A Policy Without a Remedy

The Act is one page. It resolves that henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut and Native Hawaiian, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. A second section directed the President to consult native traditional religious leaders and to report to Congress within a year on the changes needed.

It was needed because a great deal of ordinary federal law had been operating against these practices without anyone having intended it. Eagle feathers required for ceremony were protected wildlife. Peyote was a controlled substance. Sacred sites lay on federal land managed for timber, minerals or recreation. Museums held ceremonial objects and human remains. Prisons refused sweat lodges. The 1979 report to Congress catalogued these conflicts and made recommendations.

What the Act did not do was give anyone a right to enforce. Its language is hortatory. In Lyng v. Northwest Indian Cemetery Protective Association in 1988 the Supreme Court held that it created no cause of action and no judicially enforceable right, in a case about a logging road through an area central to the religion of three northern Californian nations.