Full text of "American Indian Religious Freedom Act : oversight hearing before the Subcommittee on Native American Affairs of the Committee on Natural Resources, House of Representatives, One Hundred Third Congress, first session, on effectiveness of P.L. 95-346--the American Indian Religious Freedom Act of 1978 (AIRFA)"

AMERICAN INDIAN RELIGIOUS
FREEDOM ACT— PART I

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON NATR^ AMERICAN AFFAIRS

OF THE

COMMITTEE ON

NATURAL RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION

EFFECTIVENESS OF P.L. 95-346— THE AMERICAN INDIAN RELIGIOUS
FREEDOM ACT OF 1978 (AIRFA)

HEARING HELD IN WASHINGTON, DC
FEBRUARY 23, 1993

Serial No. 103-7, Part I

Printed for the use of the Committee on Natural Resources

JUL 30

68-194 WASHINGTON : 1993

U.S. GOVERNMENT PRINTING OFFICE '•''•"''Cf)^., '*»»»?'

AMERICAN INDIAN RELIGIOUS
FREEDOM ACT— PART I

103-7-/PT. 1

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS

OF THE

COMMITTEE ON

NATURAL RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION
ON

EFFECTIVENESS OF P.L. 95-346— THE AMERICAN INDIAN RELIGIOUS
FREEDOM ACT OF 1978 (AIRFA)

HEARING HELD IN WASHINGTON, DC
FEBRUARY 23. 1993

Serial No. 103-7, Part I

Printed for the use of the Committee on Natural Resources

Oii/i^--

1993

U.S. GOVERNMENT PRINTING OFFICE
68-194 WASHINGTON : 1993

COMMITTEE ON NATURAL RESOURCES

House of Representatives

GEORGE MILLER, California, Chairman

PHILIP R. SHARP, Indiana
EDWARD J. MARKEY, Massachusetts
AUSTIN J. MURPHY, Pennsylvania
NICK JOE RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
PAT WILLIAMS, Montana
RON DE LUGO, Virgin Islands
SAM GEJDENSON, Connecticut
RICHARD H. LEHMAN, CaUfomia
BILL RICHARDSON, New Mexico
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA,

American Samoa
TIM JOHNSON, South Dakota
LARRY LaROCCO, Idaho
NEIL ABERCROMBIE, Hawaii
CALVIN M. DOOLEY, California
CARLOS ROMERO-BARCELO, Puerto Rico
KARAN ENGLISH, Arizona
KAREN SHEPHERD, Utah
NATHAN DEAL, Georgia
MAURICE D. HINCHEY, New York
ROBERT A UNDERWOOD, Guam
HOWARD BERMAN, California
LANE EVANS, Illinois
PATSY T. MINK, Hawaii
THOMAS J. BARLOW III, Kentucky
THOMAS M. BARRETT, Wisconsin

Daniel P. Beard, Staff Director

Richard Meltzer, General Counsel

Daniel Val Kish, Republican Staff Director

DON YOUNG, Alaska,

Ranking Republican Member
JAMES V. HANSEN, Utah
BARBARA F. VUCANOVICH, Nevada
ELTON GALLEGLY, California
ROBERT F. SMITH, Oregon
CRAIG THOMAS, Wyoming
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE ALLARD, Colorado
RICHARD H. BAKER, Louisiana
KEN CALVERT, CaUfomia
SCOTT McINNIS, Colorado
RICHARD W. POMBO, California
JAY DICKEY, Arkansas

Subcommittee on Native American Affairs

BILL RICHARDSON,

PAT WILLIAMS, Montana

SAM GEJDENSON, Connecticut

ENI F.H. FALEOMAVAEGA, American

Samoa
TIM JOHNSON, South Dakota
NEIL ABERCROMBIE, Hawaii
KARAN ENGLISH, Arizona

New Mexico, Chairman
CRAIG THOMAS, Wyoming

Ranking Republican Member
DON YOUNG, Alaska
RICHARD H. BAKER, Louisiana
KEN CALVERT, California

Tadd Johnson, Staff Director

Steven J.W. Heeley, Counsel

Marie Howard, Professional Staff Member

Barbara Robles, Clerk

Richard H. Houghton III, Republican Counsel on Native American Affairs

(II)

CONTENTS

Page

Hearing held: February 23, 1993 1

Background information 5

Member statements:

Bill Richardson 1

Craig Thomas 1

Pat Williams 2

Ken Calvert 3

Tim Johnson 3

Neil Abercrombie 4

Witness statements:
Panel consisting of:

Jerry Flute, field director. Association on American Indian Affairs 7

Hon. James S. Hena, chairman, All Indian Pueblo Council, Albuquer-
que, NM 16

Hon. Cedric Chavez, governor, Pueblo of Cochiti, NM 24

Hon. J. Gibert Sanchez, 1st It. governor, Pueblo of San Ildefonso,

Santa Fe, NM 29

Panel consisting of:

Hon. Francis B. Brown, president. Medicine Wheel Coalition for Sa-
cred Sites of North America, Riverton, WY 50

Hon. John Sun Child, Sr., chairman, business committee, Chippewa

Cree Tribe of the Rocky Boy's Reservation, Box Elder, MT 55

Al Scott Johnnie, director, Lummi Cultural Resource Protection Of-
fice, BeUingham, WA 65

Christopher H. Peters, executive director. Seventh Generation Fund,

McKinleyville, CA 80

Panel consisting of:

Nora Garcia, president. Inter Tribal Council of Arizona 91

Hon. Marshall Plummer, vice-president, Navajo Nation, Window

Rock, AZ 97

Hon. Kina'u Boyd Kamali'i, trustee. Office of Hawaiian Affairs, Hono-
lulu, HI 106

APPENDIX

February 23, 1993

Additional material submitted for the record from:

Santa Clara Indian Pueblo, Espanola, NM: Letter to Chairman Richard-
son from Hon. Walter Dasheno, Governor, dated March 9, 1993 119

Native American Church of Navaholand, Inc., AZ: Prepared statements

of Lorenzo Meix, Board of Directors, and Mike Kiyaani, spiritual leader 126

(III)

EFFECTIVENESS OF PUBLIC LAW 95-346— THE
AMERICAN INDIAN RELIGIOUS FREEDOM
ACT OF 1978 (AIRFA)

TUESDAY, FEBRUARY 23, 1993

House of Representatives,
Committee on Natural Resources,

Washington, DC.

The committee met at 9:45 a.m. in room 1324 of the Longworth
House Office Building, the Hon. Bill Richardson presiding.

STATEMENT OF HON. BILL RICHARDSON

Mr. Richardson. Good morning. The Subcommittee will come to
order.

Today we're conducting an oversight hearing on the Effectiveness
of the American Indian Religious Freedom Act of 1978.

In 1978, Congress enacted the American Indian Religious Free-
dom Act in an effort to address the problems many Native Ameri-
cans face in exercising their right to practice their religion.

During the debate. Chairman Udall expressed his concern that
the Act lacked teeth, and to the chagrin of many Native American
religious leaders and practitioners, that quote has been repeated
consistently in reference to the Act.

Fourteen years of implementation of this legislation and two Su-
preme Court cases have brought us to this day. In 1988, the Su-
preme Court in the Lyng case held that this legislation did not con-
fer a cause of action to Indians for the protection of religious sites
for Federal land management decisions and, therefore, could not be
used by Indians to challenge such decisions.

In 1990, the Supreme Court further frustrated Native Americans
in the case of Smith when it, in essence, threw out the longstand-
ing practice of courts that, in order for the government to restrict
an individual's right to religious practice, the government had to
show it had an overriding "compelling interest" to do so.

This is the first of two hearings the Subcommittee will hold on
the effectiveness of this legislation. This morning we will hear from
several tribal and religious leaders on their experiences and views
of how to better protect Native Americans in their right to fi-eely
exercise their religious practices.

And it's a great pleasure for me to recognize the ranking minor-
ity member, Mr. Thomas.

STATEMENT OF HON. CRAIG THOMAS

Mr. Thomas. Thank you, Mr. Chairman.

(1)

Just briefly, you, I think, have outlined well the purpose and the
background for this hearing. Certainly, the American Indian Reli-
gious Freedom Act was designed to recognize the importance and
the cultural aspects of Native American religions and it was obvi-
ously a strong step to do that. Clearly, it has not resulted in the
kinds of things that some might have hoped that it would.

So I think it's appropriate that we do have hearings, have a com-
prehensive review of these laws and the problems £ind then do
something to deal with it. So, Mr. Chairman, I look forward to the
hearings.

Thank you.

Mr. Richardson. The Chair recognizes the gentleman from Mon-
tana.

STATEMENT OF HON. PAT WILLIAMS

Mr. Williams. Thank you, Mr. Chairman.

As you know, this is a matter of significance and importance to
America's native people. It is critical, as this issue is discussed here
and legislation drafted, that we retain the constitutional projec-
tions against church/state entanglement. The intervention of gov-
ernment in the affairs of religion is disadvantageous to both.

Our Nation's chief architect, Thomas Jefferson, stated this. "All
persons shall have full and free liberty of religious opinion. None
shall be compelled to frequent or maintain any religious institu-
tion." Thomas Jefferson wanted, not only for himself but for all his
fellow citizens, not freedom from religion but rather freedom to
pursue religion.

The corollary to the Declaration of Independence is Jefferson's
Bill for Religious Freedom. And it contains in the Preamble the
rage of Thomas Jefferson against the hypocrisy and self-righteous-
ness that he associated with what had been the historic alliance be-
tween church and state.

Jefferson believed that of all personal convictions those of reli-
gion should be the least subject to authority or compulsion. The
thoughts of Jefferson and Madison on this matter were not easily
accepted then and are not easily accepted now and have been very
difficult for this Nation to retain.

So I personally believe that it is critical that as ^ve work hard
and as best we can to ensure American Indian religious freedom,
we take every step necessary to preserve the separation of church
and state. Let me elaborate on that for a moment.

I'm an advocate of religious freedom for all people, including our
Native Americans. I am unconvinced that Native American people
now enjoy that religious freedom. Having said that, I'm also torn
about legislation which has been introduced in the past because I
believe it has bumped up against entanglement of the Federal Gov-
ernment with religion, with certain institutions or churches.

For example, can't a Federal Government which delineates reli-
gious practices are acceptable also be the Federal Government that
will demonstrate which are not acceptable? If that's true^and I be-
lieve it is — then we have to be very, very cautious with this legisla-
tion or all people, most notably, the first people, will rue the day
that the Federal Government ever set foot on this quicksand.

I want to welcome, Mr. Chairman, all of the witnesses but espe-
cially the Honorable John Sun Child, Chairman of the Chippewa
Cree Tribe of the Rocky Boy Reservation in our State of Montana.
Chairman Sun Child and I have been friends for many years and
I'm pleased to see him here today. And I appreciate your inviting
him to be one of our witnesses.

Thanks very much, Mr. Chairman.

Mr. Richardson. Thank you.

The Chair recognizes the gentleman from California.

STATEMENT OF HON. KEN CALVERT

Mr. Calvert. Thank you, Mr. Chairman.

I'm also very interested in the American Indian Religious Act. I
also believe in the rights to pursue religion with few constraints
and look forward to your testimony.

Thank you very much.

Mr. Richardson. The Chair recognizes the gentleman from
South Dakota.

STATEMENT OF HON. TIM JOHNSON

Mr. Johnson. Thank you, Mr. Chairman.

I commend you for holding this critically important hearing on
an issue that is of great controversy and great importance.

I want to welcome all the members of the three panels, all of
whom I think will make very valuable contributions. But I'd like
to extend a special welcome to Jerry Flute, who is not only the
Field Director for the Association of American Indian and a very
well known leader of Native American issues nationwide, but also
a member of the Sisseton-Wahpeton Tribe in my home State of
South Dakota. We're proud of Jerry Flute's contributions.

I'm looking forward to the testimony on this issue. Much of the
religious controversy centers around access and use and preserva-
tion of sacred sites. Inasmuch as some of the sacred sites involve
literally thousands of squaire miles of public lands, there will al-
ways be some tension in the management of these areas relative
to general access to the general public, multiple use and what in
fact can be done in some of these huge areas that benefit the gen-
eral public, but yet at the same time, preserve the sacredness of
the region.

And I'm looking forward to the insights fi-om all the panelists on
what we can do to assure the preservation, as much as possible,
of sacred sites and access and preservation of Indian religion.

I regret that I have another hearing going on in only a few min-
utes involving land management in my home state. And I'm going
to have to excuse myself to attend that hearing. So I'm not going
to be able to be here personally throughout this hearing, Mr. Chair-
man.

But I think it's very valuable and I'm studying the testimony
that's been submitted in writing. I'm going to be working with my
staff and working with you as we strive, throughout the course of
this Congress, to come to some better resolution than we have to
now over this Native American religious issue.

Thank you.

Mr. Richardson. I thank the gentleman.

The Chair recognizes the gentleman from Hawaii.

STATEMENT OF HON. NEIL ABERCROMBIE

Mr. ABERCROMBIE. Thank you very much, Mr. Chairman.

I'm dehghted to be able to this morning have as part of our hear-
ing record, I think the last testimony in our array here, that of one
of my dearest and oldest friends, the Hon. Kina'u Boyd Kamali'i
from Hawaii.

I served in the legislature with Kina'u and she's now a Trustee
of the Office of Hawaiian Affairs. I think this is a recognition, Mr.
Chairman, of the people in Hawaii, of our Hawaiian brothers and
sisters, in this Committee's jurisdiction, thanks in great measure
to your insight and that of Chairman Miller, as well as your per-
sistence. I want to recognize today — inasmuch as this is the first
time that someone from Hawaii has had a chance to testify— that
we now recognize formally in the jurisdiction of this subcommittee
literally the existence of Native Hawaiians.

Let me just add then that, with respect to the subject under dis-
cussion today, religious freedom, there are particular elements as-
sociated with contemporary Hawaiian life that are intimately con-
nected to the subject matter before us today. And Kina'u will ex-
plain that to us in detail.

So, suffice to say then, that this is a great opportunity for us to
recognize your leadership and actually the beginnings of this Com-
mittee. I'm sure it's going to prove an invaluable resource to the
Committee on Natural Resources.

Mr. Richardson. I thank the gentleman.

I ask that the background be made part of the record.

Let me also state, before we get started, that as of this moment
the Subcommittee has not drafted any legislation. So we have no
preconceived decisions on any amendments and we're willing to
look at all proposals. We do intend to draft a piece of legislation.

[Background information follows:]

BACKGROUND FOR OVERSIGHT HEARING ON THE EFFECTIVENESS OF THE

AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978

FEBRUARY 23, 1993

HISTORY

In 1978, Congress enacted the American Indian Religious Freedom
Act, which states:

"Henceforth it shall be 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."
(P.L. 95-341; 42 USCS 1996).

During debate on the Act the Chairman of the then House Interior
and Insular Affairs Committee, Representative Morris Udall, stated
that the Act has "no teeth" . To the chagrin of many Native
American religious leaders and practitioners, that quote has been
repeated consistently in reference to the Act.

In Lvnq v. Northwest Indian Cemeterv Protection Association (1988) ,
the Supreme Court held that the American Indian Religious Freedom
Act (AIRFA) did not confer a cause of action to Indians for the
protection of religious sites from federal land management
decisions and, therefore, could not be used by Indians to challenge
such decisions. The Court further held that under the Free
Exercise Clause of the Constitution, the government could not be
prevented from destroying sites held sacred by Indians and
necessary to the practice of traditional religious ceremonies
because the Clause as written is in terms of what the government
cannot do to the individual and not in terms of what the individual
can extract from the government. The Court's decision meant that
the action in this case of the Forest Service to allow logging and
to build a logging road in the area of an Indian cemetery was not
unconstitutional because, (1) AIRFA did not confer a cause of
action and, (2) the Forest Service was not forcing an individual to
act in opposition to his or her religious beliefs.

A second Supreme Court decision has raised additional concerns in
Native as well as non Native religious communities. In Employment
Division of Oregon v. Smith (1990) , the Supreme Court abandoned the
practice used by courts for 30 years that in order for the
government to restrict or curtail an individual's right to practice
his or her religious freedom, the government had to show that it
had an overriding "compelling interest" (such as the public's
health and safety) to do so. The Court held that as long as the
government was applying a law generally to the public and not

targeting a specific religious group, the government did not have
to demonstrate a compelling interest.

PURPOSE OF HEARING

The Subcommittee has received voluminous correspondence lending to
the belief that the American Indian Religious Freedom Act has
become little more than a statement of policy directing federal
agencies to consider the views of Native American religious leaders
when making land management decisions. Numerous tribes have
expressed frustration and concern over their inability to protect
their most sacred sites and practices. The Supreme Court cases
named above have only exacerbated the situation.

Several tribal and religious leaders will testify before the
Subcommittee on their views and experiences regarding the
effectiveness of the American Indian Religious Freedom Act.

Mr. Richardson. The hearing record is going to remain open for
two weeks for anyone who wishes to submit a statement. For our
witnesses today, let me state that, as you know, it's common prac-
tice for your entire statements to be made a part of the record and
I ask that you please summarize your statements in five minutes.
We have 11 witnesses today and the more valuable exchanges in
these hearings are the question-and-answer sessions.

So I will proceed to welcome the first panel and ask the Honor-
able Jerry Flute, the Field Director for the American Association
of American Indian Affairs, to open up.

But let me also mention that in the first panel the Hon. James
Hena, the Chairman of the All Indian Pueblo Council in Albuquer-
que, New Mexico, and the Hon. Cedric Chavez, the Governor of
Cochiti Pueblo in New Mexico and I believe that Gilbert Sanchez,
the 1st Lt. Governor of the San Ildefonso Pueblo, are also here.

So, Mr. Flute, please proceed.

PANEL CONSISTING OF JERRY FLUTE, FIELD DIRECTOR, AS-
SOCIATION ON AMERICAN INDIAN AFFAIRS; HON. JAMES S.
HENA, CHAIRMAN, ALL INDIAN PUEBLO COUNCIL, ALBU-
QUERQUE, NM; HON. CEDRIC CHAVEZ, GOVERNOR, PUEBLO
OF COCHITA, NM; HON. T. GILBERT SANCHEZ, 1ST LT. GOV-
ERNOR, PUEBLO OF SAN ILDEFONSO, SANTA FE, NM

STATEMENT OF JERRY FLUTE

Mr. Flute. Thank you, Mr. Chairman.

I appreciate Congressman Johnson's remarks about my involve-
ment nationally and I think the Party forgot to tell you that I also
campaigned very hard for his re-election. [Laughter.]

But let me begin by saying that Indians in this country are not,
through legislation or any other mechanism, attempting to reclaim
America. We are attempting to reclaim a basic and fiindaimental
human right, which is the right to practice our native religions.
And the courts over the past decade have been disastrous to our
religions in their dispositions.

The U.S. Supreme Court has basically told us that we do not
have First Amendment protection like any other religion. That we
cannot challenge any Federal agency that may be attempting to de-
stroy a site that's critical to our religion. But the courts certainly
have not understood or attempted to understand the type of reli-
gions that we have in this country, particular with Native Ameri-
cans.

But before I get into some summary of my testimony, I would
like not to give you a lesson in theology but to tell you just a Uttle
bit that those of you who are familiar with theology know that
there is a section that talks about paradisal man; this is in the
Judeo-Christian theology. Paradisal man spent almost all of his
waking hours in reverence to a Creator and that Creator, as we un-
derstand it, is God. And Indians are not different than that.

We do not pray to numerous gods; we have one God. And when
you listen to the theology of Moses and Mount Sinai, we have many
analogies that are very similar to that. Moses spent 40 days and
40 nights on the mountain and came down with the Ten Command-

ments. There are many tribes who have very similar theological
stories and examples with mountains and this type of revelation.

But because we are not Judeo-Christian, because our religions
are not written in a Bible, our religions seem to take a second- and
third-class relationship. But that doesn't mean that our beUef sys-
tem is not strong; it doesn't mean that there aren't many
similarities between Judeo-Christian beliefs and Native American
beliefs.

When we look at these different sites— and in my testimony lye
given you an example of some of the sites that are currently in
jeopardy throughout the country— in almost every one of these
cases, these sites are very important to the respective tribe and
hold a very similar teaching to that of the Wailing Wall, to Mount
Sinai, to Jerusalem, that you would find in the Judeo-Christian be-
lief system; they'd be very similar to that.

Tribes have also had the same kind of revelations. Some of the
sites where very important revelations occurred have already been
desecrated. And I think we're here simply to ask you, as members
of the Congress, to restore our constitutional protection.

The courts have been clear. Between 1980 and 1990, we lost 10
or 12 Federal court cases where tribes were attempting to protect
sacred sites. Those were culminated by the two U.S. Supreme
Court decisions in Lyng and Smith. So we are simply asking you
to take a look at what is important to us in terms of our behef sys-
tem. , , -

That we are not asking that thousands upon thousands of acres
of land be negated from the public. We are simply asking you to
recognize our beliefs, recognize our ability to go to these sites and
to protect them the best way we can. The courts have told us that
we no longer have that ability.

So at this point, Mr. Chairman, I'm certainly open to any ques-
tions that you have may have.

[Prepared statement of Mr. Flute follows:]

U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON NATURAL RESOURCES

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS
HONORABLE BILL RICHARDSON, CHAIRMAN

HEARING, FEB. 33, 1993
WASHINGTON, D.C.

"effectiveness of P.L. 95-3^6, the American Indian Religious
Freedom Ac t . "

TESTIMONY
JERRY FLUTE, STAFF MEMBER
ASSOCIATION ON AMERICAN INDIAN AFFAIRS

TE5TIM0WV OF JPRRV PLUTE
ASSOCIATION ON AMERICAN INDIAN AFFAIRS

Mr. Chairman and memberE, of the Committee, my name is Jerry
Flute, I am a Si sseton-Wahpeton Sioux from the Lake Traverse
Reservation in South Dakota. I am also a staff member to the
Association on American Indian Affairs, a national non-profit
Indian Advocacy organization. We are supported by a citizen
group numbering '♦B,©©© members and headquartered in New York
City. We have field offices located in South Dakota, California
and Washington D.C.

The policies of the Association are formulated by a Board of
Directors, the majority of whom are Native Americans. Since its
inception in 1923, AAIA has maintained its support for the
religious rights of Native Americans. For example, AAIA played
an integral role in efforts to return the sacred Blue Lake to the
Taos Pueblo. AAIA continues its efforts to assist tribes in
protecting sacred sites from adverse development and desecration.
We are currently working with a coalition of tribes in Montana,
Wyoming and South Dakota to protect a sacred area known as the
"Medicine Wheel" located in the Big Horn Mountains of Wyoming.

AAIA is a founding member of the American Indian Religious
Freedom Coalition which has been working to obtain legislative
protection for the religious freedom rights of Native Americans.
AAIA, together with the National Congress of American Indians and
the Native American Rights Fund formed the now broad based
coalition that includes national church organizations, civil
rights groups, environmental organizations and Indian tribes.

In my capacity as Field Director and program manager for the
Association's Religious Freedom project, I am in contact with
many Native American spiritual leaders and traditional religious
practioners. In addition I have had the opportunity to visit
many sacred sites and to see first hand the results of
desecrat i on ,

In addition to our work with the Medicine Wheel tribes, we
have worked with the Apache Survival Coalition in their efforts
to protect Mt . Graham in Arizona. The AAIA organized a National
Sacred Sites Caucus, where spiritual leaders from across the
country convened to discuss their shared concerns about the
threat to their religious practices arising from governmental
actions and the lack of legal protection.

Spiritual leaders questioned the judicial system (and
interpretation of laws) for its lack of support for sacred
places. They cited numerous sacred places and areas that have
been lost in the court fights. They asked for example, where was
our legal protection for the Cherokee's in their court battle to
the stop the flooding of sacred sites in the TELLICO DAM project

in i'^BO. or the Navajo ca^B regai-ding RAINBOW BRIDGE whei-ein Lake
Powell effectively "drowned" Navajo spirits under 21.0 feet of
water .

Tribes are justified in questioning the courts of this
country when U.S. Constitutional protection afforded under the
1st amendment is eroded case after case. The Sioux, Cheyenne and
Arapaho were unable to judicially stop the desecration of BEAR
BUTTE in South Dakota. Equally unsuccessful were the Navajo and
Hopi in their judicial efforts to protect SAN FRANCISCO PEAKS.
The Havasupai Tribe in the Grand Canyon is fearful of water
contamination after loosing their judicial battle to stop
desecration of their sacred RED BUTTE.

The 1978 American Indian Religious Freedom act and 1st
Amendment simply did not work to protect these holy places for
Native Americans. The last decade has been a legal disaster for
American Indian Religions. Unless Congress moves quickly, it
would appear with some certainty that the current Sacred Places
now in dispute with state and federal land managers will be met
with the same fate as those that have been lost between 1980 and
1990.

The Association herein submits a partial state by state
listing of Native American Sacred places currently in jeopardy:

OREGON

SITE

TRIBE

ISSUE

ENOLA HILLS

MT. HOOD MEADOW

WARM SPRINGS
WARM SPRINGS

LOGGING/PROPOSED
TOURISM DEV.

DEV.

UASHINGTQN

SNOQUALMIE FALLS

YAK I MA /SNOQUALM I E

HYDO ELECTRIC DAM

MT. SHASTA
COLD SPRING MT.
♦♦CHIMNEY ROCK
DEKKAS SPIRIT CAMP
MT. DIABLO
INDIAN SPIRIT ROCK

CALIFORNIA

N. WINTU
N. WINTU
TOLOWA/KARUK/YUROK
N. WINTU
WINTU/MEWUK
WUKCHUMNI

SKI /RECREATION AREA
NEW AGE VANDALISM
LOGGING ROAD
VANDALISM

COMMUNICATION TOWERS
COMMUNIC. /ACCESS

SPIRIT MTN.
TOSAWIHI QUARRY

HUALAPAI OF
W. SHOSHONE

NEVADA

AZ.

TOURIST DEV,
GOLD MINE

BOYNTON CANYON
BABOQUIVIRI
STAR MTN.
CHUSKAS MTN.
MT. GRAHAM
BIG MOUNTAIN
WINTERS BUTTE
CHILDRENS SHRINE

ARIZONA
CAMP VERDE APACHE
TOHONO O'ODHAM
NAVAJO
NAVAJO
APACHE
NAVAJO/HOPI
NAVAJO/HOPI

TOHONO O'ODHAM

RAINBOW BRIDGE NAVAJO

SAN FRANCISCO PK . NAVAJO/HOPI

RED BUTTE HAVASUPAI

NEW AGE VANDALISM

RECREATIONAL DEV.

LOGGING

TELESCOPE DEV.

CONG. RELOCATION

MINING

VANDALS

DAM

SKI/RECRECATION

URANIMUN MINING

BADGER TWO MEDICINE
SWEET GRASS HILLS
KOOTENAI FALLS
TONGUE RIVER
CHIEF MTN.
MEDICINE TREE
LITTLE ROCKY MTN.
CRAZY MTN.

MONTANA

BLACKFEET

ROCKY BOY/BLACKFEET

SAL I SH/ KOOTENAI

N. CHEYENNE

BLACKFEET

NE2 PERCE/KOOTENAI

GROS VENTRE

CROW

OIL/GAS EXPLORATION
OIL/GAS EXPLORATION
HYDRO ELECT DAM
MINING/RAILROAD
TOURISM/RECREATION
HIWAY CONST.
GOLD MINE
LOGGING

WYOMING

MEDICINE WHEEL

ARAPAHO /SHOSHONE /S I DUX
CHEYENNE /BLACKFEET

LOGGING/REC. DEV.

CARTER MTN.
S.FORK OWN CREEK
N.FORK OWL CREEK
STEATITE QUARRY
DEVILS TOWER

SHOSHONE

SHOSHONE /ARAPAHO
SHOSHONE /ARAPAHO
SHOSHONE /ARAPAHO
SIOUX/CHEYENNE

OIL/GAS EXPL.

ROAD CONSTRUCTION

OIL/GAS EXPLORATION

MINING

TOURISM/ROCK CLIMBING

LEGEND ROCK
CASTLE GARDENS
WHOOPUP CANYON
CEDAR CANYON

(PETROGLYPH SITES)
SHOSHONE/ARAPAHO TOURISM

SHOSHONE/ARAPAHO VANDALISM

SHOSHONE/ARAPAHO TOURISM

SHOSHONE/ARAPAHO VANDALISM

BLACK HILLS

SOUTH DAKOTA

SIOUX /CHEYENNE

CONGRESS I ONAL /TOUR I SM
GOLD MINE/TIMBER

♦BEAR BUTTE S lOUX /CHEYENNE/ARAPAHO

TOURISM/BACK PACKERS

PIPESTONE OUARRY

MINNESOTA

SIOUX

MINING/CRAFTS PRODUCTION

PETROGLYPH PARK

NEW MEXICO

SANDIA PUEBLO

HI WAY CONSTRUCTION

NUMEROUS PUEBLO SITES WHICH ARE KEPT CONFIDENTIAL BY THE PUEBLO
TRIBES.

** Chimney Rock is the site in the 198S U.S. Supreme Court case
Lyng v. NW Cemetery Assn. (also known as Go-Road)

*Bear Butte was litigated in Crow v. Gullet 1983

Mr. Chairman, my work with traditional people who are the
activists in protecting these sites are sick and tired of hearing
RHETORIC! I It is now time to move on and put legislative "teeth"
into AIRFA.

The American
is proclaimed to b
Native American re
today to as great
was passed . A
required by AIRFA
religious practi
recommend at ions .
acted upon — b
describes are just

Indian Religious Freedom Act of 1978 (AIRFA)
e "the policy of the Federal government." Yet
ligious traditions continue to be under assault
an extent as they were in 1977 before the Act

Federal Agencies Task Force issued a report
in 1979 which discussed the obstacles to Indian
ce and included a number of positive
Most of the recommendations have never been
ut most of the problems that the Task Force

as prevalent today as in 1979.

In fact, because of the United States Supreme Court, many of
the problems are even worse now than they were in 1979. In its
recent decisions, the Court has made it clear that its view of
the First Amendment to the United States Constitution is so
narrow, that the protections provided by that amendment are
simply not available to protect those traditional activities and
places which are necessary for the continuation of traditional
Native religions and survival of the people.

In Lyng v. Northwest Indian Cemetary Prot . Assn., a case
involving a Forest Service plan to build a road directly through
a sacred site in Northern California, the Supreme Court ruled
that the First Amendment does not restrict the management by the
Federal government of its lands even if certain governmental
actions would infringe upon or destroy a religion so long as: (1)
the government's purpose is secular and not specifically aimed at
infringing upon the religion; and (S) the government's action
does not coerce individuals to act contrary to their religious

belie'fs. The Court in Lv"g also ruled that filRFa is not
judicially enforceable -- that it has "no teeth." The effect of"
this decision has been to prevent practitioners of Indian
religions from challenging government land management decisions
based upon either the First Amendment or AIRFft.

In Wyoming, the Forest Service has proposed plans to develop
the sacred Medicine Wheel as a tourist attraction and promote
future logging activities in the vicinity of the Wheel. The
Medicine Wheel is a sacred place to many Plains tribes including
the Arapaho, Cheyenne, Shoshone, Sioux and Crow. It is only
after more than five years of continuing protests by Native
Americans, increasingly joined by non-Indians including the Big
Horn County Commissioners, that the Forest Service has finally
agreed to discuss modifications to these plans. Without "teeth"
in the AIRFA, there continues to be no guarantee that the
integrity of the Wheel will be protected.

In Montana, the Forest Service proposes to allow 10 story
high exploratory gas/oil rigs to drill in a pristine wilderness
area that represents the last undisturbed sacred place of
Blackfeet traditional religious practitioners. In response to
objections by traditional Blackfeet people, the Forest Service
Supervisor referred to concerned Indian people (and not the oil
companies) as a "special interest group". In spite of the
undisputed "testimony" of Blackfeet traditional leaders, the
Forest Supervisor has said that he is not convinced that the
development of the area will destroy the sacredness of the site.

In Arizona, the University of Arizona is building telescopes
on Mount Graham, a site sacred to the Apache Crown Dancer
religion. The University received an exemption from various
environmental laws after the Forest Service failed to identify
the mountain as a sacred place and the Fish and Wildlife Service
falsified a report pertaining to the impact of the project upon
the red squirrel, an endangered species living on the mountain.

It is time for congress to take real action, action that
will result in meaningful, enforceable Federal legislation that
will truly protect the right of Native people to practice our
ceremonies and rituals as required by our religions and a basic
and fundamental HUMAN RIGHT.

Last veer. Senator Inouye circulated draft legislation to
ut teeth" into AIRFA. Senate staff worked closely with our
wmerican Indian Religious Freedom Coalition to develop the draft
legislation. Much discussion about the specific proposals in
that draft bill has ensued and a broad coalition of tribes,
national Indian organizations, churches, environmental groups and
human rights groups has coalesced around the basic approach in
Senator Inouye's discussion draft. We recognize the fact that
the draft bill needs refinement and an appropriate political
strategy must be pursued including oversight hearings such as
this. One thing is certain, Indian tribes need specific
legislation to regain our Constitutional 1st Amendment rights
taken away by the U.S. Supreme Court.

