[Senate Hearing 107-519]
[From the U.S. Government Publishing Office]


                                                 S. Hrg. 107-519, Pt. 1
 
                     NATIVE AMERICAN SACRED PLACES
=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

THE PROTECTION OF NATIVE AMERICAN SACRED PLACES AS THEY ARE AFFECTED BY 
                   DEPARTMENT OF DEFENSE UNDERTAKINGS

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                              JUNE 4, 2002
                             WASHINGTON, DC

                               ----------                              

                                 PART 1

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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman

            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
HARRY REID, Nevada                   JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington

        Patricia M. Zell, Majority Staff Director/Chief Counsel

         Paul Moorehead, Minority Staff Director/Chief Counsel

                                  (ii)









                            C O N T E N T S

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                                                                   Page
Statements:
    Akaka, Hon. Daniel K., U.S. Senator from Hawaii..............    47
    Aluli, Noa Emmett, Kaunakakai, HI............................    44
    Arterberry, Jimmy, Tribal and Historic Preservation Officer, 
      Comanche Nation, Medicine Park, OK.........................    31
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     2
    Dunlop, George, Deputy Assistant Secretary (Policy and 
      Legislation) Office of the Assistant Secretary of the Army, 
      Washington, DC.............................................     6
    Franco, Mark, Winnemem Wintu Tribe, Redding, CA..............    39
    Grone, Philip W., Principal Assistant Deputy Under Secretary 
      of Defense (Installations and Environment), Washington, DC.     3
    Hall, Tex, chairman, Three Affiliated Tribes Business 
      Council, New Town, ND, and president, National Congress of 
      American Indians, Washington, DC...........................    17
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    Jones, Scott, Cultural Resources Officer, Lower Brule Sioux 
      Tribal Council, Lower Brule, SD............................    29
    Joseph, Rachel A., chairperson, Lone Pine Paiute-Shoshone 
      Tribe, Lone Pine, CA.......................................    20
    Machado, Colette Y., chairperson, Kaho'olawe Island Reserve 
      Commission, Wailuku, HI....................................    41
    Naseyowma, Gilbert, Village of Lower Moencopi, Tuba City, AZ.    49
    Selestewa, Elliott...........................................    35
    Selestewa, Leonard A., Village of Lower Moencopi, Tuba City, 
      AZ.........................................................    35
    Sisk-Franco, Caleen, Winnemem Wintu Tribe, Redding, CA.......    32
    Smith, Charles R., Assistant for the Environment, Tribal and 
      Regulatory Affairs.........................................     6
    Yellow-Bird, Pemina D., NAGPRA Representative and Cultural 
      Resources Consultant, Mandan, Hidatsa, Arikara Nation, 
      Belcourt, ND...............................................    27

                                Appendix

Prepared statements:
    Aluli, Noa Emmett (with attachments).........................   240
    Arterberry, Jimmy (with attachments).........................    87
    Dunlop, George...............................................    69
    Grone, Philip W..............................................    56
    Hall, Tex....................................................    51
    Jones, Scott.................................................    53
    Joseph, Rachel A.............................................    54
    Machado, Colette Y. (with attachment)........................   218
    Peabody Energy, St. Louis, MO (with attachments).............   389
    Selestewa, Leonard A. (with attachments).....................   245
    Sisk-Franco, Caleen..........................................   225
    Yellow-Bird, Pemina D. (with attachment).....................    80

Note: Other material submitted for the record retained in 
  committee files.


                     NATIVE AMERICAN SACRED PLACES

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                         TUESDAY, JUNE 4, 2002


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:02 a.m. in 
room SR 485, Russell Senate Building, Hon. Daniel K. Inouye 
(chairman of the committee) presiding.
    Present: Senators Inouye, Campbell, and Akaka.

 STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. The committee meets this morning for the 
first in a series of hearings that will be held on the 
protection of Native American sacred places as they are 
affected by the undertakings and activities of various Federal 
agencies. This morning we will receive testimony on how the 
activities of the military services of the Department of 
Defense [DOD] are affecting Native American sacred places.
    There are several Federal laws which address some aspect of 
Native American sacred places, but, even taken together, as we 
will hear today, they fail to provide adequate protection for 
places that are sacred to Native people. These laws include The 
American Indian Religious Freedom Act, the National Historic 
Preservation Act, and the Native American Graves Protection and 
Repatriation Act. In addition, in the previous Administration 
President Clinton issued an Executive Order addressing Native 
American sacred sites.
    We begin this series of hearings with the Department of 
Defense agencies, in part because the Department has 
implemented a number of initiatives which are commendable in 
their own right but which, unfortunately, have not been 
replicated by other Federal agencies. The Department of Defense 
has adopted a guidance and issued a publication in pursuit of 
the government-to-government consultation policy objectives 
established during President Clinton's administration.
    In addition, the Department has developed a curriculum to 
provide the commanders of military installations across the 
country, as well as those who serve under them, with a thorough 
background on the history of Federal Indian relations and 
Federal Indian law and policy.
    The Department has also contracted to develop a mapping of 
those geographic areas of the country that are the subject of 
treaties between Indian nations and the United States so that 
the Department and its services may know with whom they should 
consult when a proposed undertaking might affect tribal lands.
    The Department is certainly to be commended for its 
leadership in these areas; yet, as we will hear today, there 
are issues and areas that have not been addressed very well. 
Often, we have found that the best way to assure that negative 
patterns are not repeated is to identify the problem area so 
that we may better focus our attention on improvement.
    I wish to thank all of the witnesses who will appear before 
the committee today and to extend the committee's appreciation 
to the Sacred Lands Protection Coalition, the National Congress 
of American Indians, and the Morningstar Institute and the 
Institute's director, Suzan Shown Harjo for all that they have 
contributed to today's hearing.
    Before proceeding, may I call upon the vice chairman of the 
committee?

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
      COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Campbell. Thank you, Mr. Chairman.
    First, I think we are both aware that protecting cultural, 
religious, and ceremonial resources is not only a concern for 
Native Americans, but is or certainly should be a concern for 
all Americans. In fact, the week before our Memorial Day 
recess, the House Resources Committee favorably reported a bill 
to transfer ownership of 900 acres known as Martin's Coves to 
the Church of Mormon. This was land, Mr. Chairman, in which 150 
people perished in a blizzard, and the land has enormous 
historical and religious value to the members of the Mormon 
Church.
    I would also say that protecting sacred places, that deeply 
held conviction is not limited to Americans, alone. People 
around the world are clamoring to preserve and protect 
religious and cultural sites in Turkey, Italy, Greece, the Holy 
Land, South America, Afghanistan, and many other places. There 
is something uniquely human about protecting the sacred and 
keeping the sacred and the mundane separate and apart, and 
that's what this is all about.
    In addition to the sites we will hear about today, there 
are places Native peoples hold very dear, such as the 
Huckleberry Patch in Oregon, Mt. Graham in Arizona, Sand Creek 
site in Colorado, and hundreds of other places that are being 
threatened as we speak. Just as Native people continue to 
protect their ceremonial lands, it is evident to me that the 
legal protections now in place for cultural and religious sites 
in America are lacking in many respects.
    Let me add, from the Antiquities Act of 1906 to the 
American Indian Religious Freedom Act of 1978 to the American 
Native Graves Protection and Repatriation Act of 1990, each of 
these key laws have proven very valuable and yet unable to 
fully protect the Native sites.
    I am very well aware of your efforts in this regard, Mr. 
Chairman. I look forward to our hearing. With that I'll put the 
rest of my opening statement in the record.
    The Chairman. Without objection, so ordered.
    Our first panel consists of the deputy assistant secretary 
of policy and legislation from the Office of the Assistant 
Secretary of the Army. He will be accompanied by Charles R. 
Smith, assistant for environment, tribal and regulatory 
affairs, Office of the Assistant Secretary of the Army; and 
Philip W. Grone, Principal Assistant Deputy Under Secretary of 
Defense for Installations and Environment.
    Gentlemen, I welcome you. Secretary Dunlop.
    Mr. Dunlop. Thank you very much, Mr. Chairman. I might say 
that those of us at the Department of Defense are quite 
conscious about rank and things, and I think that Mr. Grone 
representing the Secretary of Defense would be a little bit 
higher in rank than the Secretary of the Army, so I wonder if I 
might defer to ask Mr. Grone to proceed first.
    The Chairman. Mr. Secretary.

STATEMENT OF PHILIP W. GRONE, PRINCIPAL ASSISTANT DEPUTY UNDER 
     SECRETARY OF DEFENSE [INSTALLATIONS AND ENVIRONMENT], 
                         WASHINGTON, DC

    Mr. Grone. Thank you, Mr. Dunlop. Thank you, Mr. Chairman.
    Chairman Inouye, Senator Campbell, and members of the 
Committee on Indian Affairs, I am honored to appear before you 
this morning on behalf of the Department of Defense to address 
the policies and procedures of the Department and its 
components with regard to the protection of sacred lands and 
sites that are vitally important to Native Americans.
    Mr. Chairman, with the permission of the committee I have 
prepared a written statement that was submitted earlier. I will 
briefly summarize that statement, and I request, with the 
permission of the committee, to have my written statement 
included as a part of the record.
    The Chairman. So ordered.
    Mr. Grone. Thank you, Mr. Chairman.
    The Department of Defense and its components have a 
longstanding relationship with Native Americans. We recognize 
and honor the deep commitment of Native Americans to the 
defense of the United States. That commitment, reflected by 
those who currently serve in uniform, as well as the nearly 
190,000 Native American military veterans who came before them, 
has yielded substantial contributions to the Nation's security, 
including the Indian code talkers, most notably the Navajo, who 
exercised a decisive role during the Second World War, along 
with other code talkers, including the Choctaw, Comanche, 
Oneida, Chippewa, Sac, Fox, and Hopi.
    In his proclamation on Native American Heritage Month in 
November of last year, the President stated that:

    The strength of our Nation comes from its people. As the 
early inhabitants of this great land, the Native peoples of 
North America played a unique role in the shaping of our 
Nation's history and culture. We will work with the American 
Indians and Alaska Natives to preserve their freedoms as they 
practice their religion and culture.

    We believe that the Department is working every day within 
the spirit of the President's remarks. The primary mission of 
the Department of Defense is to prepare the armed forces to 
defend the Nation, to deter aggression, and, when necessary, to 
fight and to win the Nation's wars. Within that primary 
mission, DOD respects the importance tribes place on the 
protection of sacred sites on lands entrusted to us and under 
the administrative control of the military departments.
    Currently there are 45 military installations and ranges 
that contain known sacred sites within their boundaries. 
Consultation continues with a number of tribes concerning 
suspected sites on 15 additional installations. At these 
installations, installation commanders and the tribes work 
together almost daily to ensure that mission-related training 
can occur consistent with the protection of sacred sites.
    Moreover, as I indicated in my prepared statement, the 
military components administer 25 million acres of land, 
including 16 million acres of withdrawn public lands. There are 
157 military installations located within 50 miles of at least 
one Federally-recognized tribe, and 208 federally-recognized 
tribes live within 50 miles of a given military installation.
    To address the relationship appropriately, the Department 
of Defense and its components are working cooperatively with 
tribes on many levels to address a number of important issues, 
including the protection of sacred sites. In 1998, after 20 
months of extensive consultation with tribal organizations and 
tribal governments, the Department promulgated its American 
Indian and Alaska Native policy. Through this policy, building 
upon existing law and treaty, regulation, executive order, and 
Department of Defense directive, we sought to provide a 
comprehensive framework within which the components could 
approach issues of concern to the tribes. The implementation of 
this policy has resulted in significant improvements in the way 
we interact with tribal governments. The policy includes four 
guiding principles: trust responsibility, government-to-
government relations, consultation, and natural and cultural 
resources protection.
    Many of our installation commanders have formed 
partnerships and undertaken formal agreements with tribes as 
part of an overall plan to protect the cultural resources 
located on the installation. These partnerships and agreements 
cover issues including, but not limited to, the access to and 
protection of sacred sites.
    With the policy as a backdrop, DOD has undertaken several 
initiatives that are key to the protection of sacred sites at 
our installations. One of these involves the development of 
integrated cultural resource management plans, or ICRMPs. 
ICRMPs are an important tool utilized by installation 
commanders in the management of cultural resources. Typical 
ICRMP requirements include surveys; consultation with affected 
parties, including Native Americans; and activities to mitigate 
the effects on cultural resources. Although not required by 
law, ICRMPs are required by DOD policy for all installations. 
At the conclusion of fiscal year 2001, 212, or 53 percent of 
the 398 ICRMPs identified for planning purposes, were 
completed. We continue to track the completion of ICRMPs as a 
performance measurement within the Office of the Deputy Under 
Secretary of Defense for Installations and Environment.
    Another important step DOD has recently taken is a Defense-
wide training effort on the implementation of our policy. Our 
office has sponsored a series of DOD-wide training courses 
since June 1999, with our most recent course taking place just 
last month at Ellsworth Air Force Base, South Dakota.
    Through this program we have trained nearly 500 DOD and 
component staff, as well as 150 commanders and senior leaders 
on American Indian law, history, consultation, cultural 
communications, and cultural resource issues, including the 
protection of sacred sites. The courses are designed to be 
comprehensive and incorporate participation by tribal elders, 
local tribal historians, and cultural resource specialists.
    The military departments, for their part, have also 
embarked upon training courses. For example, the Civil Engineer 
Corps of the Navy has conducted training in this area for the 
last four years. The Army National Guard is also significantly 
involved in training and outreach activities and will conduct 
two consultation workshops later this year in Springfield, 
Missouri, and in Providence, Rhode Island.
    In recognition of the importance of ICRMPs and as a part of 
the continuing emphasis on training, my office last month 
issued to the components a publication entitled, ``Commander's 
Guide to Stewardship of Cultural Resources.'' Developed in 
cooperation with the National Trust for Historic Preservation, 
the guide provides installation commanders with fundamental 
information concerning the development and implementation of 
all facets of an integrated cultural resource management plan.
    In summary, through the implementation of current law and 
treaty, regulation, executive order, and DOD directive and 
policy, we believe the Department of Defense and the components 
are effective in providing access to and protection of sacred 
sites.
    Recognizing that we can continue to deepen our 
understanding of the nature of sacred lands and to improve our 
programs, we will continue to work cooperatively with the 
Congress, tribal governments and organizations, and other 
interested parties in addressing this issue.
    As I conclude my remarks, Mr. Chairman, I want to 
acknowledge the contribution of those key members of the OSD 
staff who work in this policy area. Len Richeson and Stacey 
Halfmoon serve in the Office of Environmental Quality on the 
Deputy Under Secretary of Defense (Installations and 
Environment) staff, and Jim Van Ness serves in the Office of 
the Deputy General Counsel for Environment and Installations. 
Each of these individuals have made significant contributions 
to our policies and procedures. While we believe we have a 
solid record of accomplishment, we continue to look for ways to 
improve our efforts. In that regard, Mr. Chairman, we look 
forward to a continuing dialogue with this committee on matters 
of mutual concern.
    Thank you for your time this morning. I am prepared to 
address any questions the committee may have.
    The Chairman. Thank you, Mr. Secretary. We will be calling 
upon you in a few minutes.
    [Prepared statement of Mr. Grone appears in appendix.]
    The Chairman. Secretary Dunlop.

   STATEMENT OF GEORGE S. DUNLOP, DEPUTY ASSISTANT SECRETARY 
[POLICY AND LEGISLATION], OFFICE OF THE ASSISTANT SECRETARY OF 
  THE ARMY, WASHINGTON, DC, ACCOMPANIED BY CHARLES R. SMITH, 
    ASSISTANT FOR ENVIRONMENT, TRIBAL AND REGULATORY AFFAIRS

