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


                                                 S. Hrg. 107-519, Pt. 2
 
                     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

                               __________

                             JULY 17, 2002
                             WASHINGTON, DC

                               __________

                                 PART 2

                               __________







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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

                              ----------                              
                                                                   Page
Statements:
    Bowekaty, Malcolm, Governor, Pueblo of Zuni, Zuni, NM........    19
    Boxer, Hon. Barbara, U.S. Senator from California............     2
    Cachora, Lorey, housing director and consultant, Culture 
      Committee, Quechan Indian Tribe, Fort Yuma Indian 
      Reservation, Yuma, AZ......................................    16
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     2
    Coyle, Courtney Ann, counsel, Quechan Indian Tribe...........16, 18
    Harjo, Suzan, president, Morning Star Institute, Washington, 
      DC.........................................................    26
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    Jackson, Sr., Michael, president, Quechan Indian Tribe.......    16
    Kearney, Christopher, deputy assistant secretary, Policy and 
      International Affairs, Office of Policy, Management and 
      Budget, Department of the Interior.........................     6
    Masayesva, Vernon, executive director, Black Mesa Trust, 
      Kykotsmovi, AZ.............................................    28
    Nickels, Marilyn, group manager, Cultural and Fossil 
      Resources, Bureau of Land Management.......................     6
    Parker, Patricia, chief, American Indian Liaison Office......     6
    Parsons, Stephen, hydrologist, Office of Surface Mining......     6
    Robbins, John, assistant director, Cultural Resources, 
      Stewardship, Partnership, National Park Service............     6

                                Appendix

Prepared statements:
    Bowekaty, Malcolm............................................    33
    Coyle, Courtney Ann (with attachments).......................   213
    Harjo, Suzan.................................................    37
    Kearney, Christopher.........................................    35
    Masayesva, Vernon (with attachments).........................    41
    Obey, Craig D., vice president, Government Affairs, National 
      Parks Conservation Association (with letter)...............    60
    Palmer, Fredrick D., executive vice president, Peabody Energy 
      (with attachments).........................................    67
    Trepp, Robert W..............................................   189
Additional material submitted for the record:
    Minthorn, Armand, chair, Cultural Resources Committee, 
      Confederated Tribes of the Umatilla Indian Reservation 
      (letter)...................................................   195
    Parker, LaRue, chairwoman, Caddo Nation of Oklahoma (Letter).   202
    Sutherland, PhD, Donald R., Principal Archeologist/Federal 
      Preservation Officer, BIA, Report on the Inspection of 
      Construction Activity on Trust Lands of the Poarch Creek 
      Indians, Wetumpka, Alabama, to Determine if Such Activity 
      Might Have Occasioned a Violation of the Archeological 
      Resources Protection Act of 1979...........................   205


                     NATIVE AMERICAN SACRED PLACES

                              ----------                              


                        WEDNESDAY, JULY 17, 2002


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to recess, at 10:06 a.m. in 
room 485, Senate Russell Building, Hon. Daniel K. Inouye 
(chairman of the committee) presiding.
    Present: Senators Inouye and Campbell.

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

    The Chairman. The Committee on Indian Affairs meets today 
for the second in a series of hearings on Native American 
sacred sites.
    Long before Europeans landed on the shores of America, the 
Native people of this Nation revered and protected the lands 
and natural resources that they knew as their homeland. Their 
cathedrals had the sky as their ceilings and the mountains and 
the trees as their walls. The sun and the moon and all of the 
natural elements were respected as the manifestations of a 
creator who watched over all the beings of the world.
    With the advent of European settlement and westward 
expansion, the places that Native Americans held as sacred 
became vulnerable to desecration and destruction. In 
contemporary times, the Government of the United States has 
slowly but surely begun to understand that these sacred places 
must be protected and preserved.
    Through these hearings, we hope to identify where the best 
protection practices are taking place and where we need to 
focus our attention if we are to have improvement.
    Like other Americans, among the places that Native 
Americans hold sacred are the grave sites of their dear 
departed loved ones. Because of the tragic record of the 
desecration and destruction of Native American grave sites, the 
Congress enacted a law in 1990 to provide for the protection of 
graves. That law is an Indian law. It is codified, as are all 
other laws enacted for the benefit of the Native people of the 
United States, in title 25 of the United States Code. It is 
intended to provide for the protection of Native American 
graves.
    Today the committee will receive testimony on some of the 
land management activities of the Department of the Interior 
and the impact of those activities on the Federal policy which 
supports and protects Native American sacred places.
    May I now call upon the cochairman of the committee, 
Senator Campbell.