The Association stands ready along with the Religious
Freedom Coalition to work with you and the congress to return
basic HUMAN RIGHTS and HUMAN DIGNITY to the first citizens of
th 1 s countr v

In closing, I would like to quote Uncle Vine Deloria who
said, "EVERY SOCIETY NEEDS SACRED PLACES. A SOCIETY THAT CANNOT
REMEMBER ITS PAST AND HONOR IT IS IN PERIL OF LOSING ITS SOUL."

Thank you for the invitation to appear before this
Commi t tee .

Mr. Richardson. Thank you very much. Your timing, as you can
see, was perfect.
Chairman Hena.

STATEMENT OF HON. JAMES S. HENA

Mr. Hena. Thank you, Mr. Chairman.

Mr. Chairman, members of the Committee, good morning. My
n£ime is James S. Hena, and I'm the Chairman of the All Indian
Pueblo Council, composed of the 19 Pueblo Governments of New
Mexico. According to Spanish records, this organization was in ex-
istence in 1598.

We have submitted the full text of my testimony, so I will only
highlight parts of that text.

Religious intolerance and suppression has been a deliberate and
systematic approach practice against the Pueblo Indians since the
arrival of the Spaniards in 1598. Both the church and civil authori-
ties of Spain, Mexico and the United States have been instrumen-
tal in suppressing our religious practices, as well as our style of
government, because we have theocratic governments.

Atrocities were committed against our people and non-Indian re-
ligions were imposed on us. In some Pueblos the theocracy was
forced to change to a so-called democratic form of government.
Since the first encounters of Pueblo religion, our leaders took our
religion underground where it has flourished and guaranteed our
spiritual survival as a people.

Over the last few weeks, Pueblo leaders have deliberated long
over this most sensitive issue and declared their opposition since,
in our view, the Federal Government has no business regulating
our religion nor our form of government. In emotionally charged
meetings, statements were made describing the present legislative
initiative as discriminatory. Views of bringing our objections to the
United Nations and to the World Court were expressed.

I tell you this to impress upon you that present-day Pueblo lead-
ership does not take our religious responsibilities and Govern-
mental order lightly. The trust each governor and councilman indi-
vidually assume for the sake of the people, the land and its re-
sources is a serious charge handed down over the generations and
no one is willing to change that order.

Moreover, the Pueblo governments have been given recognition
by Spain, Mexico and the United States and the State of New Mex-
ico as possessing powers and authorities like other governments.
Consequently, legislation that is well-intentioned may be suspect
as a result of a long history of discrimination, mistreatment and in-
terpretation of laws different from what we understood by the
State, by Federal agencies and the Federal courts. These past expe-
riences make us wonder at the true intent of this proposed legisla-
tion.

A trust responsibility eloquently written about by Presidents of
the United States since President Nixon fell on deaf ears in Fed-
eral agencies charged with providing services and benefits to Indi-
£uis. 'fiiis history and non-attention causes suspicion among the
Pueblo leaders today.

Some examples creating suspicion are the Ole power line planned
by the Public Service Company over the Jemez Mountain range.

Another is the proposed Jemez Tomography Project planned by the
setting off of explosions in the subsurface. Expansion of the Santa
Fe Ski Area is another. Polluted discharge by Los Alamos National
Laboratory/Sandia Laboratory into the atmosphere, water and
aquifers likewise are both just a few more examples of disregard
for our religious views or protection for the environment.

It is our sincere hope tnat when this subcommittee starts draft-
ing its version of a Rehgious Freedom Bill that it will invite the
involvement of Pueblo leadership so that a version most acceptable
to the Pueblos is ensured. Unless full involvement becomes a
standard practice in Congress, Indians will continue to be told
what is best for them by people who neither understand us nor
support our wish to live as a diverse people in America.

Because America has been in the lead of protecting minority
rights all over this world, we presume that if we Pueblos decide to
support enactment of the proposed legislation, it will be consistent
with inclusion of those principles that America attempts to influ-
ence the world with. For we Pueblos then, it might mean a sepa-
rate section or even a separate title in the law to safeguard our
concerns and lifeways regarding our theocracy, religion and govern-
ment.

We hope this subcommittee will have the fortitude to seriously
consider our request so that our spiritual survival and govern-
mental order survive for our future generations.

Thank you.

[Prepared statement of Mr. Hena follows:]

JAMES S HENA, Chairman
BENNY ATENCIO. Vice-Chairman
DANIEL L SANCHEZ, Secretary/ Treasurer

ALL INDIAN PUEBLO COUNCIL

OFFICE OF THE CHAIRMAN
3939 San Pedro, N E , Suite E • Post Office Box 3256 • Albuquerque, New Mexico 87190 • (505) 881-1992

TESTIMONY OF JAMES S. HENA, CHAIRMAN OF
THE ALL INDIAN PUEBLO COUNCIL ON THE AMERICAN

INDIAN RELIGIOUS FREEDOM ACT, BEFORE THE

HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS

WASHINGTON, D.C.

FEBRUARY 23, 1993

Mr. Chairman, Members of the Committee, Good Morningl My name is James
S. Hena, and I'm the Chairman of the All Indian Pueblo Council composed
of the nineteen Pueblo Governments of New Mexico. According to Spanish
records, this organization was in existence in 1598.

It is a privilege to be on this panel to discuss this most difficult
and sensitive subject regarding Pueblo religion and theocracy. It is
a topic that we Pueblos have spent much deliberation on recently, and
today, we present our views to you.

HISTORICAL;

Religious intolerance and suppression of our Pueblo religion in the
United States is not new. This form of discrimination has
characterized the relationship between our people the Spaniards, the
Mexicans and Americans for the past 500 years.

Historically — as early as 1598, Juan de Onate divided the Pueblo
Country into Catholic mission districts and subsequently assigned a
Franciscan Friar to impose the Catholic religion on our people. Since
that time our people have been persecuted for practicing their
traditional cultural beliefs. Such religious persecution was
compounded when in 1620 , the King of Spain attempted to abolish the
Pueblos traditional leadership by requiring the Pueblo Nations to be
administered by Pueblo Governors and officials designated by the
Spanish Government. Some Pueblos, responded by burning Spanish
missions and driving the Spanish officials out of their communities
only to see religious persecution accelerated during which time
numerous Pueblo people were whipped, enslaved, limbs amputated and
hanged. In response to such actions, all of the Pueblo Nations united
and the Spaniards were forcefully driven out of Pueblo lands during the
Pueblo Revolt of 1680.

Testimony- James S. Hena
AIRFA - Page 2

In 1692, the Spaniards returned with a massive force and once again,
imposed their government system and religious beliefs on the Pueblos.

This history is critical to understanding the Pueblos' position
regarding AIRFA to ensure the continued vitality into the future of our
Pueblo Nations.

Today, our theocratic governments stand strong, as we face difficult
times and arduous decisions that effect and affect our very future.

The interweaving of our Indian religion into our government the

sacred trust and the responsibility is a gift from our ancestors and

our Creator this trust and this responsibility we do not take

lightly. All of America could learn from us as our country strives to
ethically, morally and legally respond to the citizens' aspirations.

Historically too, there were other areas of Federal law and policy that
on first glance, appeared to be in our best interest. But after years
of struggling with those requirements, we are fortunate to have been
able to endure and thus survive. Other tribes, have had to suffer —

under forced marching from their homelands losing children and

elders. In compliance with Federal policy, we experienced the taking
of our children to boarding schools, or as in the relocation-
dislocation era-separating us from out homes and people are a few
examples of discriminatory practices imposed on our People. Further,
restricting use of our own language(s) and religion and even punishing
us are examples of planned genocide even though justifying the
intrusion of the government and missionaries under the umbrella of
Federal trust responsibility. How does a simple tenant of law — the
guaranteeing of a first amendment — freedom of religion — the freedom to
believe and to practice or exercise our own beliefs fit into the
context of these laws and policies?

It has been heart-rending for the Pueblo Tribes to build a consensus on
the AIRFA. We faced similar difficulties when Congress brought us the
Indian Civil Rights Act of 1968 which imposed the provisions of the
Bill of Rights upon our Tribes. The legislative history reflects
strong opposition by the Pueblos to this legislation because it
continued an intrusion on our governments. We support fairness and
equal protection of the rights of our people, but it must be by our
laws, our policies, our remedies, not those of others; will America be
big enough to allow a small segment of the U.S. population to exercise
their religious practices which doesn't aim to interfere with other
peoples religions. Pueblo religion and government are so inextricably
interwoven into our everyday life—that the separation of our religion
from our government would alter our lifeways beyond recognition as
Pueblo People. Today, we live day-to-day with this Federal intrusion
into our lives. The intent of ICRA was questionable then, and still is
today because it has left us with a diminishment of our tribal
governments .

Testimony- James S. Hena
AIRFA - Page 3

We do not want our Tribes to be terminated nor slowly choked to death
by inappropriate legislation. Therefore, we ask you for equal
protection as other American citizens enjoy with regard to religion.
Congressmen, we ask you to rise to the highest level of knowledge, and
understanding, and support us to prevent the termination of our
religion and ultimately extermination of our People. The religions of
the indigenous people of this land are sacred like other religions, and
should be protected so that the Native People of America survive
alongside other citizens of this great country. Our religion must be
fully accepted as an inseparable and dominant basis of life that
undergirds and defines Pueblo culture, government, and society.

VIOLATIONS OF OUR SACRED LANDS;

It is difficult to discuss actual violations of our religious freedom,
because even disclosure causes us concern. There have been many
violations of our religious practices, but mostly we have remained
silent because to speak out would require us to disclose what we are
forbidden to speak of. The attitude that has been most prevalent over
the centuries by non-Indians has been to educate and christianize the
Indian heathen. We Pueblos have had to go underground with our
religion to protect it and to ensure our own spiritual survival for our
children and for our future generations.

SOME EXAMPLES OF RELIGIOUS VIOLATIONS ARE;

The nineteen Pueblos have stood with neighboring Navajos in opposition
to the "Ojo Line Extension Project or "OLE Power Line" since its
inception. The proposed power line would desecrate arul destroy the
Jemez Mountains which have since time immemorial held secured areas and
provided for the Pueblos' spiritual life. Pueblo experts have
identified at least 15 plants used for purification and healing which
come from the high country of the proposed OLE corridor. Given the
delicacy of the plants and the delicate environment in which they grow,
any disturbance from service roads and the transmission corridor
itself would threaten plant growth. In addition there ai e hundreds of
shrines which are used year round, for this area about tlie corridor is
sacred. Moreover, the power line once constructed and operating will
harm natural substances and animals important to our culture. The
burden of proof should be shifted to the agency undertaking the action,
not the tribes.

""Jemez Tomography Project" in the Jemez Mountains — planning a series
of subsurface test explosions will be conducted to measure the pattern
of molten material below the surface of Valles Caldera. Tribes in the
area were not consulted during the initial scoping for the project.
Even after formal protest with strong testimony on the impact to Pueblo
tribes, the Forest Service officials discounted any religious rights,
stating that the present AIRFA confers no cause for action and contains
no requirements for consultation.

Testimony- James S. Hena
AIRFA - Page 4

"The expansion of the Santa Fe Ski Basin — the Pueblo Tribes have been
called upon to reveal cultural matters and to further identify sacred
sites. By disclosing such information, the tribes risk subjecting
those areas to destruction without any assurance that such disclosure
will serve the original purpose of protecting them.

"Exploitation of Aveshu Oweenge — a large ruin on a mesa two miles south
of Abiquiu which has been opened by the Bureau of Land Management; and
shrines desecrated above the Rio del Oso-the primary route of San Juan
Pueblo People entering the Jemez high country are another example.

'Religious pilgrimage routes have been stripped away, as in the Santa

Clara Canyon due to increased access to sacred areas as a result of

a transmission line and the influx of Forest Service employees or
recreational users of the forest. This has caused the many routes to
be overrun by outsiders and all semblance of privacy has been stripped.

"The Sandia Mountain, including Las Huertas Canyon, is another example
of traditional sacred areas surrounding our Pueblo homelands. That
area has been desecrated and the traditional harvesting areas for
eagles, and sacred plants for healing have been impacted by outsiders.
The Pueblo has been asked to reveal the locations of sites used, but
has refused and has pushed to designate the whole area as sacred. The
Pueblo is geographically close to a major urban area and has had to
withstand the shock of the non-Indian community in addition to the
intrusion of the Federal agencies such as the Bureau of Land Management
and Forest Service. Further, the housing developments within Forest
Service property have caused an undue burden specifically causing
pollution in an area that they are charged with preserving and
protecting. In addition the Pueblo of Sandia continues to seek return
of their claim to the west face of the Sandia Mountain, a lost due to
a fraudulent or grossly erroneous survey.

'Bandelier National Park — land was taken arbitrarily by the U.S. that
is significant to Pueblo religion.

"Los Alamos National Laboratory — the land is not only significant to
our religion, but the continued threat of nuclear contamination is a
daily threat to the lives of our People and communities and even poses
a threat to the non-Indian communities. With the most recent spill
occurring in January of 1993 and notification taking several days to
our Pueblos, consequently severely threatens the health and safety of
our People.

"The Petroglyph National Monument is presently in severe jeopardy of
being ruined and desecrated due to the so called necessity of a road by
the City of Albuquerque and private interests. Access should be
restricted to prevent the vandalism and destruction that has been the
experience of such sites. It is a lack of understanding and a lack of
enforcement in the present AIRFA Act that allows this kind of
exploitation and violation.

Testimony- James S. Hena
AIRFA - Page 5

'The passage of the El Malpais National Monument and National
Conservation Act removed the free exercise of religion specific to the
Pueblo of Acoma.

"The pollution of the Rio Grande River. Water is very sacred to us.
The quality of the waters that enter our reservations is of great
concern not only to our health, but for our survival as a people. The
water must be protected to ensure quality standards that prevent
pollution. Congressmen, these are only a few of the many violations
that have occurred.

CONCLUSION;

The protection for religious freedom of our communities is critical to
our existence and survival. We have lost many of our loved ones over
the years in this fight against extermination. These policies and
persecutions resulted in the lost of the Pueblo of Pecos, an example of
the extermination of our communities. We only have 19 Pueblos
remaining in New Mexico. We do not want any more of our communities
exterminated. Even if our Pueblos represent a different way of life to
America. America has promoted the protection of the rain forests, the
protection of the eagle, the owl, the protection of the water and air,
but what about the protection of our PUEBLO PEOPLE, human beings.
Further, Our religion and languages, the Tewa, Towa, Keresan, Zuni, and
Tiwa have survived the extermination policies because of our tenacity
to survive as Pueblo People. Other tribes in America have not
been so fortunate. They have not only lost their land, but also their
language and many of their traditions. We do not want the same for our
people. In addition our children and elders remain dominant in our
extended family structure. We do not want to be placed in a fragile
state by a law that seeks to place our Indian religion in a
questionable and vulnerable position. We want to remain healthy strong
spiritual communities as we always have.

The United States of America has been at the forefront of protecting
the human rights of people throughout the world. Further they have
always respected the sacred sites of other countries--as recent as the
Desert Storm war--where the U.S. Government encouraged its military
allies to avoid religious sites in their bombing and artillery attacks.
We request the same respect for our sacred areas and our religion. We
are not asking for additional religious protection--we are only
requesting the same protection that is provided to other citizens of
America and for that matter the World.

In the words of the Honorable Governor Walter Dasheno from Santa Clara
Pueblo:

"Even though the Federal Government ceased in 1934 to deem it a
criminal act for Indians to practice our traditional religions, we are
still not even accorded the rights of accused criminals. An individual
accused of a crime is innocent until proven guilty; but we, who have

Testimony- James S. Hena
AIRFA - Page 6

committed no crime but to abide by the way of life of our forefathers
are considered to be liars until we prove that we are telling the truth
when we state that a traditional religious area or water is being
threatened. This is wrong. The Indian Pueblos, Nations, and Tribes
should not be forced to violate our culture in order to protect them."

As you know Congressmen, 1993 is the Year of the Indigenous People, we

respectfully ask your support to ensure the passage of an American
Indian Religious Freedom Act that truly protects our tribal sovereignty
and religious freedom as indigenous people of America. Because we
Pueblos are special, as someone put it, our unique theocratic form of
governments must be protected and nourished to the fullest extent
possible, even if under a separate Section or separate Title in the
proposed legislation. We hope the Committee will work closely with us
to insure that our concerns are fully considered.

Today, the traditional Pueblo religious system remains underground out
of fear of religious persecution and desecration of sacred ways, but
more so because secrecy insures our spiritual survival. Religious
persecution continues today through restrictions of Indian access to
sacred areas and traditional use of aboriginal areas located off tribal
lands .

As recent as January 22, 1993, religious leaders of the Pueblo of Jemez
and descendants of the Pueblo of Pecos, while on a pilgrimage to the
sacred Torrero Cave, encountered seven non-Indian persons within the
sacred cave which is deemed a severe desecration of the sacred location
and disruption of an extremely sensitive religious event.

On behalf of the 19 Pueblo Tribes of New Mexico, I thank you very much
for this opportunity to share our history, concerns, and
recommendations with you. I extend a hand to you in partnership in

this new era of change one of hope and religious freedom for our

people built on our diversity and strength within this Country called

America.

Thank You.

Mr. Richardson. Thank you very much, Chairman Hena.
The Chair recognizes Governor Chavez.

STATEMENT OF HON. CEDRIC CHAVEZ

Mr. Chavez. Good morning.

Mr. Chairman, members of the Committee, I am Cedric Chavez,
Governor, Pueblo de Cochiti.

I appreciate this opportunity to appear here and tell you some
of the serious concerns and difficulties we, as Pueblo Indians have,
in regard to access to sacred sites, use of sacred sites and protec-
tion of sacred sites from desecration and destruction. Our problems
in these areas are longstanding and fundamental. In order to un-
derstand these problems, you have to understand several things.

First, in the traditional Pueblos, such as Cochiti, there is no sep-
aration of church and state; we are theocracies.

Second, our sacred areas and our obligation to protect them and
to use them and to nurture them is fundamental to our way of life.

Third, we Pueblo Indians have over the centuries given our lives
to preserve and protect our way of life. This includes our language,
our beliefs and our sacred areas.

Fourth, we are sworn to keep secret all details concerning our
traditional religious life and our sacred sites.

In looking at the various proposals for laws put forth so far, we
have been sorely disappointed. The critical problem which has not
been addressed is the idea that, in order to protect the sacred areas
or to secure legal protection of our right to use those areas for tra-
ditional religious purposes, the Pueblos would have to come for-
ward and reveal where a particular sacred site or shrine is located,
explain why it is sacred and how it is used in order to build a sig-
nificant legal record to secure its protection or to secure our rights
to its use under the ordinary burden of proof rules.

The main point of my testimony today is that any law which re-
quires the Pueblos to come forward and disclose this information
will be of no real value to us. We have been able to protect and
preserve our traditional religions — our way of life — only by going
underground. We were forced to go underground by successive
waves of European invaders who were bent on crushing our tradi-
tional way of life and forcing us to live and believe some other way.

Despite the terrible himian costs of this 500-year struggle, we
have prevailed. We have preserved our traditional ways of life only
by maintaining the strictest of secrecy about what we believe, how
we believe it, how we practice it and why.

We are not willing or able to give up our right to maintain that
secrecy. That is now a part of our religious obligation. We are
sworn to preserve that secrecy.

The second main point I want to express today is that the rela-
tionship of our Pueblo to the United States Government is one of
govemment-to-govemment. Even though our traditional govern-
ment is also a theocracy, underlying our external political forms is
an internal traditional religious base of leadership and decision-
making which is fully intertwined with our governmental struc-
ture.

Thus when I, as Governor of the Pueblo, am authorized by our
internal Pueblo leadership to speak out on an issue of this sort, the

outside world can know that I speak with the authority of our peo-
ple.

Any law intended to protect our access to, our use of and our
ability to protect sacred sites from destruction and desecration
must start with the premise that, when a Pueblo Governor identi-
fies an area as sacred and indicates that a proposed governmental
action will harm that area or interfere with our religious use of
that area, the Governor's word on that issue must be accepted as
true; nothing less is acceptable to us.

Then we can work with governmental agencies to seek alter-
native ways for the government to achieve what it needs without
causing the destruction of what we must preserve.

In those instances were we cannot help the government find an-
other alternative route or location for doing what it wants to do,
or where the government will not accept any other alternative and
where what the government proposes to do will cause our religious
interests irreversible harm, the government should be required to
prove that it is essential to achieve some compelling governmental
purpose that the government proceed as originally planned. If the
government cannot meet that burden, the proposed action should
not go forward.

We will be able, in most instances, to identify alternative routes
or alternative locations on a ground that would accommodate the
government's interest. But we must be allowed to do this without
explaining the whys and hows and what that we are trying to pro-
tect

As I have already stated, we take an oath not to reveal those
things. It is sacrilege of the most fundamental kind to do so. Don't
ask us to commit that sacrilege as the price of legal protection for
our sacred areas and our way of life.

Mr. Chairman, you are personally aware of some of the struggles
our Pueblos have gone through to protect sacred sites. With your
help, a special law, P.L. 101-644, was passed in 1990.

[Prepared statement of Gov. Chavez follows:]

Cedrie Chavez
Ccittmor

Joseph C. Quiacana
iL Ganmor

Mactlirv S. Pecos
Tnaainr

Gertiude Lovito
Seerttary

Boxro

COCHITL NEW MEXICO 87041

Telephone: S05-48S-2244

TBSTIltONY OP

OOVSSMOR, PnSBLO DE

HONOSABIB CEDRIC CSXTZZ,
COCHITI

BEFORE

THE MITIVB AMBRIOK RFPMRS SDBCXIimiTTBE OP
THE KATOSAL RESOORCES COMKITTEE, O.S. HOUSE OF
RSPRESEKTATIVES

HEARIHQ OP PEBRDARY 23, 1993, COKCERNIHO
PROBLEMS AHD DIFPICTILTIES IH REGARD TO D8B,
ACCESS AND PROTECTIOS OP SATIVB aMBRTfAH
SACRED SITES POR TRADITIOMAL BELIGIOOS
PORPOSBS .

GOOD MORNING, MR. CHAIRMAN, MEMBERS OF THE COMMITTEE. I AM CEDRIC
CHAVEZ, GOVERNOR, PUEBLO DE COCHITI.

I APPRECIATE THIS OPPORTUNITY TO APPEAR HERE AND TELL VOU SOME OF
THE SERIOUS CONCERNS AND DIfFICOLTIES WE AS PUEBLO INDIANS HAVE IN
REGARD TO Otm ACCESS TO SACRED SITES, USE OF SACRED SITES AND
PROTECTION OF SACRED SITES FROM DESECRATION AND DESTRUCTION. OUR
PROBLEMS IN THESE AREAS ARE LONGSTANDING AND FUNDAMENTAL. IN ORDER
TO UNDERSTAND THESE PRODI£MS , YOU HAVE TO UNDERSTAND SEVERAL
THINGS .

FIRST , IN THE TRADITIONAL PUEBLOS, SDCU AS COCHITI, THERE IS NO
SEPARATION OF CHURCH AND STATE. WE ARE THEOCRACIES.

SECOND . OUR SACRED AREAS AND OUR OBLIGATION TO PROTECT THEM AMD TO
USE THEM AND TO NURTURE THEM IS FUNDAMENTAL TO OUR WAY OF LIFE.

THIRD , WE PXJEBLO INDIANS HAVE OVER THE CENTURIES GIVEN OUR LIVES TO
PRESERVE AND PROTECT OUR WAY OF LIFE. THIS INCLUDES OUR LANGUAGE,
OUR BELIEFS AND OUR SACRED AREAS. ALL ARE INTERTWINED.

FQKBIH, WE ARE SWORN TO KEEP SECRET ALL DETAILS CONCERNING OUR
TRADITIONAL RELIGIOUS LIFE AND OUR SACRED SITES.

WHEN ONE OF OUR SACRED AREAS IS DESTROYED OR DESECRATED OR WE ARE
PREVENTED ACCESS AND USE OF THEM WE FEEL A SPECIAL KIND OF DEEP-
SEATED SPIRITUAL PAIN. IT IS THE KIND OF PAIN YOU MAY FEEL WHEN A
SMALL CHILD IS KILLED OR INJURED OR MISTREATED. IN THIS WORLD WE
HAVE EXPERIENCED A GREAT DEAL OF THIS PAIN.

WHEN WE HEARD OF THE CONGRESSIONAL CONSIDERATION OF NEW LAWS TO
HELP PROTECT INDIAN RELIGIOUS FREEDOM AND THE EXERCISE OF
TRADITIONAL INDIAN RELIGIONS, AND THE GOOD WORK OF THE AIRFA
COALITION TO ACHIEVE THESES GOALS, WE WERE HOPEFUL THAT THESE NEW
LAWS WOULD PROVIDE SOME MEANINGFUL SOLUTION FOR OUR PROBLEMS WITH
SACRED AREAS.

IN LOOKING AT THE VARIOUS PROPOSALS FOR LAWS PUT FORTH SO FAR WE
HAVE BEEN SORELY DISAPPOINTED. THE CRITICAL PROBLEM WHICH HAS NOT
BEEN ADDRESSED IS THE IDEA THAT IN ORDER TO PROTECT THE SACRED
AREAS OR TO SECURE LEGAL PROTECTION OF OUR RIGHT TO USE THOSE AREAS
FOR TRADITIONAL RELIGIOUS PURPOSES, THE PUEBLOS WOULD HAVE TO COME
FORWARD AND REVEAL WHERE A PARTTCUIAR SACRED STTF OR SHRTNF TS
LOCATED, EXPLAIN WHY IT IS SACRED AND HOW IT IS USED IN ORDER TO
BUILD A SUFFICIENT LEGAL RECORD TO SECURE ITS PROTECTION OR TO
SECURE Ot.TR RTRHT TO TTS nSE ITNDER THE ORDINARY BURDEN OF PROOF
RULES.

THE MAIN POINT OF MY TESTIMONY TODAY IS THAT ANY LAW WHICH REQUIRES
THE PUEBLOS TO COME FORWARD AND DISCLOSE THIS INFORMATION WILL BE
OF NO REAL VALUE TO US . WE HAVE BEEN ABLE TO PROTECT AND PRESERVE
OUR TRADITIONAL REUGIONS — OUR WAY OF LIFE — ONLY BY GOING
UNDERGROUND. WE WERE FORCED TO GO UNDERGROUND BY SUCCESSIVE WAVES
OF EUROPEAN INVADERS WHO WERE BENT ON CRUSHING OUR TRADITIONAL WAY
OF LIFE AND FORCING US TO LIVE AND BELIEVE SOME OTHER WAY. DESPITE
THE TERRIBLE HUMAN COSTS OF THIS 500-YEAR STRUGGLE WE HAVE
PREVAILED. WE HAVE PRESERVED OUR TRADITIONAL WAYS OF LIFE BUT ONLY
BY MAINTAINING THE STRICTEST OF SECRECY ABOUT WHAT WE BELIEVE, HOW
WE BELIEVE IT, HOW WE PRACTICE IT, AND WHY. WE ARE NOT WILLING OR
ABLE TO GIVE UP OUR RIGHT TO MAINTAIN THAT SECRECY. THAT IS NOW A
PART OF OUR RELIGIOUS OBLIGATION. WE ARE SWORN TO PRESERVE THAT
SECRECY .

TIIE SECOND MAIN POINT I WANT TO EXPRESS TODAY IS THAT THE RELATION-
SHIP OF OUR PUEBLO TO THE UNITED STATES GOVERNMENT IS ONE OF
GOVERNMENT TO GOVERNMENT, EVEN THOUGH OUR TRADITIONAL GOVERNMENT IS
ALSO A THEOCRACY. UNDERLYING OUR EXTERNAL POLITICAL FORMS IS AN
INTERNAL TRADITIONAL RELIGIOUS BASE OF LEADERSHIP AND DECISION
MAKING WHICH IS FULLY INTERTWINED WITH OUR GOVERNMENTAL STRUCTURE.

THUS WHEN I, AS GOVERNOR OF THE PUEBLO, AM AUTHORIZED BY OUR
INTERNAL PUEBLO LEADERSHIP TO SPEAK OUT ON AN ISSUE OF THIS SORT
THE OUTSIDE WORLD CAN KNOW THAT I SPEAK WITH THE AUTHORITY OF OUR
PEOPLE. ANY LAW INTENDED TO PROTECT OUR ACCESS TO, OUR USE OF AND

OUR ABILITY TO PROTECT SACRED SITES FROM DESTRUCTION OR DESECRATION
MUST START WITH THE PREMISE THAT WHEN A PUEBLO GOVERNOR IDENTIFIES
AN AREA AS SACRED AND INDICATES THAT A PROPOSED GOVERNMENTAL ACTION
WILL HARM THAT AREA OR INTERFERE WITH OUR RELIGIOUS USE OF THAT
AREA THE GOVERNOR'S WORD ON THAT ISSUE MUST BE ACCEPTED AS TRUE.
NOTHING LESS IS ACCEPTABLE TO US.

THEN WE CAN WORK WITH THE GOVERNMENTAL AGENCIES TO SEEK ALTERNATIVE
WAYS FOR THE GOVERNMENT TO ACHIEVE WHAT IT NEEDS WITHOUT CAUSING
THE DESTRUCTION OF WHAT WE MUST PRESERVE. IN THOSE INSTANCES WHERE
WE CANNOT HELP THE GOVERNMENT FIND ANOTHER ALTERNATIVE ROUTE OR
LOCATION FOR DOING WHAT IT WANTS TO DO, OR WHERE THE GOVERNMENT
WILL NOT ACCEPT ANY OTHER ALTERNATIVE, AND WHERE WHAT THE
GOVERNMENT PROPOSES TO DO WILL CAUSE OUR RELIGIOUS INTERESTS
IRREVERSIBLE HARM, THE GOVERNMENT SHOULD BE REQUIRED TO PROVE THAT
IT IS ESSENTIAL TO ACHIEVING SOME COMPELLING GOVERNMENTAL PURPOSE
THAT THE GOVERNMENT PROCEED AS ORIGINALLY PLANNED. IF THE
GOVERNMENT CANNOT MEET THAT BURDEN, THE PROPOSED ACTION SHOULD NOT
GO FORWARD.

WE WILL BE ABLE IN MOST INSTANCES TO IDENTIFY ALTERNATIVE ROUTES OR
ALTERNATIVE LOCATIONS ON THE GROUND THAT WOULD ACCOMMODATE THE
GOVERNMENT'S INTEREST, BUT WE MUST BE ALLOWED TO DO THIS WITHOUT
EXPLAINING THE WHYS AND HOWS AND WHATS THAT WE ARE TRYING TO
PROTECT. AS I HAVE ALREADY STATED, WE TAKE AN OATH NOT TO REVEAL
THOSE THINGS. IT IS A SACRILEGE OF THE MOST FUNDAMENTAL KIND TO DO
SO. DON'T ASK US TO COMMIT THAT SACRILEGE AS THE PRICE OF LEGAL
PROTECTION FOR OUR SACRED AREAS AND OUR WAY OF LIFE.

MR. CHAIRMAN, YOU ARE PERSONALLY AWARE OF SOME OF THE STRUGGLES OUR
PUEBLO HAS GONE THROUGH TO PROTECT SACRED SITES. WTTH YOITR HELP,
A SPECIAL LAW (P.L. 101-644) WAS PASSED IN 1990 TO PREVENT
INSTALLATION OF A HYDROELECTRIC PROJECT AT A MOST SACRED PLACE ON
OUR OWN LAND. WITHOUT YOUR HELP AND THAT SPECIAL LAW, WE WOULD
HAVE BEEN LEGALLY POWERLESS TO STOP THAT SACRILEGE, BECAUSE OF THE
SMITH AND LYNG DECISIONS. BECAUSE OF THOSE DECISIONS, CURRENT LAW
PROVIDES OUR TRADITTONAI. RET.TfllONS AND OUR SACRED AREAS ESSENTIALLY
NO LEGAL PROTECTION. HOWEVER, FOR THE REASONS I HAVE ALREADY
STATED, SIMPLY REVERSING THOSE DECISIONS BY STATUTE WILL NOT SOLVE
THE MORE FUNDAMENTAL PROBLEM. ANY LEGISLATIVE SOLUTION WHICH WOULD
REQUIRE US TO REVEAL OUR MOST INTIMATE RELIGIOUS SECRETS TO PROTECT
OUR SACRED SITES, OR OUR RELIGIOUS USE OF THOSE SITES, IS NO
SOLUTION FOR US. THE CHOICE — TO REMAIN SILENT AND ALLOW AN AREA
TO BE DESTROYED OR DESECRATED, OR TO SPEAK OUT AND BREAK OUR MOST
SACRED VOWS - IS TOO PAINFUL. DON'T PUT US TO THAT CHOICE.

