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JULY 1994

Article 27 - The Rights of Minorities to Culture, 
Religion and Language

Religion and Culture.  As discussed under Article 
18, the U.S. Constitution guarantees the right of 
all persons, members of minority groups or 
otherwise, to practice their own religion.  The 
right to practice one's own culture, although not an 
explicit constitutional guarantee, is also embodied 
in the protection of civil and political rights in 
the U.S. Constitution.  For example, the guarantee 
to practice one's culture is a subset of religious 
freedom, where religion is determined by culture.  
The issue of culture may be an element of self- 
determination, as political status and the pursuit 
of social and economic development often reflects 
cultural values.  Further, the issue is related to 
the freedoms of association and assembly.  Finally, 
the issue can encompass freedom of expression, 
opinion, thought, and conscience, where one chooses 
to express cultural beliefs and traditions.

Linguistic Freedom.  The First Amendment to the 
Constitution guarantees all persons in the United 
States the right to converse or correspond in any 
language they wish.  Virtually every major language 
or dialect is spoken somewhere in the U.S., and 
there are no restrictions on the use of foreign 
language in the print or electronic media.

Although there is no official language in the United 
States, 19 States have passed statutes, 
constitutional amendments, or resolutions declaring 
English to be the official language of the state.  
The exact impact of these enactments is not yet 
settled or clear.  One federal court struck down a 
local law requiring one-half the space of a foreign 
language sign to be devoted to English alphabetical 
characters.  Asian American Business Group v. City 
of Pomona, 716 F. Supp. 1328 (C.D. Calif. 1989); 
another invalidated as too broad under the First 
Amendment a state constitutional amendment requiring 
state employees to speak English while performing 
official duties, Yniguez v. Mofford, 730 F. Supp. 
309 (D. Ariz. 1990).  As for the private settings, a 
U.S. court recently ruled that employers may enact 
rules requiring English to be spoken in the 
workplace.  Garcia v. Spun Steak Co., 998 F.2d 1480 
(9th Cir. 1993) (holding that plaintiffs failed to 
meet disparate-impact standard and establish a prima 
facie showing of discrimination where certain 
assembly-line workers were required to converse in 

In the field of education, however, the U.S. Supreme 
Court has articulated clear protections for 
linguistic minorities.  In 1974, the Court concluded 
that under Title VI of the Civil Rights Act of 1964, 
language minority students are entitled to 
educational opportunities equal to those of other 
students.  Lau v. Nichols, 414 U.S. 563 (1974).  
Accordingly, schools are required to conduct 
programs which meet the needs of their language 
minority students.  In addition, the Bilingual 
Education Act, administered by the Department of 
Education, provides assistance to schools and other 
eligible grantees in the development and support of 
instructional programs for students with limited 
English proficiency.  The Act also supports the 
collection of data on the number of limited English 
proficient persons in the United States and the 
educational services available to them, the 
evaluation of the effectiveness of programs under 
the Act, research on improving those programs, and 
the training of teachers and other educational 
personnel to provide educational services to limited 
English proficient students.

Under the Voting Rights Act, the federal government 
and the states are required to provide multilingual 
election services for all elections in those 
jurisdictions in which persons with limited English 
proficiency constitute more than five percent of the 
voting age population.

As a requirement for naturalization as a U.S. 
citizen, applicants are required to demonstrate an 
understanding of the English language including an 
ability to read, write, and speak words in ordinary 
usage in the English language.  8 C.F.R.   312.1.  
Exceptions are provided for persons physically 
unable to take an English literary test -- such as 
blind or deaf persons -- and long-time residents of 
the U.S. over a certain age.  Persons exempt from 
the literacy test or who have passed the literacy 
test but who cannot take the United States 
history/government exam in English may employ an 
interpreter in their native language.

Protection of Native American Culture.  The 
fundamental civil and political rights discussed 
elsewhere in this report are generally sufficient to 
ensure that members of minority groups have the 
right to practice their own culture.  In the case of 
Native Americans, however, additional special 
protections have been thought warranted in view of 
their particular circumstances.  Accordingly, the 
protections afforded by Article 27 are strongly 
implicated in principles of Native American self-
governance discussed with regard to Article 1.  
Policies adopted by the United States over the last 
60 years, and particularly in the last 25 years, 
have sought to protect Native American linguistic, 
religious and cultural freedoms.

Religious Freedom.  Historically, policies of the 
federal government did not favor the practice of 
Native American religions.  Beginning in the 1930's, 
however, the Bureau of Indian Affairs began to 
remove restraints on Indian religious practice.  In 
1962, recognizing the importance of eagle feathers 
to Native American religions, Congress amended the 
Bald and Golden Eagle Protection Act of 1940 to 
provide an exception for the taking of bald eagles 
for Native American religious purposes.  16 U.S.C.   