    Mr. Dunlop. Thank you very much, Mr. Chairman.
    Indeed, I am the deputy assistant secretary of the Army for 
policy and legislation in the Office of the Assistant Secretary 
of the Army for Civil Works, so the thrust of my testimony 
today will focus on that aspect of the Army that deals with 
civil works matters. I'm accompanied by Chip Smith, who is also 
in our office, and he is our assistant for environment, tribal, 
and regulatory affairs.
    In addition to these brief summary remarks, I wonder if I 
also might be permitted to submit for the record our formal 
statement?
    The Chairman. Absolutely.
    Mr. Dunlop. Thank you, sir.
    Also, in addition to that, I believe that we provided to 
the committee some documents I'm going to reference in just a 
moment that we hope will kind of outline some of the things 
that we found to be successful. It might serve as a road map, 
perhaps, as you suggested, to other agencies and people who 
would be interested in coming up with the kinds of procedures 
and practices that would follow Congressional intent, as you 
have described it.
    Also, I would like to reiterate what Secretary Grone said 
in regards to President Bush's formal proclamation, which did 
acknowledge the sovereignty of tribal governments and affirmed 
our responsibility in the Executive Branch to work with tribes 
and with Indian people to address concerns they have about 
sacred sites and lands, particularly as we interpret that as 
would be impacted by Army civil works activities.
    As you all might know from other work that you do here in 
the Senate, the Army civil works program is virtually all over 
the Nation. We have 38 different Districts divided in eight 
divisions with some 35,000 people engaged in our business.
    There's three ways that the Army's civil works programs 
might have an impact on sacred sites and lands. First of all, 
it comes from the operation and maintenance of the projects in 
which we have engaged. The Army has more than 1,000 projects 
that have been built over the past 100-some years. This 
includes more than 600 dams and their attendant lakes and river 
systems, comprising in Army ownership now some 12 million acres 
of land and water resources. About 25 percent of these Army-
controlled lands could potentially affect the treaty and trust 
resources of about 90 tribes, and just in the lower 48 States, 
and, of course, many, many people up in Alaska. We have 
identified what we believe is in excess of 60,000 known 
archeological and sacred sites, so we have quite a big task.
    The second way that we can impact is through the 
implementation of additional water resources projects that are 
underway. We do that in concert with non-Federal sponsors, 
which means oftentimes we obtain lands and other operating 
activities with local people, including tribes, that end up 
operating these projects.
    And then the third way is through our Corps of Engineers 
regulatory program. Most famous is the section 404 permitting, 
but we also have other regulatory authorities, as well.
    The current Army civil works Indian affairs activities 
really began in the current cycle in about 1994, when the Army 
established its Native American Inter-Governmental Task Force. 
The Corps of Engineers since then has now engaged into about 19 
different workshops we had carried out between about 1994 and 
1995 or 1996 involving more than 550 tribal representatives 
from 186 federally-recognized tribes. One of the outputs of 
that was one of the documents I referenced earlier, this two-
volume document entitled, ``The Assessment of Corps and Tribal 
Inter-Governmental Relations.''
    In 1998 the chief of engineers issued policy guidance 
letter number 57 that began to incorporate the things that we 
learned into the actual operations of the day-to-day activities 
of these Corps offices and Districts that I described earlier, 
including a set of what we call ``Army Civil Works Tribal 
Principles,'' and those are detailed in my formal testimony, 
but the bottom line is that we affirm that the tribes retain 
their inherent rights to self-government and that we have an 
obligation to consult prior to any final decision-making with 
people who are possessed of these rights and privileges.
    Then, in 1998, the chief issued policy guidance letter 
number 58, which specifically intended to address the executive 
order that the chairman mentioned.
    My testimony details additional further steps that we have 
taken that the bottomline of which is to make sure that 
representatives of all of the functional groups of the Corps of 
Engineers are involved in carrying out our responsibilities 
under these various laws and acts. We have more than 70 Corps 
employees designated as Native American specialists, and they 
operate and liaison with the Corps of Engineers at their 
headquarters here in Washington.
    In January 2002 the Corps' Institute of Water Resources 
published this document, ``The Tribal Partnership program,'' 
that identified issues relevant to working with Native 
Americans and Alaska Natives, and this has been provided to the 
committee.
    I think, in conclusion, Mr. Chairman, the point is we could 
go through a lengthy list of threads from the fabric of 
specific things that we have taken to make sure that there is 
adequate consultation and involvement, and I can say that my 
inquiries to all of the people that report to us in the 
Department of the Army--are there any fundamental policy 
issues? Is there anything where there's disagreement where, you 
know, we just feel we can't carry out some of the things we've 
been told to do because we haven't reached agreement on policy? 
And the answer I get is none. To the degree that what we might 
be doing in the Army is not satisfactory is a degree to which 
we have got to learn to perform in particular matters in site- 
and situation-specific circumstances and inform ourselves 
better about how to carryout the intentions of Congress. I 
don't sense or know about--perhaps you could correct me--any 
fundamental policy differences about these matters.
    We have focused on six elements of effort that we think can 
guide our activity and the activity of other agencies or 
bureaus of the Government, perhaps, if they were so inclined.
    No. 1, to have effective protection of sacred lands and 
sites. We believe these can be facilitated by, number one, 
leadership that seeks to achieve a consistency in Federal 
policies and practices and the Federal approach toward the 
tribal nations and these concerns that they have.
    No. 2, that we can develop effective government-to-
government relationships--that is, not only the Federal 
agencies, but to the subordinate agencies of government in our 
Constitutional framework.
    And the third element is there has to be real consultation 
and real partnerships prior to our reaching final decisions 
about matters of particular interest.
    And then we believe in leveraging resources to the greatest 
extent we can, and also that we have a planning process that 
people can participate in in a formal and consultative way as 
we develop our policies, programs, and activities. And then, of 
course, finally, the ultimate issue I guess is a policy issue, 
and that's the allocation of resources of people and money.
    Mr. Chairman, that concludes my informal remarks. Of 
course, myself and Mr. Smith are available to respond to any 
questions you all might have. Thank you so much for this 
opportunity.
    The Chairman. I thank you very much, Mr. Dunlop.
    [Prepared statement of Mr. Dunlop appendix.]
    The Chairman. Now, if I may begin asking questions, one of 
the words used most often when we describe Federal Indian 
policy is the word ``consultation.'' All too often, 
consultation has been looked upon by our Government agencies as 
notification after the fait accompli. I'd like to ask Mr. Grone 
how are tribal consultation policies implemented? Is that the 
way we do it?
    Mr. Grone. Mr. Chairman, that is not the policy of the 
Department of Defense and that is not how we do it. With regard 
to consultation, a consultation is, in many ways, the most 
important piece of the four pillars of our overall policy. 
Within the framework of consultation and the emphasis we place 
within our training is to recognize that consultation is an 
ongoing process and must retain a high level of flexibility to 
meet the unique circumstances which any installation commander 
may come upon in working in a collaborative relationship with a 
tribe or tribes.
    So what we try to do with regard to the consultation 
process is set up a number of different types of procedures 
which may be used in that process. Consultation can be 
formalized through different types of agreements. We use 
programmatic agreements, we use cooperative agreements, we use 
memorandums of understanding or memorandums of agreement, but 
we do try to proactively work with tribes in areas of mutual 
concern and try to emphasize to our installation commanders 
that this is an ongoing part of their installation management 
practice to ensure that they are in regular consultation with 
the tribes.
    When we discover, or when an installation commander 
discovers, an area that may be of potential concern to a tribe 
under our policy and under existing law, activities will cease 
and we will undertake the appropriate level of consultation.
    The Chairman. How do you assess and monitor compliance with 
Executive Order 13007?
    Mr. Dunlop. We monitor at a very general level within OSD 
compliance with the Executive order. The military departments 
execute the executive order. We are working on an ongoing basis 
to currently deepen our consultative mechanisms within the 
Department of Defense. We are currently in the process of 
development which is not yet finalized. We are currently in the 
development of an integrated product team that will involve all 
of the components, including the Corps of Engineers, in a 
process whereby we can regularly and routinely consult with 
each other and monitor progress on the implementation of our 
policy. That policy document--that IPT charter is currently in 
development and, once finalized, we will be happy to provide it 
to the committee for your information.
    The Chairman. Secretary Grone, if I may, I'd like to touch 
upon specific issues. Based on the input we have received in 
preparation of this hearing, there appears to be a systematic 
failure in the Corps' compliance with the National Historic 
Preservation Act and the Native American Graves Protection Act 
in relation to its Missouri River mainstream dam operations. 
Tribal leaders and historic preservation professionals have 
informed us of a widespread lack of understanding and 
implementation of government-to-government consultation for 
tribes in regard to cultural resource management.
    So my question is: Will you please assess the Missouri 
River cultural resource program and its compliance with 
historic preservation laws? Are you satisfied?
    Mr. Grone. Mr. Chairman, as I indicated in my prepared 
statement, we believe across all of the components we can do 
better in terms of our consultation processes, and we are 
striving to do so. With regard to the specific issue you raise, 
I will ask Mr. Dunlop to speak to specific questions of 
execution, but I want to lay out a further framework.
    When we developed our initial policy in 1998, the Corps of 
Engineers was a participating agency in the development of that 
policy. They were a member of the policy development team, and 
the Corps, as Mr. Dunlop indicated, has undertaken several 
initiatives that are consistent with that policy, although I 
understand that there is some criticism of the Corps' execution 
of the policy.
    With regard to specific issues in regard to Missouri River, 
I have the honor and privilege of sitting for the Secretary of 
Defense in his capacity as a voting member of the Advisory 
Council on Historic Preservation. Next week the Council will 
undertake an informational hearing in Pierre, SD, specifically 
on the question of Missouri River. I will attend that hearing 
to hear first-hand from both the Corps, in terms of the 
implementation of its activities, as well as concerned tribal 
organizations, tribal governments, as well as elders, their 
views and perspectives on the Missouri River issue. I view that 
hearing as important not just to the activities of the Advisory 
Council, but important for the Department of Defense and the 
Corps of Engineers to better understand and adjust policy where 
necessary and practice where necessary to accommodate the 
concerns of affected parties.
    The Chairman. Are you satisfied that the Missouri River 
personnel have been provided with adequate Indian law and 
policy training?
    Mr. Grone. Mr. Chairman, to be quite frank, I've not looked 
at it at that level. I will do so and provide a response to you 
and to Senator Campbell. We are training, through our own 
training programs, Corps personnel. The Corps of Engineers is 
also engaged in a series of training activities for their 
personnel. I have not yet been in a position to judge or assess 
the adequacy of those various training programs that the Corps, 
itself, has undertaken, but they are extensive. Many of the 
issues involved here may well be in terms of not just the 
training but the execution, as Mr. Dunlop indicated, but I 
would have to yield to him to explain in more detail how the 
Corps intends to execute in this area.
    [Information follows:]

                Adequate Indian Law and Policy Training

    The Omaha District Corps of Engineers cultural resources 
personnel have an extensive list of training requirements to 
complete before working in this important area. This training 
is outlined in the Omaha District Cultural Resources Program 
Management Plan [CR PgMP]. The training focuses on skills 
needed to complete Civil Works Planning, Programming and Policy 
functions. For cultural resources, the plan specifies both 
formal and informal training requirements. The formal training 
includes National Historic Preservation Act [NHPA] Section 106, 
Native American Graves Protection and Repatriation Act 
[NAGPRA], and Archaeological Resources Protection Act [ARPA] 
courses as well as training on more than 20 applicable laws and 
regulations. On an informal level, it includes working directly 
with the tribes on a regular basis to help apply and understand 
another cultures' perspective on these laws. This continues to 
be a valuable and necessary component to the training program.
    The U.S. Army Corps of Engineers takes advantage of 
training that will give us a Native American perspective on the 
same laws mentioned above. Recently the Corps sent two people 
from their office to a training class sponsored, in part, by 
the Three Affiliated Tribes of North Dakota. At this training, 
a University of Montana professor spent 3 days teaching NHPA, 
NAGPRA, ARPA, National Environmental Policy Act [NEPA] and 
other laws from a tribal perspective. This type of training is 
helpful as the Department continue to try to understand how 
others may interpret the laws and regulations that apply to 
cultural resource sites on Federal lands.

    The Chairman. Do you believe that the Department should 
more systematically and programmatically involve Native 
Americans in your planning on cultural and natural resource 
management?
    Mr. Grone. We do as a matter of our practice through the 
ICRMP process. That consultation is quite extensive. We believe 
that we have built up and the military components have built up 
a record of success of consultation on those 45 military 
installations where we have known and identified sacred sites, 
as well as the consultation which continues for the 15 military 
installations where we suspect there may be sites of concern to 
Native peoples. We are working that consultation aspect very 
hard. We aggressively include Native Americans in the 
consultation process. While I readily admit that we could 
continue to refine our policies, programs, and procedures, I am 
confident, with regard to most of the programs of military 
components which I am personally familiar, that that level of 
consultation is quite good, quite systematic, and adequately 
addresses a number of the statutory requirements that we have 
to afford protection to cultural resources aboard those 
installations.
    The Chairman. We have been advised that the Corps of 
Engineers is considering establishing an Indian desk at the 
headquarters level. Can you give us a status report on that?
    Mr. Dunlop. Mr. Chairman, why don't we take that particular 
question? Of course, as I indicated to you earlier, Mr. Smith 
actually operates in the Office of the Assistant Secretary as 
our assistant for environmental, regulatory, and tribal 
affairs, but, as regards to your question about the Corps of 
Engineers, headquarters Corps of Engineers, Chip, could you 
inform the committee of that?
    Mr. Smith. Mr. Chairman, an Indian desk has been a subject 
of discussion for some time. Recently, we have received six 
letters from tribes or tribal organizations bringing up the 
subject. We've had discussions with our office and the director 
of civil works at the Corps headquarters, and the director has 
assured us that they will consider the matter and try to 
determine how to incorporate that function in their business 
process.
    The Chairman. We have found it rather strange because other 
Federal agencies have Indian desks and the Corps of Engineers, 
an agency that does a lot of business with Indian nations, is 
just considering it.
    Mr. Dunlop. Well, one of the things, Mr. Chairman, that I 
think we're kind of proud of is that we have really made an 
extraordinary effort, I believe, to incorporate throughout the 
entire fabric of our system this level of consciousness that 
you have expressed an interest in. Our directives, the two that 
I mentioned plus one I didn't, which is the tribal nations 
strategy which we've now finalized, at least as updated as of 
August 2001, is a very comprehensive approach so that 
throughout the entire Corps system this level of consciousness 
is something that our people are held accountable for. But I 
will, indeed, take back your concern to the chief, to the 
director of civil works, and, as we put together the manning 
and budgeting elements of the way they organize that agency, I 
will carry that message to you and we will give it highest 
consideration at our level.
    The Chairman. I have many other questions, but may I call 
upon the vice chairman.
    Senator Campbell. Thank you, Mr. Chairman. This hearing is 
turning out to be tremendously interesting for me. I might 
commend the people here from the Defense Department and, in 
fact, all the different parts of the military. I think they 
have come a long way in 50 years, very frankly, to providing 
equal opportunity, equal pay, equal rank, things of that 
nature, that could be a model for many other agencies in the 
Federal Government and certainly many places in the private 
sector, too. It wasn't always that way. I come from an ancestry 
that the military was not particular fond of years ago, and 
Senator Inouye comes from one that certainly felt its 
discrimination up until World War II, so they have come a long 
way, and I just wanted to say that for the record.
    Mr. Grone, you might know that just this morning we are 
honoring the Navajo Code Talkers. We did that once before about 
1 year ago when President Bush awarded them the Gold Medal of 
Freedom. They are back here today for the movie that's being 
released tonight, ``Wind Talkers.'' They are here. That's an 
honor that is 50 years late for them, as you probably know, and 
I'm just delighted with the military's support of the bill that 
was introduced to do that by Senator Bingaman.
    When we talk about protection of sacred sites, there are 
obviously some real problems with Indian people because, first 
of all, they weren't recorded. They didn't have a written 
language and they were reluctant to talk about them, and often 
sacred sites, unlike many places when we think of some 
religious connotation, there's no big building there. There's 
no edifice there. There might be just a field of grass. But for 
Native peoples, it is anywhere where their ancestors or their 
spirits lay. That's a sacred site for them.
    There might not be imposing physical characteristics, but 
also many times I think that elders who know where the sites 
are were reluctant to talk about them, reluctant to share any 
information about them because it wasn't so long ago that they 
suffered a terrific problem with grave robbing, as you know, 
and still do--artifact stealing off of the public lands, as you 
know, too. There are many laws now in place to try to take care 
of it, but I think it is one of the reasons that Native peoples 
have really clammed up and don't speak about it.
    So maybe let me pose the first question to Mr. Grone. When 
you are trying to identify geographical sites, have you 
encountered a reluctance on the part of any Indian people you 
deal with to open up about them for perhaps fear of further 
damage to that site?
    Mr. Grone. Senator Campbell, the military components have 
encountered from time to time some reluctance to identify 
sacred sites for precisely the reasons you enumerated. We work 
very hard. The chairman has indicated the efforts we've put 
into mapping, the efforts we've put into other forms of 
aggressive consultation with the tribes to try to determine 
precisely where sacred sites may be so that we can accommodate 
the military mission without disruption to Native American 
sacred sites.
    We continue to work that very hard. I believe in nearly all 
cases we have been able to accommodate, once identified, access 
to and protection of sacred sites with the military mission and 
there is, as far as I am aware, no significant encroachment 
consideration or mission impact consideration with regard to 
the protection of those sites, but the key for the military 
departments, of course, and the components is the 
identification of the site, and so we continue our outreach 
activities, we continue our training activities, cultural 
communication, cultural sensitivity to be able to try to 
identify as many of those sites as we possibly can to 
adequately include them in our integrated cultural resource 
management plans and to adjust training schedules, training 
environments, and other activities in a way that it does afford 
the appropriate level of protection.
    Senator Campbell. Yes; let me maybe ask a question about my 
own State. You're certainly familiar with Pinon Canyon, Fort 
Carson.
    Mr. Grone. Very familiar, sir.
    Senator Campbell. It's a huge area where they train these 
M1A1s and a lot of pretty sophisticated weaponry out there. 
Indian people historically have moved, and many of the people 
in that area were nomadic. That area of Colorado at one time 
was pretty much controlled--well, it was controlled by whoever 
was strong enough to control it, I guess, but in that case it 
was Cheyennes and, I think, Southern Arapaho, some other groups 
that were in that area. Fort Carson has been there long before 
we took a real interest in trying to protect the things that 
are on that site.
    I have been out there a number of times. In fact, they have 
a full-time archeologist there to try to make sure that those 
areas that have petroglyphs and different cultural or 
potentially religious places are protected.
    I was wondering, when you deal with a mobile group--the 
only two land-based tribes in Colorado now are the Utes--who do 
you deal with when you're trying to protect these sites, 
because all sites are not sacred to all Indian people, as you 
probably know.
    Mr. Grone. Yes.
    Senator Campbell. Some are tribe-specific, but that tribe 
may not be there any more. It may have moved somewhere else or 
been moved by force by the Federal Government, so how do you 
know who you're supposed to deal with?
    Mr. Grone. That is a significant challenge for the 
components. As again with the mapping exercise and with trying 
to identify our treaty obligations from past treaty activity, 
that, in coordinate consultation with the ongoing consultation 
that we have, we do try to identify. We put a great deal of 
effort into lineal descendants. We've tried to ascertain where 
folks may have moved, where tribes may have moved, individuals 
may have moved over time. But everything, again, comes back to 
consultation and comes back to the ability of our staff and the 
component staffs, working through the archeological record, 
working through the cultural record, to try to identify.
    Senator Campbell. Do you do that for the people who were 
originally there?
    Mr. Grone. Yes; and in the case of Fort Carson, that 
activity has been underway, as you know, since 1983.
    Senator Campbell. Yes.
    Mr. Grone. And in the context certainly of the broader DOD 
program, but certainly in the case of the Army, Fort Carson has 
one of the most respected natural and cultural resource 
programs within the Department of Defense, led by a very able 
team of cultural and natural resource specialists, so they have 
been very active in trying to identify both permanent and 
migratory----
    Senator Campbell. Last time I was out there, I want to tell 
you that they gave me a very fine tour of the things that were 
being protected.
    Mr. Grone. Yes.
    Senator Campbell. But it did make me kind of wonder, from a 
nationwide standpoint, how much had already been lost before we 
knew it was there. I think generally we are doing a pretty good 
job and need to do a better job.
    Mr. Grone. Yes.
    Senator Campbell. But there must have been an awful lot of 
sites that are under concrete now that we may never know about.
    Mr. Grone. Certainly, sir, I believe that to be the case.
    Senator Campbell. Now, one other question. A couple of 
years ago, you know we went through the base closings and a lot 
of Federal surplus property was given back to different areas. 
How does the Department work with that? Has the Department ever 
turned over a former military base to an Indian tribe for 
cultural or religious purposes?
    Mr. Grone. Senator Campbell, I'm not aware that we have 
ever turned over an entire base to a tribe for that purpose. 
Usually, as you know, the base reuse process works through the 
local redevelopment authority mechanism, which is a recognized 
agent of the State, in terms of trying to put that property 
into effective reuse.
    Senator Campbell. When you do that, for instance, the 
Federal Government returned Fitzsimmons Hospital----
    Mr. Grone. Yes, sir.
    Senator Campbell [continuing]. To the State of Colorado. 
Are there restrictions that go with it, that is, if you have 
something in place to protect a site that is within the 
authority of your Department and you turn that over to a State, 
do those restrictions go with it so that the State must also 
comply with them?
    Mr. Grone. In general. I would have to, in part, take the 
question back, but my understanding of how we have proceeded is 
that existing restrictions with regard to the protection of 
historic and cultural assets as property transitions, the 
appropriate covenants and protections would pass through the 
title, so it would not be susceptible to disruption at that 
point.
    [Information follows:]

       Restrictions on Transferring Historic and Cultural Assets

    Whenever the military departments propose to dispose of 
real property they no longer require, whether as a result of a 
base closure or realignment decision or other process, the 
disposal must satisfy the requirements of the National Historic 
Preservation Act [NHPA]. In most cases, the most effective way 
to address these requirements and to ensure that historic 
properties, including sacred sites and other traditional 
cultural properties, will remain protected following transfer 
of the property is to record a preservation covenant as part of 
the transaction. These preservation covenants thereafter ``run 
with the land'' and operate to protect these historic 
properties indefinitely despite the fact that the NHPA may no 
longer be applicable directly [because the NHPA applies only to 
undertakings by the Federal agencies].
    The NHPA requires Federal agencies simply to (1) 
``consult'' with the Advisory Council on Historic Preservation, 
State Historic Preservation Office, or Tribal Historic 
Preservation office before proceeding with an undertaking that 
may affect listed or Register-eligible properties; and (2) 
affirmatively take into consideration such potential effects as 
part of the decisionmaking process. In this respect, the NHPA--
like NEPA--is merely a procedural statute requiring agencies to 
``look before they leap.'' Consequently, the imposition of a 
preservation covenant is not, strictly speaking, legally 
required. Nonetheless, in most cases when listed or Register-
eligible properties are being transferred out of Federal hands, 
the only way the transferring agency can ensure that these 
properties remain protected--and work through the section 106 
process without provoking an adverse comment from the Council 
that must be responded to in writing by the Secretary--is to 
impose a preservation covenant.