IN CLOSING, I WANT TO SAY THAT WE ARE PREPARED TO PROVIDE DRAFT
LEGISLATIVE LANGUAGE TO ACCOMMODATE THESE SPECIAL CONCERNS OF THE
PUEBLOS IN REGARD TO OUR SACRED AREAS AND RELIGIOUS PRACTICES. LET
US WORK WITH YOU TO FIND WAYS TO ACHIEVE THE LEGAL PROTECTION WE
NEED WITHOUT CONDEMNING US TO THAT PAINFUL CHOICE.

THANK YOU.

-3-

Mr. Richardson. Thank you very much.

Lt. Governor Sanchez, former Governor Sanchez also, I might
add.

STATEMENT OF J. GILBERT SANCHEZ

Mr. Sanchez. Mr. Chairman, members of the Subcommittee, my
name is Gilbert Sanchez and I'm here on behalf of the Pueblo San
Ildefonso.

San Ildefonso Pueblo for centuries prior to the coming of Euro-
peans to this hemisphere enjoyed and lived in spirituality with na-
ture and our universe. Upon initial contact with Europeans, our
spirituality was forever impaired.

Those who came into our lives carried forth with them the sym-
bols of their faith and their religion, totally disregarding the spir-
ituality of the religion of those they found here. In our continued
struggle to maintain our religious spirituality, some 500 years ago
our forefathers were forced to go underground in order for our reli-
gious beliefs and spirituality to survive.

In 1680, nearly 200 years after our first encounter with Euro-
peans, the Pueblo revolve broke out. Not unlike that of the Amer-
ican Revolution based on taxation and representation but was due
to the oppression of our basic human rights to our own spirituality
and our religion.

The Pueblo people, especially San Ildefonso, have revolted nu-
merous times throughout historic times. In 1849, upon contact with
Anglo-Saxon Americans, our spirituality and religion were once
again questioned, if not attacked. Some 200 years or more after the
Pilgrims landed, our Federal Government passed the American In-
dian Religious Freedom Act, an act that set forth for acceptance a
form of apartheid, if not true apartheid, on the basis of religious
freedom guaranteed by the Constitution's Bill of Rights.

The United States of America continually points its fingers of
international justice to those who violate human rights around the
world but has never looked to itself as the violator. The Pilgrims
left their homelands because of religious freedom 200 years-plus
ago. When they landed on this continent, they forgot about the reli-
gious freedoms of those they found here. Instead, they proceeded to
destroy the religions that were being practiced.

San Ildefonso Pueblo and its sister Pueblos have long enjoyed the
spirituality of a religion, moved about without interference prior to
the coming of the Europeans. Upon the Europeans' coming, fences,
roads and other impediments have been made to our spirituality.
We no longer go freely from one mountain range to the others, to
do the necessary rites in maintaining that spirituality.

We must sometimes request, from our non-Indian neighbors —
state, local and Federal Government officials — permission to enter
to either worship or gather the plants and herbs necessary to carry
out our religious activities.

We at San Ildefonso, over the last 93 years, have seen our spir-
itual and religious activity limited by progress without planning.

One. The signing of the U.S. Forest Service Act, when land was
taken which holds many of our significant sites and areas related
to our religious needs.

^Q_1Q^ _ QT _

Two. Under the War Powers Act, our government took an area
that is second only to Bandeher National Park's area in signifi-
cance to the Pueblos' religion. Ongoing now for 50 years, we have
been kept fi"om this area on which the National Laboratory has de-
stroyed a known shrine site and has, or plans to build to within
intolerable limits of our sacred area, congressionally recognized
sites of radioactive wastes, radiation waste sites and develops areas
for continued creation of such under the guise of national security.

Yet, during the most recent war, Mr. Chairman, Desert Storm,
our government encouraged its military to avoid religious sites, this
done during a war. As stated earlier, our government's rules
change when it comes to those indigenous peoples whom they
found here.

The American Indian Religious Act and the amendments hereto
hits upon the very light of human rights. Does not every human
being have the right to his or her religious beliefs, to practice them
without government or other infringements? Does not apartheid
begin when rules and laws are developed to protect rights of mi-
norities or native peoples?

The Government of this United States cannot by law pretend to
give us or take away this most basic of human rights to actively
participate in our religious beliefs and practice our spirituality.

Mr. Chairman, San Ildefonso Pueblo stands with you in your ef-
forts, and this Committee's efforts, given the diligence of direct con-
sultation, to go forth and develop a comprehensive religious fi-ee-
dom act that would be sustainable to all people.

Thank you, sir.

[Prepared statement of Mr. Sanchez follows:]

Offlce of Governor
Pete Martinez

Route 5, Box 3 15- A
Santa Fe, New Mexico 87501

American Indian Religious Freedom Act - 1993

Testimony to

United States Senate Select Committee on

Indian AiTairs

by 1st Lt. Governor J. Gilbert Sanchez

for the Pueblo of San Ddefonso

February 9, 1993

Field Hearings at Indian Pueblo Cultural Center

Albuquerque, New Mexico

Telephone

(505)455-2273

FAX (505)455-7351

San Ddefonso Pueblo for centuries prior to the coming of European man to this
hemisphere enjoyed and lived in spirituality with nature and our universe.

Upon initial contact with European man's ancestors, our spirituality was forever
impaired. Those who came into our lives carried forth with them the symbols of their faith and
religion--to tally disregarding the spirituality of the religion of those they found here. In our
continued struggle to maintain our religious spirituality, some 500 years ago our forefathers
were forced to go underground in order for our religious beliefs and spirituality to survive. In
1680, neariy 200 years after our first encounter with European man, the Pueblo Revolt broke
out, not unlike that of the American Revolution based on taxation-but this was due to the
oppression of our basic human right to our own spirituality in our religion. The Pueblo people

and especially San Ddefonso have revolted numerous times throughout historic times up until
the mid-1800's against the Spanish and later Mexican rule.

In 1849 upon contact with Anglo-Saxon Americans, our spirituality and religion once
again were questioned if not attacked. Some 200 years or so after the Pilgrims landed our
federal government passed the American Indian Religious Freedom Act--an act that set the
stage for acceptance of a form of apartheid if not true apartheid on the basis of religious
freedom guaranteed by the Constitution's Bill of Rights.

The United States of American continually points its finger of international justice to
those who violate human rights aroimd the world but has never looked to itself as the violator.
Two hundred years ago the Pilgrims left their homeland because of religious freedom-when
they landed on this continent they forgot about the religious freedom of those they found here,
instead they proceeded to destroy the religions that were being practiced. Today you are here
holding hearings on the amendments to the current law.

San Ddefonso Pueblo and its sister pueblos have long enjoyed the spirituality of our
religions and moved about without interference prior to the coming of European man. Upon
European man's coming, fences, roads and other impediment have been made to our
spirituality— we can no longer go freely from one mountain range to the other to do the
necessary rites in maintaining that spirituality. We must sometimes request from our non-
Indian neighbors, state, local and federal government permission to either worship or gather
the plants and herbs necessary to carry out our religious activities.

We at San Ildefonso Pueblo over the 93 years have seen our spiritual and religious
activity limited by progress without planning.

1 . By the signing of the U.S. Forest Act - land was taken which holds many of our
significant sites and areas related to our religious needs.

2. Under the War Powers Act our government took in area that is second only to
Bandalier National Park areas in its significance to the Pueblo religion. On-going now for 50
years we have been kept from these areas on which the National Laboratory has destroyed
shrine sites and has or plans to build to within intolerable limits of sacred sites radiation waste
sites and continues to develop areas for continued creation of such under the guise of national
security. And yet during the most recent war. Desert Storm, our government encourages its
military allies to avoid religious sites-this during a war. As stated earlier, our government's
rules change when it comes to those indigenous people whom they found here.

The American Indian Religious Freedom Act hits upon the very light of human rights-
does not every himian being have the right to his/her religious beliefs and to practice them
without government or other infringement? Does not apartheid begin when rules and laws are
developed to "protect" rights of minorities or native peoples. The government of these United
States cannot by law pretend to give us or take away this most basic of Human Rights--to
actively participate in our religious beliefs and practices--our spirituality.

Given the sad state of federal law concerning the inherent right of American Indians of

freedom to believe, express, and exercise our traditional religions, the proposed amendments
to strengthen the American Indian Religious Freedom Act of 1978 (as codified at 42 U.S.C.
1996), will provide greater protection than presently exists for tribal religious practices and
beliefs. Something is better than nothing. The Pueblo of San Ildefonso wants to recognize
several areas where the proposed amendments will improve the present legal situation
concerning American Indian religious practices. There are areas of concern that San Ildefonso
would hke to see improved before the Bill is submitted to Congress. The Pueblo sees the
proposed amendments as the product of political compromise already. San Ildefonso hopes
that the language intended to respect, protect and preserve our traditional Indian spiritual
practices will not be further eroded through the legislative process.

Section 601 of the draft faxed to New Mexico on February 1, 1993 acknowledges the
inherent rights of Indian tribes and of individual indians regarding religious practices and other
inherent rights. This "savings clause" means to the Pueblo of San Ildefonso that Congress does
not intend to take away any of our existing rights by passing these amendments to the
American Indian Religious Freedom Act. This is good. Section 501 provides for access to
federal district court to enforce the provisions of these amendments. The idea of having to use
federal law and courts to continue our ancient practices is very unpleasant to think about. In
Ught of recent federal supreme court decisions disrespecting Indian religious practices and the
present inability to challenge decisions of federal agencies concerning access and use of lands
for our traditional ways, the proposed amendment authorizing access to federal district court

to enforce the proposed amendments can be seen as an improvement over the present situation.

San Ddefonso has an important concern about the use of the term "native american
traditional leader" as defmed in section 3(10), and as used throughout the proposed
amendments. San Ildefonso does not want federal law to encourage bypassing the tribal
governor on matters covered by the proposed amendments. The federal government should
not, as a matter of policy and respect, bypass the tribal officials responsible for dealing with
external affairs (including the United States). San Ildefonso does not disclose the identification
of its traditional leaders. This is part of the way we protect our traditional ways of spirituaUty .
These amendments should not require or encourage the federal government to bypass existing
tribal lines of communication. Nor should the proposed amendments authorize or encourage
the possible divisions within a tribe that can come from recognizing traditional religious leaders
operating independently of the federally-recognized tribal council and administration of each
tribe. San Tldefon.sn '^iggesfs using the term "inhal lea d ership" instead of "native american
traditional leader ".

San Ildefonso is glad that the proposed amendments would extend the protections
afforded by the proposed amendments to not only lands within federal jurisdiction, but also
those within state jurisdiction, including "any and all political subdivisions", as defmed in
section 3(14). San Ildefonso further appreciates the findings in Section 101 recognizing the
"devastating impact" of Federal activities in the past, the integral part of religious practice to
our Pueblo culture, and the historic trust responsibility of the United States to protect Native

American "community and tribal vitality and cultural integrity". Recognizing the significance
of aboriginal territory now held by the federal government or others has having continuing
importance to our Pueblo and other tribes is an improvement over the current situation.

The requirements in section 102 concerning federal land management will remove any
questions about the authority and requirement of federal land managers to recognize Pueblo
access to Native American Religious sites on federal lands at all times, and the federal
managers' ability to close such lands to the public. Providing notice to tribes of any proposed
federal agency activity on lands within "areas with aboriginal, historic, or religious ties" to a
tribe is a definite improvement over present practice. Our concern about notice to "traditional
leaders" that the agency knows may have an interest in the land extends to Section 103(d) for
the reasons mentioned eariier. The language in Section 103(e) appears to require a tribal
response within ninety (90) days of the notice. This should be optional. That can be
accomplished by changing the word "shall" to the w ord "mnv" on page 15. line 24 of the
February 1. 1993 proposed legislation. San Ildefonso considers it vital that no person or tribe
be required to do anything or disclose any information to any agency.

San Ildefonso's concern about the role of "traditional leader" extends to proposed
Section 1 04. The Pueblo again strongly urges that agency consultation be coordinated through
the tribal government, and not directly with individual tribal members. The Pueblo further
urges that the federal government stop doing things and making decisions that "will or may
alter or disturb the integrity of native american religious sites or the sanctity thereof, or

interfere with the access thereto, or adversely impact upon the exercise of a native american
religion or the conduct of a native american religious practice. Section 104, page 17, line 4
through 8. As Pueblo people we think that federal respect for our tribes should go that far.
The proposed language for consultation and preparing a document analyzing adverse impacts
and alternatives is clearly a political compromise. This seems to be something, which is better
than nothing. We want to remind you that it is still a long way from the kind of respect we
hope for from the federal government.

Section 105 concerning "burden of proof ' we are told by our legal staff, is a significant
improvement over existing law, both at the administrative and court levels. For that reason,
San Ddefonso supports this provision. Our experience has shown that what the Pueblo
considers to be "substantial and realistic" threats to Indian religious practices may be seen
differently by federal land managers. In any event, requiring federal agencies to choose the
least harmful orintrusive alternative is important progress. Requiring the government interest
to be "compelling" is also important.

Section 106 recognizes tribal authority over Indian lands. This is one of our inherent
rights, recognized and protected by Section 601. Requiring federal agencies to follow tribal
laws on Indian lands is a valuable directive. San Tldefonso urges that Section 106rh^ he
■Strengthened on page 20, line 7 by replacing the word "authorized" with the word "required" .
This would mean any governmental agency would have to enter into an agreement with the
appropriate Indian tribe to assurance conformance with the laws or customs of the tribe. To

the extent that authorization for a federal agency to do that is needed, the authorization would
be included within the requirement for agreement. The requirement will assure that
governmental agencies do in fact follow the laws or customs of the tribe.

The "national security" exception stated in Section 106(d) can be important for San
Ddefonso, which borders the Los Alamos National Laboratory. Requiring a presidential
determination helps contain the size of this exception. It would be better to require
consultation with the tribe by the governmental agency involved eariy in the process, and long
before a presidential request for exception is prepared. San Udefonso has been concerned since
the establishment of the Los Alamos National Laboratory that "national security" provided
a convenient explanation for disrupting traditional hunting grounds and making access to
Pueblo shrine sites difficult. At present, we see some relaxation in the scope of what "national
security" requires. San Udefonso suggests that the lang uag e in Secti on lQ6(e) o n r)flge2Q,line
21 heamended by adding after "Section 10^" the words "and 104" and after the word "n olifv"
the words "and consult", and line ?^ ofthat same section to add after the word "Indian" the
words "and federal", so that tribal interference with use of religious sites outside tribal
boundaries is minimized.

Section 108 and 109 concerning confidentiality and penalties seemed to make the best
of a bad situation. The Pueblo is extremely reluctant to disclose any information about its
religious practices. If it chooses to do so, however, the sections seem strong enough to
discourage abuse ofthat information by federal employees. The Pueblo concerns in this area

remain, while recognizing the strong eiTorts made in the proposed amendments to address that
concern.

Title 2 concerning traditional use of peyote and Title 3 Prisoners Rights will not be
commented on by San Ildefonso.

Title rv Religious use of Eagles and other animals and plants recognizes the importance
of wildlife in our traditional Indian spirituality. Section 40 1 does not spell out the exact details
of the plan for how the government will "simplify and shorten" the process by which Indian
people can receive eagles acquired by the federal government. Other wildlife besides eagles
should also be made available for our traditional purposes. Injured eagles and other wildlife
which cannot be returned to the wild should be made available to Indian tribes as a matter of
federal policy. Dead eagles and wildlife should be made available to the tribes on a fair basis.

The requirement for a tribal permit system and annual report to the federal government
concerning eagles within tribal lands disturbs San Ildefonso greatly. That should not be
required. Wehave ways of handling these matters evolved through centuries. Requiring any
kind of tribal ordinance to codify those practices seems to be an unreasonable imposition of
"white tape". Tribal sovereignty and our inherent rights should respect Pueblo traditions
enough to allow their continuation without adding paper requirements. The legislative history
should make clear that the language in this act recognizing tribal ability to directly distribute
and control eagles or their parts, nest, or eggs, and other wildlife in accordance with tribal
religious custom constitutes federal acknowledgement of inherent tribal rights in this sensitive

and important area of tribal control of its lands and that which lives and grows there.

In Section 402 San Ddefonso is glad to see attention paid to plant gathering activities.
Certain greens are essential to our tribal ways, yet are rare within our present Pueblo
boundaries. The scope of federal recognition here should go beyond items that are already cut
and determined to be "surplus", as discussed in the 1979 American Indian Religious Freedom
Act Task Force Report mentioned in the proposed amendments at page 34.

The Pueblo of San Ildefonso wants to state again its concern about these proposed
amendments giving rise to an inference that tribal religion needs federal governmental
approval. The legislative history should clearly show that is not true. If the proposed
amendments will reinforce our traditional religions, they should be passed. Since we see our
cultures as a cultural system that is endangered, and in fact should be considered as "an
endangered species" within the broader context of federal law, San Ildefonso will support the
proposed amendments, with the changes suggested in this statement.

Thank you for your consideration.

PUEBLO OF SAN ILDEFONSO,

J. Kjilbart Sanchez v

IsiJLt.TjOvemor

Mr. Richardson. I thank the gentleman.

The Chair recognizes the gentleman from Montana.

Mr. Williams. Mr. Chairman, I found the remarks of the gentle-
men on the panel to be insightful and helpful and, of course, very
interesting to all of those who are interested in fully granting reli-
gious freedom to all Americans.

At least two of you raised the issue of trying to maintain, under-
standably and I think correctly, the secrecy of some of your reli-
gious activities. It creates a dilemma such as the following. I know
we all live in the world of reality but to make the point let me be
a little hypothetical.

It may be in the tenets of some religions to withhold medical
help for ill children, even to the point of that child's death. Does
the public have an interest to try to stop that? And what if that
religion also held that that practice of theirs was to be kept secret,
that no one should know about it?

And yet if it is in the overriding public interest not to allow chil-
dren to die without available medical help being applied, how does
the Federal Government then, or the courts, or the enforcement
agencies of the Federal Government, get around that dilemma?

Mr. Hena. Let me try to respond to that question. I think you're
trying to equate that with some other religious sect that we read
about every now and then who don't favor taking someone who's
ill to the medics. In the Pueblo religion this is not the case.

I think where the concerns of health are concerned, those deci-
sions are properly made within that government and usually access
to medical professionals is practiced. So we don't see any problem
with that, in the way you're asking the question.

Mr. Williams. Let me use a different example. Your response is
well accepted.

If it is in the public interest to protect certain species who are
in danger of extinction, should the government, and therefore the
public, allow any religion to practice the taking of those animals,
birds or whatever species it is, as part of their religious undertak-
ing? If the government prevents that from happening, would that
be entanglement in church/state issues? If we don't prevent it from
happening, are we setting aside a certain group of people as supe-
rior to the Endangered Species Act?

Mr. Sanchez. If I may, Mr. Chairman, I think that question is
very pointed. The fact is that if you look on, back in the War of
Desert Storm, as I've indicated, your government/our government
told the allies not to hit upon any of the religious situations, ar-
chaeological sites, religious-significant sites within Iraq.

And yet you're sitting there asking the question that is para-
mount, how can we go about this thing? We're not asking for any
special privileges or any other things. We're only asking for the
right to carry on our spirituality.

We cannot, as we sit here, divide our religious activities from
ourselves. We live in the spirituality of that situation. I think that
the situation of using an endangered species, a plant or an animal,
is very farfetched.

We see the American Eagle, the Bald Eagle, as a symbol of the
strength of this country. Yet, to us, it holds more sincerity of the
relationship that we have in our spirituality. And yet we are not

allowed to use that particular bird or animal to do any of the
things we want. We have to go through a process that is very limit-
ing.

And I think if you have a religion of your own in western society,
if you have to wait two or three years to bury your own people, or
to initiate or to ordain someone, I think that you would imderstand
this thing. It's very hard for us to relate to you how we feel.

I think the only analogy that I can give you here, sir, is that we,
as Native Americans, as much as the Hebrew, are bom into that
religion. We can accept you as an associate member of our tribe;
we can bestow a headdress upon you; you will never be one of us,
the same as in the Hebrew Nation.

I think they can give you and ordain you and ever3dhing else in
the Hebrew Nation, but you can never be a true Hebrew because
you are not bom into that group. Excuse me for that analogy.

Mr. Williams. Anyone else wish to comment on the endangered
species analogy?

Mr. Flute. Congressman Williams, when you raise the hypo-
thetical situation regarding endangered species, again you have to
understand the theology of Native Americans, the theology that life
is sacred, all life, not just human life but animal life. And I'm not
aware of any native religion, regardless of its confidentiality or
whatever, that would treat the child or any person who is ill in a
way that they would not tend to them medically or whatever.

When we look at endangered species, the only one that I'm aware
of personally would be the Bald Eagle. It was not the Native Amer-
icans who caused the Bald Eagle to be an endangered bird. When
you look at the Park Service, Fish and Wildlife reports, you find
that most of the eagles that are found dead are electrocuted by
power lines.

In the State of Montana, for example, it wasn't too long ago that
they found 40 eagles along a ten-mile stretch of power line that
were electrocuted. In Oregon and Idaho, environmental groups
have asked the power companies to put more space between the
power lines so the eagles would not cross over and become electro-
cuted. And that's starting to help that situation.

But the endangered species situation is not something that we
created nor are we attempting to take advantage of right now.

Mr. WlLLL\MS. Finally, Mr. Chairman, let me try to make clear
to this panel the reason for my question, as a way of demonstrating
what I know you all understand to be the dilemma in the Congress.

I'm very supportive of religious freedom for America's native peo-
ple. I've already begun meeting with and working with the staff
and the Chairman of this Committee to try to achieve that. I be-
lieve you do not now enjoy the same religious rights that other
Americans enjoy and we ought to change that.

But we have a dilemma and we have to find a way around the
dilemma. And I mentioned your request for secrecy as one of the
dilemmas.

Should the Federal Government allow any religion to operate
outside of what may be the public good simply by saying, we need
secrecy? That's a dilemma. Maybe the answer is, yes, we should
allow that but it is a dilemma for us.

Can the Federal Government set aside what it beHeves to be the
pubHc good in any instance simply to protect people's right to prac-
tice their own religion? The laws of the United States have contin-
ually answered no to that question.

And so we have a tradition in the United States of the Federal
Government coming right up to, on behalf of the public now, the
point where we become entangled with religion and then we stop.
But the question is, how big is the bump; how close do we get; how
much freedom do we allow?

And it is — I'll use the term again — a real dilemma, particularly
for those of us who insist, as I do, on absolute separation between
church and state, not an iota of entanglement, and yet insist that
people have full religious freedom.

Thank you, Mr. Chairman.

Mr. Richardson. Thank you.

The Chsiir recognizes the gentleman from Wyoming.

Mr. Thomas. Thank you, Mr. Chairman.

Thank you for your testimony. This is frankly the first hearing
I've been involved in on this matter, so I don't think there's a soul
here who doesn't want to work toward what we're doing. But it is
as the gentleman from Montana indicated.

Relate to me an instance where, as a matter of information,
lands off the reservation, lands that are not, in ownership at least,
Indian lands, have a conflict with — give me an example of where
lands are in conflict with religious and sacred places?

Mr. Flute. If I can take a shot at that, there will be other wit-
nesses talking about specific sites but let me tell you about Mount
Graham in Arizona.

Mount Graham is a very sacred site to the Apache Tribe, not just
one tribe but all of the Apaches. Within their religious society they
have a group that's known as Crown Dancers. The Crown Dance
Society is the society within the Apaches that holds Mount Graham
to be a very sacred site, the home of Cochise.

The University of Arizona decided to build a telescope there. And
on the very site of this telescope were shrines that were critical to
the importance of the spiritual leaders. This is a place where they
trained young men to be spiritual leaders and that place is being
destroyed.

Mr. Thomas. What is the ownership of that particular piece of
land?

Mr. Flute. This is Forest Service land. And previously that part
of the land was in the San Carlos Reservation. And through subse-
quent treaties, as with all of these cases, almost every one of the
sites that I've given you in my testimony were in fact within the
geographic boundaries of a reservation at one time or other; Mount
Gr^am is no different. Most of these sites have that kind of his-
tory.

Medicine Wheel in Wyoming is another site where the Forest
Service is interested in turning that into a tourist attraction. Be-
fore the publicity spread about Medicine Wheel, just in the past
three years, the numbers of tourists going there was approximately
15,000 people a year.

Because of the tribe's dispute with the Forest Service, in at-
tempting to save and protect that sacred site, last year they had

over 75,000 tourists go there in a 65-day period. And the amount
of destruction caused by that kind of an impact to that site has
been tremendous.
Mr. Thomas. Have you been there?
Mr. Flute. Yes, I have.
Mr. Thomas. So have I; I'm from Wyoming.
Mr. Flute. So there's not been a proper management plan nor
has the Forest Service been interested in working with the tribes
to protect that site.

Mr. Thomas. That may be part of the key. You say, working with
them to protect it.

Pursuing again sort of Mr. WiUiams' notion, if one of these sites
was on private property, and there's a conflict of takings here,
what do you do? Isn't there a basic conflict then of ownership and
right to use property?

Mr. Flute. It's been my personal experience that these are is-
sues that are negotiable. And these are things that you can sit
down with people, whether it's a private owner, state of the Federal
Government, and these can be negotiated. And once the owners or
the caretakers of this land imderstand why this is an important
site, I'm not aware of any situation where the owner has declined
to at least come halfway with the tribe. This has happened a num-
ber of times.

Mr. Thomas. So in your view legislation would not grant a privi-
lege of taking then of properties of that kind?

Mr. Flute. I don't thinJt that's ever been the intent of tribes, sir.
I think it's been the intent to protect these sites to allow us to con-
tinue to go there. Medicine Wheel, I think, is a prime example.

Mr. Thomas. Mr. Brown is here, I see, and we'll be talking about
Medicine Wheel in the next group.

Mr. Chairman, let me exercise a little personal privilege, if I
may. A young man is here in the room who is from the Wind River
Reservation and is here to exhibit some of his artistic work this
evening at the Title II Education Conference, And his name is Ster-
ling Howell; he's in the back. And I'd like to recognize him and his
instructor, who's seated on the floor there, I see.
Thank you very much.

Mr. Richardson. The Chair recognizes the gentleman from Ha-
waii.
Mr. Abercrombie. Thank you, Mr. Chairman.
I want to thank the witnesses as well.

I may come at this from a slightly different angle, being an
adopted son of Hawaii. You may not be familiar with the term but
I'm a haole. That means I'm a stranger originally; it's come to
mean Caucasian. Contemporarily, it's usually preceded by a few ad-
jectives that I won't repeat right now, although I think I've man-
aged to get past those— is that right, Kina'u— in the past 30 years.
[Laughter.]

But that doesn't bother me. Mr. Sanchez, it was you, I believe,
that indicated you could be adopted or you would be asked to be
a part of something, and I understand that. Not only do I imder-
stand it but accept it and am grateful for it.

Because sometimes it's been my observation that you can be bom
into something and then take it for granted. However, if you are

converted or adopted, sometimes you pay even more attention than
you would otherwise because it's a privilege that's been granted to
you. So if you would grant, in turn, to me that premise for my
questioning your observations, I'd be grateful.

My observation has been as a haole in Hawaii and elected then
to this position as a minority. From the voting demographics about
three-quarters of the people in my district are not Caucasian. So I
think that I've demonstrated a fidelity then to that which con-
stitutes Hawaiian values, Polynesian values, which is exemplified
in what we hope is how we conduct ourselves today.

Establishing that context then— and I hope this doesn't sound
gratuitous, Mr. Chairman, or sound even superficial to you — I
think the difficulty is being created by the government here. I don't
really see this as a difficult situation at all.

It seems to me that even the 1978 Rehgious Freedom Act is quite
clear in what it says and it seems to me the First Amendment is
clear. Of course I'm a First Amendment absolutist. I take the Nat
Hentoff approach to the First Amendment. Good speech will drive
out bad speech. And the First Amendment means what it says.
And you don't have to go through all this.

It seems to me Lyng v. Northwest Indian Cemetery Protection As-
sociation and, more particularly. Division of Oregon v. Smith, is the
government trying to get out of what it knows it has to do. And
the Supreme Court merely making a pronouncement that it is
going to run away from the First Amendment and the Freedom Act
and has this torturous logic, or presumed logic, in holding these
things.

It seems to me that it is absolutely clear that if the Act says that
the United States is "to protect and preserve American Indians in
their inherent right"— it says "inherent" there, an "inherent
right" — ". . . to exercise the traditional religions . . . including but
not limited to access to sites, use and possession of sacred objects,
and the freedom to worship through ceremonials and traditional
rites."

I don't know what else you can write. It seems to me it says
what it says. In other words, Mr. Chairman, I think I need to hear
some very specific legislation that can improve upon any of this.

Now maybe what we need is a new Supreme Court and we
should urge the retirement or perhaps you have some — [Laughter.]

I will go along with your secret societies; maybe you can help
hasten the departure, I don't know what kind of action you can
take in that regard. But this has more to do with intrigue on the
Supreme Court's part than it does with improving legislation.

So, unless I can hear something from you as to how to improve
this, I really don't think that there's much that needs to be done,
other than enforce it, to get a Justice Department and a head of
the Interior Department that will do what he or she is supposed
to do, which is protect these situations.

So my final point then, in observation — and I guess this is where
the question comes — by the way, let me tell you something. The
reason we don't have geothermal energy in Hawaii is that the peo-
ple who are doing it are violating the religious basis of the volca-
noes; I'm sure of that. Anybody who paid any attention would know

it wouldn't work. But they thought they could impose themselves
on the Hawaiians and it's not going to work.

There's nothing inherently wrong with it, but in the Hawaiian
situation, that hasn't been resolved yet. The Hawaiian goddess
there, Pele, is not ready for that; I believe that. And I believe these
natural forces are obvious to anybody; you don't even have to put
a religious connotation on it if you don't wish to do it.

So when you get to hearing, for example, this is the question
then that I wanted to ask after making those observations. If I un-
derstand the four of you correctly, none of you have said that there
is not a recognition of what is called compelling interest by the gov-
ernment.

But that all of you have held that the government must show
compelling interest; you don't have to prove anything. It's the gov-
ernment that has to prove compelling interest. This has to do with
health and safety, for example, say, of a child. I think that was the
question Mr. Williams posed.

Under this legislation, there's no difficulty in that regard, right?
Or in your view of the thing, there's no difficulty in that regard;
am I correct? That if the government can show that there is a com-
pelling public interest, and if the government is willing to go to
court and prove that there is a compelling interest, then they have
a case. Otherwise, they should stay out of it; isn't that the case?

Mr. Hena. That's correct.

Mr. Flute. As long as their demonstration of a compelling inter-
est takes the least intrusive method to the religion, certainly
then

Mr. Abercrombie. But they have to prove that; isn't that cor-
rect?

Mr. Flute. Right.

Mr. Abercrombie. For example, take eagles. I mean unless you
want to assume, as opposed to prove, that any given tribe in Amer-
ica wants to destroy eagles and wipe them out — and it would seem
to me that's what you'd have to show— then I think you'd have a
compelling interest, right? But there's no evidence of that, is there?
I don't know of any?

Mr. Flute. No.

Mr. Abercrombie. There's certainly nothing in Hawaii. We used
to have cloaks made from the feathers of birds and one of the dif-
ficulties why the cloaks were so sacred was that you didn't kill the
birds just to get feathers. You had to get the feathers and not kill
the birds. That's what made it very difficult, made it sacred, made
it an honor and almost a ritual ordeal to do it.

Mr. Hena. I think an assumption is being made that once this
particular law is passed that the Indians are going to have author-
ity and what have you to destroy certain endangered species and
so forth.

Let me tell you, as a child I recall a man in my Pueblo who was
a traditional leader who captured an eagle and kept it for about 10
or 15 years— I don't remember— fed it, just like you folks would
keep a dog or a cat in your home. He had it caged outside and he
only pulled those feathers whenever he needed them for his own
use or for the use of the Pueblo for various ceremonial purposes.

After those many years he released the bird. He never harmed
it or anything. So I think that some assumptions are being made
that traditionally we can counter because of those practices. Now
they're illegal.

Mr. Abercrombie. That's all I have, Mr. Chairman. Thank you.

Mr. Williams. Would the gentleman yield before the
gentleman

Mr. Abercrombie. Yes, of course.

Mr. Williams. My question to the two gentlemen who talked
about the essential need for religious secrecy went to the heart of
your question. And that is, how would the government demonstrate
the best interest of the public or how would the government prove
that a law was being misused if you need secrecy, which you very
well may need and deserve and should have. But then how do we
get to the gentleman's point about demonstrating?

Mr. Abercrombie. I neglected that part. I understand. May I re-
spond in that, just quickly on it, with respect to secrecy?

Mr. Richardson. Yes.

