42 U.S.C. § 1996 — Protection and preservation of traditional

Page 5241 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1996 tence of the court upon conviction is a fine in excess of the sum of $300 or imprisonment in ex- cess of forty-five days, the accused in said pro- ceeding, upon demand therefore, shall be enti- tled to a trial de novo before a jury, which shall conform as near as may be to the practice in other criminal cases. This section shall not apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the ad- ministration of justice nor to the misbehavior, misconduct, or disobedience, of any officer of the court in respect to the writs, orders, or proc- ess of the court. Nor shall anything herein or in any other pro- vision of law be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with or to prevent obstruction of, as distinguished from punishment for violations of, any lawful writ, process, order, rule, decree, or command of the court in accordance with the prevailing usages of law and equity, including the power of deten- tion. (Pub. L. 85–315, pt. V, § 151, Sept. 9, 1957, 71 Stat. 638.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 85–315, Sept. 9, 1957, 71 Stat. 634, known as the Civil Rights Act of 1957. For complete classification of this Act to the Code, see Tables. § 1996. Protection and preservation of traditional religions of Native Americans On and after August 11, 1978, it shall be the policy of the United States to protect and pre- serve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Es- kimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and pos- session of sacred objects, and the freedom to worship through ceremonials and traditional rites. (Pub. L. 95–341, § 1, Aug. 11, 1978, 92 Stat. 469.) Statutory Notes and Related Subsidiaries SHORT TITLE OF 1994 AMENDMENT Pub. L. 103–344, § 1, Oct. 6, 1994, 108 Stat. 3125, provided that: ‘‘This Act [enacting section 1996a of this title] may be cited as the ‘American Indian Religious Free- dom Act Amendments of 1994’.’’ SHORT TITLE Pub. L. 95–341, as amended, which enacted this sec- tion, section 1996a of this title, and a provision set out as a note under this section, is popularly known as the American Indian Religious Freedom Act. FEDERAL IMPLEMENTATION OF PROTECTIVE AND PRES- ERVATION FUNCTIONS RELATING TO NATIVE AMERICAN RELIGIOUS CULTURAL RIGHTS AND PRACTICES; PRESI- DENTIAL REPORT TO CONGRESS Pub. L. 95–341, § 2, Aug. 11, 1978, 92 Stat. 470, provided that the President direct the various Federal depart- ments, agencies, and other instrumentalities respon- sible for administering relevant laws to evaluate their policies and procedures in consultation with native tra- ditional religious leaders to determine changes nec- essary to preserve Native American religious cultural rights and practices and report to the Congress 12 months after Aug. 11, 1978. Executive Documents EX. ORD. NO. 13007. INDIAN SACRED SITES Ex. Ord. No. 13007, May 24, 1996, 61 F.R. 26771, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States, in fur- therance of Federal treaties, and in order to protect and preserve Indian religious practices, it is hereby or- dered: SECTION 1. Accommodation of Sacred Sites. (a) In man- aging Federal lands, each executive branch agency with statutory or administrative responsibility for the man- agement of Federal lands shall, to the extent prac- ticable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate ac- cess to and ceremonial use of Indian sacred sites by In- dian religious practitioners and (2) avoid adversely af- fecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the con- fidentiality of sacred sites. (b) For purposes of this order: (i) ‘‘Federal lands’’ means any land or interests in land owned by the United States, including leasehold interests held by the United States, except Indian trust lands; (ii) ‘‘Indian tribe’’ means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law No. 103–454, 108 Stat. 4791 [see 25 U.S.C. 5130, 5131], and ‘‘Indian’’ refers to a member of such an Indian tribe; and (iii) ‘‘Sacred site’’ means any specific, discrete, nar- rowly delineated location on Federal land that is iden- tified by an Indian tribe, or Indian individual deter- mined to be an appropriately authoritative representa- tive of an Indian religion, as sacred by virtue of its es- tablished religious significance to, or ceremonial use by, an Indian religion; provided that the tribe or appro- priately authoritative representative of an Indian reli- gion has informed the agency of the existence of such a site. SEC. 2. Procedures. (a) Each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, as appropriate, promptly implement procedures for the purposes of car- rying out the provisions of section 1 of this order, in- cluding, where practicable and appropriate, procedures to ensure reasonable notice is provided of proposed ac- tions or land management policies that may restrict future access to or ceremonial use of, or adversely af- fect the physical integrity of, sacred sites. In all ac- tions pursuant to this section, agencies shall comply with the Executive memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments’’ [25 U.S.C. 5301 note]. (b) Within 1 year of the effective date of this order, the head of each executive branch agency with statu- tory or administrative responsibility for the manage- ment of Federal lands shall report to the President, through