American Indian Religious Freedom Act: Sacred Sites, Peyote, and NAGPRA

The American Indian Religious Freedom Act, signed August 11, 1978 as Public Law 95-341, declares it the policy of the United States to protect the right of American Indians, Eskimos, Aleuts, and Native Hawaiians to believe in, express, and practice their traditional religions, including access to sacred sites, possession of sacred objects, and the freedom to worship through ceremony.¹ The act reversed decades of federal suppression of Native spiritual practice, but it carries a limitation anyone relying on it needs to grasp up front: courts have read it as a policy statement, not a source of rights a tribe or individual can enforce in court. The protections that actually work today come from later laws, amendments, and executive orders built on top of it.

What the 1978 Act Protects

The statute identifies three categories of protection. It covers the freedom to worship through traditional ceremonies and rites, including prayer, song, and dance. It covers access to sacred sites on federal lands where tribes have historically conducted religious observances. And it covers the right to use and possess sacred objects, from eagle feathers to plant materials, needed for those ceremonies.¹

Before AIRFA, federal agents and local officials routinely banned indigenous spiritual practices. Children in government boarding schools were punished for speaking their languages or performing ceremonies. Federal land managers denied practitioners access to ancestral worship sites. AIRFA directed every federal agency to respect Native religious traditions on the same footing as other recognized faiths.

Why the Act Cannot Be Enforced in Court

Despite its broad language, AIRFA does not create any legal right a tribe or individual can sue to enforce. The Supreme Court said so directly in Lyng v. Northwest Indian Cemetery Protective Association (1988), finding “not so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.”²

In Lyng, the Forest Service planned to build a road through an area in Northern California that three tribes considered sacred. The Court acknowledged the road would “virtually destroy the Indians’ ability to practice their religion” and ruled the government could proceed. The Free Exercise Clause, the Court held, stops the government from coercing religious behavior; it does not give individuals the power to stop the government from using its own land, even when the consequences for a religious community are devastating.²

The practical takeaway: AIRFA tells federal agencies they should protect Native religious freedom, but it gives tribes no lawsuit to bring when an agency ignores it. Later statutes fill part of that gap. AIRFA itself remains a statement of intent.

Sacred Sites on Federal Land

Many locations essential to indigenous worship sit on land managed by the National Park Service, the Forest Service, and the Bureau of Land Management. AIRFA says practitioners should be able to reach these places, but after Lyng, additional protection came through executive action rather than through the act itself.

Executive Order 13007, signed in 1996, directs every federal land-management agency to accommodate access to and ceremonial use of sacred sites “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions.” Agencies must also avoid adversely affecting the physical integrity of sacred sites and, where appropriate, keep their locations confidential. The order requires reasonable notice to tribes before proposing actions that could restrict future access or harm sacred locations.³

The Park Service has turned these requirements into management protocols. When a tribe identifies a location within a park as sacred, the agency works with the group to develop strategies that can include temporary closure of trails or access to areas normally closed to the public.⁴ These arrangements are negotiated rather than imposed, and they must comply with constitutional requirements.

The underlying legal reality is still difficult. Federal courts have repeatedly allowed agencies to damage or destroy sacred sites, reasoning that tribes are asking for a positive right to dictate how the government uses its land. The Supreme Court declined to hear the Apache Stronghold case, which challenged a federal land transfer that would have destroyed a site the Western Apache consider sacred. Executive orders and agency policies now provide the primary layer of protection for sacred sites, and both can be revised or revoked by any future administration.

Eagle Feathers and the National Eagle Repository

Eagle feathers hold deep spiritual significance across many Native traditions, but possessing them without authorization is a federal crime. The Bald and Golden Eagle Protection Act makes it illegal to possess any bald or golden eagle, alive or dead, or any part of one, including feathers.⁵

To reconcile that prohibition with religious practice, the Eagle Protection Act authorizes the Secretary of the Interior to issue permits for the taking and possession of eagles “for the religious purposes of Indian tribes.”⁶ The U.S. Fish and Wildlife Service operates the National Eagle Repository in Colorado, which collects dead eagles from around the country and distributes them to enrolled members of federally recognized tribes for religious use.⁷

Applicants must be at least 18 and enrolled in a federally recognized tribe. First-time applicants submit a Federal Native American Religious Purposes Permit Application along with a Certification of Enrollment signed by an authorized tribal official. There is no fee for the eagle parts.⁷

The practical obstacle is time. Demand far exceeds supply. As of April 2026, an order for an adult bald eagle whole bird placed in July 2022 is just being processed. Orders for immature golden eagle whole birds are only reaching requests submitted in March 2014, a roughly 12-year backlog. Loose feathers and wing orders move faster, with some bald eagle feather requests submitted as recently as March 2026 already being filled. The repository updates its wait-time estimates quarterly.⁸

Peyote and the 1994 Amendment

Peyote is a Schedule I controlled substance under federal law, yet it has been central to Native American Church ceremonies for generations. In 1990, the Supreme Court held in Employment Division v. Smith that states could criminalize peyote use and deny unemployment benefits to workers fired for using it in religious ceremonies, reasoning that a neutral, generally applicable drug law does not violate the Free Exercise Clause when it only incidentally burdens religious practice.⁹

Congress responded first with the Religious Freedom Restoration Act in 1993 and then by amending AIRFA in 1994 with 42 U.S.C. § 1996a. Unlike the original act, the 1994 amendment has teeth. It declares that the use, possession, or transportation of peyote by an Indian for traditional ceremonial purposes “is lawful, and shall not be prohibited by the United States or any State,” and prohibits penalizing or discriminating against anyone for such use, including through denial of public assistance benefits.¹⁰

The exemption is not unlimited. The statute contains several built-in restrictions:

Only members of federally recognized tribes qualify. The statute defines “Indian” as a member of an “Indian tribe” eligible for the special programs and services the United States provides to Indians.
Federal agencies can restrict peyote use by sworn law enforcement officers and personnel in transportation or other safety-sensitive positions, provided those restrictions are the least restrictive means available.
The Secretary of Defense may limit peyote use to promote military readiness or comply with international law.
The statute does not require prison authorities to permit peyote use by inmates, though it does not prohibit them from allowing it.
States may enforce reasonable traffic safety laws, including DUI statutes.