Mr. Abercrombie. Again, there are all kinds of secrets. We sup-
posedly have them on legislative committees, on intelhgence.
[Laughter.]

They're supposed to be leakproof and secret; they end up not
being. I don't know what you can do. I suppose you can slap people
on the wrist or shake your finger at them when they do it.

So far as I know, the dehberations of the College of Cardinals m
Rome, if a pope dies, is secret. Now I don't know if that means that
the government needs to pry it open and stick CNN cameras into
the Roman Catholic Church but I think people would be upset by
that.

It seems to me the Pueblo people have been here longer than
anybody else. They still seem to be here today. And, if anything,
they're the ones on the short end and the other people have been
trying to push them around. So maybe we need more secrecy.
Maybe that's the only way you've survived is because of the se-
crecy.

Mr. Hena. Well, I think that's what we're saying. And I think,
like you folks say all the time, you're comparing oranges and ap-
ples. Because with Indian religion we don't intend, in any way,
shape or form, to go out and convert people into our religion, where
Judeo-Christian religions have that as an underlying concept. They
have to go out and convert people, I guess considered heathens, to
their religion. And we don't have that.

But I think the underlying use of the word "secrecy" is based on
our experience of being able to survive 500 years of oppression from
various governments, various peoples, with respect to having them
impose their religion on us when we already had our own.

And as far as what we are saying, it's limited to members of the
Pueblos. So that his Pueblo is a separate government, a different
tribe. He speaks a different language; mine is also.

Mr. Richardson. If I could just interrupt, because we have
many, many more witnesses. I know this is a very important issue.
Mr. Abercrombie. Thank you, Mr. Chairman.
Mr. Richardson. I would like to, as a matter of courtesy, recog-
nize the gentleman from California.

Mr. Calvert. Thank you, Mr. Chairman.

I'm also new on this Committee and very interested in this par-
ticular legislation. My great-grandmother was a full-blooded Chero-
kee and so, over the years, I have listened to many stories from my
family regarding Native Americans.

One issue here regarding religious sites, has there ever been or
attempted by the various tribes an inventory of sites throughout
the United States?

Mr. Flute. I'm not aware of any effort at this point. I think
that's been attempted but I'm not sure that there's been an actual
accumulation of that information.

This inventory that I've given you are sites that I'm personally
aware of and I've either worked with the tribes or I've been to
these sites.

Mr. Calvert. Has there been in the past or possibly in the fu-
ture some communication/coordination between the various tribes
to locate those sites and to work with both the Federal, state and
local agencies to assist in assuring that those sites aren't violated
in the future?

Mr. Sanchez. If I may, sir, we in the Pueblo country hold those
sites to be secretive because of the fact that, under the Freedom
of Information Act imposed on Federal agencies and sometimes the
state government, we refuse to identify sites in their true identity
or to the specific site because of the fact of vandalism taking place
and the raiding of those sites by our neighbors, those of us from
within our own communities who have no respect for any of this
situation. So we refuse, on the grounds of that, to be included in
any tj^je of inventory.

We do know, through our religious elders, that there are sites
that are not in the inventory of certain things. Back in the turn
of the century many archaeologists from the Smithsonian Institu-
tion and the Library of Congress were asked to go out there and
look over some of these things and identify some of the sites. But
I can say that less than ten percent of those sites were identified
by our people. We continue to hold those in secrecy within our own
communities, for their protection.

To give you an example, just this past summer, 18 months ago,
we stsirted working on the situation within DOE-held properties
that were declared excess. The Forest Service was trying to initiate
a land exchange with a private person who had some 400 acres in
the Gila Wilderness that wanted to develop some homes and con-
dominiums in the Los Alamos National Laboratory in the Los Ala-
mos city limits.

Within that area there were 25 shrine sites that had not been
identified. We went in there with the Forest Service archaeology
team; we identified them. The day we identified them, the day
after I went back up there and the archaeology crew that was out
there had staked those areas out completely.

Five years earlier we had a similar incident that happened with
the Forest Service in the canyon over from this area. And within
6 months those areas were raided completely.

So, for those reasons, we tend not to be very open to anyone,
even your government. There's no guarantees of protection in any
form at this point in time. As I indicated, even the Department of

Energy, under the War Powers Act, have gone out £ind destroyed
a shrine site within DOE property.

Mr. Calvert. So what we're saying then is I'm assuming that
the other tribes in general follow that same logic, keeping the var-
ious sites secret. So that's a problem on how we protect those sites,
especially off-reservation sites.

Mr. Flute. If I can make a comment, that's not universal, Con-
gressman. There are some tribes who reserve that confidentiality.
But many of these sites are already public knowledge.

And I'd like to just make a comment, going back to Congressman
Williams' statement. The key to all of this is consultation. Despite
any confidentiality or secrecy of religion, if the land manager will
consult with tribes, tribes also have ideas and suggestions as to al-
ternate methods of development or access to these areas.

And where we get into problems is when we're not consulted and
a federal agency decides on its own that it's going to crash off and
do a road across a mountain. Then we get into trouble. But if,
through consultation — and I'm talking honest, bona fide consulta-
tion — with two parties with open minds sitting down and talking
about it, you can find solutions without being antagonistic with
each other.

And that's all we're asking here is we want a method whereby
we are consulted on any of these plans that would disturb an area.

Mr. Calvert. Thank you, Mr. Chairman.

Mr. Richardson. I want to thank the witnesses for their very
strong and compelling testimony.

I'd like to call to the table now the second panel. Mr. Chris Pe-
ters, Director, Seventh Generation Fund, McKinle5rvdlle, California;
Mr. A.L. Johnnie, Director of the Lummi Cultural Resource Protec-
tion Office, Bellingham, Washington; the Hon. John Sun Child, Sr.,
Chairman, Chippewa Cree Tribe, Box Elder, Montana; and the
Hon. Francis Brown, Chairman, Medicine Wheel Co£dition, River-
ton, Wyoming.

I especially want to welcome this panel and, again, as I men-
tioned before, your full statements will be inserted in the record.
I would ask you to summarize within the 5-minute time limit.

Let me also say, for the members, I will also ask we keep our
questions to 5 minutes so we can get into as extensive an exchange
as possible.

I jdeld to the gentleman.

Mr. Thomas. Mr. Chairman, thank you. I already indicated to
Mr. Brown I have to leave, but I want to particularly welcome Mr.
Brown from Riverton, Wyoming, to this panel.

The Medicine Wheel is an item of great interest in Wyoming, not
only to Indians and Native Americans but to the rest of us. So I'm
delighted that he's taken the time to come and he had a tough time
getting here through the weather. But I wanted to welcome Mr.
Brown.

Thank you.

Mr. Richardson. In accommodating the ranking minority mem-
ber, I'm going to ask the gentleman from Wyoming, the Hon.
Francis Brown to go first.

The Hon. Francis Brown, you are recognized.

PANEL CONSISTING OF HON. FRANCIS B. BROWN, PRESIDENT,
MEDICINE WHEEL COALITION FOR SACRED SITES OF
NORTH AMERICA, RIVERTON, WY; HON. JOHN SUN CHILD,
SR., CHAIRMAN, BUSINESS COMMITTEE, CHIPPEWA CREE
TRIBE OF THE ROCKY BOY'S RESERVATION, BOX ELDER, MT;
AL SCOTT JOHNNIE, DIRECTOR, LUMMI CULTURAL RE-
SOURCE PROTECTION OFFICE, BELLINGHAM, WA; AND
CHRISTOPHER H. PETERS, EXECUTIVE DIRECTOR, SEVENTH
GENERATION FUND, McKINLEYVILLE, CA

STATEMENT OF HON. FRANCIS B. BROWN

Mr. Brown. Thank you, Mr. Chairman.

My name is Francis Brown. I'm a member of the Arapahoe Tribe
on the Wind River Reservation and also President of the Medicine
Wheel Coalition for Sacred Sites of North America.

I would like to state some of the problems for the last 6 years
that we've had with the Big Horn National Forest on protecting the
Medicine Wheel.

I think we have worked and had meetings with the Forest Serv-
ice many times and always come out with a blank check with no
signature, no agreement of any kind. After 5 years, last year we
finally got an agreement with the Forest Service to hire two inter-
preters to work at the Medicine Wheel.

And I think 5 years ago the tourism was around 18,000 people
per year and every year it has increased to where there were
70,000 people last year visiting the Medicine Wheel. And they prac-
tically tromped the Medicine Wheel and the vegetation around
there, with cars backing up, with no proper parking or anything,
right into the ground. There's a probably eight- or ten-inch trail
that has eroded around the Medicine Wheel with all this tourism.
Two weeks ago we met in BilUngs, Montana, with the Forest
Service. We had quite an extensive meeting about things. There
were probably eight different tribes there, representing their tribes
in Montana and South Dakota and Wyoming.

Three days of talk did not furnish any kind of agreement with
the Forest Service. So I consider those three days lost through lack
of action from the Forest Service.

The Forest Service at that meeting, one of their employees had
told us that the Forest Service could do what they wanted to do.
They could agree on some of the things that were brought up at
that meeting or they wouldn't have to agree on anything. They
could just let the Medicine Wheel go as it is and not do anything
or they could even destroy the Medicine Wheel, they said. That's
how much power I guess the government has invested in the Forest
Service.

So we did compromise a few things and finally, after the meet-
ing, we did decide that we would give the Forest Service 10 work-
ing days to come up with an adequate agreement that we could
sign for the protection of the Medicine Wheel. And I hear by some
of the people that the Forest Service has come out with an agree-
ment. I haven't seen it yet but some people have already received
it by fax here.

So, in the 5 or 6 years now that we have worked with the Forest
Service, we have never really come up with nothing. The only thing

that the Forest Service has done for the Medicine Wheel is to fur-
nish two interpreters last year. And last year the 70,000 tourists
that were there had entrenched around the Medicine Wheel an 8-
to 14-inch trench all the way around there.

When the Medicine Wheel is 10,400 feet above sea level, there
isn't much growing time for any vegetation to grow back. And the
people and the cars had done the damage there right at the Medi-
cine Wheel.

And at this meeting we requested that the Forest Service shut
down the road at least a half a mile away and control tourism a
little better to where maybe we could cut tourism down to half of
what it was last year. Because I think, if they let it go for another
year, there'll be nothing to save up there.

Thank you.

[Prepared statement of Mr. Brown follows:]

Medicine Wheel Coalition for Sacred Siles of Norlti America ^^^Jii^^^.

P.O.Box 60 !• Riverton, WY 82501 • (307) S36-4556

Orricera G\alt

PresWfnl 5*crefary AllOfocy

Francis 9. Brawl. Not It-.stn Ar::^^l^:c Jolin ToMiefSB. 5'».;j/lU-ld jBCk Tfops

VlcePiealdenl T(CiiSii'«f Advisor

Oeorgs F- Sutlon. Jocrsf n C-.r/Cnfle Slcvr Brady, «3f//ri/nC.':i.>fn'ir JtiryFIule, S'jfrlOii-lVypf/jnSoi;*

February 23, 1993

The Honorable Bill Richardson, Chairman
Subcommittee on Native Affairs
Longworth House Office Building
Washington, D.C.

REGARDING: Testimony concerning Oversight Hearings on American
Indian Religious Freedom Issues, Tuesday, February 23, 1993,
Washington, D.C. , by Francis B. Brown, Northern Arapaho Traditional
Elder, and President, Medicine Wheel Coalition for Sacred Sites of
North America.

Chairman Richardson, Committee Members:

It is important the U.S. House Subcommittee on Indian Affairs,
and Congress in general, understand Native Americans need to have
Congressionally guaranteed protection of sacred, traditional, and
cultural sites, and access for ceremonial use of those sites.

Concern Number 1) VANDALISM AND ADVERSE EFFECTS CAN BE
AVOIDED: Native American Indians should not have to continually
plead to federal, state, and local governmental agencies for access
to ancient and historic spiritual sites.

Even though, the US Forest Service in its 1991 DEIS for the
Bighorn Medicine Wheel National Landmark admitted there would be
ADVERSE EFFECTS and IRREVERSIBLE AND IRRETRIEVABLE EFFECTS to the
archaeological and cultural resources at the Medicine Wheel site,
it still has not grasped the attitude that a number of those
ADVERSE EFFECTS "CAM BE AVOIDED."

The damage done to the Medicine Wheel Site during the 1992 Summer
was immense. The U.S. Forest Service legally, and the Medicine
Wheel Coalition spiritually, are obligated to ensure the protection
of the Medicine Wheel Site. That protection cannot be accomplished
if tourists, or anyone else are damaging the site intentionally or
unintentionally. For that protection to happen though, the Forest
Service needs to get past its multi-use [timbering, tourism, and
recreation] view of the site and situation and recognize that the
Bighorn Medicine Wheel National Landmark needs to be administered
more in accord with how other major National Landmarks in the
United States with cultural/archeological sites are being managed.
Concern Number 2) MULTIPLE LAND nsE LEADS TO vandalism:
Congress needs to recognize that this tactic of "misuse of the
multiple land use theory" is standard approach by all of the
federal agencies.

The Forest Service, using this tactic, still verbally claims they
are compelled by Congressional decree to see that archaeological

sites are also multiple land use sites — including the Bighorn
Medicine Wheel National Historic Landmark. This means the
archaeological site is also available for mining, drilling,
foresting, timber hauling, grazing, snowmobiling, hunting, ^'ater
storage [reservoirs], road building, placement of electric/radio
towers, and tourism — always to the detriment of the sacredness
and archaeology of the site.

Concern Number 3 BUFFER ZONES ARE NECESSARY TO REDUCE VANDALISM:
There needs to be a 2 1/2 mile environmental buffer zone around the
Bighorn Medicine Wheel National Landmark prohibiting all new
timbering and oil and mineral exploration and any industrial road
use of the FDR-12 road. This sort of buffer zone is necessary
around any ancient/traditional sites located on federal and state
lands that are proposed as landmarks for public visitation.

Concern Number 4) TOURIST VISITATIONS AS VANDALISM: The Forest
Service has proposed to make the Bighorn Medicine Wheel National
Landmark a major tourist attraction, however, at the same time it
still has not dedicated itself to maintaining at least one full-
time employee at the site, and not place "tourist trap" hot dog
stands, toilets, and parking lots immediately adjacent to the
sites. .

To protect traditional/ancient sites that are targeted as tourist
attractions, and to protect the sites from overt, covert,
accidental, and/or incidental tourist and/or industrial vandalism,
then a full-time agency employee needs to be located at the site.

It is a fact that tourist visitations of ancient and historic
Native American archaeological sites are increasing tourist season
by tourist season. There is nothing wrong with people war.tmg to
identify with their land and nation's past. However, it is wrong
that tourism interests and the commercialization of ancient Native
American sacred sites, often takes more precedence with federal,
state, and local governmental agencies, than the preservation of
the site itself. Agencies consistently choose locating outdoor
toilets, barbecua pits, parking lots, hot dog stands, and tourist
trinket shops as more important governmental business than
maintaining the site's integrity and/or sacredness.

Concern Number 5) UNREGULATED FEDERAL/STATE AGENCY SELF
REGULATION OFTEN LEADS DIRECTLY TO VANDALISM: Currently
governmental agency directives are the main support in protecting
sacred ancient and historic Native American sites. This sort ot
agency self regulation, however, is subject to the good will or
whims of the agency's personnel who can change from day-to-day. Or,
it can change due to the pressures of whimsical agency
administrators who work within their own personal agenda, and not
for the preservation of any Native American archaeology.

At this time, many governmental agency personnel " shutout '^ or
ignore Native American inputs when developing their projects m a
number of ways: 1] Some agencies totally disregard and/or do not

-* •• — __ • .», .^r-*- Mat-It, ca

along they plan to igr. .

ing process. 3] Some agencies ask for Native American input, but
then use only a small portion of it that easily fits the agency's
already predetermined agenda. And, 4] Some agencies ask for tribal

inputs on archaeological sites, but are very unwilling to share any
of the agency's collected archaeological information back with the
tribes .

Concern Number 6) ARCHEOLOGICAL SURVEYS ARE NECESSARY: The
immediate need for a Complete Cultural/Archeological Survey to be
done at the Bighorn Medicine Wheel Site and adjacent properties, to
set the boundaries of the National Landmark is of utmost
importance. This site was recognized as a landmark in the 1950s and
still has not been adequately surveyed 40 years later. If other
federal and state managed properties are managed similar to how the
Bighorn Medicine Wheel, then there is the need for stricter laws
requiring FULL archeological surveys of ancient sites that are
being proposed as public landmarks, parks, etc. by all federal and
state agencies.

At this time, the Medicine Wheel Coalition strongly proposes the
United States Congress enact stronger laws that are permanent, and
that will truly give legal protection to sacred and archaeological
sites .

Sincerely,

Francis B. Brown

President, Medicine Wheel Coalition for Sacred Sites of North
America; Northern Arapaho Tradition Elder

P.O. Box 601

Riverton, Wyoming 82501

Phone: [307] 856-4556

Mr. Richardson. The Chair recognizes the Hon. John Sun Child,
St., Chairman of the Chippewa Cree Tribe from Box Elder, Mon-
tana.

Does the gentleman from Montana wish to add to that introduc-
tion?

Mr. Williams. Well, just to again thank the Chairman and the
Committee for asking tne Chairman to come out from Montana to
be with us. I look forward to the testimony of my old friend.

Mr. Richardson. Please proceed.

STATEMENT OF HON. JOHN SUN CHILD, SR.

Mr. Sun Child. Ladies and gentlemen, if I may [brief speech in
Chippewa Cree].

Thank you, Mr. Chairman. I am grateful for this opportunity to
help resolve problems of concern to Indian people. It saddens me
that we are living in a time when mere mortals can do away with
what the Creator has made sacred.

It saddens me that it has come to this point already, so fast in
the history of creation, when the stroke of a pen can cut a strong-
hold which ties people of the Creator.

Our religion was given to us by the Creator to practice freely
without interference. Yet I am appealing to you as legislators for
assurance that I may continue to do something which is my god-
given right. I am speaking now in search of some lawful means to
protect basic human rights.

My testimony today concerns the Sweetgrass Hills located in Lib-
erty County, Montana. The Hills have long been recognized as a
place of significant traditional and cultural value by the native in-
habitants of the surrounding prairie of northern Montana and
southern Alberta and Saskatchewan.

Native American people who lived on the northern Montana
plains and frequented the Sweetgrass Hills include ancestors of to-
days Blackfeet, Chippewa Cree, Gros Ventre, SaHsh, Kootenai and
Assiniboine Tribes. All of these remain in the vicinity today.

These tribes affiliated with the Sweetgrass Hills value these hills
as a spiritual retreat, a location for conducting special ceremonial
activities. Specialized uses include fasting and praying, vision
questing, gathering of economic and sacred plants, paints and
medicines. It is clear that the Sweetgrass Hills offered a wide
range of plant and animal food resources and was viewed as a
pleasant and abundant refuge from the lowlands.

To the credit of the United States, in 1978 Congress passed the
American Indian Religious Freedom Act in recognition of the need
to protect the religious freedom of American Indians.

However, the pen which wrote the Act is the same pen which al-
lows for continued assault on Native American religions, as sacred
sites are still being violated. Today's people did not create history
but we live with the results of our ancestors' decisions and experi-
ences.

As Native Americans, we did not choose our sacred sites; we did
not create the history of this country in which the only sacred sites
are those evident in the American Indian religions. Perhaps that
is why Congress is so ill-equipped to provide protection for our sa-
cred sites.

Although this is understandable, it is still morally intolerable.
Yet it has continued with the Lyng ruling by stating that "it is un-
lawful to punish a person for practicing a religion or to coerce a
person into violating religious beliefs."

Native Americans won't be punished; they won't be coerced. But
that statement is an extremely narrow interpretation of the free
exercise clause and provides no guarantee that our sacred sites will
not be desecrated.

Two U.S. Supreme Court decisions— 1988— Lyn^; 1990— Smith—
provide loopholes in the American Indian Religious Freedom Act.
The loopholes deny First Amendment protection for Native Amer-
ican religious freedom as it affects practicing ceremonies on sacred
lands/sites and the use of peyote religion.

I'm speaking mainly about sacred sites because the threats to
them, and us, are eminent. I wish for you to understand the peril
we are all being put into. It is upon these sites that we commu-
nicate directly with the Creator, praying for guidance, giving
thanks, not for us as individuals or as Tribes, but for all of cre-
ation.

AIRFA has no teeth and, as a result, the words spoken come out
jumbled and promote misunderstanding. The regulations need to
be written clearly and, when completed, will become a testimony to
the religious freedom upon which this country was founded.

The individuals of the Nation have to follow the law as well as
the administrative branches of government. But evidence indicates
that neither feel the inclination to do so. Otherwise, why should
Manhattan Mining entertain the prospect of gold development in
the Sweetgrass Hills?

If American Indian religious freedom was considered, the Bureau
of Land Management simply would have said no to Manhattan
Mining. Perhaps the Nation's addiction to gold precludes religious
protection. Has the BLM or Manhattan Mining violated AIRFA?
When will their actions be considered a violation? What will be
their penalty? Where is the legislation that provides for a legal
cause of action when sacred sites may be impacted by federal gov-
ernmental action?

From the beginning of time, the Sweetgrass Hills have been a
source of spiritual sustenance to the Native Americans of the Great
Northern Plains. In the heart of East Butte coiintry, on the slopes
of Mount Royal is Devil's Chimney Cave, which is recognized today
by the Chippewa-Cree Tribe of Rocky Bo3^s Reservation as one of
the most important religious sites.

There is a hole on top of the mountain from whence the great
winds emerged. An Indian, braver than most, had once climbed to
the top, crawled to the edge and looked into the hole. There he saw
a whole new world, with the herds of buffalo and many Indian
camps. This cave is also known as the Sweetgrass Hills Wind Cave.
The Bureau of Land Management has allowed Manhattan Mining
to look into the same hole. Manhattan saw nothing but gold.

In conclusion, the sacred sites are being destroyed. Foresters are
building roads and miners are finding gold upon them. Some of the
sacred sites are being inspected by tourists through the accommo-
dating Park Service.

Today, as Indian people, if we don't take care of the sacred sites,
then maybe tomorrow our children will have to ask for permission
to pray there. How can the loss ever be described? And yet, that's
what we are being asked to do as Indian people. It is apparent that
all they want to do is translate everything into a number and put
a dollar sign in front of it.

Our Elders said. "Remember that the earth was created for ev-
eryone and everything. And that we are not to selfishly claim it.
We are all to share the good things in life so that we may all live
in harmony."

Ladies and gentlemen, in my own language at the beginning of
my presentation, I asked God to look upon me, look upon me, ap-
pearing before a group of people about what I thought, what all my
teachers, teachers in my culture, teachers in my religion, what I al-
ways believed was a god-given right. Here I was appearing before
a body about my religion willing, begging, pleading that my reli-
gion be legislated. We stand ready to help you.

Thank you.

[Prepared statement of Mr. Sun Child follows:!

The Chippewa Cree Tribe of the Rociiy Boy's Reservation

Phone; (406)-395-4478 or 42 1 - Finance Office Rocky Boy Route Box 544

(406)-395-4282 or 4321 -Business Committee Boxbiaer, mi oyo^ i

TESTIMONY OF

MR. JOHN SUN CHILD

CHAIRMAN, CHIPPEWA CREE BUSINESS COMMITTEE

SUB COMMITTEE ON NATIVE AMERICAN AFFAIRS
FEBRUARY 23, 1993
L 95-346- AMERICAN INDIAN RELIGIOUS FREEDOM ACT

The Chippewa Cree Tribe of the Roclcy Boy's Reservation

Phone: (406)-395-4478 or 4210 - Finance Office Rocky Boy Route, Box 544

(406)-395-4282 or 432 1 - Business Committee Box Elder, f^T 5952 1

MR. CHAIRMAN

I am John Sun Child, Chairman of the Chippewa Cree Business
Comnittee, Rocky Boy's Reservation, Montana.

Speech is a gift to be used to tell the truth, speak kindly of
others, and to help each other. I am grateful for this opportunity
to help resolve problems of concern to Indian people and I have
carefully chosen my words.

Truthfully, it saddens roe that we are living in a time when
mere mortals can do away with what the Creator has made sacred. It
saddens me that it has come to this point already, so fast in the
history of creation, when the stroke of a pen can cut the
stronghold which ties people to the Creator. Our religion was given
to us by the Creator to practice freely without interference. Yet,
I am appealing to you, as legislators, for assurances that I may
continue to do something which is my God-given right. I am
speaking now in search of some lawful means to protect basic human
rights.

My testimony today concerns the Sweetgrass Hills, Liberty
County, Montana. The Hills have long been recognized as a place of
significant traditional and cultural value by the Kative
inhabitants of the surrounding prairie of Northern Montana and
Southern Alberta and Saskatchewan.

Native American people who lived on the Northern Montana

Plains and frequented the Sweetgrass Bills included ancestors of
today's Blackfeet, Chippewa Cree, Gros Ventre, Salish, Kootenai,
and Assiniboine Tribes; all of these remain in the vacinity today.
These tribes affiliated with the Sweetgrass Hills, value these
hills as a spiritual retreat and a location for conducting special
ceremonial activities. Specialized uses include fasting and
praying, vision questing, gathering of economic and sacred plants,
paints and medicines. It is clear that the Sweetgrass Hills
offered a wide range of plant and animal food resources and was
viewed as a pleasant and abundant refuge from the lowlands.

Probably of even more significance than the food plants are
the plants used for ceremonial activity including the Sweetgrass
and the Sweet Pine.

Sweetgrass, which is available in the Hills, and by which,
they received their name, is a critical purification incense used
in almost all ceremonial activity by Northern Plains Tribes.
According to Rocky Boy Chippewa Cree spiritual leader, the late Art
Raining Bird, grass is one of the most in^ortant items in the world
and sweetgrass is one very special kind of grass, representative
of all the grasses to the Indians. Sweetgrass was chosen by the
Creator as a sacred messenger of the people's prayers to the
Creator and prayers sent to the Creator through the medium of
Sweetgrass incense are easily interpreted by Him.

To the credit of the United States, in 1978, Congress passed
the American Indian Religious Freedom Act in recognition of the
need to protect the religious freedom of American Indians.

However, the pen which wrote the Act is the same pen which allows
for continued assault on Native American religions as sacred sites
are still being violated. Today's people did not create history
but we live with the results of our ancestors' decisions and
experiences. As Native Americans, we did not chose our sacred
sites and we did not create the history of this country in which
the only sacred sites are those evident in American Indian
religions. Perhaps that is why Congress is ill-equipped to provide
protection of sacred sites. Although this is understandable, it is
still morally intolerable. Yet it has continued with the Lyng
ruling by stating that "it is unlawful to punish a person for
practicing a religion or to coerce a person into violating
religious beliefs." Native Americans won't be punished and won't
be coerced but the statement is an extremely narrow interpretation
of the Free Exercise Clause and provides no guarentee that our
sacred sites will not be desecrated. Two US Supreme Court
decisions (1988 - Lyng, 1990 - Smith) provided loopholes in the
American Indian Religious Freedom Act. The loopholes deny First
Amendment Protection for Native American religious freedom as it
effects practicing ceremonies on sacred lands/sites and the peyote
religion.

I am speaking mainly about sacred sites because the threats to
them, and us, are eminent. I wish for you to understand the peril
we are all being put into. It is upon those sites, that we
communicate directly with the Creator, praying for guidance, giving
thanks, not for us as individuals or as Tribes, but for all of

fiR_lQ4 -93-3

creation. The Tribal Elders said, "We believe that racism and
prejudice in any form is a useless exercise for the human mind
because it only breeds hatred, misunderstanding, and unhappiness;
it ignores the realities of the world because there are different
people and beliefs which have a right to exist as long as their 's
does not attempt to do way with our way of life." So I ask this
question: "Is your way of life attetq>ting to do away with the
Indian way of life?" Individually, you can answer that question.
But as a group, you must define your answer in terms of the law of
the land. Will it "mark the rise or fall of democratic faith?"

AIRFA has no teeth and as a result the words spoken come out
jumbled and promote misunderstanding. The regulations need to be
written clearly and when conq>leted will become a testimony to the
religious freedom upon which this country was founded. The
individuals of the nation have to follow the law as well as the
administrative branches of government . But evidence indicates that
neither feel the inclination to do so. Otherwise, why would
Manhatten Mining entertain the prospect of gold development in the
Sweetgrass Hills? If American Indian religious freedom was
considered, the Bureau of Land Management would sin«>ly have just
said, "No," to Manhatten Mining. Perhaps the nation's addiction to
gold precludes religious protection. Has the BLM or Manhatten
Mining violated AIRFA? When will their actions be considered a
violation? What will be their penalty? Where is the legislation
that provides for a legal cause of action when sacred sites may be
iiq;>acted by governmental action?

From the beginning of time, the Sweetgrass Hills have been a
source of spiritual sustenance to the Native Americans of the
Northern Great Plains. The Gros Ventre, Blackfeet, Salish,
Kootenai, Assiniboine, and the Plains Cree have significant oral,
traditional, and ceremonial history in northern Montana's
Sweetgrass Hills, a sacred site. The Sweetgrass Hills is a most
sacred, special place, a special area where we conmunicate with the
spirit world through fasting and praying and vision questing. The
Northern Plains' Tribes gathered economic and sacred plants, paints
and medicines, and conducted ancient rites and ceremonies in the
Sweetgrass Hills. "Authorization to perform ceremonies comes from
higher spiritual powers and not by certification by an institution
or even by any formal organization."

Within the Sweetgrass Hills, in the heart of East Butte
country on the slope of Mount Royal is Devil's Chimney Cave which
is recognized today by the Chippewa Cree Tribe of Rocky Boy's
Reservation as one of our most in^ortant religious sites. "There
is a hole at the top of the mountain from whence the great winds
emerge. An Indian, braver than most, had once climbed to the top,
crawled to the edge, and looked in the hole. There he saw a whole
new world, with the herds of buffalo and many Indian camps." This
cave is also known as the Sweetgrass Hills Wind Cave. The Bureau
of Land Management has allowed Manhatten Mining to look into the
same hole. Manhatten Mining sees gold.

In conclusion, the sacred sites are being destroyed.
Foresters are building roads and miners are finding gold upon them.

Some of the sacred sites are being inspected by tourists through
the accomodating Park Service. Today, as Indian people, if we don't
take care of the sacred sites, then maybe tomorrow our children
will have to ask for permission to pray there. Bow can the loss
ever be described? And yet, that's what we are being asksd to do as
Indian people. The Bureau of Land Management and Manhatten Mining
want clear cut information. They want to know exactly what we do
in the Sweetgrass Hills, exactly where we do these things, and how
we do them. Perhaps if we told them then maybe they, too, could
cleanse their spirit. But it is apparent that all they want to do
is translate everything into a number and put a dollar sign in
front of it. The Elders said, "Remember that the earth was created
for everyone and everything and that we are not to selfishly claim
it. We are all to share the good things in life so that we may all
live in harmony." No real progress can be made in environmental
law unless some of the insights into the sacredness of land
derrived from traditional tribal religions become basic attitudes
of the larger society (quote from Vine DeLoria, Jr., 1991).

Mr. Richardson. I thank the gentleman for his very compelling
testimony.

The Chair recognizes Mr. Al (Scott) Johnnie, Director of the
Lummi Cultural Resource Protection Office in Bellingham, Wash-
ington.

STATEMENT OF AL SCOTT JOHNNIE

Mr. Johnnie. Stsa'stel'quyd is my traditional name; it's 16 gen-
erations old and I have many inheritances because of that.

I am speaking here on behalf of the Lummi Nation and I wish
to say [Lummi phrase] or, good morning, to you. And I appreciate
the time for hearing me out this morning on the testimony.

We have submitted a 13-page written testimony and I'm trying
to summarize that here this morning. So I'll go ahead and get
started.

The Lummis' view of the world is that basically the Great Spirit
is in all things; all things are sacred in that we have our order and
we, as people have our order. Like the gentleman that spoke before
we, we believe that we are to take care of that order and we are
to also protect it.

When Christopher Columbus arrived on our shores, he labeled us
"Una Gente in Dios" or People in God. And over the centuries the
term "in Dios" or, in God, became Indies or Indian people.

And yet today we somehow have to explain ourselves and our be-
liefs and our values to a society that may not totally understand.
But yet we still have to stand up and be that voice.

It's real apparent to the Lummi Nation and we are very aware
of the failure of the United States to protect our Indian traditions,
ceremonies and spiritual practices and sacred sites from encroach-
ment and also the destruction by non-Indian society.

Over the last quarter century examples of these misguided or de-
structive policies against Lummi include the U.S. Court of Claims
gave an unacceptable judgment award regarding Lummi land and
resource claims that was refused by the Lummi Nation. And that
was under land claims.

In 1983 the federal, state county and non-Indian law enforce-
ment made a raid on the Lummi Traditional Winter Societies and
its religious practices.