    Senator Campbell. Okay. Can I ask Secretary Dunlop a 
couple, Mr. Chairman?
    The Chairman. Yes.
    Senator Campbell. Secretary Dunlop, in the light of what's 
happened since 9/11 there's certainly a heightened state of 
preparedness nationwide. Does the authority that you now have 
put you in any more difficult position when you're negotiating 
or altering projects under the new--you know, we're living in a 
different world now since 9/11 with homeland defense and 
increased security and so on. Has that affected your ability?
    Mr. Dunlop. Do you mean specifically in regard to these 
sacred sites?
    Senator Campbell. Yes.
    Mr. Dunlop. Well, sir, I think not. I think that my 
information is that, with the enactment of the Water Resources 
Development Act of 2000 there were two sections added, sections 
203 and section 208, and both of those new authorities that 
Congress gave to the Army, to the Corps of Engineers, enabled 
us to more aggressively work with people who would be 
interested in these sacred lands, even to the extent, 
addressing the former question that you asked Mr. Grone about 
transferring lands.
    Senator Campbell. Yes.
    Mr. Dunlop. We can take lands that are in the Federal 
estate now and----
    Senator Campbell. So your decisionmaking process has not 
been measurably altered by 9/11 then?
    Mr. Dunlop. No, sir; well, I think that the principal way 
that every agency of the Government works, including ours, 
including every program and activity we engage in is allocation 
of resources. There is less money for those----
    Senator Campbell. Along the line of allocation of 
resources, I know that sometimes with other agencies like Park 
Service, BLM, and so on, we are told here in Congress that we 
are not providing enough resources for not only management, but 
enforcement. Have you found that true, too? For instance, if 
you have to arrest or detain someone found looting, which is 
still not uncommon, do you have the manpower to be able to do 
that effectively?
    Mr. Dunlop. Well, my information is that we've not had any 
significant, but Mr. Smith would be a more day-to-day person 
who could respond to that.
    Senator Campbell. You can answer that, Mr. Smith.
    Mr. Smith. Senator Campbell, enforcement really is a very 
important issue for the Corps of Engineers, all of our 
projects. As you know, most enforcement activities that the 
Corps does are by rangers, and rangers are essentially--well, 
they're trained in some aspects of enforcement. They are 
unarmed, and mostly they are trained as interpreters or 
educators, traffic control, and that sort of thing, 
recreational safety. What they need to do is develop agreements 
with local jurisdictions--which could include tribes, and does 
in some cases--so that when vandalism occurs and a ranger spots 
it they know who to contact that has the proper authority to 
arrest somebody, hold property, and take the appropriate 
action.
    So yes, it is challenging, but we do what we can to develop 
cooperative agreements with local law enforcement 
jurisdictions.
    Senator Campbell. And the last question: Do you have an 
active Indian recruitment policy, for instance, for these 
rangers?
    Mr. Smith. In Indian Country primarily most of our district 
engineers who go through commander's training before they take 
command are informed of Indian Affairs issues and our need to 
reach out to Indian people. I know of six Native American 
coordinators that work for the Corps of Engineers now that are 
Indian, and they annually go to job fairs and try to help 
Indian supply for jobs and come on board as engineers, 
scientists, social scientists, or other disciplines.
    Senator Campbell. Yes.
    Mr. Smith. I mean, we could do more, but we are reaching 
out and doing what we can.
    Senator Campbell. Well, I would encourage you to do that. I 
just happened to be on the road a couple nights ago, Senator, 
and stopped at a truck stop by Winslow, AZ, and there were 
about 60 or 80 young Navajo men in there that are members of 
what they call ``Hot Shots.'' They battle fires out west. Some 
of our Federal agencies have done a terrific job of recruiting 
Indian people for jobs that they desperately need on 
reservations, so I would think this would also be an 
opportunity for recruitment.
    Thank you. And thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    The committee wishes to commend the Air Force for working 
with the Acoma Pueblo in minimizing the disturbance that 
training flights have had on tribal ceremonial use and on 
sacred sites. Do you have any systematic way or any policy on 
how to work with tribes to minimize this type of intrusion--
noise and visual?
    Mr. Grone. Senator, we work with the tribes as we do with 
all affected parties with regard to noise control for purposes 
of the training and readiness of the force. There are specific 
certainly unique aspects in the context of protection of sacred 
sites. The Air Force I'm aware has a very sort of aggressive 
internally and works through their consultation process. Again, 
everything that we do in the Department precedes from the basic 
four pillars of the 1998 policy, which is why, again, we stress 
the flexibility of the consultative process. There is no one-
size-fits-all, although we very clearly try to take lessons 
learned from particular cases and try to apply them in others, 
but recognizing that there are unique circumstances either 
dictated by the military mission or dictated by particular 
cultural issues. Commanders have flexibility within that 
consultative process to address the concerns of Indian people 
with regard to a training activity or an overflight issue, and 
there are multiple issues of that ongoing on a daily basis, 
weekly basis, monthly basis where we are trying to adequately 
address those concerns, and the Air Force in most cases, in 
nearly all cases, is able to effectively work a process through 
consultation that addresses these concerns.
    The Chairman. Recently the president of the Fort Belknap 
Indian Community briefed the committee on the proposed Air 
National Guard bombing range in Montana, and I wish to commend 
the Air National Guard for its level of cooperation and 
partnership with the tribe because it is an impressive thing, 
and the current committee strongly recommends and encourages 
this type of collaboration.
    I just cited this to assure you that this is not a hearing 
to pick on the Department of Defense. There is good and bad. 
And if I may most respectfully suggest, if time permits, that 
you stay around, because the witnesses that follow have a few 
complaints, primarily about the Corps of Engineers. That seems 
to me, from what we have gathered from our hearings and 
investigation, to be the weak link, so if you could stay around 
I would appreciate it.
    Mr. Grone. Senator, I would be pleased to attend the rest 
of the hearing and to hear the concerns of the following 
witnesses.
    The Chairman. Thank you very much.
    Do you have anything?
    Senator Campbell. No further questions. Thank you, Mr. 
Chairman.
    The Chairman. Secretary Grone and Secretary Dunlop, Mr. 
Smith, thank you very much.
    Mr. Grone. Thank you, sir.
    Mr. Dunlop. Thank you.
    Mr. Smith. Thank you.
    The Chairman. Our next panel is the chairman of Three 
Affiliated Tribes Business Council and also the president of 
the National Congress of American Indians, Tex Hall; and the 
chairperson of the Lone Pine Paiute-Shoshone Tribe of 
California, Rachel A. Joseph.
    President Hall, [Native word], sir.
    Mr. Hall. [Native words.]

   STATEMENT OF TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES 
    BUSINESS COUNCIL, NEW TOWN, ND, AND PRESIDENT, NATIONAL 
          CONGRESS OF AMERICAN INDIANS, WASHINGTON, DC

    Mr. Hall. Good morning, Chairman Inouye, Vice Chairman 
Campbell, members of the committee. It gives me a great honor 
and privilege to be able to testify today on a very important 
committee hearing on protection of sacred lands throughout 
Indian Country.
    NCAI, National Congress of American Indians, has been 
working closely with a number of tribes and Morningstar 
Institute. We have also been working with the National Trust 
for Historic Preservation, USET--the United South and Eastern 
Tribes, NARF--the Native American Rights Fund, and, again, many 
other tribes in forming a coalition to really look at this 
issue, Mr. Chairman, members of the committee. This is an issue 
that is so important for Indian tribes and Indian Country.
    I have submitted my testimony and I will be talking about 
five points, but, just briefly, Mr. Chairman, on the 
background, it seems that, in listening to the previous 
testimony by the officials of the Army Corps of Engineers--and 
I'm sure they're trying to do a good job and I'm sure they 
really feel that they are doing what is necessary to consult 
with tribes, but I think that's one of our biggest problems is 
that we have a difference of opinion. Indian Country feels 
there's a lack of consultation, it's not up to what it should 
be, and there's a lack of the compliance with Executive Order 
13007 that was mentioned. There needs to be some sort of a 
mechanism to mandate full and meaningful consultation at the 
onset, let alone whenever there is legislation that is proposed 
or enacted on transfers of Federal lands to State entities--for 
example, to a State. Then clearly the consultation process 
simply is not there. It may be a name, but it's simply not 
there.
    There's no mechanism for tribes to really look to safeguard 
those sites, so consultation really is one of my five points, 
and that's clearly something that I would strongly--and, of 
course, our coalition will provide some recommendations--that 
we think is a big weakness that we really have to look at.
    Again, even if a transfer does take place, what Federal 
protections are in place for those sites that have been 
transferred on that former Federal property? There really is no 
mechanism. Tribes are still asking for that, and especially in 
the area of the Missouri River that you mentioned. Of course 
that's my neck of the woods, Mr. Chairman. That's where I come 
from. We feel that we're losing ground, so to speak, on the 
river. The Missouri River, as people know, people that are in 
the know know that it is an endangered river.
    I want to commend you, though, Mr. Chairman and Vice 
Chairman Campbell about having this hearing. This is a very 
important hearing, and it is not only for Native American 
people, it is for people of all color that are concerned about 
protection of sacred sites and the protection of the river, and 
so this is a very important hearing for all of us as we look to 
have better protections.
    Again, consultation is something that clearly needs to be 
strengthened before an action takes place and once an action 
does take place through legislative means.
    A second point is on existing Federal law. As I mentioned, 
NAGPRA and national historic preservation apply, but once the 
transfer takes place, if it is silent in the legislation, then 
what? What does a tribe do when it is trying to protect its 
sites? What if there is a commercial project on a known Native 
American site? And even if the Federal Government knows about 
this site, if the legislation is silent in terms of the Federal 
protections, then where does the tribe go? What is the Army 
Corps of Engineers' trust responsibility at that time? If it is 
silent, that's what tribes are concerned about. Then the tribes 
don't have a means to protect those sites.
    Tribes really have the wherewithal in terms of their tribal 
historic preservation offices, as well. We have some of the 
greatest experts. I appreciate, Senator Campbell, your comments 
about possible hirings. There is, as we know, a number of 
unemployed Native Americans that are very capable in this area 
that could be a tremendous asset, but, for whatever reason, not 
being actively recruited, not being actively utilized, and I 
think there needs to be something set in place that really 
looks to actively recruit and hire.
    In our neck of the woods, alone, we had to work long and 
hard to get a member of our tribe hired. We appreciate that, 
that the Army Corps of Engineers has hired one of our members, 
but that's one of a very few. I mean, it's less than--of all 
the total number of employees in the Army Corps of Engineers, I 
would venture to guess Native Americans are less than one-half 
of 1 percent.
    If you look at the total number of Indian lands, we're a 
lot higher than one-half of 1 percent. We're probably closer to 
over 10 percent. So one-half of 1 percent, in my opinion, is 
not acceptable. And the expertise and the capability is there, 
so we don't know what the problem is as to why we can't move 
forward and get more Native Americans hired that have the 
knowledge.
    If so, I think we would close that gap a lot sooner in 
terms of doing archaeological surveys, doing adequate and 
meaningful consultation, and helping with that government-to-
government relationship that at times we're seeing the gap 
widening.
    Existing Federal law, the Executive Order 13007, we need to 
strongly look at how we go about strengthening that. We're very 
pleased to hear, as the Secretary mentioned, that there will be 
a meeting in Pierre, South Dakota, on June 12 on the Missouri 
River. I want to commend them for doing that. That is a 
tremendous issue. I want to commend the committee for having 
the leadership for this. We're all looking forward to that in 
the tribes in attending that hearing, and we just are very 
concerned that our issues are going to be heard and there's 
going to be meaningful consultation.
    As the committee probably knows, the Lewis & Clark 
bicentennial will be coming very soon, 2003 to 2006, and we're 
very concerned about it. We've talked about protection 
enforcement of law enforcement. We feel there's a lack of it. 
With the possibility of millions of visitors along the trail, 
if we can't protect what we have currently, we surely are not 
going to be able to protect with the future of Lewis & Clark.
    The agreements sound good, but there is just a lack of 
them. There is a lack of agreements that have been facilitated 
between the Army Corps and tribes, and I would strongly 
encourage Army Corps and tribal agreements, because tribes are 
the best suited to enforce because more chances are not it's on 
their land. Their land is within the reservation. And so in my 
neck of the woods we have the river and we have Indian land, 
reservation land, on both sides of the river, and so does our 
sister tribe down south of us, Standing Rock, as well.
    But up and down the river, from St. Louis to Portland, we 
feel there's going to be a huge advent of visitors, and right 
now if we don't have adequate agreements, if we don't have 
adequate funding, and if we don't have adequate mechanisms in 
place, we're surely not going to be able to safeguard our 
sacred sites.
    There are many examples, Mr. Chairman, that I could get 
into of tribes that have called and have talked about looting 
that's going on right now as we speak, and that's not even 
taking into consideration--they say the Missouri River is 
losing between 30 and 40 feet per year, and that is exposing 
more sites, and when the water levels drop--and we know about 
the Master Manual and the efforts that the Army Corps of 
Engineers is doing to get that passed, and then the litigation 
for South Dakota and North Dakota and Montana about stopping 
the flow of water down south, but, nevertheless, with the dry 
conditions that are out in the west, that river has dropped. 
With that droppage and with that loss of 30 to 40 feet there 
are more sites being exposed and the Corps can't keep up. The 
Corps cannot keep up with its limited resources to adequately 
protect those lands and those sites.
    Members of our coalition say it is going to take $9 million 
a year at a minimum to protect our sacred sites along the river 
at the Missouri River, but I didn't hear what the Corps said 
was in their budget, but I bet you it is less than $1 million. 
I bet you it's less than $500,000. That would be about 5 
percent of what they need. With 5 percent of what they need, 
clearly they don't have the resources, and I don't know if 
they're asking for it. I don't know if the Army Corps is asking 
for it in their budget, but clearly that has to be one of the 
trust responsibilities that the Army Corps of Engineers has. 
That is a big issue with us.
    Tribes are trained. We went through the Department of 
Justice cops fast grants. Many tribes have committed to 
training our own local tribal members to become law enforcement 
officials. Tribes have game and fish departments. We have the 
knowledge, we have the expertise, we have training, but still 
not being utilized.
    Those agreements are taking far too long and they're just 
not completed. Again, we don't know what the issue is. We have 
cultural preservation officers. We have law enforcement 
officers. We are just not getting to the agreement side and 
getting things signed off.
    And then, of course, the funding. I just mentioned that 
funding, but, Mr. Chairman, I could go on and on about further 
examples, but I know there will be other tribal people 
testifying, and we just again, in closing, want to say we look 
forward to the continued dialog with the committee, and the 
coalition stands ready, as well as NCAI, in assisting and 
helping in what comes out of these hearings as to the next step 
forward, so thank you for your time, for giving me this 
afternoon.
    The Chairman. Thank you very much, President Hall.
    [Prepared statement of Mr. Hall appears in appendix.]
    The Chairman. Now may I recognize Chairperson Joseph.