the Assistant to the President for Domestic Policy, on the implementation of this order. Such re- ports shall address, among other things, (i) any changes necessary to accommodate access to and ceremonial use of Indian sacred sites; (ii) any changes necessary to avoid adversely affecting the physical integrity of In- dian sacred sites; and (iii) procedures implemented or proposed to facilitate consultation with appropriate In- dian tribes and religious leaders and the expeditious resolution of disputes relating to agency action on Fed- eral lands that may adversely affect access to, ceremo- nial use of, or the physical integrity of sacred sites. SEC. 3. Nothing in this order shall be construed to re- quire a taking of vested property interests. Nor shall Page 5242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1996a this order be construed to impair enforceable rights to use of Federal lands that have been granted to third parties through final agency action. For purposes of this order, ‘‘agency action’’ has the same meaning as in the Administrative Procedure Act (5 U.S.C. 551(13)). SEC. 4. This order is intended only to improve the in- ternal management of the executive branch and is not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or procedural, enforce- able at law or equity by any party against the United States, its agencies, officers, or any person. WILLIAM J. CLINTON. § 1996a. Traditional Indian religious use of pe- yote (a) Congressional findings and declarations The Congress finds and declares that— (1) for many Indian people, the traditional ceremonial use of the peyote cactus as a reli- gious sacrament has for centuries been inte- gral to a way of life, and significant in perpet- uating Indian tribes and cultures; (2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regu- lation; (3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian reli- gious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies; (4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amend- ment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this reli- gious practice would be protected under the compelling State interest standard; and (5) the lack of adequate and clear legal pro- tection for the religious use of peyote by Indi- ans may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discrimina- tory treatment. (b) Use, possession, or transportation of peyote (1) Notwithstanding any other provision of law, the use, possession, or transportation of pe- yote by an Indian for bona fide traditional cere- monial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or dis- criminated against on the basis of such use, pos- session or transportation, including, but not limited to, denial of otherwise applicable bene- fits under public assistance programs. (2) This section does not prohibit such reason- able regulation and registration by the Drug En- forcement Administration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this section and section 1996 of this title. (3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon’s Texas Health and Safety Code Annotated, in ef- fect on October 6, 1994, insofar as those provi- sions pertain to the cultivation, harvest, and distribution of peyote. (4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing rea- sonable limitations on the use or ingestion of peyote prior to or during the performance of du- ties by sworn law enforcement officers or per- sonnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regula- tions shall be adopted only after consultation with representatives of traditional Indian reli- gions for which the sacramental use of peyote is integral to their practice. Any regulation pro- mulgated pursuant to this section shall be sub- ject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Pub- lic Law 103–141; 42 U.S.C. 2000bb–1). (5) This section shall not be construed as re- quiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while in- carcerated within Federal or State prison facili- ties. (6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103–141; 42 U.S.C. 2000bb–1) [42 U.S.C. 2000bb et seq.], this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations. (7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103–141; 42 U.S.C. 2000bb–1), this section does not prohibit the Secretary of Defense from promulgating reg- ulations establishing reasonable limitations on the use, possession, transportation, or distribu- tion of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with rep- resentatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. (c) Definitions For purposes of this section— (1) the term ‘‘Indian’’ means a member of an Indian tribe; (2) the term ‘‘Indian tribe’’ means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alas- ka Native village (as defined in, or established pursuant to, the Alaska Native Claims Settle- ment Act (43 U.S.C. 1601 et seq.)), which is rec- ognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; (3) the term ‘‘Indian religion’’ means any re- ligion— (A) which is practiced by Indians, and (B) the origin and interpretation of which is from within a traditional Indian culture or community; and (4) the term ‘‘State’’ means any State of the United States, and any political subdivision thereof. (d) Protection of rights of Indians and Indian tribes Nothing in this section shall be construed as abrogating, diminishing, or otherwise affect- ing—