Failure of the United States to protect Ancient Indian cemeteries
and grave sites. For instance, the disturbance of Indian grave sites
is a Class C felony in the State of Washington while the disturb-
ance of non-Indian graves is a Class A felony under the same state
law.

Up to a few years ago that was a misdemeanor for the disturb-
ance of Indian graves. And we have many grave sites that have
been clearly documented in the Puget Sound area.

And then again, in 1979, a raid on Lummi Traditionalists by fed-
eral, state and coimty enforcement agencies for possession of eagle
feathers with generation-old sacred regaUa, which was confiscated
and our people imprisoned or placed on federal probation.

Then again, despite a 1980 documentation of 14 Tribes' cultural
sites areas and resources in the Mount Baker-Snoqualmie National
Forest, the USDA Forest Service in the State of Washington con-
tinued clearcutting and destruction of these sites and these places.

The U.S. Forest Service and the Federal Energy Regulatory Com-
mission continue to allow destruction of sacred cleansing sites, de-
spite our repeated objections.

The destruction of Ancient Forests in the Pacific Northwest is al-
most complete, denjdng our people access to traditional materials.
The destruction of our streams and rivers is destroying oiir salmon-
spawn habitat. The salmon is an integral part of our culture. We
say at home that culture is fish and fish is culture.

The Lummi Indian Nation supports passage of the American In-
dian Religious Freedom Act. We recommend that Title I, Protection
of Sacred Sites, strengthen the protection of identified sites in Na-
tional Forests and travel access to traditional materials.

Section 103. Consultation. Strengthen consultation provisions to
require agency recognition and respect for tribal expressed views.
Disallow any alteration to the defuiition of "adverse impact" and
consider the progress and practice of the Kluckhohn cross-cultural
value-based research study, which the Tribe is involved in with the
U.S. Forest Service and various other agencies.

Section 104. Federal Land Management. A federal agency should
consider ceremonial continuity in the use of sites by the Indian
community recognized by tribes in a region, rather than simply
used by a federally-recognized tribe. Sacredness is sacred, period.

Section 105. Legal Cause of Action. Subsection [a] [2]. Maintain
and strengthen burden of proof requirement on the government.

Section 105. Legal Cause of Action. Subsection [c]. A federal
agency must consult with a tribe to ensure factual records are true
and complete. Tribal views should be included in the report or rea-
sons stated as to tribal views aren't included in the pertinent or
relevant issues.

The Lummi Nation is of the opinion that the Treaty of Point El-
liot did not cede, surrender, relinquish or destroy Indian peoples'
or Tribes' rights to religious fi*eedom and that the United States is
bound by the Treaty, the Northwest Ordinance and the U.S. Con-
stitution to protect Native American Indian religious freedom from
damage by federal departments, agencies or those of the states or
their political subdivision or citizenry.

The U.S. is obliged, imder the internationally recognized "sacred
trust of civilization" not to subject Native Americans to culturocide,
which is the end result of the destruction of denial of Native Amer-
ican religious fi'eedom.

The Lummi Nation supports the passage of the American Indian
Religious Freedom Resolution of 1993, not as an enactment to gov-
ern and regulate Native Americans, but as a vehicle to regulate
and govern over the citizenry and the political subdivisions of the
United States, as so much acts in prevention of or interference with
or impacts to Native AmericEin religious fi'eedom.

Such an enactment would be more in line with the intended pur-
pose of Article I, Section 8, Clause 3 of the 1787 U.S. Constitution,
rather than the historical use of the respective provision to justify
all actions of the United States under the "plenary power" doctrine.

And lastly, the Lummi Indian Nation supports the resolution to
protect sacred sites, to protect use of sacred regalia, including eagle
parts, to rights of prisoners and the sacred sacrament of the Native
American church. However, we must conclude that the failure to

provide legislative requirements for better management of the Na-
tional Forests and rivers shall, in the Pacific Northwest, destroy
the culture and religions of the Coast Salish Peoples. This then
shall produce culturocide, which paves the way for genocide.

Thank you for the time.

[Prepared statement of Mr. Johnnie follows:]

Im^

LUMMI INDIAN BUSINESS COUNCIL

2616 KWINA HD. • BELLINGHAM, WASHINGTON 98226-9298 • (206) 734-8180

DEPARTMENT EXT.

TESTIMO^fY OF THE LUMMI INDIAN NATION

AL SCOTT JOHNNIE (STSA'STEL' QUYD), DIRECTOR

. . LUMMI CULTURAL PROTECTION OFFICE

BEFORE THE

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS,

HOUSE COMMTTTEE ON NATURAL RESOURCES HEARING

THE

"AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978"

February 23, 1993

The relationship between our Tribal Indian societies, and the United States, has been burdened
with different, conflicting world views and values. Our spirituality is viewed as subjective. Your
religious worship of "science" is considered objective. Only now is your society beginning to
understand all things are connected. What you do to creation you do to yourself. One of our
Chiefs left your people a message, partially as follows:

"Every part of this country is sacred to my people. Every hillside, every valley,
every plain and grove has been hallowed by some fond memory or some sad
experience of my Tribe. Even the rocks, which seem to live dumb as they swelter
in the sun along the silent shore in solemn grandeur thrill with memories of past
events connected with the fate of my people, the very dust under your feet
responds more lovingly to our footsteps then to yours, because it is the ashes of
our ancestors, and our bare feet are conscious of the sympathetic touch, for the
soil is rich with the life of our kindred."

Chief Seattle, Duwamish/Suquamish, 1855

History has dictated much of what guides the relationship between our people and yours, still,
today. During the first voyage of Christopher Columbus, the Admiral entered in his log "Una
Gente In Dios. " He surmised the Natives were " A PEOPLE IN GOD. " Over the centuries, the
reference of "Indios" translated as "Indian" , was more favored over "In Dios. " One of the first
Indian rights advocates was Bartolome de Las Casas. La Casas died about 1566, still fighting
with King and Church over prevention of using the Sword to convert the Natives to Christianity.
In 1993, the United States continues to force conversion to Christian beliefs and practices
through denial of Native American religious freedom. This denial is profitable, since Christianity
preaches exploitation of the natural world and separates "God" from creation.

It is ironic that the United States fmds it so difficult to recognize Native American Religion,
while simultaneously reaping the benefits of contact (See: Indian Givers , by Jack Weatherford,
1988). For example, in 1987, the Senate Select Committee on Indian Affairs introduced and
passed Senate Concurrent Resolution No. 76: " To Acknowledge The Contribution Of The

Testimony of Al Scott Johnnie February 23, 1993

Lummi Cultural Protection Office Page 2

Iroquois Confederacy Of Nations To The Development Of The U.S. Constitution And To
Reaffirm The Continuing Govemment-to-Govemment Relationship Between Indian Tribes And
The United States Established In The Constitution" (Hearing Dec. 2, 1987). This resolution
passed the House of Representatives as House Concurrent Resolution No. 331, as recommended
by the House Interior & Insular Affairs Committee. The resolutions recognized the sovereignty
of the relationships between Tribes and the United States.

Indian Tribes, nationwide, have entered treaty negotiations with the United States, as
sovereignties. More then 800 treaties were negotiated, 300 were ratified, and aU violated in
whole or part.

The Lummi Indian Nation is party to the January 22, 1855 Point Elliot Treaty (12 Stat. 927).
In accordance to the U.S. Constitution, under Article n. Section 2, Clause 2, the President was
empowered to negotiate the treaty and the U.S. Senate was empowered to ratify it (on the 11th
day of April, 1859, as Proclaimed by President Buchanan). Upon ratification, the treaty became
the supreme law of the land under Article VI, Section 2. The Judiciary was to enforce
protection of Tribal treaty rights against encroachments of non-Indian citizenry and government;
through its power to review under Article HI, Section 2, Clause 1. The President was empow-
ered to enforce the treaty rights.

From 1787 to 1924, Tribal Indians were not classified as citizens of the United States, except
under selective criteria (See: Supreme Court criteria in Elk v. Willdns) . They were citizens of
their own nations first. The Constitution addresses Indians under the words "excluding Indians
not taxed" in Article I, Section 2, Clause 3. While the provision is argued to deal with
apportionment of representation only, it has also been seriously considered as a recognition to
establish Indian Tribes as separate from the citizenry of the United States. This separation was
obvious in post-revolutionary colonies and amongst the new States. This conceptual separation
was reinforced in the debates during reconstruction (39th and 40th Congresses), in which
language of Section 1 ("subject to the jurisdiction thereof) and Section 2 ("Excluding Indians
not taxed") of the Fourteenth Amendment was drafted and approved to assure Tribal Indians
were neither national citizens nor State citizens, respectively.

As guidance to the relationship with the Indian Tribes, the new United States bound itself
through the Northwest Ordinance of 1787, in which it Stated that the 'utmost good faith shall
always be observed towards the Indians, their lands and property shall never be taken from them
without their consent; and in their property, rights, and liberty, they never shall be invaded or
disturbed...'. The U.S. Supreme Court has concluded, in U.S. vs. Winans 198 U.S. 371 (1905),
that the treaties were not a grant of rights to the Indians but a grant of rights from them, that
which was not given was reserved (e.g.. Spiritual sovereignty).

If the United States sought to establish relationships with the Indian Tribes, outside the process
of treaty, then it could and had resorted to Article I, Section 8, Clause 3- the (Indian) Commerce
Clause.... "to regulate trade with foreign nations, amongst the several States, and with the Indian
Tribes." This allows regulation of trade and commerce between the U.S. and Indian Tribes.

68-194 - 93 - 4

Testimony of Al Scott Johnnie Febmary 23, 1993

Lummi Cultural Protection Office Page 3

Since failure to do so had and could lead to hostilities. The Trade and Intercourse Act of 1790
was one of the first such examples of regulation of the relations. . . .with the emphasis on control
of the white men that entered Indian Country.

States were prohibited by the U.S. Constitution to enter into any treaty, alliance or confederation
under Article I, Section 10, Clause 1. Such relations were restricted to the national government
as a central power. When territories became new States, each was required to enter the Union
under the same Constitutional requirements as the original States. This meant the new States did
not have power to enter treaties with Tribes, or to regulate or manage Indian Affairs or
resources. For this reason, many States were allowed to join the Union provided each adhered
to the respective "Enabling Act" requirements imposed upon them by the U.S. Congress. The
results were "Compacts with the United States" written into the States' constitutions. North
Dakota, South Dakota, Montana, and Washington were covered by the same Enabling Act-
which conditionally authorized formation of new States. Section 4 forbid State assumption of
jurisdiction over Indian lands, respectively.

As affects the Lummi Indian Nation, Washington State's Constitution declared the U.S.
Constitution as 'supreme law of the land' (Art. I, Sec. 2). It declared protection of religious
freedom (Art.I, Sec. 11), unless it impacts public property. In the State census taking (Art.n,
Sec. 3) for apportionment of representation, the State was restricted by the words "excluding
Indians not taxed. " If a person is not a citizen of the United States (as in the case of "excluding
Indians not taxed" or Tribal Indians), then they cannot hold State legislative office (Art.n,
Sec. 7). Indians were prohibited from the elective franchise by State constitutional language
(Alt. VI, Sec.l). The State has never amended this constitutional language under the process of
Amendment (Art. XXm), nor formally removed Article XXVI- Compact with the United States
(which disclaimed jurisdiction over Indian rights, resources, affairs).

Since the United States is indifferent to the fuU protection of Indian religious freedom, based on
canons of construction of constitutions, the State of Washington has not drafted, ratified, or
implemented actions that protect Indian spiritual or religious values outside the reservation
communities. Without the force of Federal requirements, it is doubtfiil such protections will
materialize in the State government action.

In analysis of the intended constitutional relationship between the Indian Tribes and the United
States, Constitutional Law Professor MUnar Ball (in "Constimtion, Court, Tribes," 1987,
American Bar Foundation Research Journal) argued it would be a strained construction to find
the Commerce Clause as the basis of plenary power. The Supreme Court obviously has done so,
regardless of canons of construction of constitutions. The Professor argues there are two
constitutions in America; one with honor and the other with dishonor (which is applied to
Indians).

If the U.S. Congress bases its power to enact the American Indian Religious Freedom Act on
the Commerce Clause (Art. I, Sec. 8, Clause 3), then there may be an obvious doctrine much
more legitimate then the judicial-poUtical reasoning for "plenary power. " Just as in Brown v.

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Lummi Cultural Protection Office Page ^

Board of Education desegregation cases, it could use the regulation of interstate commerce
power to extend to Federal and State actions that aUow economic harvesting of natural resources
used in interstate commerce (as a part of "amongst the several States". . .). Thus, economic
activities that impact Native religions could be required to conduct impact assessments, in
consultation with the Indian Tribes, if the activity is associated with interstate commerce (such
as timber, hydro-projects).

The Lummi Indian Tribe never intended the 'Treaty of Point Elliot' to waive, surrender, cede,
or relinquish any rights of Tribal Indians as regards spiritual, culmral, ceremonial, traditional,
and religious freedom. The Lummi people, like Tribes nationwide, has been under constant
pressure to enculturate, assimilate, acculturate their way of life to fit the 'American Dream' and
its correlating 'Christian citizenship' under the present interpretations of the First Amendment.
Resistance usually was met with 'terminationist policies' of the government, supported by the
Church.

In 1924, the U.S. Congress and Presidency ratified the 'Indian Citizenship Act.' Prior to this
general citizenship, there were several enactments that, theoretically constitutional, allowed
individual Indians to separate from their Tribes and then become United States citizens (e.g.,
Indian Homestead Acts, General Allotment Act, etc.). The full-fledged citizenship was intended
to prevent the Department of Interior, Bureau of Indian Affairs from implementing Circular
#1665- the Religious Crimes Code ( under Charles Burke, Commissioner of Indian Affairs,
1921-24). This code imprisoned Native Americans for practicing 'non-Christian' ceremonials.
The Indian citizenship legislative proponents believed that United States 'citizenship' would
provide Tribal Indians with the First Amendment Religious Freedom guarantee.

In an attempt to destroy the non-Christian religious activities of the Indian peoples. President
Grant's Peace Policy (December 5, 1870) institutionalized the division of the Indian reservations
amongst the Judeo-Christian Societies. Their iivfluence cuhninated in the Religious Crimes
Code. However, the forced conversion into a "civilized Christian Indian" has always been a joint
endeavor of government and Church (1492 to present).

The institutionalization of racism destructive activities against Native American religious freedom
has been a subject of reflection and apology in recent years.

In 1987, ten denominations (i.e., Lutheran Church in America, American Baptist Churches,
N.W. Regional Christian Church, Episcopal Diocese, Washington/North Idaho Conference
United Church of Christ, Roman Catholic Archdiocese, Presbyterian Church Synod
Alaska-Northwest, American Lutheran Church, United Methodist)-officially apologized for
helping institutionalize or passively allowing racism against Native American values, beliefs, and
religions. The Churches declared support to secure: (1) the rights of Native Peoples to practice
and participate in traditional ceremonies and rituals. . .; (2) access to and protection of sacred
sites and public lands for ceremonial purposes; (3) the use of religious symbols (feathers,
tobacco, sweet grass, bone, etc.) for use in traditional ceremonies and riujals. Over 1800
churches read the declaration on Thanksgiving Day of 1987.

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Lummi Cultural Protection Office Page 5

In February, 1989, Pope John Paul II, from the Vatican, issued Communique No. 56 further
condemning the institutionalized racism against Native Americans. The United Church of Christ
and the National Bahai have both issued similar condemnations. Prior to these declarations, such
denominations typically preached that Indian spirituality was a form of pagan, heathenistic
worship of a savage and uncivilized race. As noted above, the Indian Nations contributed to
the establishment of democracy. This influence extended to development of the First Ten
Amendments. The theory of religious freedom by citizenship was espoused as justification for
the 1924 Indian Citizenship Act by the "Indian Welfare League, the National Association to Help
the Indian, and the Indian Defense Association of Northern California. " These California-based
activist groups secured national support for the Indian Citizenship Act enactment, based on their
observations of the persecution of the Native American Religions (SEE: The Hopi . by Henry
James, 1974).

This legal theory, however, was contrary to the prior rulings on the constitutionality of
fuU-fledged Tribal Indian Citizenship. The U.S. Supreme Court ruled, under Elk vs. Willdns .
112 U.S. 94 (1884) that the Indians could not be citizens under provisions of the U.S.
Constitution. It held that Article I, Section 2, Clause 3 and the First and Second Sections of the
Fourteenth Amendment did not include nor authorize Citizenship of Tribal Indians, and this is
why the relationship with such Indians is governed by treaty and under the 'Commerce Clause'
(Article I, Section 8, Clause 3). The Supreme Court Stated in the Elk vs. Willdns case:

"An Indian, bom a member of one of the Indian Tribes within the United States,
which still exists and is recognized as a Tribe by the government of the United
States, who has voluntarily separated himself from his Tribe, and taken up his
residence amongst the white citizens of a State, but who has not been naturalized,
or taxed, or recognized as a citizen, either by the United States or by the State,
is not a citizen of the United States, within the meaning of the first section of the
Fourteenth Article of Amendment of the Constitution."

This interpretation was stated, in dicta, in the case United States v. Wonp Kim Ark (March 28,
1898, No. 132) in review of the applicability and scope of the Fourteenth Amendment to an
American bom Chinese male. Therein, we understand that "Persons who are bom in a country
are generally deemed citizens and subjects of that country." This natural-bom citizenship,
however, did not apply to the Tribal Indians, who were not taxed by the Federal or State
governments, and who owed their allegiance to their Indian nation. The United States was
constitutionally empowered 'to establish a uniform mle of naturalization. " However, as we argue
above, such application of this power to the Tribal Indians is constitutionally restrained.

The United States attempted to destroy "Tribalism" amongst the Indian people. From 1948 until
passage of the Self-determination policies and enactments of the mid-1970's, the Federal policy
was termination, relocation and assimilation of the Tribal Indians into the general populace.

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Lummi Cultural Protection Office Page 6

Tribal subsistence and trading economies were destroyed. Indian people were not eligible for
education or vocational training unless they left the reservation and promised to never return.
The United States ignored treatj' rights, consequently no fishing rights, gathering rights, or
hunting rights could be exercised by Tribal Indians. The Federal neglect and State
encroachments upon treaty reserved natural resources completely impoverished Indian Country.
However, in the 1970's, with self-determination, with re-establishment of the rights to fish and
hunt, the Tribal Indians remnied to their reservations and TribaUsm.

Even though the 1924 Citizenship Act was intended to provide the First Amendment guarantees,
the U.S. Congress had to pass the 'Joint Resolution American Indian Religious Freedom' on
August II, 1978 (42 U.S.C. 1996, See: Committee Reports at H.R. Rep. No. 1308, 95th
Cong., 2d Sess. 3 (1978); S. Rep. No.709, 95th Cong., 2d. Sess.3 (1978)), fifty-four years
later. This attempt to secure religious freedom protections in the was blocked by economic
interests, and as a consequence Native Americans did not secure a right that was enforceable in
the Federal courts. In 1988, the U.S. Supreme Court ruled on Lvng v. Northwest Indian
Cemetery Association . This ruling eliminated Native American religious freedom protections in
the Constitution. It was, later, strengthened as court policy in Smith v. Emp. Sec. Division of
Oregon (1990). The former eliminated any protections for sacred sites; the latter destroyed the
Native American Church sacrament.

The constitutional experiment for Indian Citizenship, as a vehicle for providing religious
freedom, was a complete failure. Not only did the 'citizenship act' fail to meet the test laid out
by the Supreme Court in 1884, but it still continues to violate canons of construction and
amendment of constitutions.

In fact, while Tribal Indians were allegedly made citizens, the only real action was the
application of the entire Internal Revenue Code to Tribal Indians ("excluding Indians not taxed")
by the Internal Revenue Service. The IRS coordinated many tax cases to institutionalize this
taxation, primarily since 1940. On November 7, 1940 (M-31019 on pp 990-997 in Opinions of
the Solicitor), and supplemented on the 22nd (Supplement to M-31019, on pp 997-1000), the
Department of Interior Solicitor issued two Opinions on the question of "excluding Indians not
taxed." These opinions enabled the IRS to extract an estimated ten (10) billion dollars aimually
from within reservation boundaries.

Thus, the experiment to secure religious freedom has been extremely costly to Tribal Indians
and their governments. Of the nearly one billion dollars appropriated for Indian Affairs in the
Interior Department it has been estimated that only one-tenth is applied for direct services to the
Tribes. The Bureau uses ninety percent (90%) of its appropriations for Indian affairs
management. The remaining ten percent of BIA appropriations is divided amongst urban and
reservation programs. This means that a small percentage of the estimated Federal taxes
extracted is returned annually as Federal program appropriations.

The direct effect of Federal taxation is the elimination of revenues for Tribal treasuries through
application of revenue codes to business or industry by State and Federal govenmients prior to

Testimony of Al Scott Johnnie February 23, 1993

Lummi Cultural Protection Office Page 7

Tribal assessments. It has been economically/fmancially not feasible for private enterprise to
locate on reservations when all three governments tax the enterprise. Reinforced by the Court,
the IRS has eroded an essential power of Tribal government, as a result of the citizenship
"granted" to the Tribal Indians.

The Lummi Tribe is very much aware of the failure of the United States to protect Indian
traditions, ceremonials, spiritual practices and sacred sites from encroachment by non-Indian
society. The Indian Tribes have constantly been subjected to activities that destroy their
opportunity to practice their traditional spiritually. Actions by private citizenry. State
governments or their political subdivisions, and/or the Federal departments destroy the
possibility for Native American Religious Freedom.

It is believed passage of the American Indian Religious Freedom Act rests on constitutional
powers of Article I, Section 8, Clause 3. According to the Supreme Court this clause is the
source of "Plenary Power" (absolute power) over Indian Affairs. The Lummi Tribe disagrees
with the constitutional foundations of this power. But, does recognize that our Religious rights
conflict with economic exploitation of the environment. The U.S. Supreme Court considered the
rights of Indian religious freedom in light of this question. The Supreme Court, in Lvng . placed
"economics" on a much higher plateau of right; thereby, justifying the total elimination of
constitutional protection for Indian Religious Freedom.

The fmal irony is the Lummi Indian Nation has never sold its lands, waters, or natural resources
within its aboriginal territory; nor has the United States paid for the lands. The U.S. Court of
Claims recommended a judgment award, which was fu'st rejected by the Lummi People in 1972
and continuously ever since. The U.S. Claims Commission, and its Indian Claims Court, com-
pletely watered down the claim of the Lummi to the point that the offer made by the U.S. was
completely frivolous and unconscionable (See attached Resolution 93-01). Not only did the U.S.
not include the rivers, waters, and lakes owned by the Lummi, but it excluded the majority of
the lands owned by the Lummi, from the offered settlement. When the Lummi refused to accept
payment; then, the U.S. paid itself (by having the Bureau of Indian Affairs accept the payment)
and placed the money in the U.S. Treasury.

Examples of problems the Lummi are confronting as regards our free exercise of religion are:

1] In 1979, the Lummi Traditionalists were raided by Federal, State, and county
non-Indian enforcement agencies for having in their possession eagle feathers. Elders and
toddlers were held at gun point, not allowed to dress themselves after being dragged from their
beds before dawn. The armed non-Indian officers were in search of Eagle parts. Sacred regalia
several generations old were taken as proof of crimes committed against the laws of the United
States. After being made public spectacles, some Lummi people were imprisoned and elders
placed on Federal probation.

2] In 1983, the Lummi Traditional Winter Societies were raided by Federal, State, and
county non-Indian enforcement agencies for practicing Indian ceremonies that practice classical

Testimony of Al Scott Johnnie February 23, 1993

Lummi Cultural Protection Office Page 8

non-Christian activities in their spiritual societies. Lummi people were imprisoned. The defense,
in cooperation with Federal Officials, negotiated the imprisonment of two Lummi clients for the
freedom of two others from the same society.

3] The Lummi Indian Nation is concerned over the failure of the United States to protect
the contents of Ancient Indian Cemeteries and Grave sites. The U.S. has never ratified
legislation that would make it a felony to conduct interstate marketing of grave goods or sacred
objects or regalia taken from ancient Indian cemeteries. Market values have increased the
temptation and tendency for private citizenry disturbance of our ancient graves. The State of
Washington has been induced to classify such actions of disturbance of known ancient grave sites
as a Class C State Felony (although disturbances of non-Indian graves is a Class A felony under
the same law).

Recent grave violation activities in Washington State directly affecting the Lummi
people have been the disturbances of Tribal Ancient Cemeteries at West Sound and East Sound
on Orcas Island, at Point Roberts, and many other sites located throughout our traditional
territory in Washington State. In the late 1970's, the City of Blaine, and Birch Bay Community
were both authorized by local and State officials to destroy ancient Lummi Indian Burial
Grounds at Semiahmoo and Birch Bay.

4] The U.S. Department of Agriculmre (Forest Service), and the Washington State
Department of Natural Resources (Forest Practices Board) have continued to authorize the
destruction of the ancient forests within the State of Washington, through massive clear cutting.
An estimated ninety-five (95%) percent of the U.S. Ancient Forests have been completely clear
cut. This activity is more devastating than that found in the Amazon of Brazil, as disclosed by
the New York Times (based on Landsat Photographs from NASA, June, 1992). Clear cutting
continues regardless of the impacts to the N.W. spiritual traditions and ceremonial practices and
beliefs of Tribal Indian societies. The Tribal Winter Societies depend on access to the
undisturbed forests for questing ceremonies and sacred regalia storage. For these native societies
and religious beliefs to continue, it is necessary that certain natural conditions are present in
order for their spirituality to remain a reality- i.e., purity, isolation, continuity, integrity,
accessibility, privacy.

In 1980, fourteen Tribes in western Washington completed an inventory of cultural
use sites, areas, and resources on the Mt. Baker-Snoqualmie National Forest. The inventory,
funded by the United States Department of Agriculture, identified over 450,000 acres of cultural
use sites in the National Forest. These sites are used today, as they have been in the past, for
spiritual questing and cleansing, as well as other traditional practices such as gathering medicinal
plants, bark, and roots, and for depositing traditional regalia. The study, conducted by native
cultural specialists, was submitted to the Forest Service in 1981. In spite of the overwhelming
evidence of the importance of these sites and practices, the Forest Supervisor of the Mt.
Baker-Snoqualmie National Forest, Mr. Doug MacWilliams, established a clear policy of
disallowing any category of protection for these sites.

Testimony of Al Scott Johnnie February 23, 1993

Lummi Cultural Protection Office P^gs 9

5] The U.S. Forest Service and U.S. Federal Energy Regulatory Commission have
continued to authorize or support the destruction of sacred cleansing sites in the forests streams,
creeks, and rivers; through impacts of sUt-load damage due to clear cuts and major hydro-
electric projects or the many low-head small hydro-projects instigated by the 1982 Northwest
Power Bill. Very rarely does State government demand environmental impact studies. Nor are
Tribes generally consulted. When Tribal consultation occurs, our comments are ignored. These
activities have continued regardless of the impacts to the Lummi Spiritual Societies who depend
on the streams for cleansing ceremonies. Recently the FERC, national office, considered having
aU FERC applicants for low-head hydro-projects proposed inside the aboriginal Lummi territory
participate in studies of the cultural factors. Sadly, since this activity is not required by
regulation or law, the request was attacked and rejected by the applicants.

6] The U.S. Forest Service does not recognize the treaty rights of the Northwest Indian
Tribes to access the forests for collection of materials and animals essential to the cultural,
traditional ceremonies of the people. Neither is the Forest Service willing to honor the U. S . laws
that guarantee, without charge, access to mineral and vegetative materials for non-profit,
governmental activities. The Tribe, according to the Mt. Baker-Snoquahnie Forest Service
Office, did not qualify for the exemptions, even though the 1982 Indian Tax Status Act made
very clear the non-profit governmental status of the Tribe. The United States has amended its
laws several times since the Second World War, in order to accommodate the need for mineral,
vegetative materials, etc. from the U.S. Forests. In 1978/79 the Forest Service addressed this
matter, as their contribution to the Report to the Congress by the President in compliance to
the 1978 Native American Religious Freedom Act.

The Lummi do not have to these three species access to ancient cedar trees for their
Winter Ceremonial and Cultural Long-houses. Nor do their traditional cedar carvers have to
these tree species access for totem poles, sacred regalia, cultural arts, or canoes, etc.. The
Lummis cannot afford the fees and assessments required by the U.S. Forest Service. Still, the
"gathering" cedar (and other products from the National Forest) is a "Winans" right.

7] The Lummi has sacred creation myths about the beginning of their worid and
spirituaUty. The Creation of Mt. Baker (Komo Kulsan), his two Wives- Clear Sky (Mt. Rainier)
and Fair Maiden (Spieden Island, whose child was Sentinel Island) and his three older Children
(the Twin Sisters Mountains and Mt. Shuksan) is the creation myth of the Nooksack River. It,
also, tells how all the medicinal and food plants and shellfish came to be located on the all the
different islands in the San Juan Island network. This is why the Islands are named for
food/medicinal plants. The destruction of the Ancient Forest, especially those forest lands
surrounding Mt. Baker and the Twins Sisters Region, and the destruction of the Nooksack River
strikes at the heart of Lummi creation.

Thus, the destruction of the quantity and quality of water in the Nooksack River and Watershed
is completely challenging the culmral life and society of the Lummi Indian Nation. The
destruction of the ancient forests by clear cutting is causing massive silt-load and mud sUde
impacts to the upper river salmon habitat. This kills the salmon eggs and fiiture annual returns.

Testimony of Al Scott Johnnie February 23, 1993

Lurami Cultural Protection Office Page 10

The decreased run sizes then destroy the fishing opportunity of the Lummi (and non-Indian
fishing fleets). In addition, the equivalent of 100,000 eight cubic yard truck loads of silt is
entering the Lummi/Bellingham Bay delta annually, as well as destroying down river salmon
habitat. The Salmon Culture of the Lummi is rapidly being destroyed.

The change in diet amongst the Tribal people has caused the Lummi to have an average
life-expectancy of 47 1/2 years (only 60 percent of the expectancy of the average U.S. white
male). The change in diet has resulted in diabetes, cancer, obesity (due to high starch diets and
low protein). Decreased availability of salmon, deer, elk, and other natural wild animal protein
has resulted in a marked shift in health. Our creation beliefs teach us to fmd the respective foods
and the ceremonials to maintain the balance between man and nature (e.g.. First Salmon
Ceremony). In addition, the destruction of the Ancient Forest is resulting in the destruction of
the food and medicinal plants found essential to our cultural and spirimal practices.

The Lummi Indian Nation has reviewed the proposal entitled as the 'American Indian Religious
Freedom Resolution of 1991 and has concerns, as follows:

First. Title I. Protection of Sacred Sites, Sec. 101 Findings, subsection (13) mentions the
powers of Congress under the 'fourteenth amendment(s) to the Constitution. ' As Stated
above, the experiment for Indian citizenship was intended to provide the 'first amendment
guarantee' and thereby overcome Department of Interior Circular #1665. This experimental
citizenship violated the canons of constructions of constitutions and was contrary to the
ruling in Elk v. Wilkins . (1884);

The 1980 Cultural Use Inventory by the Fourteen Tribes identify up to 75 sacred sites in
the Forest that are central to the belief and practices of the Winter Societies. The Lummi
need guaranteed access to the U.S. Forests for questing ceremonies and sacred sites, and
the storage of sacred regaUa. The spirimal paints and medicines are located in the forests,
just as most of the cultural materials essential to sacred regalia and ceremony. The Lummi
need access to the streams, creeks, and rivers in the U.S. Forests for cleansing ceremonies.
The Lummi need the U.S. Forest Service Plan to reflect the need to consult directly with
the Tribal groups affected by past and proposed harvesting activities in the forests. While
the Mt. Baker/Snoqualmie Forest has an objective #10 to address the cultural factor, it fails
to be implemented into management strategy.

The Lummi need access to cedar to build their ceremonial houses and other cultural
necessities. Even the implementation of current law and treaty right could solve some of the
problems. Increasing the buffer zones along streams and creeks and rivers in the National
Forest 150 wide zones would help solve some problems for winter bathing/cleansing sites.

Second. Section 103. Consultation. The Lummi Nation is concerned about the definition of
what is defmed as legitimate 'consultation' and the defmition of 'adverse' impact. AH too
often the Tribes have been informed of impacts and then the Tribal responses were ignored
or not implemented. In addition, there exists a tendency for the Federal, State, and private

Testimony of AJ Scott Johnnie February 23, 1993

Lummi Cultural Protection Office Page 1 1

sectors and institutions of society to restrict the definition of 'adverse' so that it protects the
economic interests of the general populace over and above the interests of the
tiaditionaVceremoniaiyspiritual peoples and societies.