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

    Senator Campbell. Thank you, Mr. Chairman.
    As the committee deals with the pressing needs of Indian 
people like health care and housing, this issue often goes 
overlooked, but it is extremely important. Today we will 
receive testimony on the issue of Native sacred sites and how 
those sites have been or are being impacted by the activities 
of our Department of the Interior.
    Native peoples, perhaps more than most, are affected 
because the places we hold dear are being encroached on by the 
needs and demands of the modern economy and economic activities 
such as mining, logging, recreation, and building. The 
dichotomy, of course, is that in this day and age sometimes 
Indian people need those activities, themselves, for jobs and 
making sure that their families are well fed.
    Many of the most sacred places are now located on private 
lands, which makes the protection of those sites even more 
difficult than usual.
    A legitimate question to ask: How has the Federal 
Government responded to those needs, particularly in a Nation 
that historically has turned our sacred sites on non-Indian 
land, such as battlefield and cemeteries, into tourist 
attractions? Just as President Nixon launched the Indian Self-
Determination Act in 1970, 1 year later, in 1971, he signed 
important legislation returning the Blue Lake Band to the 
Pueblo of Taos, which holds them sacred. A real awakening has 
taken place since 1971.
    Next year we will celebrate the 25th anniversary of the 
American Indian Religious Freedom Act, and we are joined today 
by one of the people on the panel, our good friend, Suzan 
Harjo, who was instrumental in working the halls of Congress 
and the White House to get that key legislation passed.
    As much as a milestone as the American Indian Religious 
Freedom Act was, the courts have interpreted it to be lacking 
in enforcement authority. In the years since that enactment, 
there have been other efforts to protect the Native sites--
NAGPRA in 1990, President Clinton's 1996 Executive Order on 
Sacred Sites, and progressive action by many agencies at the 
Federal level. Just as Native people continue to try and 
protect their sacred places, it is evident to me that the legal 
protections now in place for cultural and religious sites in 
America are lacking in many respects.
    With that, Mr. Chairman, I thank you for convening this 
hearing and look forward to the testimony of our witnesses.
    The Chairman. It is my great pleasure and honor to 
recognize the distinguished Senator from the State of 
California, The Honorable Barbara Boxer.

 STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman, and thank 
you so much, Senator Campbell, for holding this important 
hearing and for your stewardship on the whole issue of Indian 
affairs. It is so important, and you both are there every day, 
and I can't tell you how much I appreciate it.
    Before I start my testimony, which probably goes about 4 
minutes, I would like to ask if it would be possible for you to 
submit some questions on my behalf to the Administration and 
ask them to answer these in writing for me.
    The Chairman. We will submit those questions.
    Senator Boxer. I thank you so very much.
    This whole issue of sacred sites has become very personal 
with me because I was introduced to a particular issue I will 
talk about today and thought that it was all resolved. It turns 
out it isn't. I'm going to need your help.
    I am very happy that today there are two witnesses here, in 
particular, President Jackson and Lorey Cachora on behalf of 
the Quechan Nation. I have had a long relationship with this 
tribe, a relationship that came about because of unfortunate 
circumstances I will describe in a few minutes.
    Let me first try to elaborate on your eloquence on the 
importance of sacred sites and how strongly I feel that they 
must be protected.
    Mr. Chairman, in this world there are a number of sacred 
sites that we all recognize, respect, and revere as sacred, 
regardless of our individual faith. The very idea of placing, 
say, an oil rig next to the Wailing Wall or making a parking 
lot out of Notre Dame or placing that same oil rig near the 
Blue Mosque or Westminster Abbey, it is to preposterous to even 
say or to even imagine. Yet, there are numerous Native American 
sites, sacred sites, that are unknown, but many that are known 
that are currently being ravaged and destroyed in these very 
same ways.
    I feel comfortable saying that in this room we all 
understand the importance of sacred sites and the role they 
play in the spiritual and religious life of a tribe, but 
there's a difference between understanding that sacred sites 
exist and respecting these sites, being cognizant of their 
importance and protecting them with the full force of the 
Federal law.
    The protection of sacred sites is certainly not a new 
issue. It has been dealt with a number of times, as Senator 
Campbell has alluded to, through executive order and Federal 
laws and regulations. However, even all that doesn't change the 
fact that sacred sites are being threatened today in my State 
of California and across this Nation.
    I want to tell you about a specific sacred site in which I 
have been intimately involved, one that involves the Quechan 
Nation. It is an epic battle against a proposed gold mine.
    The story spans nearly a decade and began in 1994 when the 
Canadian-based GLAMIS Imperial Corporation proposed development 
of an open pit gold mine that would impact over 1,600 acres of 
land in Southern California. ``Impact'' is a term that can mean 
many things. This proposed mine wouldn't just impact these 
lands, it promises to destroy them.
    Open pit gold mining, which is what GLAMIS proposed, 
literally alters the very face of the landscape, and, because 
of the scope and the damage, it is so hard to comprehend. I did 
bring a chart, and it doesn't even do it justice, but imagine 
this. This are is all--this is another are in my State, not far 
from where this is, and it was all beautiful, green, rolling 
hills, and you can see what happens.
    We also have--and you can't see it, it's in the small part 
here--yellowish-orange rivers near this mine. The rivers are 
dead zones--dead zones--and have been poisoned by the cyanide 
used in this type of gold mining.
    We know how Indians, Indian tribes, Native Americans love 
the land, the water, respect and treasure it, and here we have 
a situation of dead zone that has been poisoned by cyanide from 
this type of gold mining that has been proposed by GLAMIS.
    It is fair to say that this type of gold mining creates 
sacrifice zones, and in this case GLAMIS proposed that the 
sacrifice zone be a location that is sacred to the Quechan 
people.
    During the permit review process, President Clinton's 
Advisory Council on Historic Preservation testified that the 
mine would essentially--and I'm quoting, Mr. Chairman:

    Essentially destroy the tribe's ability to practice and 
transmit to future generations the ceremonies and values that 
sustain their cultural existence.

    I think that is an eloquent quote. I'm going to say it one 
more time. The President's Advisory Council on Historic 
Preservation testified that the mine would:

    Essentially destroy the tribe's ability to practice and 
transmit to future generations the ceremonies and values that 
sustain their cultural existence.

    To me, I would put it in even starker words. It says that 
this mine would rip the heart out of the tribe's religious 
center.
    The tribe, the its credit, played by the rules, Mr. 
Chairman. They participated in the environmental review 
process, they expressed their objections. I repeatedly 
expressed mine in writing, verbally. I met with Secretary 
Babbitt to let him know of my opposition. I was very strong.
    In January 2001, the Clinton administration did the right 
thing. In an unprecedented move, it denied GLAMIS the necessary 
permits. Never before had the Bureau of Land Management denied 
a mine because of cultural impacts. The Administration's 
decision to reject the mine was based, in part, on the fact 
that:

    The proposed project is in an area determined to have 
nationally significant Native American values and historic 
properties and would cause unavoidable adverse impacts to these 
resources.