A separate federal regulation exempts the Native American Church specifically, stating that peyote’s Schedule I listing does not apply to its nondrug use in the Church’s religious ceremonies. Anyone manufacturing or distributing peyote to the Church must still register annually with the DEA.¹¹

The Statutes That Actually Give Practitioners a Lawsuit

Because AIRFA itself creates no enforceable rights, indigenous practitioners challenging government actions generally rely on other statutes.

The Religious Freedom Restoration Act, passed in 1993, prohibits the federal government from substantially burdening any person’s exercise of religion unless it can show the burden furthers a compelling governmental interest and uses the least restrictive means.¹² RFRA lets individuals bring lawsuits and seek judicial relief. In practice, courts have struggled with what “substantial burden” means when the government is using its own land, and the strict scrutiny test that makes RFRA powerful in other contexts has largely failed to protect sacred sites.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), enacted in 2000, provides the parallel protection for people in prison. It bars the government from imposing a substantial burden on an incarcerated person’s religious exercise unless the burden serves a compelling interest and uses the least restrictive means.¹³ Sweat lodge ceremonies are among the most contested issues. Some prisons permit them; others ban them, citing burning embers, heavy rocks, and the difficulty of supervising inmates inside an enclosed lodge. Eagle feathers are sometimes allowed when the inmate can prove membership in a federally recognized tribe, while larger animal parts like hides or antlers are frequently restricted. Courts generally defer to prison administrators on security-related restrictions, and policies vary from one facility to the next.

Repatriation Under NAGPRA

The Native American Graves Protection and Repatriation Act, enacted in 1990, addresses something AIRFA’s policy language could not: the return of sacred objects, funerary items, and human remains held in federal collections and museums. NAGPRA requires federal agencies and museums that receive federal funding to inventory their holdings of Native American human remains and associated funerary objects, identify cultural affiliation with specific tribes, and return them upon request.¹⁴

The statute defines “sacred objects” as specific ceremonial items needed by traditional religious leaders for the practice of traditional religions by present-day adherents. “Cultural patrimony” covers objects of ongoing historical or cultural importance to a tribe as a whole, items no individual could legitimately sell or give away.¹⁵

When cultural affiliation is established, the agency or museum must “expeditiously return” the items on request from a lineal descendant or affiliated tribe. Even without an initial inventory finding, a tribe can obtain repatriation by demonstrating cultural connection through geographic, linguistic, oral traditional, or other evidence under a preponderance standard. One narrow exception lets an agency delay return of items “indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States,” but even then the items must be returned within 90 days of the study’s completion.¹⁴

Who Qualifies

AIRFA’s policy statement refers broadly to American Indians, Eskimos, Aleuts, and Native Hawaiians. But where specific legal protections have been attached to it, the 1994 peyote amendment and the eagle feather permit system in particular, eligibility is limited to enrolled members of federally recognized tribes. The peyote amendment defines “Indian” as “a member of an Indian tribe,” and defines “Indian tribe” as a group recognized by the federal government as eligible for the special programs and services provided to Indians.¹⁰

Members of state-recognized tribes or unrecognized indigenous groups do not qualify for the peyote exemption or the eagle feather permit process. They remain subject to standard drug and wildlife laws. The gap between AIRFA’s inclusive policy language and the narrow eligibility requirements of its implementing protections affects a substantial number of people who identify as indigenous but lack federal tribal enrollment.

1
Office of the Law Revision Counsel. 42 USC 1996 – Protection and Preservation of Traditional Religions of Native Americans
2
Justia Law. Lyng v. Northwest Indian Cemetery, 485 US 439 (1988)
3
U.S. Department of the Interior. Executive Order 13007
4
National Park Service. Management Policies – Cultural Resource Management
5
Office of the Law Revision Counsel. 16 USC 668 – Bald and Golden Eagles
6
Office of the Law Revision Counsel. 16 USC 668a – Taking and Using of the Bald and Golden Eagle for Scientific, Exhibition, and Religious Purposes
7
U.S. Fish & Wildlife Service. National Eagle Repository – What We Do
8
U.S. Fish & Wildlife Service. National Eagle Repository
9
Justia Law. Employment Division v. Smith, 494 US 872 (1990)
10
Office of the Law Revision Counsel. 42 US Code 1996a – Traditional Indian Religious Use of Peyote
11
eCFR. 21 CFR 1307.31 – Native American Church
12
Office of the Law Revision Counsel. 42 US Code 2000bb-1 – Free Exercise of Religion Protected
13
Office of the Law Revision Counsel. 42 USC 2000cc-1 – Protection of Religious Exercise of Institutionalized Persons
14
Office of the Law Revision Counsel. 25 USC 3005 – Repatriation
15
Office of the Law Revision Counsel. 25 USC 3001 – Definitions