In 1968, Congress enacted the Indian Civil Rights 
Act (ICRA), which requires Native American tribes to 
respect the civil rights of persons living in their 
jurisdictions.  25 U.S.C.    1301-03.  Among other 
things, the ICRA provides that "[n]o Indian tribe in 
exercising its powers of self-government shall . . . 
make or enforce any law prohibiting the free 
exercise of religion . . . ."  25 U.S.C.   1302.

In 1978, Congress enacted the American Indian 
Religious Freedom Act (AIRFA), 42 U.S.C.   1996, 
which requires the federal government to respect and 
promote the religious rights of Native Americans.  
Recognizing that Native American religions had often 
been misunderstood or disregarded by the majority 
culture, AIRFA established the following policy for 
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 ceremonies and 
traditional rites.

42 U.S.C.   1996. 

As discussed under Article 18, the right to free 
exercise of religion in the United States is not 
absolute, and the government is not required to 
accommodate the religious practices of all persons 
in every instance.  Accordingly, the U.S. Supreme 
Court has found that Native American religious 
rights are not unqualified, but must be 
appropriately balanced against other public and 
private rights and interests.  For example, in Lyng 
v. Northwest Indian Cemetery Protective Ass'n, the 
Court held that the federal government could not be 
prohibited from building a timber road across 
federal lands, which had traditionally been 
considered sacred for purposes of Native American 
religious practices.  In reaching this decision, the 
Court found that AIRFA did not establish judicially 
enforceable rights.  485 U.S. 439 (1988).  Two years 
later, the Court upheld a generally applicable state 
law which effectively prohibited the use of peyote 
by Native American Church practitioners.  Employment 
Div., Dep't of Human Resources of Oregon v. Smith, 
494 U.S. 872, reh'g denied 496 U.S. 913 (1990).  

As discussed under Article 18, disapproving of the 
Smith decision on peyote, the U.S. Congress enacted 
the Religious Freedom Restoration Act of 1993, 42 
U.S.C.   2000bb, which seeks to guarantee 
application of the "compelling interest" test in 
free exercise cases.  It remains to be seen how the 
rights of Native Americans to believe, express, and 
exercise their traditional religion, including 
access to sacred sites, use and possession of sacred 
objects such as peyote and eagle feathers, and the 
freedom to worship through ceremonial and 
traditional rites, will be affected by this 

The Native American Graves Protection and 
Repatriation Act (NAGPRA) of 1990, 25 U.S.C.    
3001-13, requires federal agencies and federally-
funded museums to inventory their holdings of human 
remains, funerary and sacred objects, and objects of 
cultural patrimony.  The agencies and museums must 
work with Native American tribes and Native Hawaiian 
organizations to reach agreements on the 
repatriation or other disposition of these remains 
and objects.  The Act also protects Native American 
burial sites and controls the removal of objects on 
Federal, Indian, and Native Hawaiian lands.  

Native Languages.  Scholars estimate more than 600 
Native American languages were spoken in North 
America prior to contact with the Europeans.  In 
1991, 187 of the 600 remained as "living" languages.  
However, only 38 of these languages were being 
taught to children in organized educational 

Congress addressed the issue of native languages in 
the Native American Languages Act of 1990, 25 U.S.C. 
   2901, et seq.  The Act contains the following 
legislative findings:

     (1) the status of the cultures and languages of 
Native Americans is unique and the United States has 
the responsibility to act together with Native 
Americans to ensure the survival of these unique 
cultures and languages. . . (3)  the traditional 
languages of Native Americans are an integral part 
of their cultures and identities and form the basic 
integral part of their cultures and form the basic 
medium for the transmission, and thus survival, of 
Native American cultures, literatures, histories, 
religions, political institutions, and values. . 
.(8) acts of suppression and extermination directed 
against Native American languages and cultures are 
in conflict with the United States policy of self-
determination for Native Americans. . . (9) 
languages are the means of communication for the 
full range of human experiences and are critical to 
the survival of cultural and political integrity of 
any people. . . .

The Act provides that the right of Native Americans 
to express themselves through the use of native 
languages shall not be restricted in any public 
proceeding, including publicly supported education 
programs, and requires the President to direct the 
heads of Federal agencies to evaluate their policies 
and procedures in order to determine and implement 
or propose changes needed to preserve, protect and 
promote native languages.  25 U.S.C.    2904-05.

The Indian Native Languages Act of 1992, 42 U.S.C. 
   2991, et seq.,  gives grant authority to the 
Secretary of the Department of Health and Human 
Services to award grants to eligible organizations 
that establish language projects bringing younger 
and older Native Americans together, to train native 
speakers to teach others, to develop materials, to 
produce television and radio programs in Native 
American languages, to record and preserve Native 
American languages and to purchase equipment.     