    The day that decision was made was a day when the Federal 
Government honored its legal and ethical obligations to protect 
the interest of the Quechan Tribe. It sent a powerful and 
positive message that Native American religious rights would be 
honored and their sacred sites would be protected.
    Mr. Chairman and Mr. Cochairman, that was a wonderful day 
when that decision came down, but the victory didn't last long. 
In November 2001, Secretary Gale Norton came up with a new 
interpretation of mining law and decided she was going to 
reopen consideration of the GLAMIS proposal. Although the 
initial permit denial took 6 years and hundreds of hours of 
consultation, the decision to reopen the permit involved no 
public input and took only a few months.
    Nowhere in the convoluted explanation that Secretary Norton 
gave to justify this decision did she ever address the tribe's 
concerns. She simply acted as if it didn't matter, or maybe she 
knew there was no legal or moral justification she could give.
    The decision is a rejection of her trust obligations to 
that tribe. It ignores her duty to comply with the executive 
order on sacred sites and it rejects her obligation to comply 
with the Native American Grave Protection and Repatriation Act.
    But what really bothers me deeply is that Secretary Norton 
met with the GLAMIS Corporation, a private Canadian company, 
prior to reversing the Clinton decision, but from everything we 
can gather--and we've asked everyone, and you can ask, 
yourself--she did not meet with or consult with the tribe. In 
fact, it is my understanding that she still has not met with 
the tribe, despite her plans to move forward with a project 
that will tear the heart out of their culture.
    I hope that today's witness for the Administration can give 
us confirmation that the Secretary will meet with the tribe in 
the near future to discuss this.
    When I ask myself how this could happen, the only 
conclusion I can draw is that Secretary Norton views the GLAMIS 
project as just another mining project, but I'm here to tell 
you it isn't. The GLAMIS project is about the desecration of a 
sacred site, the Notre Dame, the Wailing Wall, Westminster 
Abbey.
    We in Congress must find a way to ensure that the Quechan 
Nation sacred sites and the sacred sites of other tribes are 
not allowed to fall prey to this type of destruction. Although 
I have mentioned one situation in my State, I know that this is 
not a State-specific issue, it is a national issue, and that is 
why I am so grateful to you for putting this issue on the map. 
It must be addressed at the national level.
    I once again thank you, Mr. Chairman and Mr. Cochairman for 
convening this series of hearings and to your dedication to 
making sure that these sacred sites are forever protected.
    Thank you very much.
    The Chairman. Your strong and moving words will be kept in 
mind as we progress, madam.
    Senator Boxer. Thank you. Thank you so very much.
    Senator Campbell. May I just say to Senator Boxer that I 
certainly agree with her and I intend to write a letter to the 
Secretary and try to talk to her about it personally.
    I'm glad you have such a good feeling, too, about these 
sacred sites. You know, Indian sacred sites are not just based 
on where remains lie. It is where the spirits of their 
ancestors lie. I guess, because of our history of America, in 
which many of them were not recorded or documented or located, 
in some cases you have to ask Indian people, obviously, where 
they are. They know because their fathers and their 
grandfathers have told them, but it wasn't recorded in some 
book in Washington, D.C.
    As I understand it--as you do--there is an obligation, when 
opening a new mine for instance, to negotiate with the tribes, 
but meeting with them and consulting and then doing what you 
want anyway is not my idea of fulfilling an obligation with two 
parties involved.
    I just wanted you to know I am certainly willing to help 
you.
    Senator Boxer. I just want to say how grateful I am to you 
and to Senator Inouye, and I think there is not an 
understanding here. Look, for people who haven't really focused 
on this, it is the whole notion. You're dealing with sovereign 
nations. You're right--it's not a matter of having filed a form 
with another nation.
    What you say I agree with 100 percent, and I thank you 
again.
    The Chairman. Our next witness is the deputy assistant 
secretary, Policy and International Affairs, of the Office of 
Policy Management and Budget of the Department of the Interior, 
Christopher Kearney.

 STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY, 
POLICY AND INTERNATIONAL AFFAIRS, OFFICE OF POLICY, MANAGEMENT 
AND BUDGET, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY PATRICIA 
PARKER, CHIEF, AMERICAN INDIAN LIAISON OFFICE; STEPHEN PARSONS, 
 HYDROLOGIST, OFFICE OF SURFACE MINING; MARILYN NICKELS, GROUP 
    MANAGER, CULTURAL AND FOSSIL RESOURCES, BUREAU OF LAND 
  MANAGEMENT; AND JOHN ROBBINS, ASSISTANT DIRECTOR, CULTURAL 
  RESOURCES, STEWARDSHIP, PARTNERSHIPS, NATIONAL PARK SERVICE