The Lummi have been working cooperatively to investigate a scientific method of analyzing
the sources of conflicts between Tribal spiritual societies and the U.S. Forest Service and
private timber industry. The Lummi Nation, in association with the University of
Washington, completed a six-year cross-cultural value-based research program. The program
was conducted in association with a task force of anthropologists and cross-cultural
psychologists, including the late Dr. Florence Kluckhohn to evaluate and compare basic
values ("value orientations"). The project team utUized a method developed at Harvard
University. The findings of the research project, published by the U.S. Department of
Interior, describes the nature and extent of value-based similarities and differences between
the Lummi Tribe and the participating resource management agencies.

The Study, reviewed and confirmed by the projects' Academic Advisory Committee, should
be considered in any discussion of religious freedom issues, as so much applies to the
development of forest management regimes. The fmdings indicate that the basic world-view
of the Tribe varies significantly from those of other groups, resulting in a different manner
of reasoning, belief, and association. Agencies whose activities impact the culmre and
traditions of the Tribe are often unaware or insensitive to these value-based differences.
Perhaps, most importantly, the findings indicate that the Lummi Tribe will experience
severe cultural stress if it is forced to curtail or change its traditional practices through the
loss of cultural use sites, areas, and resources. This stress will affect not only the continuity
of Tribal traditions and beliefs, but also the stability and mental health of the community.

Third. Section 104. Federal Land Management, Subsection (a)(2) addresses the concern of
how to 'identify' Indian Tribes, . . ., having aboriginal or historic ties to the lands directly
or indirectly. . .". The Lummi Indian Nation does not believe that a Federal agency should
be able to totally decide such questions based on the sole determination that the Tribe at
issue is or is not 'Federally recognized', but rather should be guided by considerations as
to whether or not there has been cultural and/or ceremonial continuity in use and concern
for the lands/natural resources associated with the religious practices of the Tribal
community, and substantiated and recognized by other Tribes in the same region, or as
guided by interTribal continuity of cultural practices.

Fourth. Section 105. Legal Cause of Action. Under Subsection (a)(2) the burden of
demonstrating that the governmental interest is 'compelling' is a primary matter. AH too
often the burden has been shifted to the Indian Tribes as a vehicle to prevent or stop their
successful appeal and to eliminate significant costs to the party proposing the impact to the
Tribal religious and spiritual practices and beliefs. This language should remain and not be
changed to shift the burden to the Indian people; and.

Fifth. Section 105. Legal Cause of Action. Under Subsection (c) it is proposed that '. . .

Testimony of Al Scott Johnnie February 23, 1993

Lummi Cultural Protection Office Page 12

the court shall conduct a de novo review of the factual record compiled by the Federal
agency.' The Lummi Indian Nation is concerned about the contents of what the 'Federal
agency' shall determine is a factual part of the record and recommends this process to
ensure that the records are accurate and complete with the Indians concerns documented.
The section should be amended to ensure the Federal agency shall consult directly with the
Tribe on what is or is not a part of the 'factual record' before it submits the same for a de
novo review, otherwise, specify reasoning why the records requested or submitted by the
Tribe are not included as pertinent.

In conclusion, the Lummi Indian Nation is of the opinion that the Treaty of Point EUiot (12
Stat. 927) did not cede, surrender, relinquish, or destroy the Indian peoples' or Tribes' rights
to religious freedom and that the United States is bound by the treaty, the Northwest Ordinance,
and the U.S. Constitution to protect Native American Indian Religious Freedom from being
damaged by Federal departments, agencies or those of the States or their political subdivisions
or citizenry. The U.S. is obliged under the internationally recognized 'sacred trust of civiliza-
tion' to not subject Native Americans to culturocide, which is the end result of the destruction
or denial of Native American religious freedom.

The Lummi Indian Nation supports the passage of the 'American Indian Religious Freedom
Resolution of 1993' not as an enactment to govern and regulate Native Americans, but as a
vehicle to regulate and govern over the citizenry and political subdivisions of the United States,
as so much acts in prevention of or interference with or impacts to Native American religious
freedom. Such an enactment would be more in line with the intended purpose of Article I,
Section 8, Clause 3 of the 1787 U.S. Constitution; rather than the historical use of the respective
provision to justify all actions of the United States under the 'plenary power" doctrine.

The Lummi Indian Nation supports the resolution to protect sacred sites, to protect use of sacred
regalia (including Eagle parts), to rights of prisoners, and the sacred sacrament of the Native
American Church. However, we must conclude that failure to provide legislative requirements
for better management of the National Forests and Rivers shall, in the Pacific Northwest, destroy
the culture and religions of the Coast SaMsh Peoples. This, then, shall produce "culturocide";
which paves the way for genocide.

TtSnMONJIS

Mr. Richardson. Thank you.
Mr. Chris Peters.

STATEMENT OF CHRISTOPHER H. PETERS

Mr. Peters. Good morning.

My name is Chris Peters. I'm Pohlik-Lah or Yurok Tribe of
northern CaHfomia. I'm the Executive Director of Seventh Genera-
tion Fund. And just a few minutes on the concept of Seven Genera-
tions.

It's a concept widely held by many tribal people throughout the
United States. Basically it infers that in each of our deliberations
we consider the impact on seven generations from now. And it is
germane to this particular discussion this morning.

The Pohlik or Yurok People in northern California, we're world
renewal people. We perform annual ceremonies to heal the earth
and to renew the world. If we are prevented from performing these
ceremonies, we would cease to exist as a people.

For thousands of years our people used the sacred high country
in the Siskiyou Mountain range of northern California for our med-
icine-making or vision quest, if you will. After a period of purifi-
cation or cleansing of mind and soul, our religious leaders complete
annual pilgrimages to places such as Doctor Rock, Peak 8, Chim-
ney rock. Little Medicine Mountain and other sacred sites as well.

At these sacred places and through a process of intense prayer,
prolonged and continuously driven thought, through fasting,
through dancing, through singing, for many, many days our reli-
gious leaders receive the personal power needed to perform earth
renewal ceremonies.

Through this process of medicine-making our religious leaders
communicate with the spiritual side of the universe and, in doing
so, acquire the wisdom and the knowledge that reaffirms our reli-
gious bases, our religious ideology. By virtue of similar religious
wisdom, indigenous people throughout the United States and pos-
sibly throughout the world also use the process of high mountain
medicine, a vision quest or reaffirmation of a religious ideology.

The use of the high country and sacred places are restricted to
only a few people, religious leaders that have attained the knowl-
edge of high medicine and who live a pure and clean life.

Religious leaders are always cautious to use the process of medi-
cine making or vision quest in a good and careful manner. To mis-
use or abuse such power can cause significant emotional and spir-
itual harm on the individual, in a metaphysical means, if you will;
the power can come back on you. And it's not necessarily an
ostracization or removing from a tribe. But to use the medicine in
a good way is, in a metaphysical way, a very important thing to
do.

In 1988 I was a respondent in the Lyng case. Basically the Lyng
case involved construction of the road, the G-0 road that linked
the two rural communities of Gasquet and Orleans. The road would
go directly through the high country and destroy our ability to
practice our religions.

Keep in mind, even through a process of consultation, even
through a process of utilizing all of the administrative appeal pro-
cedures and the use of the American Indian Religious Freedom Act,

the forest Service continued with the road, knowing that their con-
struction of the road would destroy our reHgious behefs. Their own
studies, produced in 1978, concluded. "That present day Yurok,
Karuk and Tolowa Indians, as did their ancestors, consider the
Chimney Rock section to be sacred land. That these Indians pres-
ently utilize this sacred "High Country" in the exercise of their reli-
gious beliefs; that a crucial element of the sacred high country is
its pristine nature; and that intrusions on the sanctity of the Blue
Creek high country [such as would result from road construction]
are therefore potentially destructive to the very core of northwest
religious beliefs and practices."

The Forest Service knowingly advanced the road project and ad-
vanced litigation to the Supreme Court.

In 1988 the high court not only rejected our arguments and use
of the American Indian Religious Freedom Act of 1978 but also de-
nied constitutional protection for our spiritual leaders. This action
was taken knowing that "the threat to the efficiency of at least
some religious practices is extremely grave."

Please understand that the ruling of the Supreme Court de-
stroyed our ability to use the sacred high country for medicine pur-
poses and for religious reaffirmation. Without the renewal of our
spiritual wisdom, our people would not longer exist. Thus, the deci-
sion in the G-0 Road case or Lyng case is analogous to a sentence
of Forever Lasting Death. And that applies significantly to other
tribes.

Although the high country itself has been legislatively saved, in-
cluded in the Siskiyou wilderness area, and our religions in north-
em California continue uninterrupted, the precedent established by
G-0 Road has since been cited as the legal right to destroy sacred
places and age-old religious wisdom of Native People across the Na-
tion — Red Butte, Mount Graham, Mount Shasta, Badger Two,
Snoqualmie Falls, Mount Hood, and the list goes on. And I encour-
age you to look at the list.

In closing, I'd like to make a few additional comments about sa-
cred places. One, our people believe that sacred places are sacred
not only to human. When you consider the significance of sacred
places, please look beyond the anthropocentric qualities and under-
stand their value to bio-regional sustainability. Sacred places are
significant to the survival of all forms of life. They house the
power, the source, the spiritual energy of natural system.

Two, sacred places establish the morality of our people. As indi-
cated above, high mountain medicine reaffirms our religious
ideologies and sustains our understanding of natural law. Addition-
ally, the reaffirmation of our religions defines standards of our
moral and ethical behaviors. Without access to sacred places and
religious reaffirmation, the social and cultural institutions of our
tribal communities will decay.

Three, sacred places create an ecologically-center consciousness.
Through the process of high mountain medicine and the reaffirma-
tion of earth-based religious wisdom, there has evolved within na-
tive cultures an ecologically centered consciousness and a unique
world view.

This earth-based paradigm drastically departs from contem-
porary Euro-American thought. This ecologically based wisdom de-
fines our relationship to the earth and to all forms of this.

It also sets forth the principles for a sustainable life style that
teaches respect, reverence and a process of reciprocity that sustains
rather than drains the natural elements of the earth.

The recent court cases that enjoin Native fi-ee exercise of religion
will effectively eliminate this earth-based ecological paradigm.
Thus, in future generations the only conscious regard for the earth
shall be that of non-sacred commodifiable property.

I encourage the committee to take whatever action necessary to
introduce and to pass the amendments to AIRFA. Thank you.

[Prepared statement of Mr. Peters follows:]

Testimony of Christopher H. Peters

Testimony In support
Of thg
proposed Amendm ents to the
American I ndian Rellpous Freedom Act

February 23, 1993

Testimony in Support of the American Indian Rslialous Freedom Act
Presented by: Christopher H. Peters

Honorable Congressmen Bill Richardson, other distinguished members
of the sub-committee on Native American Affairs and respected tribal
elders. I am honored to offer testimony in support of the proposed
amendments to the American Indian Religious Freedom Act of 1978.

My name is Christopher H. Peters I am of Pohlik-Lah/Karuk tribal
anc99try of northwestern California. Since early childhood I have actively
participated in the traditional religious ceremonies of my tribes. In
recent years, I have assumed greater responsibility for the preparation
and performance of the sacred Earth healing and world renewal
ceremonies - contemporarily referred to as the Jump Dance and White
Deer Sl<in Dance. Among the Pohlik and Karuk people Earth renewal
ceremonies are fundamental to the very ethos of our cultural existence.
We are earth renewal people, our legends and religious ideologies mandate
that the primary responsibility for Pohlik and Karuk people is to heal the
Farth and help bring forth renewal. The moral and philosophical
obligations to continue this religious ideology is genetically or
instinctually ingrained in our very souls. If we were prevented from
pisrforming these sacred ceremonies we would no longer exist as a people
and the world would not be renewed.

For thousands of years my people have used the sacred high country in
the Siskiyou mountains of northern California for "medicine making" or
"vision quests". After periods of purification (mind, body and soul) our
religious leaders complete annual pilgrimages to such places as Doctor
Rock, Peak 8, Chimney Rock and Little Medicine Mountain. At these
sacred places and through a process of intense prayer, prolonged and
continuously driven thought, fasting, dancing and singing our religious
leader seeks and receives the personal and spiritual power needed tor the
preparation and performance of Earth healing and Earth renewal
ceremonies Through this process of medicine making our religious
leaders articulate with the spiritual side of the universe and in doing so
require the wisdom and knowledge that reaffirms the religious ideology of
the Pohlik and Karuk people. By virtue of similar religious wisdom, this
process of high mountain medicine is used to reaffirm the earth-based

religious wisdom of Indigenous peoples throughout the United States and
possibly throughout the world.

The use of the high country and sacred prayer places are restncted to
only a very few religious leaders that have attained the knowledge of high
mountain medicine and who live a pure and dean life. Religious leaders
are always cautious to use the process of medicine making in a good and
careful manner, for the misuse and abuse of such spiritual powers can
cause significant emotional and/or physical harm. In fact, among many
tribal groups the mere discussion of medicine making is forbidden.

In 1988, I was a respondent m the U.S Supreme Court case - Lyng v. the
Northwest Indian Cemetery Association (485 US 439,1988) commonly
referred to as the "G-0 Road case", The case involved the U.S. Forest
Services" planned road construction that would link the two rural
communities of Gasquet and Orleans (thus, the name G.O. Road). The road
construction would dissect the sacred high country and even according to
the Forest Service our studies (TCR-Cultural Resources of the Chimney
Rock section-1988) the road would destroy the religious practices of our
people: the study concluded:

"That present day Yurok (Pohlik-iah), Karuk and Tolowa Indian, as did
their ancestor, consider the Chimney Rock section to be sacred land.
That these Indians presently utilize this sacred "High Country" in
the exercise of their religious beliefs; that a crucial element of the
sacred high country is its, pristine nature; and that intrusions on the
sanctity of the Blue Creek high country (such as would result from
road construction) are therefore potentially destructive to the very
core of northwest religious beliefs and practices."

In 1988 the High Court denied First Amendment- Constitutional
Protection for the spiritual leaders of our tribe. This action was taken
knowing that "the threat to the efficiency of at least some religious
practices is extremely grave". In her ruling Justice O'Connor writes:

"even if we assume that we should accept the ninth circuit
prediction, according to which the GO Road will virtually destroy
the Indians ability to practice their religion, the Constitution
simply does not provide a principle that would justify upholding
respondents' claim"

Please understand that with this ruling the US Supreme court
destroyed our ability to use the sacred high country for medicine making
or religious reaffirmation. Without the renewal of our spiritual wisdom
our people would no longer exist. Thus, the decision In the GO Road case is
analogous to a sentence of - F Qrever Lasting Death . Although the High
Country has since been legislatively included in the Siskiyou Wilderness
area and our religions continue uninterrupted, the precedent established
with the GO-Road decision has since been cited as the legal right to
destroy sacred places and age-old religious wisdom of Native people
across the nation.

In closing, I wish to make a few additional comment about sacred
places and the practice of high mountain medicine. Our people believe that:

M^ Rarrftd pl aces are sacr ed not only to Humans: When we consider the
significance of sacred places we must look beyond their
anthropocentric qualities and understand their value for bio-regional
sustainability. Sacred places are significant to the survival of all
forms of life. They house the power source or spirituality for natural
systems.

(2) Sarrftd Places establish the morality of our people: As indicated above
high mountain medicine reaffirms our religious ideology and
substantiates our understanding of natural taw. Additionally, the
reaffirmation or our religions defines standards of our moral and
ethical behaviors, without access to sacred places and religious
reaffirmation the social and cultural institutions of our communities
would soon decay.

f3^ Sanrad places create an ecQloqicallv centered consciousness: Through

the process of high mountain medicine and the reaffirmation of earth-
baseo religious wisdom there has evolved within Native cultures an
ecologically centered consciousness and a unique world view. This
Earth-based paradigm drastically departs from contemporary euro-
american thought. This ecologically based wisdom defines our
relationship to the earth and to all forms of life. It also setsforth
principles for a sustainable lifestyle that teaches respect, reverence
and a process of reciprocity that sustains rather than drains the
natural elements of the earth. The recent court cases that enjoin

Native free exercise of religion will effectually eliminate this earth-
based ecological paradigm Thus, in future generations the only
conscious regard for the earth shall be that of non-sacred
comodifiable property.

in conclusion, at this critical time of environmental and social alarm,
when both Indigenous and non Indigenous people are seeking guidance from
Native religious philosophies the American Judiciary has formally washed
its hands of any constitutional responsibility for protecting earth-based
religious philosophies. Without First Amendment protection of the
constitution, Native religious ideologies, tribal philosophies, ceremonial
practices and the unique ecologically centered consciousness of Native
people are susceptible to threats of extinction. In this regard, we humbly
turn to the Congress of the United States to seek remedy to our life
threatening dilemma. The amendments proposed for the American Indian
Religious Freedom Act of 1978 will again establish needed protections of
sacred sites and Native religious beliefs systems. Therefore I strongly
encourage the Sub-committee on Native American Affairs to take
appropriate action required to introduce and adopt the proposed
amendments to the American Indian Religious Freedom Act during 1993.
Thank you very much.

Mr. Richardson. I thank the gentleman.

The Chair recognizes the gentleman from Montana.

Mr. Williams. Thank you, Mr. Chairman.

I want to commend and thank all the members of this panel and
say, particularly in regard to the last statement by Mr. Peters, that
I believe that this Nation and probably the world has come to a
place where we are about to move from our focus on consumption
to a different paradigm.

And I suggest that we in this coiuitry listen to the first Ameri-
cans. And that people around the world listen to the various tribal
members in their own countries. Because there is, it seems to me,
a certain wisdom that's being spoken by tribal people which offers
our world a way out. And it may well be that the religious freedom
discussion will be as important as the eventual law.

I appreciate, Mr. Peters, your counsel.

I personally know, Mr. Chairman, of 10 sites sacred to Native
Americans in the northern Rocky Mountains or the adjacent plains
which today are in jeopardy because of either public or private
pressures. More than half of those exist in our State of Montana.

I am hopeful that whatever we do, with regard to the potential
for a new law protecting religious freedom for Native Americans,
we will do in a timely fashion so as to provide appropriate and ab-
solute protection to the sacred sites of people in the northern Rock-
ies smd the Great Plains.

Let me speak, if I may, just to the area that Chairman Sun Child
mentioned, that is, the Sweetgrass Hills, which happen to exist in
Montana but are in America's northern tier. I'm told by the Chair-
man and others that many Native Americans see the Sweetgrass
Hills as Eden. Many Native Americans, beyond the members of
Chairman Sun Child's tribe, travel to the Sweetgrass Hills annu-
ally, or more often, because it is, to them, going home. Many Chris-
tians travel to their sacred sites, be it Jerusalem or Bethlehem or
the Vatican. People from other religions travel to theirs.

I don't believe that the United States would, for one minute,
allow American industry to denigrate or destroy any of those
sites — Jewish sites. Christian sites — although I'm quick to note
that the American military, along with the military of other coun-
tries, has recently been involved in destroying the sites of the cra-
dle of some of the world's great religions, now known as the Middle
East or Iraq/Iran/Kuwait.

But I don't believe that we would encourage industry to destroy
those sites or to destroy Bethlehem and Jerusalem. And yet it
could be said that America's laws and regulations are encouraging
American industry to, perhaps soon, move into sites such as the
Sweetgrass Hills; Eden for many Native Americans.

And so, as we move on this Committee to protect these sites
through the passage of a Religious Freedom Act, we should also,
Mr. Chairman, consider moving to protect these sites by other
means, for example, wilderness legislation.

My point is, Mr. Chairman, if we don't move quickly, we will
move too late.

Again, I thank all of you for being with us.

Mr. Richardson. Thank you very much.

I'd like to ask Mr. Peters, on the high country issue, being a wil-
derness area and now protected, what do you have to do now — I'm
talking about the religious practitioners — to gain access to the
area, such as application of permits or notification?

Mr. Peters, I don't do an3^hing, regardless of what the regula-
tions may say. Likewise, my sisters are basketmakers and, where
the regulations request them to do permits, they refuse to also.

One concern with the wilderness areas, it's better than the open
market as the sacred sites have been in historically. We do experi-
ence a lot of hikers, a lot of desecrations that are less so than what
the road would have provided in the associated logging practices.
And we recognize the joint use area.

We are hesitant to reveal prayer seats, although some of them
have been revealed. And we refuse, in many situations, to reveal
the process that we go through in religious reaffirmation.

When you work and when you deal in spiritual power, it's
unexplainable in language the potential impact that it can produce.

Mr. Richardson. What if a cause of action would have been
clearly defined in the original AIRFA legislation? Let's say we had
it. Do you think that would have been enough to stop the G-0
Road that led to the Lyng case if we had clearly defined it? Let's
say it had been law.

Mr. Peters. With significant backup of the Justice Department
and the legislation of the United States. Like the gentleman from
Hawaii said, there's nothing inherently wrong with the wording of
the 1978 AIRFA.

The problem is the implementation and the authority to imple-
ment that. And what we come back to Congress for now is the
strength to demand the implementation to protect sacred sites.

Mr. Richardson. Mr. Johnnie, from your experience in dealing
with federal agencies, in particular, the Forest Service, do you
think it's possible to reach the goals of access and preservation you
so eloquently outlined in your testimony, relating to sacred sites,
through Memorandums of Understanding with these agencies?

Mr. Johnnie. Well, one thing I think that MOUs do promote is
that there is an actual face consultation process to address the is-
sues. Now I don't know in terms of whether or not there has been
a successful MOU between tribes and federal agencies as of yet.
But I think that there's possibly an avenue. I think that's the thing
that AIRFA is trjdng to promote; there is an idea of open commu-
nication.

And MOUs between us, the Lummi Nation, and federal agencies,
one issue that we bring up is that we do have value differences.
And that if we can clearly address those differences first, so we
know where we're coming from or where the other person sits, then
possibly we'll begin to understand how we can obtain a certain goal
that we have in mind.

Now again, there are some other issues in terms of confidential-
ity that are related with that. And, under those 14 various surveys
and cultural inventories that have been done under the U.S. Forest
with the Mount Baker Snoqualmie, there is a certain protection un-
derneath there as well. And I think that comes from the federal
level and not necessarily at the state level, but it is there as a
highlight of that.

I'm not sure I answered your question.

Mr. Richardson. No, you did.

Chairman Sun Child, what's the current status of gold mining in
the Sweetgrass Hills?

Mr. Sun Child. I think we have a reprieve in terms of fact that
there's more study being done by the Forest Service and the Park
Service.

Mr. Richardson. Have you been contacted by any federal agency
for input on the impact of mining?

Mr. Sun Child. Yes. Yes, we have. The year's almost up now.
We're planning on, like Congressman Pat Williams indicated, other
legislation and mining, revision of those laws and the forest legisla-
tion. We have dug into just about every legislation that we can to
preserve those sites.

A proposed road being advocated now is in 20 feet of one of the
most sacred caves in that area, 200 feet from the road. And, yes,
we have been able to stall. That's the tactic we have been using,
just a little reprieve at a time, hoping for this new legislation of
amendments of the American Religious Freedom Act, hoping that
there will be more teeth in it.

Mr. Richardson. Chairman Brown, the same question that I
asked Mr. Johnnie. Do you think we can achieve these preservation
goals of sacred sites through Memorandums of Understanding with
the federal agencies?

Mr. Brown. Well, the ones that I've had to deal with really have
no concern, I guess, no concern of preserving any sacred sites if
there's any valuable resource under it or near it. Because that has
happened to the Medicine Wheel.

We have tried to work for the last 6 years that there would be
no kind of industrial imdertakings within 2 V2 miles of the Medicine
Wheel area until an ethnographic study is completed. And last
summer they came up with a logging proposal within that 2-mile
radius of the buffer zone that we wanted around the Medicine
Wheel.

So it's just a continuous thing. I mean they'll say one thing but
it seems to me that they keep on doing what they think is their
job, I guess, to take care of the land.

Mr, Johnnie. If I can just say one brief statement here. The
Lummi Nation has also worked with the Advisory Council on His-
toric Preservation in nominating certain areas due to our areas
that deal with creation and various other sacredness in the area,
including a burial site. And one of the issues there is that they
take consideration of what the tribe has to say and its view of why
it's sacred and also the area.

Now it has some foreign concepts in there as well. But I think
possibly, with the MOU, that question that you addressed earlier,
that possibly there are other existing avenues that may need to be
looked into. And that possibly is one of them I would suggest.

Mr. Richardson. I want to thank panel two for appearing today.

I'd like to ask the third panel to come forth. The Hon. Nora Gar-
cia, President of the Inter-Tribal Council of Arizona; the Hon. Mar-
shall Plummer, Vice President, Navajo Nation, Window Rock, Ari-
zona; and the Hon. Kina'u Boyd KamaH'i, Trustee, Office of Hawai-
ian Affairs, Honolulu, Hawaii.

Where's Mr. Abercrombie when I need him? [Laughter.]

I want to welcome these witnesses.

As you all know, under the subcommittee rules, your full state-
ment will be included in the record and we ask you to summarize
in five minutes.

Before I start, let me reinforce what Mr. Abercrombie said about
our witness from Hawaii, and that is the subcommittee does intend
to look into the issues raised on the sovereignty matter by the na-
tive peoples of Hawaii. It is our hope sometime in April to under-
take an oversight visit to look into this issue, along with many of
the reservations.

First, I'd like to recognize Nora Garcia, President of the Inter
Tribal Council of Arizona.

PANEL CONSISTING OF NORA GARCIA, PRESIDENT, INTER
TRIBAL COUNCIL OF ARIZONA; HON. MARSHALL PLUMMER,
VICE-PRESIDENT, NAVAJO NATION, WINDOW ROCK, AZ; AND
KINATJ BOYD KAMALIT, TRUSTEE, OFFICE OF HAWAIIAN AF-
FAIRS, HONOLULU, HI

STATEMENT OF NORA GARCIA

Ms. Garcia. Thank you.

It is indeed my pleasure to be here this morning and also I'd like
to thank you who've invited us to provide testimony on behalf of
the American Indian Religious Freedom Act, members of the House
Interior and Insular Affairs Committee, the House Subcommittee
on Indian Aifairs, elders and spiritual advisors of the Indian people
present, fellow tribal leaders and all other interested participants
at this hearing. It is with deep pleasure that I'm asked to be here
today to present testimony.

For the record my name is Nora Garcia. I am the Chairperson
of the Fort Mojave Indian Tribe which is located in the States of
Arizona, California and Nevada. I also am the President of the
Inter Tribal Council of Arizona, which is composed of 21 tribes in
the State of Arizona.

I'd like to express my appreciate to the House Subcommittee on
Native American Affairs as it begins to assist tribes in finding solu-
tions to complex issues facing Indian communities.

I appreciate the opportunity at this hearing to further examine
the deep concerns of traditional leaders and tribal officials for the
preservation of sacred sites both on and off the reservation.

The Congress should become aware that currently the religious
freedom for practitioners of Native American tribal religions, along
with protection and access to sacred sites, is in jeopardy.

While the American Indian Religious Freedom Act of 1978 de-
clared in federal policy the legitimacy of American Indian religions,
it did not contain language to create specific recourse to judicially
enforce individual religious rights.

When the U.S. Supreme Court in Lyng v. Northwest Indian Cem-
etery, 1988, eliminated First Amendment protection for tribal reli-
gions, the Court essentially institutionalized a discriminatory pol-
icy towards the Indian people.

The Court ruled that the impact on tribal traditional practices
and religious sites in the development of federally assisted projects

would not be a consideration along with environmental, historical
or economic impacts. It is now evident that the Congress must pass
legislation to ensure that the national policy maintains the intent
of the First Amendment of the U.S. Constitution to guarantee to
Indian people that freedom of religion will be applied to them.

In specific, my sacred mountain is called Avi kwa 'Ame, which
is located in Nevada and is currently under the Park Service ad-
ministration. Other such sites are Woodruff Butte, Star Mountain,
Boynton Canyon, Mount Graham, San Francisco Peaks, the
Baboquivri Mountains, Kitt Peak, Big Mountain, Chuska Moun-
tain, Kuchuman Mountain, Picacho Peak and numerous sacred ar-
chaeological and astronomical observatories.

The Committee and the Congress should be educated about sa-
cred sites and burial grounds of tribes such as the Cocopah,
O'Odham, Quechan, Apache, Yaqui and others whose aboriginal
territory include lands on both sides of the U.S./Mexico borders. At
issue is the need to arrange for easier access to these sites for reli-
gious purposes. The preservation and access to these sites is an es-
sential religious practice of numerous Indian groups in Mexico and
the United States.

The Inter Tribal Council of Arizona, which represents the elected
tribal leadership within the state is willing to assist traditional
leaders and tribes in efforts to preserve and protect sacred sites.

The ITCA Cultural Resources Working Group, which is a very
hard-working group that meets monthly and looks at all the dif-
ferent issues affecting the Arizona tribal areas as well as working
with the state, will continue to provide a forum for tribes, tradi-
tional practitioners, state and federal officials to address these con-
cerns and to facilitate revised federal policy and procedures.

The Working Group has experience in advocacy efforts to revise
state and federal laws to allow repatriation of religious items to
tribes and traditional leaders. Skeletal remains, artifacts and cere-
monial items from state lands and private landowners, museums
and educational institutions are in the process of being returned to
the tribes for proper care by the traditional leaders. Access is also
a negotiable item with those particular landholders.

The Inter Tribal Council will support the efforts of the House
Subcommittee on Indian Affairs to facilitate an end to discrimina-
tion of Native American religion in federal land use practices.

Once again, I appreciate this opportunity to offer this oppor-
tunity and thank you for affording me the time today. Thank you.

[Prepared statement of Ms. Garcia follows:]

INTER TRIBAL COUNCIL-

ARIZONA

MEHOER TBIBES

1> :>BAOr OlvEA •••CM**! *Bi8E5
■"' V(OOi*Eii •*V««'«i *«iBE

* C .(O '«,OlA>, COMMON -.
.■>L.Pt- TOJBJ

TESTIMONY

before the

HOUSE INTERIOR AND INSULAR AFFAIRS COMMITTEE

HOUSE SUBCOMMITTEE ON INDIAN AFFAIRS

by Ms. Nora Garcia, President
Inter Tribal Council of Arizona

and
Chairperson, Fort Mojave Tribe

PRESERVATION, PROTECTION AND ACCESS
TO AMERICAN INDIAN RELIGIOUS SITES

February 23, 1993
Washington, D.C.

Ms. Nora Garcia, President

Inter Tribal Council of Arizona

42 05 North 7th Avenue

Phoenix, Arizona 85013

(602) 248-0071

4205 North 7th Avenue Suite 200 Phoenix, Arizona 85013 ■ (602) 248-0071 Fax (602) 248

0080

PRESERVATION, PROTECTION AND ACCESS TO
AMERICAN INDIAN RELIGIOUS SITES

Members of the House Interior and Insular Affairs Committee, the
House Subcommittee on Indian Affairs, Elders and Spiritual Advisors
of the Indian People, fellow tribal leaders and all other
interested participants at this hearing, my name is Nora Garcia. I
am the president of the Inter Tribal Council of Arizona and the
president of the Fort Mojave Tribe. I would like to express
appreciation for the establishment of the House Subcommittee on
Indian Affairs as it begins to assist the tribes in finding
solutions to complex issues facing American Indian communities. I
appreciate the opportunity at this hearing to further examine the
deep concerns of traditional leaders and tribal officials for the
preservation of sacred sites both on and off the reservations.

The Congress should become aware that currently religious
freedom for practioners of Native American tribal religions, along
with protection and access to sacred sites is in jeopardy. While
the American Indian Religious Freedom Act of 1978 declared in
federal policy the legitimacy of American Indian religions, it did
not contain language to create specific recourse to judicially
enforce individual religious rights. When the U.S. Supreme Court in
Lyng v. Northwest Indian Cemetary (1988), eliminated First
Amendment protection for tribal religions, the court essentially
institutionalized a descriminatory policy towards the Indian
people. The court ruled that the impact on tribal traditional

practices and religious sites in the development of federally
assisted projects would not be a consideration along with
environmental, historical or economic impacts. It is now evident
that the Congress must pass legislation to insure that the national
policy maintains the intent of the First Amendment of the U.S.
Constitution to guarentee to Indian people that freedom of religion
will be applied to them.

The Congress must be reminded, as in other world religions,
that Native Americans share fundamental attachments to sacred sites
where prayers and ceremonies must be completed. In Arizona they
include such sites as: Avi kwa 'Ame (Spirit Mountain, Woodruff
Butte, Star Mountain, Boynton Canyon, Mount Graham, San Francisco
Peaks, the Baboquivri Mountains, Kitt Peak, Big Mountain, Chuska
Mountian, Kuchioman Mountain, Picacho Peak and numerous sacred
archeological and astronomical observatories. The Committee and the
Congress should be educated about sacred sites and burial grounds
of tribes, such as the Cocopah, O'Odham, Quechan, Apache, Yagui and
others whose aboriginal territory include lands on both sides of
the U.S. / Mexico border. At issue is the need to arrange for
easier access to the sites for religious purposes. The preservation
and access to these sites is an essential religious practice of
numerous Indian groups in Mexico and the United States.