 STATEMENT OF RACHEL A. JOSEPH, CHAIRPERSON, LONE PINE PAIUTE-
                 SHOSHONE TRIBE, LONE PINE, CA

    Ms. Joseph. Good morning, Mr. Chairman, Vice Chairman 
Campbell. I am Rachel Joseph, chairwoman of the Lone Pine 
Paiute-Shoshone Tribe in the Owens Valley located on the 
eastern side of the Sierras in central California.
    I am very honored to be here this morning to testify on 
behalf of my tribe and the Shoshone-Paiute, including my 
parents, who have prayed, worshipped, and healed themselves at 
the Coso Hot Springs.
    The Coso Hot Springs have been used by my people from time 
immemorial, and the healing power of the warm Coso water and 
mud is no longer the same. In 1947, the Department of Navy 
acquired the Coso Hot Springs through condemnation, and, 
because the area was believed to be rich in geothermal energy, 
plans were moved forward to tap this energy resource in the 
late 1970's with the Navy contracting with a private agency to 
develop the geothermal plant near the Coso Hot Springs. In 
January 1978 the Coso Hot Springs were placed on the National 
Register of Historic Places.
    Tribal members and the State historic preservation officer 
at the time expressed concern that geothermal production around 
the hot springs would have an adverse effect, and, indeed, it 
has. Over the years the temperature of the hot springs and mud 
have grown so intensely hot that we can no longer bathe there. 
We have asked the Navy to address the conditions of this 
springs, without success. Over 10 years ago the Navy, using its 
own resources and staff, reported that there was no connection 
between the conditions of the spring and the geothermal 
development next to the springs.
    We have been without the resources, and consequently not 
able to do our own independent, unbiased evaluation of the hot 
springs to determine the cause of the destruction and 
desecration. We do, however, have common sense observation that 
the temperature continues to rise and there's a difference in 
even the way the mud appears. It no longer is the pure, off-
white mud, but now a multi-color-streaked mud that exists 
there.
    Our need to continue to protect the hot springs continues 
today. The Navy has currently moved forward with further 
testing, deep wells, north of the springs to determine whether 
geothermal production and development should be expanded.
    My tribe, as well as every tribe in the Owens Valley, 
objected to the test well. The Navy received our comments, as 
required, but has done nothing with them. The test well has 
gone forward, and we are left waiting for the next step, which 
we believe is to expand the development and production near the 
springs.
    I would like to summarize the rest of my testimony by 
stating my heart-felt observation and feelings about what 
continues to happen there. We have been engaged with meaningful 
tribal consultation with the leadership at Nellis Air Force 
Base for a number of years, and this consultation includes the 
employment of tribally-sanctioned monitors to be involved in 
activities at sacred areas or at significant sites. Because of 
that model program, the contrast of how the Navy has been 
dealing with us is more apparent, to the point that it appears 
like blatant disregard for addressing the issues that are 
important to us.
    For the record--and I have submitted a recent letter from 
our tribal attorney dated April 9 regarding to our efforts to 
have monitors on site at this test drilling--the mitigation 
measures require that the Navy facilitate the use of tribal 
monitors, which they have insisted they have no money to pay 
for, and it is important that the tribes have monitors, so we 
identified, submitted the names ahead of time as required.
    The day that they showed up at the mandatory training, they 
had to wait almost an hour, and then the name tags that were 
provided had just on them ``Indian.'' There was no name on 
their name tags, even though names had been provided weeks 
ahead of time.
    In addition, after publication of the FONSI--Fact of No 
Significant Finding--they notified us on Friday that the 
testing would begin the following Monday. Our monitors showed 
up. They were advised that they were to stay on site for 10 
hours 7 days a week and to be there for almost 3 weeks without 
leaving the facility. This, in fact, does not facilitate the 
kind of monitoring that needs to happen in sacred areas and at 
significant sites. We were also advised that the monitors could 
not go within 50 feet of the equipment that was doing the 
drilling, which, for those of us that have an understanding of 
the work of monitors know they need to be close enough to 
observe, as the earth is being moved and there's activity, to 
see if, in fact, they are uncovering or moving artifacts or 
religious objects in the area.
    We thank you for the opportunity to testify today and hope 
that we can receive assistance to ensure that the area is 
restored so that our people can use the area as they formerly 
used it, which includes immersing themselves in the water and 
the mud that was so necessary to the healing and the practice 
that we have engaged in for decades there.
    We believe that the Navy needs to be more responsive and 
considerate and sensitive to the fact that this is sacred area, 
and not to treat us as a deterrent to them moving forward with 
whatever their goals may be.
    Thank you again for the opportunity. We certainly would 
support any effort to introduce legislation that would we 
think, refocus some of these Federal agencies on the area that 
they need to address.
    Thank you for your time.
    The Chairman. Thank you very much, Chairwoman Joseph.
    [Prepared statement of Ms. Joseph appears in appendix.]
    The Chairman. Before I proceed with questions, I think it 
should be noted, and I do so as chairman of the Defense 
Appropriations Subcommittee, that our major concern in the 
military consists of recruiting and retaining personnel. As 
some of you are aware, all of the men and women who serve are 
volunteers. There is no draft. It just happens that since World 
War II, on a per capita basis, more Indians have volunteered to 
serve in our military than any other ethnic group, and so I 
would hope that the Department of Defense will take note of 
that in their recruiting programs.
    President Hall, we have received reports on the Missouri 
River problem suggesting that, as the waters recede, graves 
have been opened and bodies have been floating. These are 
bodies that should have been relocated before the dams were 
authorized; is that correct?
    Mr. Hall. That's correct, Mr. Chairman. Just last year we 
had a couple of bodies floating out, so it happens every year. 
You have a number of remains that end up in the river, and, of 
course, our tribal historic preservation office is called 
immediately, but, again, these are all sites that should have 
been taken care of before the flooding with the Federal dams.
    The Chairman. Did the agency advise you that the agreement 
had been complied with and all bodies were relocated before the 
project began?
    Mr. Hall. Our elders sure have told us that, Mr. Chairman, 
that that was the one thing that our elders, approximately 50 
or 60 years ago, were adamant about, but, of course, we 
continue to see that it didn't take place. And even some of the 
cemeteries--of course, we know that in our traditional and 
cultural way, the way that our bodies are laid is in line with 
the coming of the sun to the easterly direction, so even those 
that our elders consulted the Army Corps 50 or 60 years ago, 
they were placed the wrong way, as well, so even those that 
were buried and removed, they were placed in cemeteries in the 
wrong direction.
    The Chairman. Do you have any suggestions as to how we can 
improve this consultation process?
    Mr. Hall. I would think that there should be some mandates 
and 13007 should be further strengthened that, at the onset, 
they are to meet in a government-to-government with tribes, and 
particularly the affected tribe, so that way things can get 
worked out before any proposed legislation would or any 
administrative action would take place until that tribe is 
satisfied, because I think too many times Federal agencies 
think that, ``Well, if we talk to the tribe we're going to 
write it down as consultation, so we consulted with that 
tribe,'' and they take it as they fulfilled the requirements 
under an executive order, where the tribe is saying, ``Well, we 
just talked to you once, and we disagreed with you, but you 
went ahead.'' And so there clearly is some difference of 
opinion on consultation, so that needs to be laid out where 
there's full and meaningful consultation throughout the process 
until that affected tribe is satisfied that their interests are 
protected, and then the consultation on that particular issue 
is complete. Right now it doesn't say that.
    The Chairman. Has the NCAI involved itself in this process?
    Mr. Hall. We have with the Department of the Interior, our 
Bureau of Indian Affairs consultation, so we have NCAI, in 
working with consulting the tribes, has done a very good job, I 
think, on that particular consultation process with DOI, but we 
really haven't with the Army Corps.
    The Chairman. Chairwoman Joseph, you've just given us a 
report on the Coso Hot Springs problem. I gather that you have 
requested a meeting with the Navy. Have they responded to you?
    Ms. Joseph. Yes; we requested a meeting of the Navy to come 
to the valley and meet with the tribe councils of five tribes, 
and they responded saying that the commander is new and he 
couldn't work it into his schedule and gave us less than 2 
weeks for us to go there. Certainly, we think there is a 
purpose to receiving a VIP tour and a lunch, but we wanted to 
sit down and talk government-to-government about our issues 
related to the test drilling. So we've invited him to the area. 
He, in turn, responded for us to come there. It just made 
sense, rather than have 25 officials travel south for the 
commander and his staff to come to the area. So yes, we've 
followed up in an April letter requesting additional meetings.
    The Chairman. I think the commander will be coming to your 
place.
    Ms. Joseph. I would hope so.
    The Chairman. I just noticed the Secretary was jotting down 
notes.
    Do you have recommendations, President Hall, as to how we 
deal with consultation other than strengthening 13007?
    Mr. Hall. Mr. Chairman, like the Department of the 
Interior, that consultation piece, I would recommend the same 
process that NCAI could assist in that. I believe the Army 
Corps of Engineers is working on a consultation policy. We have 
discussed it, at least in the Omaha District, previously. I 
don't know where that process is at in terms of their mark-up 
or their write-up of the consultation policy. Whenever that 
process is done, I think we need to put timelines. I mean, 
clearly this should have been done a long time ago. We should 
put timelines and we should get that draft and we should start 
providing consultation through Indian Country within the 
timeline, and it could be similar to the DOI process, but it 
has just been out there too long.
    And then, with the advent of the Lewis & Clark and all of 
the droppage of the river with the shoreline, this is an issue 
that is not going to go away. It's going to get worse and 
worse.
    I would think we could get this process done, Mr. Chairman 
and Senator Campbell, and this could probably get done in 6 
months to 1 year. It's not going to take that long, you know, 
because this is something, when you talk and put notice out to 
tribes about a proposed consultation policy, everybody is going 
to pick that up, especially on this issue with the Army Corps. 
I mean, all the tribes are going to put their comments in and 
are going to want to weigh in on this.
    But, as I said, this is something that has already been 
done as a successful model with the latest one at DOI, but it 
has to have an enforcement mechanism of any consultation 
policy.
    What if a Federal agency does not comply with its executive 
order? Then what? That's something I think we really need to 
think about is what if there is a lack of compliance of that 
consultation and what mechanisms are there for the tribe. 
That's, I think, one of the biggest things that we left out 
there.
    The Chairman. You are exercising one of the mechanisms. You 
are here.
    Mr. Hall. Yes.
    The Chairman. Mr. Vice Chairman.
    Senator Campbell. Yes: thank you, Mr. Chairman. I think you 
are absolutely right. Too often when tribes deal with any 
agents of the Federal Government we don't know it here in the 
committee, and some of them are very sensitive and helpful and 
some of them are less sensitive and less helpful.
    Rachel, I've known you for 25 years. I've never known you 
to be a shrinking violet about saying your beliefs or what you 
need as an Indian person or for your tribe, too.
    Senator Inouye and I are chairman and vice chairman. We 
also are senior members of the Appropriations Committee. 
Sometimes we can get their attention--not always, but certainly 
we can help, so you need to do that. Tell us where we can help 
and I know I will be and I'm sure Senator Inouye will be, too.
    It's really surprising to me that when Federal agencies are 
trying to implement something that deals with the Endangered 
Species Act, for instance, consultation is pretty in-depth and 
they take into consideration every bug and every snake and 
every spider and kangaroo rats and jumping mice and a fish 
whose name I hate, the squawfish, and everything else when 
we're talking about making some movement. It's rather 
surprising to hear that there are bodies still floating up out 
of the ground in an area that was never carefully looked at or 
consultation was not done before the dams were being built.
    Consultation clearly is not the same as informing. Too 
often, Indian tribes are informed, and I think that you may be 
right, Tex, that sometimes the agencies think that meant 
consultation, but that's not the way Indian people work. I 
mean, consultation, that begins a dialogue that has to filter 
out through literally everybody within the tribal group and 
come back before there is some type of consensus on what needs 
to be done.
    I also note with interest that other agencies like the IHS 
and the BIA have done, really authorizing it over the years, 
more and more contracting with tribes. I was wondering if you 
think the tribes would be interested in contracting with the 
DOD for those areas that we're talking about that they could 
deal with. I don't know if the agencies need authorizing 
language, but I certainly would be interested in helping from 
that forum.
    Tex, what do you think?
    Mr. Hall. I think that's a tremendous idea, Senator 
Campbell. That ability to contract some of the functions that 
the Army Corps is doing, I think the tribes that are there have 
the expertise and capability. Law enforcement is one of them. 
You know, protection of those sacred sites is clearly an 
example that we could do right away.
    Doing the archeological surveys is another example of 
contracting with a tribal government that has that expertise 
that lives and resides in that aboriginal homeland. It's 
clearly an example of how a tribe has the knowledge and is 
right there and can move that process much faster and for less 
money as well, I would say.
    Senator Campbell. There is a bill Congressman Young 
apparently has introduced on the House side that deals with 
something along this line for Alaska, but we'll certainly look 
into seeing if we can frame something up to allow agencies to 
do that if they don't have the ability to do that now.
    Also, as I understand in your testimony, Tex, you state 
that Indian people have a different view of what is called 
``sacred'' and who constitutes a practitioner of a religious 
activity. You point out that a young Indian boy going to an 
ancient vision quest or proving area might not fit within the 
range of existing Federal protections. That has always been a 
problem, of course, about who constitutes a practitioner, as 
we've seen with the Native American Church, where actually some 
non-Indian people in some areas belong to the Native American 
Church and some of the things get cross-ways with other laws 
that are already on the books.
    But would you elaborate just a little bit about how do we--
tell us a little bit more about the problem, how it presents 
itself and how do we address it.
    Mr. Hall. Many of our tribes, Senator Campbell, as you 
know, only that particular tribe has knowledge of that site or 
of that area of worship. For example, it could even be a clan. 
It could be a clan within that tribe. In our neck of the woods 
we have a butte. It's called Table Butte. It is from the Locap 
Clan. The Locap Clan originated from the Table Butte, and so 
part of that butte is on private land and part of that butte is 
on U.S. Forest Service Land, national grasslands. And so when 
our members want to go up and fast as they get ready for the 
sun dances--as you know, that's all happening in the next week 
or so from now until the first part of August in our part of 
the country.
    Senator Campbell. Yes.
    Mr. Hall. And so they're fasting in preparation for the sun 
dance. There are so many times that we continue to hear today 
that they don't have access. The private landowner kicks them 
down or they're having a problem getting approval through the 
national grasslands through the United States Forest Service.
    Surely, the private landowner does not have any knowledge 
of how that sacred----
    Senator Campbell. And, in fact, even some other tribal 
members might not if----
    Mr. Hall. If they're not from that clan.
    Senator Campbell [continuing]. They're not from that clan.
    Mr. Hall. Exactly.
    Senator Campbell. We face that in all tribes, in fact.
    Mr. Hall. If they're not from that clan. And so the elders 
are saying that this is a Locap Clan origination and this is a 
sacred site, so they're helping educate. As a matter of fact, 
one of the elders who is not a member of that fan is fasting 
and has done and has been kicked down from that site many 
times, but he has to continually--we, as a tribe, have to 
continually determine that that is a sacred site because it is 
a birthplace of a clan and it must be safeguarded. 
Unfortunately, we have no control of that site, and so access 
is a continued problem for that sacred site.
    Senator Campbell. Yes.
    Mr. Hall. And so I think the responsibility of determining 
that sacredness has to come from that tribe. In our case, Three 
Affiliated Tribes has to help educate, you know, not only our 
own tribe, but we have to educate the Forest Service, we have 
to educate the Federal Government, and then the private 
landowner as to the meanings of that site and what it means to 
us.
    But, in general terms, you know, we all know that the Black 
Hills, for example, are sacred. They are the birthplace. That's 
an ongoing problem for the Lakota as they go out to worship in 
that sacred area.
    However, there are other areas that may be an area. Maybe 
as you mentioned it could be a grassland. There could have been 
a battle that happened long ago and not too many people maybe 
know about that battle, but the tribe does, and some people may 
question, you know, that could be used for farming or that 
could be used for agricultural purposes. How can you tell us 
that's a sacred site? And only that affected tribe or that 
affected clan may determine its sacredness.
    Again, I think that's where that government-to-government 
consultation really needs to be complied with, and that 
consultation policy is critical to that affected Indian tribe 
in coming up with what that significance of that site holds to 
that particular tribe.
    Senator Campbell. Well, I think particularly tribe- 
specific or clan-specific is even more important because we've 
seen other laws already in place sometimes used to stop 
development just for the point of stopping development. The 
Endangered Species Act, in my view, is one of the most misused 
laws on the books now. I know that there's a possibility--you 
know, if it wasn't tribe-specific or clan-specific that this 
could also be misused to stop some kind of a building process.
    Rachel, I understand from your testimony that you had a 
very good working relationship with Nellis Air Force Base. I'm 
very happy to hear that, since that's where I spent the last 
1\1/2\ years of my enlistment at Nellis and enjoyed it very 
much.
    Let me ask you this. At least one agency, the Department of 
the Interior, provides funds and works to protect historic or 
environmentally sensitive properties through the use of 
conservation easements. In fact, they provide money to do that. 
Do you think it would be wise or useful to authorize the 
Federal agencies to issue cultural protection easements so that 
certain Federal properties could be restricted in their use to 
accommodate Native concerns?
    Ms. Joseph. Yes, Senator; I think it would be not only 
wise, but I think an option that needs to be there for the 
tribes to ensure that we have, you know, those opportunities. I 
do thank you for your previous comment about not being shy and 
retiring, but I did tell the staff yesterday that there have 
been instances in my life where I felt helpless to deal with 
the situation, and this happened to be one of those. I think 
part of that seems to be the disregard. It's almost like a test 
of wills, like who is going to come to whose home for a visit. 
If there's an unwillingness to come and meet with us, how do 
you even really begin the meaningful dialogue and consultation.
    Senator Campbell. Clearly, you can't take the site to them.
    Ms. Joseph. Right.
    Senator Campbell. They've got to come to the site.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Chairwoman Joseph and 
President Hall.
    Ms. Joseph. Thank you.
    Mr. Hall. [Native words.]
    The Chairman. Our next panel consists of the following: The 
NAGPRA representative and cultural resources consultant of the 
Mandan, Hidatsa, Arikara Nation of North Dakota, Pemina Yellow 
Bird; the cultural resources officer, Lower Brule Sioux Tribal 
Council of South Dakota, Scott Jones; the tribal and historic 
preservation officer of the Comanche Nation of Oklahoma, Jimmy 
Arterberry; a member of the Winnemem Wintu Tribe of California, 
Caleen Sisk-Franco, accompanied by Mark Franco; and a member of 
the Village of Lower Moencopi of Arizona, Leonard Selestewa.
    May I first call upon Ms. Yellow Bird.

 STATEMENT OF PEMINA D. YELLOW BIRD, NAGPRA REPRESENTATIVE AND 
CULTURAL RESOURCES CONSULTANT, MANDAN, HIDATSA, ARIKARA NATION, 
                          BELCOURT, ND

    Ms. Yellow Bird. DaSKAshas. Mabeedzagidz. Nawah. In a 
respectful way, I extend my greetings to Mr. Chairman, Mr. Vice 
Chairman, the rest of the committee members, and the staff. And 
Agu Wa'Guxdish, I greet you in a respectful way like a relative 
and say thank you to you for holding today's important hearing 
to gather information on the preservation and protection of our 
people's holy places.
    As you know, my name is Pemina Yellow Bird. I am an 
enrolled member of the Mandan, Hidatsa, Arikara Nation from the 
Upper Missouri River. As you also know, our ancestors lived on 
the Missouri River for many, many, many thousands of years, 
both banks, from its headwaters to the Gulf of Mexico, and our 
ancestors left behind thousands and thousands of earth lodge 
village sites, burials, prayer sites--places whose sacredness 
was revealed to us by the creator.
    Since the 1940's, since the creation of the dam system on 
Adiba Waduxte--in our language we say mysterious or holy 
grandfather--the Missouri River, his life has suffered, as has 
ours. The creation of the dams and the reservoirs on the 
Missouri River has caused the hastening of erosion and 
destruction of places that are holy to us that are 
irreplaceable, and that's why we're here today.
    For many, many years, as Chairman Hall stated earlier, our 
nation and other Missouri River tribes have worked very hard to 
work with the Army Corps to protect and preserve places that 
can't be replaced for us. They are holy and we need them for 
our ceremoneys. We need them for our people to continue. But, 
unfortunately, with the Army Corps of Engineers our sacred and 
cultural places are not an agency priority. This lack of 
importance to them is reflected in the kinds of resources that 
are dedicated to the preservation and protection of our holy 
places.
    Since 1978, a grand total of $1,933,000 has been spent to 
stabilize the shoreline at 19 sacred sites--19 out of more than 
3,000 known sites.
    Our tribes have been consistent in asking for new surveys 
of Army Corps lands on the Missouri River, because we're told 
by contemporary archaeologists with experience on the Missouri 
River that, if new surveys were to be done, that number, 3,000 
sites, we would find four to five times more sites that we 
could identify, we could map them, we could nominate them for 
inclusion into the National Register and get them protected, 
but we have not been able to secure new surveys on all Corps-
managed lands along the Missouri River.
    Nothing less than a paradigm shift needs to take place in 
the way that the Missouri River is managed by the Army Corps. 
Indigenous nations require pre-decisional, meaningful 
consultation with the government agency whose Federal trust 
responsibility has the fate of our sites in their hands.
    We need Congress to appropriate necessary moneys to 
stabilize the shoreline. The Omaha District of the Army Corps 
has a wish list, $77 million worth of stabilization projects 
that would protect thousands of sites that are integral and 
critical to the survival of our peoples.
    Agu Wa'Guxdish, our beloved grandfather, no longer flows 
within the reservation boundaries where my people live. We have 
to leave our reservation to find the free-flowing water. The 
vast majority of ancient, sacred places within our boundaries 
now lie under his waters, forever reversed and stilled. This 
makes the relatively few places still in existence, where our 
ancestors once lived and loved, even more precious to us 
because they are all that we have left. Our need for the life 
given to us by our Grandfather and our Holy Places is so great 
that it is not an exaggeration to say that our nation's 
revitalization and survival depend on their survival. Those 
sacred places are all that stand between us as a living, 
flourishing nation and the disappearance of our people's long 
and ancient history alongside the moving, living waters of our 
precious Grandfather. Flooding us out of our homelands broke 
our hearts but it did not break our spirits, and the people of 
the Mandan, Hidatsa, and Arikara Nation stand ready to take 
whatever action we must take to preserve a place to pray for 
the generations who are coming, because the living and Holy 
Being who brought our nations through thousands of years of 
life is dying, Agu Wa'Gux Dish, and he and our people just want 
to live.
    Something needs to be done, and it needs to be done now, or 
else it won't be anything for our generations. There won't be 
anything for them.
    I say thank you to you for listening. I want to close my 
remarks by saying We DuT Dunst Stut. In our language that 
means, ``That's the way things always were, that's the way they 
are today, and that's the way they will always be.''
    The Chairman. I thank you very much, Ms. Yellow Bird.
    [Prepared statement of Ms. Yellow Bird appears in 
appendix.]
    The Chairman. May I now recognize Mr. Scott Jones.