Arts and Crafts.  In 1990, the Indian arts and 
crafts industry was estimated to have a market value 
of $400 to $800 million annually.  It was also 
estimated that $40 to $80 million is lost annually 
by unmarked imitations, imported and domestic.  As 
much as 50 percent of items sold as authentic Zuni, 
Navajo and Hopi designs, many of which are religious 
symbols, were in fact imported.

The 1990 Amendments to the Indian Arts and Crafts 
Act, 25 U.S.C.    305, et seq., provide Native 
Americans with legal recourse against imitations of 
arts and crafts, including jewelry, beadwork, 
pottery, baskets, and other items, being marketed as 
"Indian Made." In addition, the Act allows Native 
American tribes to certify artists who are members 
of the tribe or who are otherwise linked to the 
tribe.  Also, the Act established a Board whose 
mandate is to promote the development of Indian arts 
and crafts and to assist Native American tribes in 
the development of a framework to support the 
"preservation and evolution" of tribal cultural 

Education.  Throughout the first half of the 
nineteenth century, the federal government provided 
only limited educational services to Native 
Americans, leaving educational programs to tribes 
themselves and to Christian religious organizations.  
Beginning in the 1870's, federal educational 
services were greatly expanded.  The focus of these 
services was on assimilation and education to 
suppress aboriginal ways.  Off-reservation boarding 
schools were established to educate and promote 
assimilation among the Indians.  Students who 
attended federally operated boarding schools and day 
schools were forbidden to speak their own language, 
forced to cut their hair, and disciplined to reject 
their Indian cultures and heritage in line with the 
policy of assimilation.

Federal policy shifted somewhat during the 1930's, 
as the Bureau of Indian Affairs (BIA) adopted 
curricular policies that sought to relate the 
instruction in Bureau schools to the needs and 
interests of the children with an emphasis on 
community day schools rather than boarding schools.  
Enrollment in off- reservation boarding schools 

At the same time, the federal government began to 
encourage attendance of Native American students in 
public schools.  The Johnson-O'Malley Act of 1934, 
25 U.S.C.    452-57, provided for federal-state 
cooperation in funding the education of Indian 
students who attended public schools.  In the 
1950's, many BIA schools were closed as part of the 
general policy of termination.

As of 1993, 43,700 students are enrolled in grades K 
through 12 basic instruction programs operated by 
the Bureau of Indian Affairs or by tribes under BIA 
contracts or grants.  This represents about 11 
percent of Indian students enrolled in elementary 
and secondary programs in the United States.  
Another 245,102 Native American students attend 
public schools that receive funds from the BIA under 
the Johnson-O'Malley Act.  Under BIA regulations, 
these funds are to be used to meet the specialized 
and unique educational needs of eligible Native 
American students.  25 C.F.R. 273.1 (1992).

In 1978, Congress enacted legislation to provide for 
greater Native American control over education in 
BIA schools.  25 U.S.C.    2001-19.  The legislation 
calls for minimum academic and dormitory standards 
or alternative tribal standards, a standardized 
formula to determine the minimum annual funding 
necessary to sustain each government-operated and 
tribally operated contract school, a process for 
renovating and repairing Indian school facilities, 
and a more flexible personnel system for educators 
and staff employed in government and tribal schools.  

In 1988, the Tribally Controlled Schools Act of 
1988, 25 U.S.C.    2501-11, set forth findings that 
the federal administration and domination of the 
contracting process in Indian education matters 
under the Indian Self- Determination Act had not 
provided Indian people leadership opportunities or 
an effective voice in planning and implementing of 
programs for the benefit of Indians.  To remedy 
these concerns, the statute offered tribes and 
tribal organizations the option to receive grants 
for the total operation of tribal schools.  Under 
these grants, tribes or tribal organizations are 
given total tribal control of funds and personnel, 
limited federal reporting requirements, and the 
ability to invest federal funds received under this 
program for the schools' benefit.

Indian Child Welfare.  In 1978, Congress passed the 
Indian Child Welfare Act, 25 U.S.C.    1902, et 
seq., to promote the placement of Native American 
children in foster and adoptive homes reflective of 
their unique cultural environment and heritage.  The 
policy was designed to increase involvement by 
tribal governments and other Native American 
organizations in the planning and delivery of child 
welfare-related services, and as a result, there has 
been a significant increase in child welfare 
personnel who are familiar with tribal customs and 

The Act resolves conflicts between federal, state 
and tribal governments in such a way that tribal 
governments have primary jurisdiction over the 
placement of Native American children.  The Act 
vests initial authority for Native American child 
placements with tribal courts and provides that full 
faith and credit be accorded to the laws and court 
orders of Indian tribes in child placement matters.  
The statute also authorizes the federal government 
to provide grants to tribes and tribal organizations 
to establish tribal codes and family development 
programs on and off Native American reservations. 
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