Testimony Before The Senate Select Committee On Indian Affairs

Testimony Before The Senate Select Committee On Indian Affairs

This document contains testimony to amend the American Indian Religious Freedom Act of 1978.

Steven C. Moore

U.C. Davis Special Collections

05/18/1988

Humboldt State Special Collections

21.59cm x 27.94cm

English

16 Pages

D-046 Jack Forbes Papers 7270
Box 165

By now the Supreme Court's interpretation of AIRFA in Lyng. is well known; the same or similar conclusions regarding the Act having been reached in most reported lower court decisions. First, it held that AIRFA is but a statement of policy by Congress, and in Lyng the Court was persuaded the Forest Service could not have been more solicitous in respecting Indian religion and AIRFA policy. (Again, to reach this conclusion the Forest Service had to ignore the expert testimony of its own witnesses!) Second, the Court concluded that [n]owhere in the law is there so much as a hint of any intent to create a cause of action or judicially enforcable individual right.

Finally, the Court referred to remarks by Congressman Udall that AIRFA was but a sense of Congress' joint resolution, that it confers on Indians no "special" religious rights, and that in fact has no teeth in it.  Slip. Op. at 15.
Not to worry about special religious rights: the effect of the Lyng decision is to strip Indians of all constitutional religious rights for the protection of sacred sites!

Concerning AIRFA, Justice Brennan made two points in dissent.
    First, as mentioned earlier, Congress expressly found by virtue of AIRFA and its legislative history that the Federal government has left a legacy of persecution of Indian religion under the guise of incidental effects. If the incidental effects of government actions are above constitutional scrutiny, that persecution will continue.
    Second, he described the Court"s decision as making a mockery of AIRFA's policy to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise their traditional religions.

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