  STATEMENT OF SCOTT JONES, CULTURAL RESOURCES OFFICER, LOWER 
          BRULE SIOUX TRIBAL COUNCIL, LOWER BRULE, SD

    Mr. Jones. [Native words.] Good morning, everyone. Mr. 
Chairman, committee members, guests, and honored tribal 
leaders, my name is Scott Jones. I am an enrolled member of the 
Lower Brule Sioux Tribe, and I have been a liaison with the 
Corps of Engineers since 1988 on behalf of the tribe.
    There are so many issues and problems it is difficult in 
only 5 minutes to know where to begin, so I shall begin with 
what is most important, the resource, in this case, the 
Missouri River.
    Since the glaciers pulled back some 12,000 years ago, the 
Missouri River Basin has been continuously occupied by 
indigenous Indian cultures. It is sacred to my people because 
the river gave us life and the ability to sustain life. The 
river gave us food and enabled vast trade routes to be 
established. In recent history, the river enabled the expansion 
and colonization of this country by the EuroAmerican, and the 
river, as we know it today, has become very important to many 
interests, providing trade, energy, flood control, recreation, 
and irrigation, just to mention a few. The river is still 
sacred to my people today.
    The EuroAmerican expansion and continuous growth gave way 
to treaties and laws. The law of the land set forth 
compensations for the aboriginal peoples whose lands have been 
taken, oftentimes illegally. These treaties and laws 
established trust responsibilities to ensure government 
agencies treated aboriginal nations fairly and equally. Many of 
these treaties and laws set forth protections for our sacred 
areas and lands that sustained our culture, and some of these 
laws specifically addressed the trust rights and management of 
the Missouri River and the lands that make up her basin.
    Please remember that these dams and the lakes they created 
are not historic. They were created and built in my lifetime.
    The fulfilling of these trust responsibilities did not 
offer Native people, particularly those who lived on the river, 
a role in the creation of this Federal monster, that is, the 
system of Missouri River mainstem dams, but rather entire 
Native populations were removed from the safety of their 
reservation homes, had their farms and gathering areas flooded, 
our burial grounds flooded or exposed, and our traditional life 
ways thrown into turmoil in my lifetime.
    The agency responsible for the operation and maintenance of 
this Federal monster, the Army Corps of Engineers, under the 
Department of the Army, has, for the last 50 years, appeared to 
conduct business with the left hand not caring or knowing what 
the right hand is doing. They have been evasive and non-
committal in their dealings.
    More recent tribally friendly executive orders, Federal 
law, and amendments to existing Federal law have enabled tribes 
to force the Army Corps of Engineers to confront specific 
issues and badger them into creating solutions, then only too 
often having to watch these solutions disappear into the dark 
hole of a Federal file cabinet, never to be acted upon, never 
to be implemented or considered in any other Federal action.
    We are in a new century now. Tribes understand the demands 
for energy. Tribes understand that we are at war with 
terrorism. Tribes, and particularly those who live along the 
river and specifically my tribe, the Lower Brule Sioux, have 
consistently asked for participatory rights in decisionmaking 
on those issues which directly impact and affect us. At this 
point we are asking that existing rights under existing law be 
followed, as they should be, as well as asking that 
consideration of any future legislation be inclusive of actual 
on-the-ground tribal need.
    Some actions I would recommend include the following: 
Develop partnerships which create co-management; ensure tribal 
participation--real, meaningful participation; provide 
oversight from both Congress and senior Department of Army 
personnel on the activities of the Corps of Engineers and to 
ensure that they are truly fulfilling their trust 
responsibility; require that the Corps of Engineers set a small 
percentage of each project aside to assist in paying for tribal 
consultation; address the river holistically as the river basin 
that it is, not as a series of segments; and crisis management 
through the development of memoranda of agreement with each 
affected tribe so that management is inclusive and 
responsibilities can be shared; encourage contracting with 
tribes, not outside firms.
    Tribes are major stakeholders on this river because of our 
aboriginal rights, our unique legal and political status, and 
because our continued survival depends on the health and well-
being of this sacred river. It is imperative that you 
understand that these Native resources--every plant, every 
rock, every tree, our rivers, and our springs--are potentially 
a required part of a medicine or used in a traditional worship 
activity. The very fabric of our culture is built with natural 
material that evolves back into Mother Earth.
    Aboriginal cultures were founded in the natural resource. 
EuroAmerican culture was based upon man-made, materialistic 
resources. The laws that we live under today do not recognize 
nor are they reflective of this fundamental difference.
    As I have said before, we all recognize the demands of 
development, of recreation, of flood control, and of energy. 
There is no reason for us to always be at odds. The demands of 
this century can be met by working together. Working together, 
we can protect this resource, we can create solutions, we can 
create jobs on reservations, and we can create ways to manage 
energy needs and development in a responsible way that will 
carry us into the future, and perhaps we can even save our 
sacred, dying river, the [Native word], the Missouri River.
    Creating organizations such as the Sacred Lands Protection 
Coalition which acknowledge and accept the tribal lead will 
foster understanding, while ensuring tribes have an adequate 
voice to protect our freedom of religion through the 
preservation of and access to sacred sites, gathering areas, 
and necessary natural resources for the continued vitality of 
our threatened traditional worship practices and life ways.
    Mr. Chairman, I was very interested this morning to hear 
how the Federal agency is dealing with these issues, and I 
heard, I believe, the first individual that spoke refer to 
agreements, MOAs, I believe I heard him refer to. Sir, we have 
an MOA we submitted to the Corps of Engineers February 12, 
2001. We haven't even received a letter responding to that MOA 
from the chairman of the tribe. It was sent to Colonel 
Tillitson, who was the Omaha District engineer at the time. Not 
even a letter acknowledging receipt of this document, sir.
    It is very troubling to me to hear that the agency says 
that this is how they deal with us when I know and my tribe 
knows first-hand they haven't even responded to an MOA that we 
wrote in draft form for them to comment on and get back to us.
    In closing, sir, thank you very much for this opportunity. 
If you have any questions on the information I have presented, 
I would be glad to answer them.
    Thank you.
    The Chairman. I thank you very much, Mr. Jones.
    [Prepared statement of Mr. Jones appears in appendix.]
    The Chairman. May I now recognize Mr. Arterberry.

STATEMENT OF JIMMY ARTERBERRY, TRIBAL AND HISTORIC PRESERVATION 
          OFFICER, COMANCHE NATION, MEDICINE PARK, OK

    Mr. Arterberry. Mr. Chairman, Mr. Vice Chairman, [Native 
words.]. Greetings, and thank you for an opportunity to address 
the committee on the issues of protecting our sacred places.
    I will keep my comments short, because you have my prepared 
testimony before you, which I'd like to be entered into the 
record.
    The Chairman. I can assure all of you that your prepared 
statements will be made part of the record.
    Mr. Arterberry. Thank you.
    I'm going to address specifically the Corps of Engineers in 
a project that occurred in the State of Texas within the 
Galveston District. We received consultation letters after the 
fact. Our ancestors were removed from a cemetery that had been 
identified by Corps officials in 1982. In 2001, four of our 
ancestors were removed. In an agreement with the Advisory 
Council and the State historic preservation officer and upon 
the insistence upon the historic commission, 80 more 
individuals were removed before we were contacted. This site is 
on private property, DuPont Corporation, and DuPont Corporation 
took the initiative to insist that tribal consultation occur.
    When we received the letter in October 2001, a meeting was 
arranged that would take place in February 2002. When we met 
there in Victoria County, Victoria, Texas, at the DuPont 
facility, the Corps of Engineers had already had a draft 
proposal of the analyses that they wished to perform on our 
ancestors. We had no input in the entire process at that point. 
We should have been involved and we should have been notified 
from the very moment that they made the decision to disrupt our 
burial sites.
    I speak of this from a personal nature. My grandfather's 
grave was removed in 1958 when over 800 burials from this 
cemetery were moved to over six locations. All of our burials 
are sacred. We deserve the same right to rest in peace as all 
of mankind, so we maintain that the Corps has a responsibility 
to all of our peoples to consult prior to any activities that 
involve the desecration and looting and studies that are 
performed.
    When a profession such as archeology has an authority over 
a particular race of people, then we have a problem. In this 
case, it is a Federal policy, so therefore it becomes a racist 
Federal policy. Archaeologists should be used in a technical 
capacity, not as an authority over our people, but as a service 
to the people. I propose that archaeologists be held in that 
capacity and we should not be subordinate to any State office 
because our relationship is government-to-government. We are 
nations within a nation. Based on that sovereignty, we have the 
right to protect our dead and buried as well as our living.
    That is why I am here today--to bring you the words of the 
Comanche people and to ask that you assist us in honoring the 
rights of our ancestors and aiding us in protecting all of our 
sacred places.
    Again, thank you for the opportunity to speak.
    The Chairman. I thank you very much, Mr. Arterberry.
    [Prepared statement of Mr. Arterberry appears in appendix.]
    The Chairman. Now may I call upon Ms. Sisk-Franco.

STATEMENT OF CALEEN SISK-FRANCO, WINNEMEM WINTU TRIBE, REDDING, 
CA, ACCOMPANIED BY MARK FRANCO, WINNEMEM WINTU TRIBE, REDDING, 
                               CA

    Ms. Sisk-Franco. Thank you, Mr. Chairman, Vice Chairman. 
[Native words] Sisk-Franco. I am here representing my people. 
My grandmother has testified before the committee before, 
Florence Jones. She's the leader of our tribe, and I am second 
in command.
    We are a historic tribe from California, northern 
California around Lake Shasta, Mount Shasta. Our river runs 
from Mount Shasta through the lake at this point in time.
    We were 14,000 in number at the turn of the century when 
California became a State. In the 1900's there was less than 
400 Winnemem Wintu left, my grandma and her mother being those 
who made it through; yet, our ceremoneys and our teachings 
continued.
    At that time, our leader sent a letter to Washington asking 
for relief of the situation in California in 1889. [Native 
words] sent the first petition asking for justice for the 
Wintu, wondering what happened to our treaty that had been 
signed in 1851.
    The BIA sent out special agents and allocated allotment 
lands to our people, which then in 1941 they removed our burial 
sites from the river because of the dam that was coming in and 
bought a piece of land in Central Valley and put it into trust 
to remove our burials to. Our people went out and helped them 
to identify the burial sites, to remove their family members to 
this new site that is held in trust today, and we still utilize 
this site today to bury our people.
    At that time, we thought that we were a tribe in the view 
of the United States Government. Our allotment lands went under 
the lake. Our sacred sites went under the lake. We have 23 
miles of river left, and of that 23 miles we have been taught 
where the sacred sites are. We still utilize those. We have the 
traditional practices there that we're teaching to our children 
at this very time. These are traditional cultural properties on 
the river.
    But we're wondering about the historic tribes of California 
and these consultations that you talk about and this Native 
Graves Protection Act and the Historic Preservation Act. How do 
they apply to us, since we've fallen in a clerical glitch with 
the BIA, who can't seem to find that they hold land in trust 
for our people? And we are not consulted with. The U.S. 
Forestry is probably the only one who does consult with us. We 
have permits for our sacred sites that are ceremonial grounds 
that are given by the U.S. Forestry. We hold eagle permits from 
U.S. Fish and Game to practice our traditions. Yet, when it 
comes to the building and construction of dams, roads, bridges, 
that we are not consulted with. We are the last to know.
    At this present time there is a bridge being constructed on 
the McLoud River to replace an old bridge, and it is said that 
that bridge has no cultural impact within 300 feet of the new 
construction, but the design for that new construction has not 
even been set. But it has already been signed off, and that 
bridge will run through a burial site that we have proof of 
that burial site. It has been studied by Forestry. And it will 
also endanger one of our traditional areas that we use right 
now for our children's training.
    We wonder what rights we do have. We're not informed, as 
many of the other tribes. We don't have a historic preservation 
office. We have no funding. We are a traditional group of 
people who only believe in our own tradition. We have no 
churches, other outside of our traditions. We don't belong to 
any Methodist, Presbyterians, or any other church-based faiths. 
We are only Winnemem and we believe in the Winnemem way.
    The proposed raising of Lake Shasta, at this time we don't 
know what the process is, how far they have gone, what studies 
they have made; however, we are aware that the lake is going to 
be raised or is intended to be raised. This is a little more 
information than we knew the first time that they put the lake 
on top of our people and moved us out and only gave us a burial 
site--didn't even give us land to live on. But we were 
appreciative of the land that we were given for our burials, 
and we continue to use those, but they can't do it again. It 
will cover at least three or four more miles of our river that 
we use now, that our sacred sites are the heart of our people. 
We used to be salmon people. No more salmon run up our river. 
We try to take the salmon below the dam and we get in trouble. 
But all of those things purify the water. Our relationship to 
those things help the land survive.
    When the Forestry comes in and says we cannot clear the 
pine trees out of our oak grove because that's a natural 
succession, we have to say, ``If it were a natural succession, 
we would still be living here and the pine trees would not be 
encroaching because we are part of the forest.''
    My Grams says there was no wilderness. This was our home. 
This is not a wild river. This is our home, unless we are wild 
Indians still.
    I leave that to you to help us fix that. The Army Corps of 
Engineers is going to be coming in, if they are not already in, 
making plans without consulting. You know, the consulting, I 
have to say also, is that on the bridges that we have told the 
Forestry about our medicine plants, like the grape vine that we 
use for medicine, that were, you know, probably eight to ten 
inches in diameter, have been growing for a long, long time, 
they came in and cut all of them to put a new bridge in, and 
they are going to give us the sprouts. And where do we want 
them planted? These ones are this big now. Where do we want 
them planted? They've grown them from the seeds of the grape 
vine that was there.
    These are the disheartening things that we are dealing 
with. It hurts my people. It hurts my Grams and it takes away 
our teachings to our children. They don't seem to listen. The 
Native American specialists that even the BLM and the U.S. 
Forestry have, they don't have any power. They seem to 
understand, they seem to want to listen, but a lot of times the 
U.S. Forestry subcontracts out, and when they subcontract out 
to either loggers or bridge builders or whoever they are, they 
must not read the reports very well. The logging industry cut 
four of our sugar pine grove in a very sacred site, and they 
were sorry, but they didn't know, they're just the contractors. 
So I encourage that this looks at subcontractors and what are 
their parameters of subcontractors, what are they held 
accountable for.
    It is the same as with the bridge. We have tar dripping 
into our stream. The water trucks drive in and they dump diesel 
into the stream bed. All of the bugs that help purify the water 
below that bridge are dead. They no longer do the job. That 
water runs into Lake Shasta. Lake Shasta provides the water all 
down in southern California, all the way down the valley. This 
continues. Not only us are affected. The people of California 
are going to be affected, as well, in due time.
    My Grams couldn't be here. She's 95 years old. She probably 
won't be able to travel out any more, but one of the things I 
have to say is that the U.S. Forestry do come to her house and 
meet and talk with her about, you know, the problems of the 
sites that are up there, because that is where we live. That is 
our land. Even though now it is owned by many other people, we 
still travel there.
    I would like to close in saying that for California the 
historic tribes, I'm sure that we're not the only one in 
California with this situation, and I'm wondering how these 
acts of Congress to protect the tribal people is going to 
include us. How are we going to have our rights protected? 
Aren't we deserving of rights?
    Since 1889 our leaders have asked: Is there any justice for 
the Wintu? We're still asking that today. We're asking that of 
the Bureau. Is there any justice? And if there isn't, let us 
know. Let us know.
    Thank you.
    The Chairman. I thank you very much, Ms. Sisk-Franco.
    [Prepared statement of Ms. Sisk-Franco appears in 
appendix.]
    The Chairman. May I now call upon Mr. Selestewa.