The Inter Tribal Council of Arizona which represents the
elected tribal leadership within the state is willing to assist
traditional leaders and tribes in efforts to preserve and protect

sacred sites. The ITCA Cultural Resources Working Group will
continue to provide a forum for tribes, traditional practioners,
state and federal officials to address these concerns and to
facilitate revised federal policy and procedures. The Working Group
has experience in advocacy efforts to revise state and federal laws
to allow repatriation of religious items to tribes and traditional
leaders. Skeletal remains, artifacts and ceremonial items from
state lands and private landowners, museums and educational
institutions are in the process of being returned to the tribes for
proper care by the traditional leaders.

The Inter Tribal Council of Arizona will support the efforts
of the House Subcommittee on Indian Affairs to facilitate an end
discrimination of Native American religion in federal land use
practices. Once again I appreciate this opportunity to offer the
concerns of tribes in Arizona and I hope these efforts bring about
an enlightened federal policy.

ITCA, 1993

Mr. Richardson. Thank you very much.
Vice President Plummer.

STATEMENT OF THE HON. MARSHALL PLUMMER

Mr. Plummer. Chairman Richardson, true friend of Indian na-
tions, I'm glad to be here before you.

I want to state the Navajo Nation's position on the American In-
dian Rehgious Freedom Act. I come before you because the fun-
damental law of this country, the constitutional right to freedom of
religion, does not protect our birthright to practice our native tradi-
tional ceremonies and rituals. American Indian religious beliefs
and practices are inherent and no man-made law should infringe
on an individual's belief in and communication with his creator.

The problem with the current law is that it provides no legal
cause of action to aggrieved practitioners. Simply put, this policy
does not enforce our religious practices when they are threatened.

The recent Supreme Court decision make it clear that there is
limited federal protection for the right of the American Indians to
practice their traditional religions. The Navajo Nation believes in
principle that the American Indian Religious Freedom Act should
be strengthened to protect traditional Native religious freedom.

Religious issues affecting the Navajo Nation include protection of
the sovereignty of the Navajo Nation over its land and people. The
Navajo Nation government is wholly committed to the protection of
the rights of its individual Navajo members, and all Native Ameri-
cans, to live and practice their religion in accordance with individ-
ual religious convictions.

With that expression of Navajo policy, I'm here to convey to you
our comments regarding the scope of this hearing that focuses on
religious sacred sites and the use of eagle feathers and their parts.

The Tribal Council passed a law in 1988, the Cultural Resources
Protection Act, to protect sacred sites and other cultural resources
important to Navajos and other Indian communities. These laws
cover only lands now under jurisdiction of the Navajo Nation gov-
ernment.

The Navajo Nation supports wholeheartedly the recognition that
tribal governments and their law or customs pre-empt federal law
pursuant to the inherent retained sovereignty of tribal govern-
ments. AIRFA amendments should be strengthened by recognizing
the inherent rights of Indian tribal governments to govern over
their lands and to protect religious rights of their people.

Protection of and Access to Sacred Sites. Many sacred sites are
located on lands controlled by federal and state governments, pri-
vate parties and other Indian tribes. Many sacred sites are no
longer on Indian land.

Navajo Nation supports protection of off-reservation sacred sites
from federal and state government activities that may potentially
destroy, destruct or desecrate such religious sites. American Indian
practitioners should have access to these religious sites located on
federal lands at all times.

To give you an example, the Dzlth-Na-0-Dithle controversy. Con-
gressman Richardson, south of Farmington where there was a plan
to dump asbestos. That is a very sacred site to the Navajo. And we

fought it bitterly. And of course the outcome was that we eventu-
ally won.

But I think that's just a clear example of the need to have sacred
sites protected off of reservation areas.

Ideally, protection of Indian religious sites should extend to pri-
vate, state and federal lands.

Gathering of religious herbs, plants and natural objects. Navajos
have encountered difficulties in gathering and collecting natural re-
sources in National Parks for religious purposes.

The National Park Service prohibits such activity pursuant to
laws which prevent American Indians from gathering or collecting
natural resources for ceremonial use, thus infringing on American
Indian religious practices and interfering with religious beliefs.

In contrast, scientific collecting, gathering of firewood while visit-
ing the park, collecting nuts, fruits and berries are permissible.
However, if collection is for religious purposes, it is prohibited. The
Park Service policy is making a value judgment against Indian val-
ues while, at the same time, allowing mainstream activities to be
carried out.

Navajo ceremonial life is dependent on collection of natural mate-
rial. The Navajo Nation recommends a Hfting of the Park Service
regulations.

Religious use of eagles and their parts. Eagle feathers and their
parts and other animals and plants are important elements in the
practice of ceremonies. The use of these elements are sacred and
are used only by authorized persons and prescribed procedures and
religious ceremonies.

In addition to the Federal Endangered Species Act restricting the
taking and use of eagle feathers and parts, the Eagle Protection
Act, another federal law, also protects bald and golden eagles. How-
ever, these statutes allow for the use of eagle feathers and parts
by Ajnerican Indians for religious purposes.

The Eagle Protection Act is administered by the Law Enforce-
ment Division of the U.S. Fish and WildHfe Service under the De-
partment of the Interior. This federal agency administers the eagle
permitting system at the regional level through assistant regional
directors.

Applicants are required to document tribal enrollment and cer-
tification of participation in a named religious ceremony by a reli-
gious leader. The application are processed and verified through a
central office in each region. The application are then forwarded to
the National Repository in Ashland, Oregon. From there, the eagle
feathers or parts are shipped to the American Indian applicant.

The problem with this is time. There is a lot of time involved in
this, in fact as much as 2 to 5 years in some cases. And when you
have a need for a ceremony, you need the shortness of time to do
the religious ceremony.

I would just like to conclude by saying that the Navajo philoso-
phy and religious belief is deeply rooted in the balanced co-exist-
ence with the natural environment and its laws. The traditional re-
ligious practices and ceremonies are in existence to maintain this
balance.

It is important that sacred sites, the use of eagle feathers and
parts and the gathering of herbs are preserved and protected for
American Indians.

I appreciate the opportunity of appearing before this body. Thank
you.

[Prepared statement of Mr. Plummer follows:]

100

STATEMENT BY VICE-PRESroENT MARSHALL PLUMMER

OF THE NAVAJO NATION

BEFORE THE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS

OF THE HOUSE COMMITTEE ON NATURAL RESOURCES

ON THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT

February 23, 1993

Chairman Richardson and members of the Subcommittee, I thank you for
this opportunity to state the Navajo Nation's position on strengthening the
American Indian Religious Freedom Act (AIRFA). Chairman Richardson, I
further extend my appreciation for your commitment to introduce legislation that
will help strengthen this law. You have been a stalwart friend of the Navajo
people and we look forward to working with you.

INTRODUCTION

I come before you because the fundamental law of this country, the
constitutional right to freedom of religion, does not protect our birth right to
practice our native traditional ceremonies and rituals. American Indian religious
beliefs and practices are inherent and no man-made law should infringe on an
individual's belief in and communication with his creator.

The current policy as expressed in the 1978 Joint Resolution on American
Indian Religious Freedom (Public Law 95-341, 92 Stat. 469) states:

It shall be 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 ceremonial and traditional rites.

The problem with this current law, a policy statement, is that it provides no
legal cause of action to aggrieved practitioners. Simply put, this policy does not
enforce our religious practices when they are threatened. The recent Supreme
Court decisions in the Employment Division of Oregon v. Smith (494 U.S. 872)
and Lyng v. Northwest Indian Cemetery Association (485 U.S. 439) cases make
it clear that there is limited federal protection for the right of American Indians to
practice their traditional religions. The Supreme Court stripped away the

101

"compelling state interest" test used to determine whether or not there is
infringement on religious practices and beliefs. All religions suffered by the Smith
decision - not only American Indian religions.

NAVAJO NATION POSITION

The Navajo Nation Council passed a resolution (CO-73-91) on October 24,
1991 affirming "the policy of the Navajo Nation to protect and preserve the
inherent right and freedom of religion of all members of the Navajo Nation. " The
Navajo Nation believes, in principle, that the American Indian Religious Freedom
Act should be strengthened to protect traditional Native religious freedom. On
February 1 , 1993 the Intergovernmental Relations Conunittee of the Navajo Nation
Council by Resolution IGRF-28-93, further supported the strengthening of AIRFA
when it approved the Navajo Nation's testimony delivered by President Peterson
Zah before the Senate Select Committee on Indian Affairs in Albuquerque, New
Mexico. The Intergovernmental Relations Committee resolution states:

Religious issues affecting the Navajo Nation include protection of the
sovereignty of the Navajo Nation over its own land and people, which
issue largely encompasses the matter of regulatory authority; further,
the Navajo Nation govenmient is wholly committed to the protection
of the rights of its individual Navajo members and all Native
Americans to live and practice their religion in accordance with
individual religious convictions.

With that expression of the Navajo policy, I am here to convey to you our
comments regarding the scope of this hearing that focuses on religious sacred sites
and the use of eagle feathers and their parts.

Navajo Law - Cultural Resources Protection Act of 1988

To protect sacred places and other cultural resources important to Navajos
and other Indian communities, the Navajo Nation Council enacted the Cultural
Resources Protection Act of 1988. These laws cover only lands now under
jurisdiction of the Navajo Nation government. The Navajo Nation supports
wholeheartedly the recognition that tribal govenmients and their law or customs
preempt federal law pursuant to the inherent retained sovereignty of tribal
governments. It should be made clear that the tribal law or custom to be followed
is that of the tribal government whose land is directly affected. AIRFA
amendments should be strengthened by recognizing the inherent rights of Indian

68-194 - 93 - 5

102

tribal governments to govern over their lands and to protect religious rights their
people.

Protection of and Access to Sacred Sites

The Navajo philosophy evolves around living in harmony with the universal
laws of the four sacred elements, the earth, water, air and light. The Navajo
emergence myth speaks of how the Navajos came into this world and found their
home within the four sacred mountains; Mount Blanco, Mount Taylor, San
Francisco Peaks and Hesperus Mountains. The entire region within the four
sacred mountains is considered sacred and holy to the Navajo people. On this
land, the Navajo believe there are places of special power, locations of historical
religious and supernatural events and stories of immortal beings. Navajo
practitioners are tied to the land - Navajos visit these sacred sites using prayers,
songs and ceremonies to interact with the holy people. Sacred sites, physical
markers and monuments and special areas are a part of Navajo life.

It is our duty to protect and preserve sacred areas for religious offerings,
pilgrimages, and herb gathering. Sacred sites have been an integral part of Native
American religious activities long before the United States government was
established. The traditional Navajo homeland is a much larger area than the
present Navajoland. Many sacred places are located on lands controlled by federal
and state governments, private parties, and other Indian tribes. Many sacred sites
are no longer on Indian land. The Navajo Nation supports protection of off-
reservation sacred sites from federal and state government activities that may
potentially destroy, destruct or desecrate such religious sites. American Indian
practitioners should have access to religious sites located on federal lands at all
times. Protection of such sites is essential.

Infringement on our religious practices is best exemplified by a recent
proposal to build an asbestos storage facility near Dzilth-Na-0-Dithle, New
Mexico on private land within an area known as Dinetah, the site of the Navajo
emergence. We believe it is sacred Navajo land despite the mixture of state and
federal land holdings that are within this area. We successfully argued against
construction based on environmental concerns and more importantly interference
with religious practice and desecration of a Navajo religious site and area. The
next time we may not be as fortunate which is why this legislation is needed.
Ideally, protection of Indian religious sites should extend to private, state and
federal land.

103

Gathering of Religious Herbs. Plants and Natural Objects

Navajos have been encountering difficulties in gathering or collecting
natural resources (plants, animals, herbs, and minerals) in National Parks for
religious purposes. The National Park Service prohibits such activity pursuant to
36 CFR 2.1 (a)(ii) and 36 CFR 2.1 (d) which prevent American Indians from
gathering or collecting natural resources for ceremonial use, thus, infringing on
American Indian religious practices and interfering with religious beliefs. In
contrast, scientific collecting, gathering of firewood while visiting the park and
collecting nuts, fruits and berries are permissible. However, if the collection is
for religious purposes, it is prohibited. The Park Service policy is making a value
judgement against Indian values while at the same time allowing mainstream
activities to be carried out. Navajo ceremonial life is dependent on the collection
of natural material. The Navajo Nation recommends a lifting of the Park Service
regulations.

Religious Use of Eagles and Their Parts

Eagle feathers and their parts, and other animals and plants are important
elements in the practice of Navajo religious ceremonies. The use of these elements
are sacred and are used only by authorized persons and prescribed procedures in
religious ceremonies. The Navajo Department of Fish and Wildlife under the
Division of Natural Resources, except as limited by the federal Endangered
Species Act, manages and enforces fish and wildlife resources pursuant to tribal
law. Tribal law protects all wildlife, including eagles for present and future
Navajo generations.

In addition to the federal Endangered Species Act restricting the taking and
use of eagle feathers and parts, the Eagle Protection Act, another federal law, also
protects bald and golden eagles. However, these statutes allow for the use of eagle
feathers and parts by American Indians for religious purposes. The Eagle
Protection Act is administered by the Law Enforcement Division of the U.S. Fish
& Wildlife Service under the Department of Interior. This federal agency
administers the eagle permitting system at the regional level through Assistant
Regional Directors. Applicants are required to document tribal enrollment and
certification of participation in a named religious ceremony by a religious leader.
The applications are processed and verified through a central office in each region.
The applications are then forwarded to the National Repository in Ashland,
Oregon. From there, the eagle feathers or parts are shipped to the American
Indian applicant.

104

According to the Navajo Fish and Wildlife Department and highlighted in
their testimony before the Senate Select Committee on Indian Affairs Albuquerque
hearing, there are several problems with this process. First, is the inordinate
length of time it takes to process an application for eagle feathers or their parts.
Navajo Fish and Wildlife report ten years ago, it took approximately one to one
and half years to complete the application process. Now it takes about two to two
and half years. In the future, it may take three to five years to process an
application from start to finish. Most, if not all, Navajo religious ceremonies are
not planned along that extended time line. The need for eagle feathers and parts
on short notice is the norm and manner by which to carry out ceremonial
prescriptions. This prompts an immediate demand for eagle feathers. The delay
in procuring such eagle feathers or whole birds may have the unfortunate
consequence of encouraging the illegal killing of eagles, yet an individual may
have no real intention of violating the law, but in order to fulfill religious practice,
chooses to suffer the consequences.

The Navajo Nation supports legislation that empowers Indian tribes to
administer collection and distribution of bald or golden eagles or their parts, nest,
or eggs which are discovered on Indian lands by issuance of tribal permits to
American Indian practitioners in accordance with tribal religious custom. Each
tribal game and fish agency should be allowed to develop procedures for the eagle
permit system. Transferring this responsibility to the tribes would certainly speed
up the access process significantly and prevent the illegal taking of eagles. The
National Repository may then, send eagles to tribal fish and game agencies for
distribution locally.

Second, there is the problem of the condition of the eagle feathers or whole
birds when received. Some of the feathers and birds are in deplorable shape.
Religious practitioners report receiving broken tail and wing feathers, burnt birds
and missing parts. Religious practice and ceremonial use requires practitioners to
be particular about the type of feathers or birds utilized. In some instances,
feathers from birds that have died in a certain manner such as electrocution are not
suitable. Greater care has to be exercised in ensuring the proper handling of eagle
feathers and parts.

Third, those birds that are found dead, salvaged or confiscated on Indian
reservations are sent to the U.S. Fish & Wildlife Service Regional Office and
eventually end up at the National Repository. As stated previously, delay exists
in the disbursement of eagle feathers and its parts to American Indian practitioners.
Further, eagles that are confiscated or otherwise found dead on Indian Reservations

105

should remain with the tribe on whose land it was found and distributed to their
Native practitioners. These eagles should be stored with tribal game and fish
agencies without being sent them to the National Repository. This would allow
tribes to keep a supply of eagles and parts for immediate distribution as needed.
Any proposed AIRFA amendments should recognize this tribal authority and
provide a workable means for immediate distribution.

Protection of And Access to Sacred Sites of One Indian Tribe That Are
Located on The Lands of Another Tribe

At a recent Senate Select Committee on Indian Affairs Committee field
oversight hearing on AIRFA in Phoenix, Arizona, Hopi witnesses testified that
they are concerned about sacred sites that are on Navajo land. In a written
statement the Hopis alleged that "The Navajo Tribe, whose reservation surroimds
our reservation, have imposed their tribal laws to restrain Hopis from entering
traditional eagle-gathering areas." At the same hearing, Hopi Chairman Vernon
Masayesva cautioned Congress that it would be inappropriate to inadvertently
affect the disposition of the already complicated historic Hopi-Navajo land dispute.
Access to Navajo and Hopi religious sites in the 1882 Executive Order Reservation
is subject to provisions of P.L. 93-531. Currently there is court-ordered
mediation, Manybeads v. United States , governing an overall Navajo-Hopi
settlement. The Navajo Nation also cautions the Subcommittee from interfering
with prior statutory protections - 1974 Act - and the on-going court process and
prefers that such matters can best be resolved by friendly negotiations between
traditional people. Navajo-Hopi issues should not be allowed to adversely affect
the religious rights of Native American people which are the subject of the AIRFA
amendments.

CONCLUSION

The Navajo philosophy and religious belief is deeply rooted in a balanced
co-existence with the natural environment and its laws. The traditional religious
practices and ceremonies are in existence to maintain this balance. It is important
that sacred sites, the use of eagle feathers and parts, and the gathering of herbs are
preserved and protected for Americans Indians. I appreciate this opportunity to
present to you concerns of the Navajo Nation in the protection and preservation
of our way of life. I urge you and your colleagues to do all in your authority to
introduce legislation that would protect our fiindamental right to practice our native
traditional religion.

106

Mr. Richardson. Ms. Kamali'i. Please correct me; we should pro-
nounce these properly.

STATEMENT OF KINA'U BOYD KAMALI'I

Ms. Kamali'i. Good morning and I'm pleased to appear at this
oversight hearing on the American Indian Religious Freedom Act.

By way of introduction, my name is Kina'u Boyd Kamali'i.

Mr. Richardson. That's what I said, isn't it? [Laughter.]

Ms. Kamali'i. I am a Trustee of the Office of Hawaiian Affairs,
elected to office as are all nine of the OHA trustees by some 60,000
Native Hawaiian voters.

With me today in the audience is our Vice Chairman, Abe Aiona.
And I'm also a member of the OHA's Native Hawaiian Preservation
Council. The Council has been extremely active on issues relating
to repatriation of skeletal remains from the Smithsonian Institu-
tion and various reburial and relocation efforts.

We wish to express our pleasure at the establishment of the Sub-
committee and the specific inclusion of Native Hawaiians in your
jurisdiction. And we pledge to work with you to better the condi-
tions of the Native peoples of America.

The American Indian Religious Freedom Act, even without any
enforcement provisions, has been an important symbolic act for Na-
tive Hawaiians. This is because AIRFA recognizes Native Hawai-
ians as indigenous people of this country — Native Americans with
unique rights and a political relationship to the federal govern-
ment.

Congress has consistently adopted this political view of Native
Hawaiians in enacting legislation for the benefit of Native Hawai-
ians. This is not to say Native Hawaiians are Indians or Tribes;
they are not.

Although there are similarities of experience and of culture,
there are differences too. A critical difference to keep in mind in
developing amendments to implement the policy of AIRFA is that
100 years ago, in 1893, the United States actively induced, partici-
pated in and benefited from the overthrow of Native Hawaiian self-
government — the overthrow of Queen Lili'uokalani.

The cumulative century-long harm to the Native Hawaiians is
called kaumaha. Kaumaha describes a heavy weight emotionally, a
feeling of deep hurt which oppresses the heart and soul. And it is
this kaumaha, this deep spiritual harm experienced by the Native
Hawaiian people, which must also be addressed.

As now written, federal and state laws relating to historic preser-
vation do not fully acknowledge or incorporate Native cultural val-
ues and sites with attached meanings which transcend scientific
knowledge and evidence. The American value system and law
stresses the separation of church and state, relies on empirical
proof and, unlike France, Japan and Fiji, has no native national
cultural tradition.

As a consequence, federal laws are often unthinkingly damaging
to deeply held cultural values and beliefs associated with historic
properties, a process so ingrained that it must be judged, at the
least, as institutionalized racism. However, the impact of insensi-
tive or irrelevant laws to a native people of the United States are
of deeper and more serious character than what, for example,

107

might be the racist impulse to accord less significant to a historic
property because its importance reflected an Afro-American or His-
panic experience.

Other American citizens are immigrants. Their ancestral cul-
tures, values and practices continue and can be experienced outside
the United States. As emigrants further, being American was and
is political choice of free association.

Native peoples of the United States did not historically choose to
be Americans but were conquered. Moreover, as reflected in the so-
cial, economic, health and educational statistics, being American
has not resulted in the improved condition of life enjoyed by the
emigrant citizen.

The American Constitution and legal tradition imperfectly recog-
nizes these profound differences and consequences and allows the
Congress to enact special laws for Native peoples without violating
the Fourteenth Amendment guarantees of due process and equal
protection.

For many Native American and Alaskan Native peoples, the
Congress has acted to formalize the special relationship of trust,
recognizing a Nation within a Nation, sovereignty and self-deter-
mined government powers. This recognition has not been extended
to Native Hawaiians.

Among the governmental powers exercised by certain Native Na-
tions is the right to assume the functions of state historic preserva-
tion offices when tribal trust lands are involved to be included in
Section 106. Deliberation at Request.

These rights do not exist for Native Hawaiians. Along with Na-
tive Americans, Native Hawaiians are explicitly excluded in the
Native American Religious Freedom Act. However, in effect, that
national legislation extends First Amendment rights prohibiting
governmental infringement on religious beliefs.

It does not take a needed step of offering formal projections for
the exercise or practice of traditional religious beliefs. Unlike most
Western and Eastern religions. Native traditions often spring from
and involve natural elements and landscapes, not formal rituals
within identified physical confines but the worthier forces of na-
ture.

Those Hawaiians who respect and honor the divine power of
Pele, for example, are frequently denied full expression of their be-
liefs because the place of worship is not defined by the more easily
recognized place and altar of a church or temple.

The issue of complex and sensitive, the full resolution of the
kaumaha will require dedication and delicacy. However, the proc-
ess has begun and we must continue.

If you will let me finish, I just have a little more. All historic
sites are important. Design and construction decisions should rec-
ognize this inherent significance and make every effort to avoid or
mitigate harm to every historic site.

However, there must truly be those places and sites where the
sacred associates and renaissance of meaning attached to them, I
view that the only treatment is absolute protection and respect. No
mitigation is possible. Total avoidance is required.

By consequently clarifying the distinctions between modern and
traditional Native Hawaiian recognitions of sacred character, the

108

inherent conflicts with existing or future self-determined law can
better be resolved.

Further, decisions to reserve or to pursue formal litigation should
not rest solely on the demonstrated or proven sacredness of a site.
The Luluku Terraces in Hawaii were not protected because they
are sacred but because they are part of the history and meaning
of the Hawaiian identity.

To assert the sacred too broadly undermines public understand-
ing and support for the full range of properties which would appro-
priately be seen as significant in meriting mitigation and protec-
tion. The elements involved in such preservation or mitigation deci-
sions must also become culturally sensitive and relevant.

Preservation without accompanying information and appropriate
access, that cluster of attributes which allows historic properties to
take a place in the living community, may result in just saving a
pile of rocks. The pride and recognition of self in the past and the
fundamental value in historic preservation is the ability to gain in-
creased self-awareness and an identity which transcends and am-
plifies individual lives.

The kumulipo, the extended creation chant which encompasses
and intertwines cosmic evolution with a gestation and birth of an
Ali'i child offers the highest expression of this connectedness as
once understood. The source and affirmation of sovereignty of the
child's right to govern was drawn from the chain of connections
linking coral, fish, birds and divine and mortal ancestors.

The modem Hawaiian's search for a place in Hawaii must be
viewed in this same way, as both a poHtical and reUgious quest to
forge new links to this chain. The Hawaiian cultural identity em-
bodies the deepest behef of a people_ which trace and stretch back
to a time when it was still dark kawa'ao.

The Native right to and recognition of self-determination will, in
a profoundly symboHc and appropriate way, continue the kawa'ao,
the time of light.

Thank you very much for your patience.

[Prepared statement of Ms. Kamali'i follows:]

109

TESTIMONY OF KINA'U BOYD KAMALI ' I

TRUSTEE, OFFICE OF HAWAIIAN AFFAIRS

BEFORE

THE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS

OF THE COMMITTEE ON NATURAL RESOURCES

U.S. HOUSE OF REPRESENTATIVE

FEBRUARY 23, 1993

Good morning, I am pleased to appear at this oversight hearing
on the American Indian Religious Freedom Act.

By way of introduction, I am Kina'u Boyd Kamali'i, a trustee
of the Office of Hawaiian Affairs, elected to office as are all
nine of the OHA trustees by some sixty thousand Native Hawaiian
voters. With me today, in the audience, is our Vice Chairman Abe
Aiona. I am also a member OHA's Native Hawaiian Preservation
Council. The Council has been extremely active on issues related
to repatriation of skeletal remains from the Smithsonian
Institution, and various reburial and relocation efforts.

We wish to express our pleasure at the establishment of the
Subcommittee and the specific inclusion of Native Hawaiians in your
jurisdiction. We pledge to work with you to better the conditions
of the native peoples of America.

The American Indian Religious Freedom Act, even without any

enforcement provisions, has been an important symbolic Act for
Native Hawaiians. This is because AIRFA recognizes that Native
Hawaiians as indigenous people of this country — Native Americans
with unique rights and a political relationship to the federal
government. Congress has consistently adopted this political view
of Native Hawaiians in enacting legislation for the benefit of
Native Hawaiians .

This is not to say Native Hawaiians are Indians or Tribes;
they are not. Although there are similarities of experience and of
culture, there are differences too. A critical difference to keep
in mind in developing amendments to implement the policy of AIRFA
is that one hundred years ago, in 1893, the United States actively
induced and participated in and benefitted from the overthrow of
Native Hawaiian Self-Government — the overthrow of Queen
Liliokalani.

Although this is not the hearing to detail the case, it is
important in this centennial year, to keep in mind that one of the
grave difficulties in legislating with respect to Natives Hawaiians
is that we do yet have restored a Native Hawaiian Self-Government
entity. This means that resources, technical skills, and so forth
that a tribal government brings to critical AIRFA issues, have to
substituted for by some jerry-rigged device until a Native Hawaiian
Government can be put in place. OHA and other Native Hawaiian
organizations usually try to fill the gap. [I am submitting under

Ill

separate cover "Meaning and Mitigations" A 1992 report of the
Native Hawaiian Historic Preservation Council, which demonstrates
how this process has worked under the National Historic
Preservation Act Process]

Another over-riding difficulty Native Hawaiians face, is that
the last 12 years has seen an intensified effort to relegate Native
Hawaiians to the status of a "racial group". The latest broadside
in this effort was a January 19, 1993 memorandum from the departing
Interior Solicitor arguing that the United States had no trust
obligation form its inception in 191 and theref after for the
congressionally created Native Hawaiian Homes Land Trust.

One last general comment before discussing some of the
detailed proposals. The Native Hawaiian cultural and religious
experience is unique. We are a contained island culture; there is
probably no area of land that does not contain something. Concepts
developed with respect to what is sacred and how that is determined
may be different in Hawaii than in some tribal communities. What
is true, is that the Native Hawaiian community and not the United
States needs to determine these differences.

With respect to the proposals for implementing amendments to
AIRFA, we support the general thrust of the working group efforts.
It is essential that the damage done to Native American Traditional
Religions by the United State Supreme Court decisions in Lynq v.

112

Northwest Indian Cemetery Association , and Employment Div ision v.
Smith be reversed and that a balanced process be developed to
insure access and protection of sacred sites.

The working draft uses a fairly standard definition of Native
Hawaiians — descendant of the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now
comprises the State of Hawaii — which we find acceptable. The
draft then uses "Native Hawaiian Organization" as a device because
of the absence of a Native Hawaiian self-governing entity. Not
desiring to exclude anyone from participation, I should note that
the preservation and protection of sites has been a Preservation
Council function that has required significant time and resources.
I gather that there is a hesitation in this legislation, to
specifically include OHA (as was done in the Preservation Act
Amendments, Repatriation, and so on) because of a perception that
a first amendment may be raised.

As you aware, OHA is a very unique entity. Although elected
exclusively by Native Hawaiians voters, our independent agency is
a constitutional creature of the state of Hawaii. In a sense, we
are a transitional entity whose job will be done when we
reestablish a viable Native Hawaiian governing entity. I would
propose that this legislation, and perhaps any legislation relating
to Native Hawaiians, follow the lead of our draft Native Hawaiian
Recognition, Restoration and Claims Act, and provide for the

113

eventual re-establishment of a Native Hawaiian government. For
example, "....the Native Hawaiian government, or if such entity is
not yet established, to the Office of Hawaiian until such entity is
established... ." OHA's role is not that of a practitioner but as
an advocate and technician; it is only the practitioners who can
determine what is sacred, or what are sacred practices, that is not
OHA's role; it would not be appropriate.

It is also not entirely clear in the Hawaiian context, what a
"Native American Religion" means. The draft bill provides
". . .practiced by Native Americans and the origin and interpretation
of which is from within a traditional Native American culture or
community." While pre-contact Native religions exist in Hawaii, so
do very distinct Native Hawaiian evolutions of Christian churches
that were developed during missionary times. These institutions
are distinctly Native Hawaiian, yet it is not clear whether the Act
would intend to include them within its coverage.

The definition of lands provides for either lands within a
Indian reservation, or public lands of the United States. In
Hawaii, as noted, all lands are potential issue points; limiting
coverage to federal lands or federally assisted projects, although
helpful, excludes too much. A potential solution would to be to
include all "ceded lands" ; ceded lands are those former royal and
public lands of the Kingdom of Hawaii (approximately 1.8 million
acres) that were ceded to the United States and then mostly
transferred to the State upon statehood.

Under the access provisions relating to federal lands, there

114

is a potential limitation based a Presidential determination of
national security. Such a determination could of course be
delegated and could become a local issue. In Hawaii, as you may
know, unlike the west, federal lands are either for defense or
national parks. We have existing agreements with the military on
access in areas that require pretty high security, and we would
want to be sure that there continues to be some flexibility built
in to the standard.

The Secretary of the Interior is identified as the appropriate
government coordination point for provisions relating to the
consultation, notice and adverse agency action processes under the
draft. To date the Department has not been a responsive agency to
Native Hawaiian concerns . It might be appropriate to require the
Department of the Interior to have a Hawaiian organization play
this role under a Memorandum of Understanding.

We are aware of the problems relative to demonstrating a
burden of proof while maintaining the confidentiality of sacred
matters, that have to worked through. In Hawaii, in some areas we
have the additional difficulty that because of patterns of Island
conquest and consolidation the human chain of responsibility and
knowledge relative to particular sites may have been broken.

We would support a draft provision under consideration
concerning recognizing tribal authority over Native American
Religious Sites on Indian lands. An analogous provision for a
Native Hawaiian Government over ceded lands would be appropriate.

Although the use of Peyote, and the taking of eagle feathers

115

is outside of our cultural experience, we would support our Native
American sisters and brothers on these provisions, as well as the
more familiar prisoners rights provisions.

Thank you for the opportunity to testify. We look forward to
working with the subcommittee on these and other important issues.

116

Mr. Richardson. Thank you very much for very compelHng testi-
mony.

Let me say that when my colleague from Hawaii was here, I did
appreciate the statement he made that the recognition of the Na-
tive Hawaiian issue, as we look at this issue and others, is para-
mount on the agenda of this subcommittee.

My question to you, before I turn to my colleague, is while not
asking you to divulge locations that would make it sensitive for you
to disclose where your religious sites are, are Native Hawaiians
currently denied access to any sites or frustrated in your abilities
to practice your religion? I ask this basically in ignorance. Because
I think one of the things that we are asking, as we develop legisla-
tion, is how can we cover the religions of all our Native American
tribes and Alaska Natives and now also make sure we're respon-
sive to Native Hawaiian needs?

Ms. Kamali'i. a lot of our sites are on private property. When
these sites are identified, there could be denied access to them.

In the National Park, as I stated earlier, Pele, the rehriose of
many of our people to go and worship there, it caused a big stir
when the National Park added a fee for entering the Park. And I
must say I'm very grateful for the fact that you don't charge us,
but we have to identify that we are Native Hawaiian.

And some of this is a little difficult for our people to accept, that
we have to ask permission to enter the National Park for our reli-
gious purposes.
Mr. Richardson. Thank you.

I'm going to turn the hearing over to the gentleman from Hawaii.
I'm going to ask him, after he concludes his questions, to adjourn
the hearing because we do have a vote on the House floor and I
know there's a time problem for some of our witnesses.

