American Indian Religious Freedom Act Passes Without Enforcement Mechanisms, Proving Ineffective at Protecting Sacred Sites

Congress passes and President Jimmy Carter signs the American Indian Religious Freedom Act (AIRFA), establishing that it is “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 Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” The legislation represents a formal acknowledgment that federal policies—including boarding school cultural genocide, prohibition of Indigenous ceremonies, and denial of access to sacred sites—have systematically violated Native Americans’ religious freedom for over a century. AIRFA appears to mark a shift toward recognizing Indigenous religious rights after decades of government suppression of ceremonies like the Sun Dance, denial of access to sacred mountains and sites on federal land, and prohibition of sacred objects like eagle feathers. However, the Act is drafted as a policy statement rather than enforceable law, containing no legal mechanisms for Native Americans to challenge federal actions that violate their religious freedom.

The Act’s fundamental weakness becomes apparent within a decade when courts rule it judicially unenforceable. In the 1988 Supreme Court case Lyng v. Northwest Indian Cemetery Protection Association, the Court rules that AIRFA is “only a policy statement” without judicial enforcement mechanisms. The decision establishes that if a federal agency does not abide by AIRFA’s policy, the Act provides no legal recourse for tribes, groups, or individuals to challenge that violation in court. According to legal scholar Louis Fisher’s 2001-2002 analysis, lower federal courts consistently interpret AIRFA as not requiring federal agencies to halt projects that would destroy Native American holy sites—including dam construction that would flood sacred areas. Every attempt to protect a sacred site using AIRFA as legal authority fails in court, forcing tribes to seek other legal frameworks for protection. Indigenous rights activists describe AIRFA after only a few years of court challenges using epithets including “a toothless tiger,” “a statement of good intentions,” and “a pious wish”—characterizations that accurately capture the Act’s failure to provide meaningful protection for the very religious practices it purports to defend.

The 1994 amendments to AIRFA illustrate both continued problems and limited progress in protecting Indigenous religious freedom. In response to court challenges and the Act’s inability to protect sacred sites, Congress passes an amendment guaranteeing that the use, possession, and transportation of peyote by American Indians for religious purposes is fully legal—addressing a specific religious freedom issue but leaving the broader sacred sites problem unresolved into the 21st century. The peyote amendment responds to successful prosecutions of Native Americans for using peyote in Native American Church ceremonies, providing a narrow but important religious freedom protection. However, the failure to address sacred site protection means that federal agencies continue approving projects that destroy or restrict access to locations essential for Indigenous religious practices—including mountains, rivers, forests, and other natural features central to Indigenous spirituality. AIRFA exemplifies how symbolic legislation can create an appearance of Indigenous rights protection while providing no meaningful enforcement mechanisms, allowing federal agencies to continue violating Indigenous religious freedom whenever development, resource extraction, or other federal interests conflict with Native spiritual practices. The Act represents institutional corruption through legislative theater: Congress passes feel-good policy statements that acknowledge past wrongs and affirm Indigenous rights, but structures the legislation to ensure it cannot actually constrain federal power or protect Indigenous peoples from government actions that serve corporate and development interests at the expense of sacred sites and religious freedom.