations, shall promulgate regulations relating

18 to the following:

19 (1) Federal planning processes pertaining to the

20 management, use or preservation of land.

21 (2) Notice to and consultation with Indian

22 tribes, Native Hawaiian organizations, and Native

23 American traditional leaders as required by sections

24 103 and 104.
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1 (b) CONSISTENCY.—The head of each land managing

2 agency shall consult with the Secretary of the Interior to

3 assure maximum possible consistency in regulations pro4 mulgated pursuant to this Act.

5 (c) REQUIREMENT FOR REGULATIONS.—The regula6 tions promulgated under this Act shall be sufficiently flexi7 ble to enable consultation to address the unique needs of

8 Indian tribes, Native Hawaiian organizations, Native

9 American traditional leaders, and Native American practi10 tioners. The notices and procedures provided for in sections

11 103 and 104 shall be provided within the applicable time

12 periods, even in the absence of any completed regulations.

13 SEC. 505. PROTECTIONS.

14 (a) IN GENERAL.—The protections of this Act shall be

15 afforded only to bona fide persons who are described in

16 paragraphs (7), (11), (12), (16), and (17) of section 3, and

17 to members of Indian tribes, as defined in section 3(9).

18 (b) CONSULTATION.—For purposes of determining the

19 bona fide nature of any of the persons described in section

20 3, or the bona fide nature of any Native American tradi21 tional cultural practice or Native American religion, the

22 Secretary is authorized to consult with Indian tribes, Na23 tive Hawaiian organizations, Native American practition24 ers, and Native American traditional leaders.
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1 SEC. 506. APPLICABILITY OF FEDERAL ADVISORY COMMIT2 TEE ACT.

3 All activities under this Act shall be exempt from the

4 Federal Advisory Committee Act (5 U.S.C. App.).

5 SEC. 507. EFFECTIVE DATE.

6 (a) IN GENERAL.—This Act shall take effect on the

7 date of enactment. The application and enforcement of this

8 Act shall not depend upon the promulgation of regulations

9 by any governmental agency, except that, with respect to

10 notice and review provisions under sections 103 and 104,

11 the deadline for the establishment of applicable procedures

12 by a Federal agency shall be the date that is 180 days after

13 the date of enactment of this Act.

14 (b) FINAL ACTIONS.—

15 (1) IN GENERAL.—Except as provided in section

16 104(a)(2) and section 3(4)(B)(ii) and subject to para17 graph (2), this Act does not require any Federal agen18 cy to reconsider any final action or decision that the

19 Federal agency made—

20 (A) prior to the date of enactment of this

21 Act; or

22 (B) in compliance with the provisions of

23 this Act.

24 (2) NEW PHASES.—This section shall not bar

25 application of this Act to new phases of existing

26 projects.
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