So I want to recognize the gentleman from Hawaii and I want
to thank Chairman Plummer and Ms. Garcia for their participation
at this hearing.
The gentleman from Hawaii.
Mr. Abercrombie. Thank you, Mr. Chairman.
I just want to emphasize, with respect not just to the testimony
of Kina'u Kamali'i but the others, that I beheve there's a com-
monality of interest here. And I would just like your very brief ob-
servation as to whether you think any extensive rewriting needs to
be done here.

I think you heard my commentary before. Let me state it again,
to be explicit. It would seem to me what needs to be done here is
to make clear, in anything we write, that the burden of proof with
respect to any practice of religion or access to sacred site, et cetera,
needs to be upon the federal government, or some governmental
entity, other than tribal government or any other such institutional
governmental entity to present proof of a compelling need to inter-
fere in any way being present in a court of law.

And that, absent that, there just shouldn't be any question. In
other words, no one should have to, for example, come to the Park,
say. Volcano Park, and prove they're Hawaiian. The government
should have to present some compelling proof to the contrary.

Any comment on that? Was it clear enough what I was saying?
To the degree that it needs to be rewritten at all or needs to be

117

written at all, we should simply make that the focus, rather than
try and deal with every single possible variation that might come
up with respect to the practice of religion?

Ms. Kamali'i. Representative, I think where we got caught up in
this National Park fee; it was created in another law. But the fact
is that we were caught up in the cost — and I understand that, yes,
you have to pay for the upkeep of National Parks. But it's demean-
ing for me to have to tell them who I am and that I'm a Native
American, so please waive your five-dollar fee; do you understand-
ing where I'm coming fi*om?

Mr. Abercrombie. Yes, I understand exactly.

What I'm trying to get at is that may have been the result — if
we had done something like what I'm talking about here. In other
words, if there was a prevention of someone, not necessarily Native
Hawaiians, you could see there's a tremendous spectrum of in-
stances presented this morning in which there would be a violation
of religious practice. Let's say, on access to a site that here the gov-
ernment could not show there was a compelling reason to have Na-
tive Hawaiiains pay the fee, so they backed off.

And what it ended up being was, could we at least find out who
was a Native Hawaiian, and then they ended up with the identi-
fication thing. It wasn't meant to humiliate anybody. It could be
construed rather as actually moving along the line that I'd like to
see be accomplished, namely, you try to facilitate the practice of re-
ligion without being intrusive or overtly being an obstacle.

Ms. Kamali'i. Well, I agree. I think that tMs new law, we should
depend on the First Amendment and not have to go through all
this hassle. We have inherent rights, as Native Americans. And
now someone else is telling us, well, prove to us that you're a part
of religious, traditional, sensitive culture — because we don't under-
stand it, you have to do something else. They don't belong in cer-
tain areas. A Nation within a Nation. Understand these very basic
principles. It's up to the people themselves to govern themselves in
true self-determination.

Mr. Abercrombie. I will close with this, I am very grateful, and
speaking on behalf of the subcommittee and the committee as a
whole, for all the testimony that came in because I think it offers
conclusive proof, if you will, that we have the cart definitely before
the horse, with respect to all of this. And that there's no need for
elaborate offerings of proof, it seems to me, from any tribe or any
governmental entity of a Native or aboriginal people. That the bur-
den is entirely on the federal government or other such govern-
mental entities that see themselves, for whatever reason, in opposi-
tion or have some question with respect to Native and aboriginal
people and their practices where religion is concerned.

The record is conclusive in that regard, as far as testimony is
concerned.

Yes, ma'am.

Ms. Garcia. I appreciate the statement you've made. I think that
needs to filter down to those people who work with the tribes with-
in those particular departments, whether it's BLM or the BIA as
part of their Forest Service management program. Some of those
other acts that apply, NEPA and the Endangered Species Act, all

118

those other departments equally have a trust responsibility to the
tribes.

There may be a clear understanding here, but when it gets down
there it's never implemented.

Mr. Abercrombie. I understand completely and I agree with
that. I think they're not aware that this subcommittee even exists
yet, inasmuch as it's only about 30 days old. But I can assure you
that, as long as I'm a member of it — and Kina'u Kamali'i has expe-
rience with me in terms of tenacity — I can assure you that the mes-
sage that I'm putting forward today, while my own, nonetheless I
think is reflective of many members of the subcommittee.

And I think that these agencies will find very quickly that we in-
tend not to be merely an observer or a commentator but an
implementor of policy and a true and honest respondent to the tes-
timony that comes to us. It's not just merely accepted and then put
on a shelf. We intend to absorb it, to get a perspective as a result
of it, and then act on it.

Thank you very much.

[Whereupon, the above-entitled proceeding was adjourned at
12:15 p.m.]

APPENDIX

February 23, 1993

Additional Material Submitted for the Hearing Record
^ V

SANTA CLARA | mm^Hk INDIAN PUEBLO

POST OFFICE BOX 580 % XWs^M^m ESPANOLA. NEW MEXICO

(505) 753-7326 ^ V^MB^^W ^^^'^^

<5°5) 753-7330 Xi^r ^ OFFICE OF GOVERNOR

March 9, 1993

The Honorable Bill Richardson, Qiairman
Subcommittee on Native American Affairs,
United States House of Representatives,
204 Canon House Office Building
Washington, D.C 20515

FOR INCLUSION IN THE HEARING RECORD, U.S. HOUSE OF REPRESENTATIVES
SUBCOMMFFTEE ON NATIVE AMERICAN AFFAIRS, AMENDING THE AMERICAN
INDIAN REUGIOUS FREEDOM ACT, WASHINGTON, D.C, FEBRUARY 23, 1993

Dear Chairman Richardson:

We of the Pueblo of Santa Clara would like to extend our sincere thanks to you and the other
members of the Subcommittee for providing us the opportunity to include the following
comments and recommendations in the above-mentioned hearing record. This is an issue of
critical importance to our Pueblo, our people, our culture, and, ultimately, our entire existence
and we deeply appreciate the ongoing dedication of yourseLf and your fellow Representatives and
Senators to insuring that the Indian and Native American peoples have the fundamental human
right of religious freedom.

As you are aware, the Pueblo Indian people are the first people of what is now the American
Southwest We have been here since time immemorial and our villages, fields, hunting areas,
and religious and cultural areas form an ancient and integral part of this land. In turn they and
this land are an essential part of us; they are our very being. And our way of life - for it is much
more than just our religion, it is the core of our everyday lives - is of the utmost importance to
us.

Yet, as with many other Indian people, from the moment of European arrival in our Santa Clara
homeland, our way of life, our lands, our very existence have been the targets of persecution and
destruction. The century, after the Spanish settled in our area in 1598, was filled with attempts to
obliterate our traditional religions and ceremonies by for«. Our religious buildings were raided
and razed, ceremonial materials destroyed, and religious leaders punished and even executed.
Still, there are examples in the 1670's of Santa Qaras and other Pueblo Indians continuing our
way of life and ceremonies in the face of cultural annihilation. And in 1680, the Indian Pueblos
rose up against this persecution and successfully waged the Pueblo Revolt; a revolutionary war
which expelled the Spanish Empire from New Mexico. The return of the Spanish in 1692,
however, brought the religious system back upon the Pueblos, and we took our religion into
secrecy to protect it and ensure its continuation.

(119)

120

The Pueblo of Sania Clara. Teslunonv. AIRFA Amendments Heanng. Febniarv 9. 1993. pa ge 2

With the advent of the United States into our region in 1846, we hoped to be freed of this
religious persecution because religious freedom was one of the founding principles of the United
States. We were quickly proven wrong. As with many other Indian tribes, we were stripped of
much of our ancestral and aboriginal homeland, subjected to missionaries, interrogated and
exploited by ethnographers and anthropologists, forced to stand by as archeologists and others
plundered our religious areas and ancestral settlements, and prohibited by law from practicing
any pan of our religion from 1882 until 1934, punishable by thirty days imprisonment or
"without rations." Where was our religious freedom then?

Though Federal Government reforms in 1934 sought to end this religious oppression, it has not
ended. Our aboriginal lands - which contmue to be an integral part of us - have not been
restored and our religious and cultural areas continue to be raided and destroyed. We have been
interfered with in the practice of our religions involving obtaining animals, natural plants,
minerals, and materials necessary for religious usage. Even the American Indian Religious
Freedom Act of 1978, in the final analysis, has done little to prevent this.

Specific Examples of Ongoing Religious Freedom Problems

To this day, the Pueblo of Santa Clara continues to be denied our religious freedom. Some
examples of ongoing problems include the following:

Santa Clara has stood with the other Indian Pueblos in opposition to the "Ojo Line Extension
P.oject" or "OLE Power line" since its proposal. In reviewing the Environmental Impact
Statement (EIS), providing testimony tefore the New Mexico Public Service Commission
(P.S.C), and communicating through other methods, Santa Clara has emphasized that the
proposed power line would desecrate and destroy the Jemez Moimtains in New Mexico, which
have since time immemorial held sacred areas and provided for our way of life. The power line,
in its construction and operation, will harm natural substances and animals important to our
culture. Further, it has been shown that there are viable alternatives to this project and its need is
not entirely established. However, Santa Clara and the other Pueblos have been relegated,
mostly due to the innocuous nature of AIRFA, from the position of sovereigns with a
govemmenl-to-govemment relationship with the Federal Government to that of an individual
forced to beg at each step in the process to protect the Jemez Mountains from this power line. As
we await the decision of the P.S.C, we can only hope that they take into account the great
cultural impact the power line will have, since the law does not prevent them from abrogating
our religious freedom.

The Jemez Mountains are also being threatened in another respect In mid-1992, Santa Clara had
to learn through an article in the New Mexico newspaper, the Albuquerque Journal, that Los
Alamos National Laboratories (LANL) were planning to conduct a "Jemez Tomography Project"
in the Jemez Mountains, whereby a series of subsurface test explosions will be done to measure
the pattern of molten material below the surface of the Valles Caldera. Santa Clara was never
informed nor consulted during the initial scoping for the project And, even after explaining our
concerns and the impacts the proposed project would have upon an area central to our cultural
beliefs during meetings with LANL personnel and issuing a formal request that the Forest
Service permit for the Tomography Project be denied, our concerns and beliefs were dismissed.
The Forest Service official who reviewed our request denied that the proposed project would
"deny access or prevent the exercise of traditional beliefe and practices"(Carpenler, R. Forrest,
USDA, FS, # 1570). Further, he discounted any religious rights we may have under AIRFA,
stating that "...(AIRFA) confers no cause for action and contains no requirement for
consultation."

121

The Pueblo of Santa Qara . Testimony. AfRFA AmendmenK Heanng. February 9. 1993. page 3

A third example is the proposed expansion of the Santa Fe Ski Basin near Santa Fe, New
Mexico. Our involvement in this issue has been greatly restricted, though the proposed
expansion would also seriously impact cultural matters in the Sangre de Cristo Mountains,
because of the damage we could face having to meet the burden of proot Though it is our belief
that our cultural matters should not be revealed, we are called upon to explain our beliefs and
identify specific sites in order to petition for their protection. By disclosing such information, we
risk subjecting those areas to destruction without any assurance that such disclosure will serve
the original purpose of protecting them.

Comments And Recommendations

The Pueblo of Santa Clara has several serious concerns regarding the issue of ongoing
restrictions of Indian religious freedom. We would like to submit the following comments and
recommendations and request that they be integrated into any proposed solution to this problem.

Insuring the protection of religious and cultural areas is among the most important issues for
Santa Clara regarding religious freedom. The third example provided above displays a great
concern of the Pueblo of Santa Clara: that any effort to address the protection of our cultural
areas does not saddle the Indian pueblos, nations, and tribes with the burden of proof. As stated
above, nondisclosure of our Pueblo Indian culture is essential to the continuation of those beliefs
and practices. In this respect, the Pueblos feel we are unique among Native Americans.
Therefore, for the Federal Government to force us to disclose them to the general public in order
to prevent their destruction would, in itself, violate oiu' AIRFA and First Amendment Freedom of
Religion. A statement by the Tribal Government that a particular traditional Indian religious area
or water is at risk should be all that is necessary to mandate protection of that area or water.
Though the Federal Govenmient ceased in 1934 to deem it a criminal act for Indians to practice
our traditional religions, in this respect we are not even accorded the rights of accused criminals.
An individual accused of a crime is iimocent until proven guilty; but we, who have committed no
crime but to abide by the way of life of our forefathers, are considered to be liars until we prove
that we are telling the truth when we state that a traditional religious area or water is being
threatened. This is wrong. The Indian Pueblos should not be forced to violate our cultures in
Older to protect them.

At our Pueblo, our government derives from our traditions and culture. A threat to our religion
and culture thus is a threat to our govenmient and to our sovereignty. The Federal Government
is bound by the trust responsibility to adhere in good faith to the fiduciary relationship between
Indian tribes and the Federal Government as well as by the U.S. Constitution and Federal Indian
law to respect the reserved inherent sovereignty of Indian tribes. Thus, the Govenmient caimot
countenance nor condone a threat to tribal sovereignty and the well-being of tribes, and
absolutely caimot be the cause of that threat

TTierefore, the Pueblo of Santa Clara would support the following method of insuring the
protection of religious and cultural areas off-reservation and Indian held land (it is similar to one
proposed by the Pueblo of Taos) through a separate section or title specifically for the Indian
Pueblos in any proposed amendments to AIRFA After the affected Pueblo(s) are notified by a
Federal agency or department of an action that could adversely affect a religious area, due to the
govemment-to-govemment relationship of Indian tribes and the Federal Government, a statement
by the Pueblo Tribal Government that a religious area is going to be seriously impacted should
be all that is required to satisfy any burden of proofs This statement must only provide the
general area(s) at risk, not requiring the affected Pueblo(s) to explain their religious beliefs or the
use of the area(s) at risk. At that point, the Federal agency or department will suspend the
proposed activity, only to be continued if the affected tribe(s) and the Federal Government,
though their tribal government representatives and Federal agency or department heads (no lower

122

The Pueblo of Sania Clan Testimony. AfRFA Amendmenis Heanne. Febniarv 9. 1993. paee 4

then under-secretarial level), respectively, reach a consensus that the Federal Government has
proved thai the proposed activity is necessary to further a compelling govemmenul interest, is
the least restrictive, is the least intrusive method, or is critical to national security concerns. If
they do not reach such an agreement then the proposed activity will be annulled. If the Pueblos
are not satisfied then the Amendments should provide a clear cause of action so that they may
seek judicial remedies; provided, that Tribes not be saddled with the burden of proof. Other
alternatives to judicial remedies might include establishing a national arbitration board on a
regional and case-by-case basis. If the affected Pueblo(s) agreed to this process, the affected
Pueblo tribal government would provide one member for the board, the Federal agency or
department would provide one member representing the agency or department Secretary, and the
third member would be selected by the first two. That board would evaluate the situation and -
without requinng the Pueblos to meet a burden of proof ~ would issue a decision binding upon
the affected Pueblo and the Federal agency or department

This issue is of great importance to the Pueblo of Santa Clara. If a process similar to the one
outlined above is not included, at the very least, any new legislation should only seek to identify
any fraudulent Indian religious area claims in a litigatively reactive, not administratively
proactive, manner. In other words, the affected Pueblo(s) should not have to meet burden of
proof at the beginning of the process for their claim to be considered "legitimate." Instead, the
affected Pueblo's(s') claims should be accepted as legitimate based on the Federal trust
responsibility and respect for Indian tribal reserved sovereignty, and if a Federal agency or
department doubts the Pueblo(s) religious freedom claim regarding a cultural area, the agency or
department must establish legitimate and documented reasons for such doubt and then may
pursue fraudulent claim proceedings in court against the affected Pueblo(s). Finally, Santa Clara
cannot, and should not, be required to explain the usage of the a religious area to a government
agency for them publish in any action or area evaluation documents.

Also in regards to the protection of religious and cultural areas, we completely oppose the
"centrality and indispensability" principle and believe that it should not be used to determine
which Indian religious areas merit protection in legislative, administrative, or judicial procedures.
We question why Indians are required to prove that the impacted belief, practice, or site is
"central and indispensable" to their religions, while the Federal agency or department is not
likewise required to prove that the proposed action is "central and indispensable" to its mission
and that no other action will equivalently satisfy that mission. The Pueblo of Santa Clara cannot,
and should not. be torced to priontize in what order our religious areas and thus our religion can
be destroyed or violated.

Further, any proposed amendments should protect sacred sites and areas, not just Indian religions
and access to sacred sites and areas. Protection should be provided both to anticipated sites and
ones found or identified while the proposed Federal or Federally-funded action is being
implemented. Also, we support provisions in any amendments to AIRFA that make it a criminal
act to knowingly destroy or disturb an Indian religious area on public or Indian land, provided,
that this should in no way interfere with or affect Indian tribal exclusive jurisdiction over such
offense; by Indians on Indian lands and that non-Indians be then subject to Federal jurisdiction
for such an offense. We aUo support provisions that allow temporarily setting aside an area or
access to an area to an Indian Pueblo or tribe for religious purposes, provided that to obtain such
action Indian Pueblos or tribes should not be required to reveal the location of more than general
areas and not provide how the area will be used at that time. Finally, tribes should have the right
lo prevent the excavation or disturbance of sacred areas and to protect archeological sites if they
ate considered religiously important. This should be separate from archeological site protection
laws.

Among our greatest procedural issues regarding any proposed AIRFA amendments, we are
concerned that, in providing protection for legitimate Indian religious freedom claims in general.

123

The Pueblo of Sana Clara Testimony. AIRFA Amendments Hearing. February 9. 1993. page 5

any proposed amendments should not be more directed to judicial rather than administrative
remedies. While we strongly agree that the serious inadequacies and inequity of the judicial
treatment of Indian religious freedom cases seriously demands legislative correction, why must
tribes as "affected interests" be forced into what has been an adverse arena where they may very
well still lose and be saddled with the costs. We believe that Indian religious freedom can and
should be ensured by correct administrative procedures to respond to Indian religious freedom
claims and not by increased litigation. At the very least, what is needed is to mandate uniform
administrative procedures throughout federal agencies and departments that insure that no federal
or federally-supported action will result in the serious impairment or infringement of Indian
religious freedom unless the agency or department heads in direct consultation with affected
Indian pueblo(s), tribe(s), or nation(s) proves that the action furthers a compelling governmental
interest, that its method is the least intrusive and restrictive to serve that purpose, or national
security concerns are involved. If that is not proven clearly, then the proposed action should be
rescinded. If it is proven, then the affected Indian pueblo(s), tribe(s), or nation(s) could seek
judicial remedies as a last resort If we are all seeking the same result; protection of Indian
religious freedom and areas, why make the process any longer or burdensome upon Indians than
necessary? In this respect, we also support requiring governmental agencies to meet a burden of
proof in litigation at the beginning of the case.

In addition, if the "appropriate changes necessary to protect and preserve Native American
religious cultural rights and practices" in the various Federal departments and agencies as
determined by the Federal Aigencies Task Force established pursuant to AIRFA are supported by
the Indian Pueblos, tribes, and nations, Santa Clara feels that they should be reconsidered for
implementation.

In regards to religious articles and animals, plants, minerals, and natural materials necessary for
Indian religions, we recommend the following. Indians should not be subject to stnp searches or
harassment when in possession of natural religious substances or materials. Also, religious
articles and materials in possession of Federal or Federally -funded collections should be returned
to tribes upon request The States should not have the jurisdiction to regulate or prohibit Indian
religious substance collection or use on Federal or Indian lands; it should only be tribal and, if
necessary. Federal jurisdiction. Indians should be permitted to conduct hunting and collect
natural substances for religious purposes on aboriginal or religious areas located on Federal lands
at any time. For this, Indians should not be required to obtain a permit or explain the location of
the plants or animals or their religious usage. There should be a plan or method put in place by
any proposed legislation to allow tribes to collect live eagles on the reservation and not just those
that have been killed by accidents or natural causes. Finally, any new amendments should insure
that It IS legal for Indians to collect plants, minerals, and natural materials for religious purposes
from all Federal lands at any time.

Finally, we have the following recommendations. Provisions resulting from AIRFA requiring
Federal agencies or departments to "consult" or "cooperate" with Indian tribes to protect Indian
religious freedom have been revealed to be virtually useless in mandating such protection. Many
cases provide examples where tribes were consulted, explained that a religious area or issue
would be seriously impacted by a proposed action, even studies were done that could confirm the
tribe's statement, and the Federal agency or department carried out the proposed action anyway.
Thus, Santa Clara feels that there should be provisions in any new amendments that compel a
Federal agency or department to change or abandon a proposed action if it going to seriously
impair or impact Indian religious freedom. The language should not just require "consultation"
and "cooperation," but rather, "adherence" and "accommodation." We believe that it should be
stated clearly in any amendments that the amendments and protections provided are strictly for
Indians and Native Americans. Also, Federal courts should be bound by the same application of
any new amendments to AIRFA; the amendments language should specify the parameters of
judicial interpretation so there is not the wide variance of application that characterized AIRFA.

124

The Pueblo of Santa Qa ra. Tcsumonv. AIRFA Amendmenls Heanng. Fehaiarv 9. 1 993. page 6

Further, the other recommendations given by the Federal Agencies Task Force should be
reexamined for possible implementation if applicable and supported by the Indian pueblos,
tribes, and nations. Finally, we support provisions which require that all Indian testimony and
information regarding religious matters should be removed from any record or excluded from
public access, including through the Freedom of Information act.

Above all, we of the Pueblo of Santa Clara want to emphasize that disclosure of our religious
beliefs, practices, and areas should not be required in order to protect them. Since such
disclosure would violate our religious beliefe in itself, we are opposed to requiring such
disclosure in any new amendments and request that you, your Subcommittee members, and your
staff create an appropriate new method to insure our religious freedom.

Conclusion

In conclusion, the Pueblo of Santa Clara view.s the problem of the Federal Government
infringing and restricting Indian religious freedom as one that is cause by principally inadvertent
factors. To our knowledge, very few of the current problems arise because an individual or
Federal agency specifically sets out to destroy a religious area or practice. This, however, has
been tised against Indians as a reason to deny legitimate and serious religious freedom claims.
Thus, we recommend that in any attempt to insure Indian religious freedom (whether, legislative,
administrative, or judicial) the effect rather than the intent of an action should be the motivating
factor in mandating protection. In other words, direct actions by the Federal Ciovemment which
coerce an Indian into violating their religious beliefs or penalizes Indian religious activity should
not oe the only actions which constitute a violation of Indian religious freedom. Indirect actions
resulting in these should also be seen for what they are -- violations in the case of Indiajis, thus,
demanding protection.

Contrary to the arguments of those opposed to increased protection for Indian religious freedom,
such additional protection would not designate religious use of Federal lands as their primary use
and give statutory preference to the practice of Indian religions on Federal lands. First it must
be remembered that the reason that Indian religious areas are on some Federally managed lands
is because those areas are on aboriginal Indian lands that sometimes were acquired by the
Federal Government by indefensible methods. Second, expressing this concern ignores the
utterly vast amount of land that the Federal Government manages. Under no logic can Indian
religious areas be considered to cover every plot of federal land, and that argument should be
disregarded when there is such a dire need to ensure this essential human right to Indians and
Native Americans.

Finally, more protection for Indian religious freedom would not violate the Establishment Clause
of the Constitution. As is clearly shown by the summary provided above of the persecution of
our religion since the arrival of Europeans, we as Indians have already been singled out for
unique treatment - religious persecution. Increased protection will not wrongfully,
imconstitutionally, or illegally provide Indians with special treatment The basis for this
treatment is two-fold: the reserved sovereignty of Indian nations and the Trust Responsibility
engendered in the Constitution itselL Thus, (he government is bound by its trust responsibility to
provide a unique solution to these human rights violations, because it is both uniquely being
imposed upon a group of U.S. citizens, as well as because those citizens ~ imlike any other
United States citizens ~ are concurrently members of "domestic dependent nations" whose
sovereignty the United States is bound by law and honor to abide by and uphold.

To the Pueblo of Santa Clara, the time is growing late for the settlement of this dispute.
Certainly, progress has been made since the eariy colonial times and since the early 20th century;
but how many Indian Pueblos, tribes, and nations have been annihilated in the interim. Clearly,

125

The Pueblo of Santa Qara. Testimony. AIRFA Amendments Heann g. February 9. 1 993. paye 7

the Indians of today cannot afford another long waiL It is now the time for the United States and
its citizens other than Indians to realize that the conquest of Native Americans continues today,
and is not merely a thing of the past As long as the United States and its citizens do not act to
change it, they are agents of that conquest At stake is the obliteration of other U.S. citizens, and
other human societies and cultures in their own homelands. Many would have the people of the
United States believe that the dispossession of Native Americans of their land, that the
destruction of traditional political organizations, that the attack on Native traditional religions are
all things of a bygone era. The ongoing and uphill struggle for Native American religious
freedom today shows clearly that this is false; that the past continues to be reflected in the
present

But will we allow the present to mirror exactly the past? This is the question that now stands
before the United States Congress and the citizens of this coimtry. The post-war era has been
one of altercations and achievements in the area of race; yet this has little to do with Indian
religious freedom. At its base, it is a conflict over cultural and human rights. That the denial of
religious freedom to Native Americans that has characterized the post-war period has been more
often inadvertent and the by-product of even sometimes well-intentioned individuals indicates
that this is a result of different cultural views and values regarding the usage of public lands.
Under the guise of bringing about "multiple use" of federal lands, the United States' Forest
Service and Bureau of Land Management actually enforce the use of the lands they manage
according to a view of American cultural values which deny our cultural values their rightful
place and consideration.

Clearly, it is not that there may never be a better time to deal with this issue, for indeed this
might not be the case. Rather, there may never be another time. One must only consider the vast
amounts of Native religious areas that have already been buried, raided, submerged, razed,
trampled, or otherwise impacted, to know that for many tribes, the destruction of the last sites
means the destruction of the last part of their religious practices there. From this, there is no path
back. The question remains, very simply, do the people of the United States today want to
support the destruction of fellow -citizens through their fundamental religious beliefs and
practices ? If general action is not taken and some of the recommendations we have made
implemented to ensure Indian religious freedom, the Pueblo of Santa Clara may be forced to
reconsider its view that this is an inadvertent problem. Some would have it believed that the rise
of the United States was based on the fall of us, the Indian people. If we do not want this to be
true then now is the time for the Congress to act

We thank you for this opportimity.

Sincerely,

Walter Dasheno, Governor

Senator Daniel Inouye, Chairman, Senate Committee on Indian Affairs

Senator Pete Domenici

Senator Jeff Bingaman

Members of the Senate Select Committee on Indian Affairs

Congressman Steve Schiff

Congressman Joe Skeen

Mr. Jim Hena, All Indian Pueblo Council

126

STATEMENT REQUESTING THE AMENDMENT OF JOINT RESOLUTION
AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 TO THE
PROPOSED AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1993.

I am voicing my concern, as a Native American Church of Nava-
holand Board of Director, on behalf of the Native American Church
of Navaholand, Inc. members of Western Navaho, District #3 (Tuba
City, Cameron, Bodaway and Coalming, AZ). We strongly support
the amendment of the American Indian Religious Freedom Act.

This Bill has been long overdue. For centuries now, vjhen-
ever the issue of our religion and culture is concerned, it is
perceived by the Federal Government as all negative and zero
percent (0^) good. Everything in nature is in equilibrium, except
when it comes to our religioun and culture. Why is it viewed as
such? Our traditional ways may be strange and mysterious to our
white brothers, but then again the Great Spirit (GOD) works in
strange and mysterious ways. Our Creator is righteous and just,
therefore, our ceremony, sacred sites, sacred objects and prayer
are all valid. It is not a cult by any means like the way the
media instilled it in the mind of the general public.

According to the Navaho legends, the Great Spirit gave us
peyote (a bitter herb) at the emergence into this world. Peyote
is the most sacred of all herbs in the plant kingdom. The peyote
was given as a sacrament so that it may help to teach us the right
way to live, grow spiritually, to protect us and to heal our mind
and body so we can walk in balance and harmony with nature.

The peyote was taken from us by the Gambler and was taken
towards the south. We were told that one day we will find it
again when we begin to lose everything (our culture, language,
land, spiritual way, etc.). The peyote spirit has seen our suffer-
ing and heard our cries and returned to us as it was prophesied.

Our Native American Church of Navaholand members are humble
people, who believe in brotherly love and the importance of
spiritual growth. We believe that in order to get close and com-
municate to the Great Spirit, a spirit to spirit contact has to be

127

made. We cannot see the spirit people because we are in the phy-
sical, but a spiritual mind can reach a spiritual being.

Pevote is not a drug, it is holy sacrament, an herb. We do
not and will not abuse it. Compared to the tens of thousand cases
of alcohol and drug related abuse that are reported daily in the
United States, you never hear of one case of abuse or death asso-
ciated with the traditional use of peyote. We only use peyote
and open our sacred bundle to help the poor, the sick, the aged,
the widowed and the orphaned.

The evidence is beyond challenge that the Indian people, be-
fore the Europeans came, had achieved a knowledge of the Creator
of the Universe and was worshipping Him in a religion of spirit-
uallity, kindness and truth. Yet our rights are still being denied
to worship in our own humble ways. Our children are becoming
spiritually ignorant. We love and have hopes for our children
just like everyone else. We cannot allow this cultural genocide
to continue.

Honorable Congressmen, Senators and the President of the
United States, everything has been taken from us already. We are
reduced to poor people. Please find it in your heart to support
and pass the amendment to the American Indian Religious Freedom
Act. With your help we can enjoy our religious freedom like your-
selves and all Amaricans do.

On February 06 and February 07, 1993, I attended several Native
American Church prayer services for the passage of the proposed
amendment of the American Indian Religious Freedom Act 1993. The
general consensus was a overwhelming majority of the Native Amer-
ican Church of Navaholand, Inc. members strongly support the amend-
ment. A count of vote taken was 157 approved and nay and
abstained.

Lorenzo Nax

^^#c

Native American Church of Navaholand, Inc.
Board of Director, District //3
Western Navaho Agency

128

TO: Senate Select Committee, Congressmen, Senators and the Presi-
dent of the United States of America

RE: Support the amendment of the American Indian Religious Free-
dom Act. I, Lorenzo Max, made this affidavit for Mike Kiyaani
on this day of February 07, 1993.

I am an elderly traditional Navaho. I am also a Native
American Church Spiritual Leader who is concerned that the United
States Constitution does not clearly cover our way of worship as
it was intended by the Great Spirit.

Let it be known that I was called upon to take up arms against
the enemy in World War II. I fought thinking that I was protect-
ing and preserving our way of live. I suffered and was wounded.
In addition to all this sacrafice, my Navaho lanquage was used to
beat the enemy. Yet, ironically, the United States Constitution
still does not protect our right to pray in our traditional way
using sacred objects (feathers, etc.), medicines (herbs, peyote,
etc.) and at sites considered sacred by the Navaho people and other
Native American tribes.

As a Navaho Spiritual Leader, my life is dedicated to helping
my brothers and sisters to walk in harmony and balance with nature
in our own humble ways. All of nature is our church. Certain
sites where the Holy Ones have walked and taught their sacred ways
are sacred to us because their spirits are linked to that part of
nature. We are linked to nature in spirit, which is our channel to
the Great Spirit.

Unlike the Christian people, we don't need to go to a fancy
church to pray. We pray in the way it was taught to us. When we
pray we sit on Mother Earth in a sacred manner. We sing our sacred
songs and offer sacred objects at sacred sites. We honor and re-
spect all things and beings in nature. All things have spiritual
meaning for the Navaho people and other Native American tribes.
Instead of seeing things in terms of dollar lost due to damages

129

done in natural disasters, we see and feel it the way nature sees
and feeis it. Learning and growing works both ways, maybe it is
time to learn from one another.

To continue denying us the use of eagle feathers, praying at
sacred sites and using peyote as a sacrament is denying us our
most basic human rights, while the rest of the Americans enjoy
and take for granted their rights to worship freely without per-
secution .

A spiritual leader will not abuse his ways like a Constitu-
tionally protected television preacher will for money and status.
Plus, everyday we see make-believe marriages, funerals and oaths
on television where the name of Almighty GOD is mentioned for
entertainment sake.

If Jesus, the Great Spirit and Peyote Spirit were to all
meet where we can witness it, they would talk a common language.
It is only the scientists and the politicians that don't seem to
understand .

As a humble Navaho man, I beg and pray that our Senators and
Congressmen take an honest look at the Navaho people and other
Native American tribes and realize what we have to struggle
through everyday just to get by. We find peace and strength in
our prayers. Listen to your heart and spirit and pass the
American Indian Religious Freedom Act of 1993. Find the solution
to our plight in your heart, because the policy that causes suffer-
ing begins in the mind and it comes from a sick heart that has
lost its spirituallity .

Native American Church of Navaholand, Inc.
Spiritual Leader

United States Veteran - World War II
Navaho Code Talker

68-194 (136)

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