 STATEMENT OF LEONARD A. SELESTEWA, VILLAGE OF LOWER MOENCOPI, 
  TUBA CITY, AZ, ACCOMPANIED BY ELLIOTT SELESTEWA AND GILBERT 
                           NASEYOWMA

    Mr. Leonard Selestewa. Good afternoon. My name is Leonard 
Selestewa. I'm a Hopi farmer from the village of Moencopi on 
the Hopi Reservation on northern Arizona. I will try to make an 
attempt to take you there through large photos, if I may.
    I want to thank the committee--well, members of the 
committee. I'm beginning to think you're the only committee. 
I'm hoping that our words can be heard by all. I thank you for 
giving us the opportunity to appear in front of this committee. 
We are deeply appreciative, because the matter that we have 
come here to address is so important for us, and that in this 
case is water.
    I appear here today with my father, Elliott Selestewa, and 
my uncle, Gilbert Naseyowma, on behalf of agricultural allotees 
of Moencopi, in particular, whose livelihood and way of life 
has revolved around water for hundreds of years.
    I will try to address four subjects in my brief remarks: 
The meaning of water; the trust responsibility of the Federal 
Government to protect the Hopi people; and the failure of 
government agencies--in particular the Office of Surface Mining 
and the Army Corps of Engineers--and the loss that we, the Hopi 
farmers, have felt for 3 decades.
    Before you are materials that I have submitted. My remarks 
will be on the surface water issue, although there are other 
materials there in groundwater which may or will be heard in 
July when the Interior is up before this committee.
    It is no accident that the Hopi people came to settle and 
live on the Black Mesa in the high desert country of northern 
Arizona. Upon their emergence to this new fourth world, the 
Hopi were directed by their deity, Masaw, to live on Black 
Mesa, which is shaped like a hand pointed downward from 
northeast to southwest. Black Mesa, itself, is thus sacred to 
the Hopi people.
    If you can see the outline of a hand, that is where we 
lived, Senator. Masaw gave us three things to live a simple yet 
sustainable life, and a very responsible one, at that. It was a 
bag of seeds, corn seeds; a planting stick; and a gourd of 
water. Thus, the Hopi culture and the religion is one of 
stewardship, a responsibility to take care of Mother Earth and 
her life's blood, water.
    Water is a sacred part of this covenant, of the stewardship 
the Hopi people made with the deity Masaw. Yes, water is, of 
course, a necessity, especially in the desert, but, just as 
important, it is sacred. It gives life to Mother corn. Corn is 
not only a staple. Corn is the first thing that touches a 
baby's lips and the last thing upon which a man or a woman is 
laid to rest when they die.
    I know that as members of the Committee on Indian Affairs 
you are well aware of the trust responsibility the Federal 
Government undertook years ago to protect the welfare of Indian 
people, so I will not belabor the point. In this instance, the 
Government's responsibilities translates to an obligation to 
minimize the impact of coal mining on Black Mesa and the flow 
of water to the Moencopi farmers.
    We are here today, Senators, to say to you that there has 
been a failure of Government agencies charged with the 
responsibility to protect the scarce surface waters of Black 
Mesa--the Office of Surface Mining, the Reclamation 
Enforcement, and the United States Army Corps of Engineers and 
the United States EPA, as well. Over 3 decades that the Peabody 
Coal Company has been mining coal on Black Mesa, literally 
hundreds of water impoundments and dams have been built. These 
impoundments hold back millions of gallons of water that would 
have flowed down the Moencopi wash from the higher elevations 
of the Black Mesa to the farmer of Moencopi.
    I would just like to point out that this is not literally 
entirely a farming issue. Much of this water has been wasted by 
being allowed to evaporate into the dry desert air with these 
permanent impoundments. The Hopi farmers at Moencopi have been 
denied this precious and sacred source.
    In testimony before the Office of Surface Mining a few 
years ago, one of the agent's hydrologists, Steve Parsons, 
stated unequivocally that impoundments have significantly 
impacted the water flow. We would request, as I pointed out 
earlier, that this is part of the binded packet that we have 
submitted for the record. Nevertheless, the Office of Surface 
Mining issued a mine permit without studying the mine's impact 
on surface water flows to downstream users, including the 
farmers of Moencopi.
    To this day, the Office of Surface Mining has taken no 
action to ensure that coal mining activities on Black Mesa are 
conducted in a way that minimizes its impacts of surface flows. 
Instead, gentlemen, Office of Surface informed us that the 
management of impoundments as they impact surface water flow 
outside the mine lease area is the responsibility of the U.S. 
Army Corps of Engineers.
    Of course, water does not stop flowing at these boundaries. 
The farmers of Moencopi live outside the boundary of Peabody's 
mining lease, but they have lost the water that used to flow 
through the Moencopi wash--water so precious and scarce in our 
homeland.
    When we spoke with representatives of the U.S. Army Corps 
of Engineers, we were told that the management of the 
impoundments built in connection with mining activities was the 
responsibility of Office of the Surface Mining. When we got to 
this point in our search for environmental justice, you have 
two agencies pointing the finger at each other.
    The Army Corps allowed Peabody to build water impoundments 
and to operate under what I term a ``generic, nationwide permit 
number 21,'' rather than an individual permit designed to 
address the unique circumstances of surface water flow in the 
high desert of Black Mesa. Included in your packet is also 
reference to the nationwide permit.
    The Hopi Tribal Council expressed its concern about the 
issuance of a nationwide permit on at least two occasions. They 
are also in your packet. But even the generic, nationwide 
permit requires Peabody to take all practical steps to minimize 
impacts of mining activities of pre-construction flows and the 
aquatic system that depends on it. These are mentioned in 
paragraphs 21 and 22. But for decades Peabody has been allowed 
to maintain hundreds of impoundments, holding millions of 
gallons of water, without ever releasing it after treating it, 
which is an option, as the Army Corps permit and the EPA 401 
certification letter requires.
    In other words, the nationwide permit has been continuously 
violated and has never been enforced. I believe, gentlemen, 
that enforcement and consultation go hand in hand. Thus, the 
matter of the Office of Surface Mining nor the Army Corps, nor 
the EPA, for that matter, has accepted responsibility for the 
impacts of the water impoundments on the farmers of Moencopi. 
The failure of any agency to accept responsibility to protect 
water flows has, of course, been of great concern to the Hopi 
farmers who hold agricultural allotments. I think they also 
refer to private property, private landowners.
    The impacts of Black Mesa mine on the flow of surface water 
has also been a serious concern for the U.S. Fish and Wildlife 
Service. In 1993, the U.S. Fish and Wildlife Service submitted 
a letter to the U.S. Army Corps expressing its concerns. We 
submit that copy along with the binded material for the record.
    As far as we know, the concerns expressed by the U.S. Fish 
and Wildlife Service, as well as the concerns of the Hopi 
people, have been left unaddressed.
    I show you now for the record the headwaters of Black Mesa, 
the wash, itself. This was taken in the early 1970's when the 
mining first began, and obviously this is a far-off shot of our 
water. I refer to this not as a river. As you all know, around 
here we're talking about big rivers, but it is a perennial 
stream and it means a lot to us. Back then it flowed. This is 
an aerial photo of the wash, itself, roughly 10 to 15 feet wide 
of flow. I didn't notice it then when we enlarged this photo, 
but here are ruins of our ancestors along this perennial 
stream.
    This is a photo taken before the mining began. You know, 
this perennial stream flowed like this all the time, year 
round.
    In closing, I would like to submit a photo I took of my 
son, 5, maybe a few days ago. This is all that's left in there. 
But what you see in this photo prior to leaving our homeland to 
come this far, this water is now gone. It will not return until 
late October or November. But we are in our peak season of our 
sacred farming of our sacred corn with this water.
    I was hoping that maybe we could hear from my father as an 
elder in respect to you, yourself, Mr. Inouye, but maybe we can 
ask them--you may ask them a question of what they remember of 
the water before in their youth.
    So I leave this committee with a question. Why? Why has 
there been a failure of responsibility and enforcement? Why has 
the Government failed to protect the Hopi people's most 
precious and sacred resource, water? Why has the Government 
allowed scarce trust resources to be wasted? Why has there not 
even been a study of the impacts of the impoundments on the 
Hopi people?
    We ask this committee for help in finding out the answer to 
this question why, and I invite each member of the committee to 
visit Moencopi to see for yourself.
    Again, I thank you for the opportunity to speak before this 
panel, the committee. [Native word.]
    The Chairman. I thank you very much, Mr. Selestewa.
    [Prepared statement of Mr. Selestewa appears in appendix.]
    The Chairman. Your father, having traveled a long distance 
to be here with us, if you wish to address the committee, 
please come forward.
    Mr. Elliott Selestewa. Good morning, Mr. Chairman and Vice 
Chairman and the committee. Well, I live in a village of 
Moencopi for all my life, and I used to seeing the water flow 
year long, you know. I never dries up. For some reason, it went 
away, you know, and I was wondering why it did that. I guess I 
want to say that it is because of the Peabody that's building 
dams up there, so many that it is taking all of our water, you 
know.
    I thought for me I thought it would never dry up, you know. 
During my boyhood, we used to swim in it, and there was always 
plenty of water. Now I'm a farmer, myself, and a rancher, and I 
still go through my old traditional way of raising corn, and we 
need that water, you know.
    I want to ask you to help in some way that we can tell 
Peabody to release those water dams up there so we can have a 
natural flow of water again. But, of course, it is going to 
have to be cleaned and released.
    This time of the year especially in June and July we really 
need that water for our plants, you know, because, like I'm 
going to say, we living in the desert and it is very hard to 
get water.
    I just want to say that we need help from the committee if 
there is any way that we can get the water back to running 
again.
    Thank you.
    The Chairman. Thank you very much.
    Ms. Yellow Bird, Mr. Jones, Mr. Arterberry, Ms. Sisk-
Franco, and Mr. Selestewa, as chairman of the Senate Committee 
on Indian Affairs, as chairman of the Senate Subcommittee on 
Defense Appropriations, I pledge to you that your words and 
messages will be transmitted to the appropriate agencies, and 
in my capacity I will most respectfully request that they 
respond to them. You can be assured that I will receive a 
response. Upon receipt of such response, we will act thereupon.
    With that assurance, I thank you all very much for your 
contributions this morning. Thank you.
    Mr. Franco. Can I ask a question, please, Mr. Inouye?
    The Chairman. Sure.
    Mr. Franco. I was told that I was also going to be able to 
speak to the raising of Shasta Dam. Is it because we are 
unrecognized people that my statement is not included in this? 
I respect you very much, sir. I've met with you----
    The Chairman. If you wish to, you may speak right now, 
because I recognized you when I called upon the panel but no 
one asked--all it says here was ``accompanied by.''
    Mr. Franco. Well, if that's the way that you understood it, 
I don't wish to impose.
    The Chairman. Please sit down. I sit here for hours. I am 
willing to sit here for hours, so please sit and testify.
    Mr. Franco. Thank you very much.
    The Chairman. Never let it be said that I have denied any 
Native American from testifying before this committee, because 
I take my work very, very seriously.
    Mr. Franco. Sir, that was not my intent.
    The Chairman. Yes, sir; please proceed.

  STATEMENT OF MARK FRANCO, WINNEMEM WINTU TRIBE, REDDING, CA

    Mr. Franco. My name is [Native word.] In the Winnemem 
language that means I am the one who talks back. I am here 
because my wife is the spiritual leader now of our people. In 
each of our communities in the Winnemem bands there is the 
spiritual and there is the enforcement side, for lack of better 
words. My duty with the tribe is to speak as the enforcement 
person.
    We came here today to speak about Shasta Dam. We were 
invited as unrecognized people to speak before these committees 
at this one only. We understand that you are going to be 
hearing other issues that affect us, but we were asked to only 
speak at this one, and so I wish to talk about Shasta Dam.
    We've met with the Department of Defense people, the people 
from the Army Corps of Engineers, and at the time that we met 
with them we didn't know that they had anything to do with the 
Shasta Dam raising because, as unrecognized people and as 
people who are kept out of the loop of communication between 
Indian tribes and the Government, we didn't know that the 
Shasta Dam issue was even going to be something that was going 
to impact us at such a great level until we went up there to do 
a site visit on a bridge. At the time we went up there to talk 
to the bridge the United States Forest Service told us that 
they didn't know who the lead agency was on directing the 
raising of this bridge. I told them, ``Why would you need to 
raise this bridge?'' They told me it was unsafe, that they 
needed to change the contour of the road to facilitate logging 
trucks.
    I said, ``Oh, well, I can understand that. Logging is a 
pretty good industry. I've cut trees.'' I said, ``How are you 
going to raise this bridge?'' And they said, ``We're going to 
raise it so it will be at least ten feet above the level of the 
bottom of this bridge.''
    I'm not a very smart person, but I realize that if you 
raise a bridge ten feet there must be some reason for that. I 
asked them, ``Why are you raising this bridge so high?'' The 
engineer on site told me, ``Well, it has to be at least four 
feet above the high water mark of the lake.'' I told them, 
``This is a river here.'' Again, I'm not a very smart man, but 
when you're raising water that is now probably 40 feet above 
the level of the water that is there, that indicates that 
somebody is going to be stopping water up somewhere downstream.
    So we asked. We contacted the Federal Highways 
Administration. We contacted the Department of Defense, Army 
Corps of Engineers. Nobody would tell us anything. Was that 
because we are unrecognized? Was that because they don't 
consider our issues as important? So we asked as private 
citizens, and we still received no answer.
    Shortly after that the College of the Siskus, their geology 
department contacted me and said that they had some remains 
that they needed to return but they didn't want to go through 
the NAGPRA process. I said, ``Well, that's good because we're 
not covered through NAGPRA anyway. What do you have?'' They 
said, ``Well, we're not sure because we've never opened it.'' I 
asked for the blessings of our leaders and I went up there to 
look at what was in this NAGPRA return and it was a skull and 
it was some artifacts. There was an original site record, an 
archeological site record in the box with them that indicated 
that they were taken from the McLoud River approximately 100 
feet from the existing bridge.
    I asked the Forest Service, ``Did you know about this,'' 
and they denied it. So at that point we started talking. 
``Well, there's a problem here. You can't put this bridge in.'' 
And then it became, ``Well, they're going to do a dam, and the 
dam is going to raise the water, and we really do need to move 
this.''
    In checking on it, the 106 process had already been 
completed and we had never been consulted on it, and the 106 
process that was signed off by the SHPO Office--the State 
Historic Preservation Office--indicated that there was nothing 
within 300 feet of the dam, and it had signed off, and Federal 
Highways and everybody and their uncle started working on the 
plans to raise this dam.
    Shasta Dam cannot be raised to the level that the 
Government wants to raise it. Yes, it is fine and dandy. 
Everybody needs water. Learn how to conserve. There's enough 
water there if you conserve. You don't have to spend all your 
water on golf courses and swimming pools in central California 
and southern California.
    Shasta Dam does not need to be raised at the expense of the 
Winnemem, because that's who it comes down to. Our culture has 
been destroyed because of the original raising of the dam. 
Allotment lands, as my wife spoke to, were issued in 1917, 
although in 1913 the Government knew that they were going to 
put a dam in on the McLoud and Pitt River where they join, but 
they gave us allotment lands in that area that was going to be 
inundated, anyway.
    Burial sites were removed, and, just as they were talking 
about, yes, we told them where the burial sites were that would 
be impacted by the original dam. Well, we don't tell the 
Government everything, because if you tell the Government where 
everything is it will be destroyed. Now we're faced in a 
situation where they deny that there are even any of these 
burials there, and now they deny that we are even Indian people 
to deal with those burials.
    So I am here to ask you, because this committee--and I am 
actually just speaking with you, Senator--we've talked with you 
before and you have been very, very understanding, and my 
apologies to you for coming here and sounding like I was a 
spoiled child. But I am asking you, I am begging you to help 
us.
    My daughter and my son are here. My daughter can't see the 
sites that are already being destroyed and are in danger of 
being destroyed until she hits at least 16. That dam will be 
here before that. We have asked for help with our recognition. 
We've asked for help from the National Historic Preservation 
Office. We've asked for help from all of these different 
agencies, and we can't get the help as Indian people because we 
are not recognized as Indian people. We don't fall into the 
categories of being able to access the funding to do the 
projects that these agencies talk about, to get people to come 
in and help you preserve your area. We're not the recognized 
people.
    So I ask for your assistance and I ask the Army Corps, 
because they have been really good with us. I mean, some people 
have relationships with them and some people don't, but the 
Army Corps has been really good with us since they know who we 
are. It really means a lot to us, because we travel here on our 
own pocket, and to come in and have the people from the Army 
Corps come up and say, ``It's good to see you again. We liked 
what you said the last time. We took to heart what you talked 
about,'' it's good to see that, and we wish that the rest of 
the agencies from the Department of Interior, Bureau of Indian 
Affairs, on down could do like these folks from the Department 
of Defense. At least they looked at us. At least they 
recognized us.
    Again, sir, my apologies to you. I meant no disrespect. I 
carry this eagle fan to let you know that my words are true, 
and I carry this eagle fan in respect for the elders who sent 
me here, and I respect you. [Native word.]
    The Chairman. Thank you very much, Mr. Franco. I carry this 
because my words are good, too.
    The next panel consists of the chairperson of the 
Kaho'olawa Island Reserve Commission of Hawaii, Colette 
Machado; and from Kaunakakai, Molochai, HI, Dr. Noa Emmett 
Aluli.
    It has been a long day, but welcome. Aloha.

STATEMENT OF COLETTE Y. MACHADO, CHAIRPERSON, KAHO'OLAWE ISLAND 
                RESERVE COMMISSION, WAILUKU, HI

    Ms. Machado. Aloha, Senator. I want to thank the committee 
and yourself for the invitation to participate in this very 
important discussion on sacred sites.
    I have been very moved by the presenters that have preceded 
Dr. Aluli and I, and I come to you with a heavy heart. The 
Hawaiian word for burden is kaumaha. As a Native Hawaiian and 
someone that has been active in protecting archeological sites 
and also an elected official as a member of the Office of 
Hawaiian Affairs, I come and I listen after decades of 
articulation, decades of change, knowing who we are as a 
people, I come today and I am wondering where we are going to 
be in the next generation, which is about 20 years from now.
    Like many indigenous, sacred places, Kaho'olawe is impacted 
by the policies and actions of the Department of Defense. We 
support the Sacred Lands Protection Coalition and encourage the 
continued oversight hearings by this committee.
    Kaho'olawe is the smallest of eight major Hawaiian islands, 
located just seven miles off the coast of Maui. The island has 
a rich mythology and a long history of cultural use and 
religious practices. This is reflected in the profound 
discovery of 500 archeological sites and 2,000 features. 
Kaho'olawe, whose ancient name is Kanaloa, is the only island 
name for a major god. It was a place well known among our 
people for continuous religious practices from 900 A.D. through 
1890. The island was taken by U.S. military in 1941 for use as 
a bombing range during World War II. In 1953, President 
Eisenhower signed Executive Order 10436 transferring the island 
to the U.S. Navy.
    I would like to say Aloha to Senator Akaka. I am honored 
that you have taken the time to hear Emmett and I this morning.
    A second part that I am very burdened about is this issue 
of recognition. I believe, through the movements and the 
continued efforts of Kaho'olawe and the military's misuse of 
the island and our efforts under cleanup, that we have 
continued to try to restore a sacred island and to give rebirth 
to it, to its people. But as I listened to my brother from 
California and his cries out to being unrecognized, I begin to 
wonder what would happen to our Native Hawaiians if we are 
unsuccessful in getting that recognition from Congress during 
this session.
    For the past 50 years Kaho'olawe was used as a target range 
for ship-to-shore shelling, aerial bombardment, torpedo 
launching, and artillery maneuvers by the United States and its 
allies. Nearly every type of conventional, non-nuclear 
munitions in the U.S. arsenal was fired at Kanaloa. In 1965, 
the Navy simulated an atomic detonation that was seen and felt 
by its closest neighbor located seven miles away on Maui. This 
detonation blasted through the island substrate such that the 
resulting crater is filled with seawater. While the island's 
ancient significance was known or respected by many of our 
Native people, military training has resulted in the 
destruction of sites and degradation of the cultural landscape.
    Since 1976, Native Hawaiians have begun protesting, and it 
was Dr. Aluli who filed a civil suit against the military 
protesting First Amendment rights of freedom of religion and 
access, and therefore to protect Kaho'olawe Ohana, led by many 
of us, and the general public protested to end the desecration 
of Kaho'olawe.
    The Federal Court sanctioned a consent decree in 1980 that 
required the Navy to meet the requirements of existing 
environmental and historic preservation law and to provide 
monthly access to the access to the island by the Native 
plaintiffs. The PKO's role as [Native words] or steward of the 
island was acknowledged in the court order consent decree. 
These were the early stages.
    In 1990, the President of the United States issued a 
directive for the cessation of the bombing. In 1992, Congress 
received the final report of the Congressional Appointment 
Kaho'olawe Island Conveyance Commission. The report confirmed 
the rich cultural history and sacred nature of the island and 
recommended its return to the State of Hawaii.
    In 1993, as part of the Defense Appropriation Act, in 
recognition of the State/Federal relationship and the historic 
cultural significance of Kaho'olawe, Congress directed the Navy 
to return the island to the State of Hawaii and to undertake a 
10-year program of environmental restoration and remediation in 
coordination with the State.
    In 1993, the State of Hawaii Legislature enacted H.R.S. 16, 
which established the Kaho'olawe Island Reserve and the 
Kaho'olawe Island Reserve Commission to manage it. The reserve 
encompasses the entire island and 90 square miles of ocean 
surrounding it. In recognition of the cultural importance of 
Kaho'olawe, State law prohibits any commercial use of the 
reserve but provides for the protection and perpetuation of 
Native Hawaiian practices relating to cultural religious and 
subsistence purposes. Other allowed uses under State law 
include ecological restoration, historic site preservation, and 
education. The law contains a unique provision which allows for 
the transfer of the entire island upon recognition of a Native 
Hawaiian sovereign entity by Congress and the State of Hawaii.
    I think my time is up, but I'm going to try to summarize 
very quickly. In process of the cleanup we have done several 
agreements and without your help, Senator, I believe we would 
not have been able to achieve half of what we have successfully 
met.
    In the authorization in 1993, the Navy was required to 
provide what we call a ``cultural protocol'' to respect and 
protect the sites on the island. In addition, the Navy was 
required to hire numerous archaeologists to provide adequate 
assessment and recordation of all sites to be impacted by the 
cleanup operations.
    As I listened in the back I realized that MOUs are here 
today without enforcement. There's the issue of adequate 
consultation. There's a continued legal review of whether or 
not the MOU's standards are being met. These are just 
consistently areas that the State has undertaken with the 
Protect Kaho'olawe Ohana. You really need to have that type of 
status. If not--excuse me, Senator--you can get jerked around. 
In this area, we have been able to be successful.
    In conclusion, I want to outline some quick successes. We 
have been able to return to local control and the initiative of 
environmental and cultural restoration--and that's a success--
recognition of our cultural protocol, both with the informal 
agreements between the State and Navy and in actual contract 
provisions with Government vendors, required cultural 
orientation to all of the contract hires--enthusiastic, 
positive response by the workers.
    We have found that 110 percent of these individuals that 
participated in the State's mandatory cultural orientation 
enjoyed it. They became totally aware and immediately 
sensitized.
    We had one incident during the cleanup where the contractor 
even offered a reward to gather more information on this one 
particular activity.
    There are still problems and challenges that we will 
continue to meet. We expect--even with the expected shortfall 
of the cleanup from the standards agreement with the State and 
the Navy in 1994, we are concerned that these things--we tried 
to address it as best we could, and I believe we got a good 
product. It's because we were recognized by the State 
Legislature, we were created under the State of Hawaii as a 
Commission. We created these boundary areas that protected the 
reserve. In that legislation, this island, like its people, who 
has suffered generations after generations, is now looking to 
be sovereign or looking to have that identity, and this entire 
island and the reserve would become part of that legacy.
    Before I close I just want to end by just simply saying a 
short vision the Commission worked at. I just want to review 
it. The vision statement that was prepared by our consultants 
and members of our Commission speaks as:

    The body of Kaho'olawe is restored. Forest and shrub lands 
of native plants and Ka po'e o Hawai'i clothes its slopes and 
valleys. Pristine ocean waters and healthy reef ecosystems are 
the foundation that supports and surrounds the island. Kanaka 
Maoli, the people of Hawaii, care for the land in a manner 
which recognizes the island and ocean of Kaho'olawe as the 
living spiritual entity. Kaho'olawe is a pu'u honua where 
Native Hawaiian cultural practices can flourish. The people of 
Kaho'olawe is in a crossroads of the past and future 
generations from which the Native Hawaiian lifestyle spreads 
throughout the islands.

    Thank you very much.
    You know, Senator, I'm not a cry-baby. I have been 
described as someone as tough as nails, but I was very, very 
moved in the similarities with the other Native groups 
throughout this great Nation, and more so with our brother from 
California, as we continue to raise our voices, Native 
Hawaiians, to be acknowledged as a race of people.
    Thank you very much.
    The Chairman. I thank you very much, Colette Machado.
    [Prepared statement of Ms. Machado appears in appendix.]
    The Chairman. In order to complete your statement, it 
should be noted that the Government of the United States 
appropriated $400 million for the restoration of this island, 
so we did not just pass the law.
    Dr. Aluli.

         STATEMENT OF NOA EMMETT ALULI, KAUNAKAKAI, HI

    Mr. Aluli. [Native words] Chairperson Inouye and members of 
the Senate Indian Affairs Committee and Senator Akaka. For the 
record, my name is Noa Emmett Aluli. I'm a physician in primary 
care on the Hawaiian Island of Molokai. I'm also the medical 
executive director of our only hospital, Molokai General 
Hospital. I am one of the founding leaders of the Protect 
Kaho'olawe Ohana and fund. I am the past vice chair of the 
Kaho'olawe Island Conveyance Commission, and also past chair of 
the Kaho'olawe Island Reserve Commission.
    Thank you for the opportunity to testify this morning on 
behalf of protection of wahi pana, or Hawaiian sacred places. I 
would like to share the thoughts of Hilo historian Edward 
Kanaheli, the late husband of Master Pumahula, Poalani 
Kanakaoli on wahi pana, or Hawaiian sacred places, to more 
fully describe the significance and meaning of such places to 
Native Hawaiians, and I will paraphrase his thoughts.
    Sacred places of Hawaii were treated with great reverence 
and respect. These are places believed to have manao or 
spiritual power for Native Hawaiians. Place tells us who we are 
and who is our extended family. Place gives us our history and 
the history of our ancestors. Place gives us a sense of well-
being.
    A wahi pana is a place which links Hawaiians to our past 
and our future. Our ancestors honored the earth and life as 
divine gifts of the gods, and fishing and farming wahi pana 
were respected. Their activities never encouraged or allowed 
over-use of the resources. To do so would dishonor the gods. 
``The Earth must not be desecrated'' is a Native Hawaiian 
value.
    The inventory of sacred places in Hawaii include the 
dwelling places of the gods, the dwelling places of legendary 
kahuna, temples, shrines, as well as selected observation 
points, cliffs, mounds, mountains, weather phenomena, forests, 
volcanoes, lava tubes, [Native words] or places of refuge, and, 
of course, our burial sites. All wahi pana need our protection 
and our respect, not only for the historical significance but 
also for their human significance.
    As Colette has articulated quite emotionally and well, 
today the Hawaiian island of Kaho'olawe is helping our present 
generation understand the importance of respecting and ordering 
our traditional wahi pana. As you know, for 18 years, beginning 
in 1976, the Protect Kaho'olawe Ohana led the Hawaiian and 
general public protest to end the desecration and bombing of 
Kaho'olawe. Ohana members persevered to oversee the island's 
cultural and natural resources, despite personal and collective 
sacrifices.
    In 1980, the role of the Protect Kaho'olawe Ohana as the 
[Native words] or steward of the island was acknowledged in the 
court ordered consent decree with the Navy. The island was then 
listed. The entire island was listed as a historic property on 
the National Register of Historic Places. We were allowed 
access to the island for religious, cultural, educational, and 
scientific activities. Since then, the Ohana has taken over 
14,000 visitors to Kaho'olawe.
    Our treasured kapuna, elders, and [Native word] children 
from every island joined in the rediscovery of our sacred 
island. We rededicate our ancestors' shrines and temples and 
places to conduct religious ceremonies, we clear access routes 
to these places, and we care for and protect burial sites.
    The Ohana conducts the annual celebration of [Native word] 
or harvest ceremonies to God Loono, god of agriculture, across 
the island every November and January. Through the course of 
this spiritual journey, an entirely new image of Kaho'olawe as 
a sacred island has emerged. According to Native Hawaiian 
kapuna the island was originally named Kanaloa, the name of the 
Hawaiian god of the ocean. Hawaiian ancestors respected the 
island as a physical manifestation of Kanaloa. It is the only 
island in the Pacific named for the major god.
    It is also named [Native words] that can be translated as 
``The Shining Birth Kanal of Kanaloa,'' or ``The Refuge of 
Kanaloa,'' or as ``The Southern Beacon of Kanaloa.'' Both names 
link to the island's role as a traditional center for training 
of celestial navigation between Tahiti and Hawaii.
    Finally, in October George Bush directed then-Secretary of 
the Navy [sic] Richard Cheney to discontinue use of the island 
for bombing and target practice, and I think that's important 
to mention because, Senators, you have been quite good in 
making this a very strong, bipartisan kind of endeavor.
    Finally, in November 1993, Congress passed and President 
Bill Clinton signed an act which recognized Kaho'olawe as a 
national culture treasure and permanently stopped the use of 
Kaho'olawe as a military training.
    As Colette had mentioned, in 1994 the U.S. Navy formally 
returned the island to the State of Hawaii.
    I mention all this again because this experience with 
Kaho'olawe has led us to understand the importance of expanding 
the assessment of wahi pana to include our activities as Native 
Hawaiians to provide stewardship over and practice our religion 
in connection with these places honored by our ancestors as 
sacred to our deities. Thus, cultural and environmental impact 
assessments and studies must include but not be limited to 
ancestral relationships of Native Hawaiians; to wahi pana; two, 
necessity of access to wahi pana in order the fulfill 
responsibilities of stewardship; three, the importance of 
sustaining the integrity of natural resources as part of the 
integrity of a sacred site; four, the importance of sustaining 
the quality of experience, including view planes and quiet in 
and around the wahi pani; five, whether proposed uses would 
generate a change in the condition, the integrity, the use, the 
function, the alignments, the ownership, the boundaries, and 
access to or change in the quality of the experience.
    In the course of conducting a cultural impact assessment 
and study, it is necessary to conduct interviews with families 
and practitioners who have a relationship with and take the 
responsibility for the wahi pana or sacred place. These 
families and practitioners must also be parties to any joint 
use agreements or memoranda of understanding that may guide the 
future use of a particular sacred place. Such agreements must 
allow the families and cultural practitioners to have access to 
the wahi pana in order to care for, monitor, protect, and 
sustain a relationship with the sacred place.
    I am hopeful that these suggestions can be considered in 
strengthening the protection of sacred places in Federal law.
    Finally, these hearings are timely in that the Smithsonian 
Asian Pacific American Program is presenting, starting 
tomorrow, June 5, through September 2, the exhibit 
``Kaho'olawe: Rebirth of a Sacred Hawaiian Island'' at the Arts 
and Industries Building at the National Mall. This 
comprehensive exhibit tells Kaho'olawe's unique story from its 
legendary beginning to the current efforts of protection and 
revitalization, and we invite all of you to attend and visit 
our exhibit.
    Finally, after the 18-year struggle to reclaim sacred 
Hawaiian land, Kaho'olawe has been recognized as an important 
national treasure for restoration and cultural reserve, and we 
thank both of you for this opportunity to fulfill the kapuna 
and their kapuna and their kapuna visions and work on sacred 
places, wahi pana.
    Mahalo.
    The Chairman. I thank you very much, Mr. Aluli.
    [Prepared statement of Mr. Aluli appears in appendix.]
    The Chairman. Next year title and control of this island 
will be transferred to the State of Hawaii and, more 
specifically, to the Ohana. Are you prepared to take over?
    Mr. Aluli. We're prepared. Mahalo.
    The Chairman. Then the agreements that you speak of on 
rights to prayer and sacred grounds will be in your hands now.
    Mr. Aluli. This is true, and we're ready, but, you know, 
the reason for mentioning all this is, as Colette was saying, 
we are not formally recognized as a government, so, in lieu of 
all that, all the other areas where we have our sacred places 
should include those families as memorandums, those accesses, 
so that we can continue that work until such time.
    The Chairman. Well, once the title has been conveyed to the 
State of Hawaii, it will be up to the State of Hawaii as to 
whether it will grant you full recognition. It is not up to us.
    Mr. Aluli. I'm sorry, Senator. I was referring to the other 
areas, not just Kaho'olawe--other areas where military and Army 
Corps and eventually the other agencies that would come to 
hearings--National Parks--that have sacred sites.
    The Chairman. We're working on those, as you know.
    Mr. Aluli. Correct.
    The Chairman. So we are not ignoring that.
    Mr. Aluli. So I would really like to kind of leave the 
program here for anybody, including some of us here who would 
like to just see the work of 18 years that have come to 
fruition in reestablishing the sacred place and the kinds of 
opportunities for us to continue those practices.
    The Chairman. And we congratulate you, sir.
    Mr. Aluli. Mahalo.
    The Chairman. Senator Akaka.

  STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM HAWAII

    Senator Akaka. Thank you very much, Mr. Chairman. I want to 
commend you and our committee for holding this hearing to 
examine the protection of Native American sacred places as they 
are affected by Federal agencies. In particular, this hearing, 
as we all know, is focused on activities of the Department of 
Defense.
    I also want to add my welcome to all the witnesses that are 
here and those from Hawaii that are here at this hearing. I 
want to recognize the efforts of Chairman Inouye to protect 
sacred sites of indigenous peoples throughout our country, 
particularly in this case in the cleanup and restoration of 
Kaho'olawe.
    I thank Dr. Aluli and Trustee Machado and the rest of the 
witnesses again. Particularly I want to say mahalo to Chair 
Machado for the work you have been doing on Kaho'olawe. I also 
want to mention that Dr. Aluli has been one of the forerunners 
of getting Kaho'olawe back by your protests years ago with 
others in Hawaii. This all came together and is still coming 
together as we talk today. So mahalo and [Native words].
    Mr. Chairman, may I proceed with questions?
    The Chairman. Yes.
    Senator Akaka. Thank you.
    Chair Machado, it is my understanding that the KIRC has 
been asked to reassess its priorities, given the Navy's 
determination that it will not be able to make the goals of the 
1994 MOU, memorandum of understanding. What impact does this 
have on the uses and cultural activities planned for the island 
of Kaho'olawe?
    Ms. Machado. You know, that's a really good question, and 
at one of our KIRC meetings we had gone round and round with 
the Navy on this issue, but because of the timeframe and 
because of the need to identify these key areas, we agreed to 
reduce the area of the cleanup by the areas as identified as 
tier one and tier two, so we've gotten more of a surface rather 
than subsurface. In our evaluation, it was okay with us. I 
think that Senator rates the real issue as, after the return it 
becomes the State's obligation and we will be pounding on the 
doors of our own State legislators and beginning to do lobbying 
to assure that certain work that was not completed will be then 
resolved in that capacity with that type of funding. If it was 
not for the funding from Congress, the largest ever 
appropriation to clean up a range, for our little island and 
for the people of Hawaii, if it was not for that appropriation 
we would not have been able to move so forward.
    Perhaps in our zealous effort on the on-site or in the 
early stages we may have been over-demanding, if you want to 
call it that, in what we felt would be appropriate. So, in 
spite of us reducing the areas and our cultural access areas, 
we are confident that, even without the Navy and the cleanup, 
we will be able to still continue at that level without any 
reduced services in doing restoration, site stabilization, 
cultural education that we continue to provide jointly with the 
Protect Kaho'olawe Ohana, and with our volunteer program under 
the Kaho'olawe Island Reserve Commission.
    Senator Akaka. Thank you very much.
    Ms. Machado. It's okay, and we've got to work harder at our 
State level to assure that we can continue to upkeep that 
obligation.
    Senator Akaka. Dr. Aluli, you testified about the necessity 
of incorporating additional factors into the Department's 
assessment of the significance and the use of Native Hawaiian 
sacred sites. What types of actions could be taken by the 
Department of Defense to incorporate an assessment of 
responsible stewardship by indigenous peoples of sacred sites?
    Mr. Aluli. Senator, it was within the context of us 
learning that in order to be even consulted you had to have on 
the table a suit against the Navy, and you know how expensive 
that is, so it would behoove the military or the Federal 
agencies to kind of, like, look around to see who are the 
families or who are those practitioners who have this training, 
this obligation to kind of continue the so-called ``practices'' 
at these areas, and so that is a whole other level that they be 
considered also the experts, not just the anthropologists, the 
archaeologists, the historians, but there are people in the 
community who live and continue that responsibility for those 
sacred sites, and they should be major players and consultants 
with whatever kinds of plans are being projected or whatever 
kind of use is being ongoing at these areas. That's one of the 
recommendations. So that develops a whole new level of 
expertise or necessary consultations that need to exist.
    Ms. Machado. Senator?
    Senator Akaka. Ms. Machado.
    Ms. Machado. Just for the record, the Navy would have put 
on reserve $65 million to accommodate potentially additional 
that might be discovered or somehow made itself available from 
the original appropriation. By the end of the return of 
Kaho'olawe to the State of Hawaii under the appropriation 
funding, the Kaho'olawe Island Reserve Commission would have in 
our State coffers $21 million to continue the work, in addition 
to what we might be seeking from the legislature to provide 
ongoing cultural site stabilization and historical protection.
    Mr. Aluli. Senator, if I might add, one of the more 
important burning questions for us in the Ohana--and I say us 
in the Ohana--is when will the Navy stop cleaning? Will it be 
on the 11th of November or will they start deploying out this 
year? That makes a major difference on how much more they can 
clean and how much closer to the MOU agreement that we've 
signed with them. There is that whole year of time that they 
start--either they're committed to end and start deploying off 
on November 11, 2003, or do they start deploying off now so 
that November 2003, they're off the island? To me in the Ohana 
that's one of the burning questions that we need, and for me 
that's a whole year more work that we need to consider.
    Senator Akaka. Thank you for that question. We have been in 
touch with the Navy on that question and we'd like the Navy to 
work until the very end, but we'll be back with you on what 
else there may be to that.
    The Chairman. Maybe I can help you. Under the agreement, 
the Navy will have to be out of the island by the deadline; 
therefore, they cannot do their work up until the 11th hour and 
leave on the 12th hour. However, the Navy will work as long as 
moneys last. After all, there's a limit of $400 million. But I 
am certain that the Navy will do everything possible before it 
leaves. But I think the work will stop possibly 1 month before 
the final day. It will take about 1 month to vacate the island.
    Senator Akaka. [Native words] for you. Thank you very much 
for your [Native word], your thoughts, and for your testimony. 
Thank you very much.
    Mr. Leonard Selestewa. Excuse me, Mr. Chairman. May I 
approach the microphone while I'm already here? I brought my 
elder uncle a long way, and before we----
    The Chairman. Before you do that, may I thank Ms. Machado 
and Dr. Aluli for their testimony this afternoon.
    Ms. Machado. We are very grateful that the timing provided 
our presence here because of our exhibit.
    The Chairman. And I can assure you that we will do 
everything possible to see that this project is carried out in 
the manner that it was intended.
    Ms. Machado. Thank you.
    The Chairman. Yes, sir?
    Mr. Leonard Selestewa. Before the remarks, your remarks 
were redirected at the panel, the hope was to have my uncle 
also be heard. I'd like 2 minutes of the panel's time for his 
testimony to be put into the record, please.
    The Chairman. If he will come up and identify himself.

STATEMENT OF GILBERT NASEYOWMA, VILLAGE OF LOWER MOENCOPI, TUBA 
                            CITY, AZ

    Mr. Naseyowma. Thank you. My name is Gilbert Naseyowma and 
I'm from Moencopi, AZ. I'm here on behalf of Black Mesa. I was 
born and raised in Moencopi and I am 68 years old now and I 
remember when we were young. I was a sheep herder, and we would 
have sheep corrals up along the Moencopi wash, maybe between 15 
to 10 miles both ways, and I remember how water used to flow 
when we were young. We would be watering our animals, domestic 
animals, and other wild animals were drinking from there, and I 
remember, too, that when we were young we had these birds that 
would like to nest through the wetlands, and that's what I 
missed. I missed some of these birds that have been raised 
there when I was young, born there when I was young, and these 
migratory birds that were coming and they would rest there 
during their periods of migrating. Now these are just by our 
religion, too, that our wild birds, animals are addressed in 
our religion.
    I would like to see this water come back. I have missed a 
lot of things that have changed, and I would like this water to 
come back and would like to see what had happened. I have been 
telling my grandkids what there was before, and I would like to 
see it come back so they would see it again. It is something 
that I have missed.
    I mentioned that it's in our religion that we pray that we 
would be seeing all this wildlife. In our religion we pray that 
all these wildlife is still be the same and same way with our 
council. Our council is connected with farming and went on to 
wildlife, so all this life has been changed for us and that 
water has a lot to do with it and I would like to see it come 
back again.
    Thank you for your time. Thank you very much.
    The Chairman. Thank you very much. Your testimony will 
appear in the record.]
    Thank you. And with that, the hearing is adjourned.
    [Whereupon, at 1:07 p.m, the committee was adjourned, to 
reconvene at the call of the Chair.]
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                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

=======================================================================


 Prepared Statement of Tex G. Hall, President of the National Congress 
                          of American Indians

    Good morning Chairman Inouye, Vice Chairman Campbell, and 
distinguished committee members. My name is Tex G. Hall, chairman of 
the Mandan, Hidatsa, and Arikara Nation and current president of the 
National Congress of American Indians [NCAI], the oldest and largest 
organization of tribes in the United States. On behalf of the National 
Congress of American Indians [NCAI] and its more than 200 member tribal 
nations, I am pleased to have the opportunity to present testimony on 
sacred lands protection. Thank you for affording me the opportunity to 
represent our member-nations and their concerns on this issue.
    NCAI has always been deeply concerned with the respectful treatment 
and protection of sacred lands. Historically subjected to the 
devastating, systemic destruction of their religious practices and 
sacred places, tribes continue today to suffer the heartbreaking loss 
and destruction of their precious few remaining sacred areas. These 
sacred places are critical to the revitalization and continuity of 
hundreds of living cultures, and represent an integral part of our 
religious practice and lifeways.
    Every year, sacred sites that are integral to the practice of 
Indian religions are being destroyed. On my own reservation, Ft. 
Berthold, we are losing 30 to 40 feet of land along the Missouri River 
each year. This translates to 30 to 40 feet of burial sites and 
invaluable traditional cultural properties left unprotected per year, 
with exposure increasing with each passing year.
    We believe this is happening in part because there is no 
comprehensive, effective policy to preserve and protect sacred lands 
and resources. Legal remedies such as the American Indian Religious 
Freedom Act, Executive Order 13007 on Sacred Sites Protection, and the 
National Historic Preservation Act [NHPA] lack meaningful enforcement 
mechanisms, are often ineffectively implemented, and provide limited 
legal redress to aggrieved traditional religious practitioners and 
tribes.
Sacred Lands Protection Coalition
    Individuals and organizations that have been active in the movement 
to protect sacred lands are as diverse as the sites and the communities 
who tend them. As a result of the inadequate solutions available to 
tribes and traditional practitioners for the protection of sacred lands 
or places, the Sacred Lands Protection Coalition was formed with the 
goal of strengthening legal protections for sacred lands and to secure 
administrative accommodations for the use of sacred places by Indian 
religious practitioners. NCAI has participated actively in that 
coalition.
    Through coalition meetings it has become apparent that sacred 
places continue to be endangered throughout the Nation and that 
comprehensive legislation is needed to protect all Native American 
sacred places. Assembled tribal leaders have reached consensus in 
various meetings over the last few years to begin an organized effort 
to halt private and governmentally sponsored development that will 
threaten or destroy sacred places.
    Protection for our precious remaining sacred places is necessary 
for the survival of traditional religions and tribal cultures, and is 
key to preserving our cultural identity and our survival as nations. To 
date, the Coalition has identified several goals that, if achieved, may 
begin to address the concerns of traditional practitioners in a 
comprehensive manner. These goals may serve to inform you as you 
determine how best to move forward to address this critical and 
extraordinarily sensitive issue, and we hope to work with you as we 
further explore and develop the best options for approaching this 
important effort.
Goals of the Sacred Lands Protection Coalition
    1. Strengthen Administrative Policies
    Strengthening the administrative policies and regulations of 
Federal agencies which deal with historical preservation and 
administration of Federal lands to better protect sacred sites and 
accommodate the ceremonial use of such sites is a priority for tribes 
and traditional practitioners. Presently, agencies are encouraged to 
provide accommodations for the use of sacred places by ``Native 
American religious practitioners.'' For most tribes this would limit 
protections and access to only those locations used or approved by a 
tribe's recognized religious leader. But other locations significant to 
the practice of traditional sacred activities that do not involve the 
recognized religious leaders--who are male for the most part--also need 
protection. These locations include women's places, young adult 
'proving grounds', and healing locations used by all tribal people. The 
users of such sacred places may not have the status of 
``practitioners'' and so would not be represented by the limited 
existing protections.
    2. Tribal Consultation
    NCAI is deeply concerned with the Federal Government's failure to 
ensure adequate government-to-government consultation with tribes 
regarding sacred places. The input of tribes must be sought and 
considered when approaching the extremely sensitive process of 3 
protecting sacred places. Adequate consultation must be provided when 
material changes in use of any Federal lands are contemplated and 
whenever policies of Federal agencies change which materially affect 
Tribal interests. The United States must adhere to the trust 
responsibility it has to tribal governments and Indian people to 
protect and preserve Native culture and tradition. Consultation on a 
national level is, as always, key to ensuring that the mistakes of the 
past are not repeated.
    3. Compliance and Enforcement of Existing Federal Law
    NCAI has recognized a critical lack of enforcement of the 
provisions in existing laws that protect sacred places. Our sacred 
places are not held in high regard by the Federal Government, an 
attitude evidenced by the blatant lack of compliance demonstrated by 
several of the Federal agencies who most directly deal with sacred 
lands. Some of the panel members here today will discuss further the 
violation of rules and regulations designed to protect our sacred 
properties. Compliance with and enforcement of existing cultural 
resources protection laws is an integral element of treaty rights 
protection. We believe that a more consistent outreach and consultation 
approach, including Federal Indian policy implementation plans with 
established protocols for working with tribes, would provide more 
reliable cultural resources protection compliance and enforcement.
    NCAI asks your help in requesting an inventory of the existing 
Federal agency sacred lands protection policies, including consultation 
policies, and an assessment of how the policies and regulations are 
currently applied. NCAI also requests that funds be made available for 
the inventory of policies and practices of Federal agencies. NCAI, as a 
member of the Sacred Lands Protection Coalition, recommends 
implementation of one sacred lands protection policy for all Federal 
agencies to follow and is willing to help develop this policy.
    Once this review is completed, we would like the opportunity to 
provide recommendations to this Committee regarding legislative changes 
we believe may be necessary to more consistently protect our sacred 
lands.
    4. Increased Protection
    Increased protections for all sacred places are essential to 
traditional practitioners and the generations to come. We need the help 
of this committee to aid us in educating your colleagues about the 
importance of protecting these sacred places-areas that are limited in 
scope but absolutely of essence to the religious freedom of Native 
people throughout this nation. The Coalition intends to pursue 
comprehensive and well thought-out legislation to increase protection 
after all of the issues surrounding sacred places have been thoroughly 
explored.
    5. Funding
    Tribes need financial assistance to protect and possibly purchase 
sacred places. When Federal agencies do not fulfill their obligations 
to protect sacred places, tribes are left to depend on tribal resources 
that are in many cases extremely limited. Tribes need the opportunity 
to protect sacred lands when Federal agencies do not provide 
protection, and we ask your help in ensuring that tribes in need of 
assistance have avenues of recourse. Additionally, tribes need funds to 
support meaningful consultation with Federal agencies to ensure better 
communication and compliance with existing policies for those sacred 
places that remain on public lands.
    There are many sacred places on lands owned by private entities. 
Access to sacred places located on private lands can prove to be 
difficult, and funding for the purpose of securing protection and 
access to sacred places from willing private owners should be made 
available to tribes. In seeking Federal aid to purchase or otherwise 5 
protect sacred places, I want to be very clear that we are not asking 
for a hand out--simply a very limited means to undo a small part of the 
destruction that Federal policies of the past have done to remove 
sacred lands from the control of the tribes of whose lifeways they are 
an integral part. It seems a very small thing to ask the Federal 
Government to step forward and do what is right to protect what is left 
of our remaining sacred places in light of the shared history of which 
we are all familiar.
    Conclusion
    As a Coalition, we recognize these goals will not be easy to 
achieve. But we have been fighting to save our sacred places for a long 
time now, and we are prepared to continue to fight for these places 
which are of absolutely paramount importance to our survival as tribal 
nations. NCAI commends the Senate Committee on Indian Affairs for 
providing the opportunity for tribes to convey their concerns, 
suggestions, and recommendations aimed at protecting the traditions, 
cultures, and sacred places of native peoples. I would like to thank 
each of you for taking the time to recognize the importance of this 
often forgotten aspect of this nation's serious commitment to the 
protection of religious freedoms, and for standing beside us as we seek 
to protect our lifeways.
                                 ______
                                 

   Prepared Statement of Scott Jones, Public Relations and Cultural 
            Resources Officer of the Lower Brule Sioux Tribe

    Mr. Chairman, Committee Members and Guests, good morning. My name 
is Scott Jones. I am an enrolled member of the Lower Brule Sioux Tribe. 
I am the Public Information Director and Cultural Resources Officer of 
that Tribe in Lower Brule, South Dakota.
    There are so many issues and problems it is difficult in only 6 
minutes to know where to begin. So, I shall begin with what is most 
important--the Resource. Whether it's the Missouri River, or gathering 
areas on open prairie, or Yellowstone National Park or our sacred 
Medicine Butte. To Native people--not just those from ancient time or 
those in history books--the natural resource, it's various uses, it's 
various roles, it's health, remain crucial to the continued survival of 
our traditional Indian culture.
    I would like to address today one specific resource--the Missouri 
River. Since the glaciers pulled back some 12,000 years ago, the 
Missouri River Basin has been continuously occupied by Indigenous 
Indian cultures. It is sacred to my people because the river gave us 
life and the ability to sustain life; the river gave us food; the river 
enabled vast trade routes to be established; the river in recent 
history enabled the expansion and colonization of this country by the 
EuroAmerican; and the River as we know it today has become very 
important to many interests providing trade, energy, flood control, 
recreation, and irrigation just to mention a few. The River is sacred 
to my people today.
    The EuroAmerican expansion and continuous growth gave way to 
treaties and laws. This ``Law of the Land'' set forth compensations for 
the aboriginal peoples whose land had been taken--often times 
illegally. These treaties and laws established trust responsibilities 
to ensure government agencies treated aboriginal Nations fairly and 
equally. Many of these treaties and laws set forth protections for our 
sacred areas and lands that sustained our culture, and some of these 
laws specifically addressed the rights and management of the Missouri 
River and the lands that make up her Basin. Please remember that these 
dams and the lakes they created are not historic--they were created and 
built in my lifetime. The fulfilling of these trust responsibilities 
did not offer Native people--particularly those who lived on the 
River--a role in the creation of this Federal monster. But rather, 
entire Native populations were removed from the safety of their 
64reservation'' homes, had their farms and gathering areas flooded, 
their burial grounds flooded or exposed, and their traditional lifeways 
thrown into turmoil.
    The agency responsible for the Operation and Maintenance of this 
Federal monster--the Army Corps of Engineers, under the Department of 
the Army--has for the last 50 years appeared to conduct business with 
the left hand not caring what the right hand is doing. They have been 
evasive and non-committal in their dealings. More recent Tribally 
friendly Executive Orders, Federal law and amendments to existing 
Federal law have enabled Tribes to force the Army Corps of Engineers to 
confront specific issues and badger them into creating solutions. Then, 
only to often having to watch those solutions disappear into the dark 
hole of a Federal file cabinet, never to be acted upon, implemented or 
considered in any other action.
    We are in a new century now. Tribes understand the demands for 
energy, tribes understand that we are at war with terrorism. Tribes--
particularly those who live along the river and specifically my Tribe, 
The Lower Brule Sioux have consistently asked for participatory rights 
in decisionmaking on those issues which directly impact and affect us. 
At this point, we are asking that existing rights under existing law be 
followed as they should be, as well as asking that consideration of 
future legislation be inclusive of actual on the ground tribal need.
    Some actions I would recommend include the following:
    Develop partnerships which create co-management in areas where both 
the Corps and Tribes can mutually benefit and save time and money, 
while at the same time providing greater understanding of the resource.
    Ensure participation--real meaningful participation--in meetings on 
specific issues (EIS, PA's, EA's, etc.) with results that actually 
become working documents and not find their way into the proverbial 
Federal file cabinet.
    Provide oversight from both Congress and senior Department of Army 
personnel to make sure the Corps is fulfilling their trust 
responsibilities and doing their job properly.
    Require the Corps to set aside a small percentage of each project 
to assist in paying for tribal consultation--the same way they pay for 
engineers and architects and other consultants.
    Address the River holistically as the river basin that it is--not 
as a series of segments, so that planning all of the myriad of actions 
is more consistent. This would facilitate planning on the river, and 
allow existing documents to be used in more than one action, thus 
preventing a reinvention of the wheel with every action.
    End crisis management through the development of memoranda of 
agreement with each affected tribe so that management is inclusive and 
responsibilities can be shared.
    Encourage contracting with tribes, not outside firms, in areas such 
as cultural resource work, enforcement and wildlife habitat renewal, 
water treatment, et cetera
    Tribes are major stakeholders on the River because of their 
aboriginal rights, their unique legal and political status, and because 
their continued survival depends on the health and well being of this 
sacred River.
    It is imperative that you understand that these native resources--
every plant, every rock, every tree, our rivers and springs are 
potentially a required part of a medicine or used in a traditional 
worship activity. The very fabric of our culture is built with natural 
material that evolves back into mother earth.
    Aboriginal cultures were founded in the natural resource, Euro-
American cultures were based upon man made materialistic resources, the 
laws that we live under today do not recognize nor are they reflective 
of this fundamental difference.
    As I said before, we all recognize the demands of development, of 
recreation, of flood control, of energy needs. There is no reason to 
always be at odds. The demands of this century can be met by working 
together. Working together, we can protect this resource, we can create 
solutions, we can create jobs on reservations, and we can create ways 
to manage energy needs and development in a responsible way that will 
carry us into the future.
    Creating organizations such as the Sacred Sites Coalition which 
acknowledge and accept the Tribal lead, will foster understanding while 
insuring tribes have an adequate voice to protect American Indian 
freedom of religion through the preservation of and access to sacred 
sites, gathering areas and necessary natural resources for the 
continued vitality of our threatened traditional worship practices and 
lifeways.
    Thank you for the opportunity of coming before you to address these 
issues.
    I would be happy to answer any questions you may have on what I 
have said. I will submit a more comprehensive written statement for the 
record later this week.
    Thank you.
                                 ______
                                 

   Prepared Statement of Rachel Joseph, Tribal Chairwoman, Lone Pine 
                         Paiute-Shoshone Tribe

    Good morning, Mr. Chairman and distinguished members of the Senate 
Committee on Indian Affairs, I am Rachel A. Joseph, chairwoman of the 
Lone Pine Paiute--Shoshone Tribe located on the Eastern side of the 
Sierra in Central California in the Owens Valley.
    It is an honor and privilege to testify here today on behalf of my 
tribe. I speak today not just on behalf of my tribe but for Paiute and 
Shoshone, including my parents, who have prayed, worshiped and healed 
themselves at Coso Hot Springs. Coso Hot Springs are located on the 
China Lake Naval Air Weapons Station in southeast California. The Coso 
Hot Springs have been visited and used by our people and other local 
Native Americans for time immoral. Our elders tell us of the healing 
power of the warm Coso water and mud and how that healing power is no 
longer the same.
    In 1947, the Department of the Navy acquired Coso Hot Springs 
through condemnation. Coso Hot Springs and the immediate area were 
believed to be rich in geothermal energy and plans to tap this energy 
were initiated in the late 1970's with the Navy contracting with a 
private energy company to construct a geothermal plant near the Hot 
Springs. In January 1978, Coso Hot Springs was placed on the National 
Register of Historic Places as a historic and cultural property.
    Tribal members and the State Historic Preservation Office (SHPO) 
were concerned that geothermal production in and around the Coso Hot 
Springs could have an adverse effect on the Coso Hot Springs and indeed 
it has. Over the years the temperature of the hot springs water and mud 
have grown so intensely hot that tribal members cannot bathe there. Our 
tribal people have long requested that the Navy address the conditions 
of the springs without success. The Navy did conduct a study over 10 
years ago using its own geothermal staff and reported that there was no 
connection between the conditions at the springs and the geothermal 
development occurring next to the springs. Without tribal resources we 
have been helpless to conduct our own independent, unbiased evaluation 
of the Hot Springs and determine the true cause of their destruction 
and desecration.
    Our need to protect Coso Hot Springs continues as the Navy 
currently is conducting deep test well drilling to the north of the 
springs to determine whether geothermal production and development 
should be expanded. My tribe, as well as every tribe in the Owens 
Valley, objected to the test well project. The Navy received our 
comments, as mandated but Federal law, but did nothing with them. The 
test well project has gone forward and we are now left with waiting for 
the next step from the Navy, which we believe will be to expand 
development and production near the springs.
    Tribal members have seen heightened security at Coso Hot Springs in 
light of the events of September 11, and are routinely told of the 
Navy's need for greater energy development, but my people can not allow 
our Coso Hot Springs to be a sacrificed for these objectives. Every 
Federal agency must aggressively protect Native American sacred sights 
and share that responsibility with native people. Far to often, Federal 
projects will threaten a sacred sight and we are asked to comment as 
part of the Federal agency's ``consultation'' process. Our comments are 
submitted and seldom responded to. The Federal agency responsible for 
the project proceeds thinking that it has complied with its 
consultation requirements, when in fact they never really heard what 
the Tribe had to say or adequately addressed the Tribe's concerns. All 
Federal agencies and departments need to take a renewed look at their 
consultation process with Tribes and truly listen to what Native people 
are trying to tell them. The Native American Sacred Lands bill will 
hopefully refocus the Federal Government and bring greater protection 
for sacred land thus ensuring the opportunity to continue traditional 
activities.
    Thank you, for the opportunity to present this testimony.
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