    Mr. Kearney. Good morning, Mr. Chairman and Mr. Cochairman. 
Thank you for inviting me to testify. We have some witnesses 
joining us who will be able to answer a number of technical 
questions for you should we be getting into that, and with your 
indulgence I will begin my statement.
    The Chairman. Will you identify your staff, sir?
    Mr. Kearney. Yes; I will, sir.
    As I said, my name is Chris Kearney. I am the deputy 
assistant secretary for Policy and International Affairs in the 
Office of the Assistant Secretary of Policy, Management, and 
Budget. I am accompanied today by Stephen Parsons, a 
hydrologist with the Office of Surface Mining; Marilyn Nickels, 
the group manager, Cultural and Fossil Resources, Bureau of 
Land Management; and also John Robbins, the assistant director, 
Cultural Resources, Stewardship, Partnerships, the National 
Park Service; and Patricia Parker, chief of the American Indian 
Liaison Office.
    Executive Order 13007 regarding Indian sacred sites was 
issued in 1996. That order requires Federal land management 
agencies, to the extent practical permitted by law and not 
clearly inconsistent with essential agency functions to 
accommodate access to and ceremonial use of Indian sacred sites 
by Indian religious practitioners and avoid adversely affecting 
the physical integrity of such sacred sites.
    Where practical and appropriate, it implements procedures 
to ensure reasonable notice is provided of proposed actions or 
policies that may restrict future access to or ceremonial use 
of or adversely affect the physical integrity of these sites.
    The order also requires Federal agencies to consult with 
tribes on a government-to-government basis whenever plans, 
activities, decisions, or proposed actions affect the integrity 
of or access to the sites.
    Each relevant Cabinet agency was required to send an 
implementation report to the President within 1 year of the 
order's issuance.
    Coordination of the Department of the Interior's 
implementation was assigned to the Office of American Indian 
Trust, OAIT. OAIT is responsible for ensuring Departmentwide 
compliance and overall consistency of the sacred sites 
executive order.
    To assist that office to communicate with various bureaus 
in the Department, an inter-agency working group on 
implementation of the sacred sites executive order was created, 
comprising representatives of each departmental bureau, 
appropriate offices, and the Office of the Solicitor.
    The working group has actively sought input from tribal 
representatives on all aspects of the implementation process. 
The Department asked for tribal input on the structure, 
location, and content for consultations, and hosted three 
formal discussion meetings between tribal and Federal 
representatives focusing on implementation from both a 
procedural and substantive perspective. Those meetings were 
held in Portland, Oregon; Denver, Colorado; and Reston, 
Virginia in March and early April 1997.
    Topics at the meeting included how to conduct meaningful 
consultation, how and when the processes are triggered, how to 
protect the physical integrity of the sites, how to protect the 
confidentiality of culturally sensitive information, 
accommodating access and use, as well as dispute resolution.
    In October 2001 the Department attended a Sacred Lands 
Forum in Boulder, CO, and through considerable internal review 
and dialogue with interested participants of the forum it 
became clear that we needed to move forward on establishing 
policies and procedures for protecting sacred lands and the 
executive order.
    At the Overcoming the Challenges Symposium that was held in 
March of 2002, held as part of the Washington, DC Sacred Lands 
Forum, we announced our intent to reconvene the Department's 
Sacred Sites Working Group.
    In June of this year, each of the Department of the 
Interior offices and bureaus involved with sacred sites were 
notified of plans to reconvene the working group, and they were 
asked to assign a representative to it. Our objective is to 
renew the momentum within the bureaus for establishing the 
necessary procedures to carryout our obligations understood in 
the policy we created and ensure that we fully take into 
account all tribal concerns.
    It is also our intent, working with the tribes, to finalize 
and then publish these policies and procedures and provide them 
to the tribes and other interested parties and to ensure that 
implementation occurs in a timely manner.
    The Office of American Indian Trust is responsible for the 
coordination, logistics, and staff assistance within the 
Department.
    The first working group meeting occurred just this past 
July 2 in the Office of the Assistant Secretary for Indian 
Affairs. We are in the process of now identifying the current 
status of sacred site management across the bureaus, and that 
will be followed by future meetings with developing management 
changes and tools to ensure full compliance with the order.
    In addition, and as a result of the sacred lands forum, on 
August 14 the Department and the Advisory Council on Historic 
Preservation are sponsoring an inter-agency meeting on sacred 
lands and cultural resources under the auspices of the Inter-
Agency Working Group on Environmental Justice. These meetings 
are meant to help bring awareness and enhance coordination of 
sacred sites, not just within the Department but 
governmentwide.
    This concludes my statement. I would be pleased to answer 
any questions you might have, and any technical questions these 
folks would be happy to answer for you, as well.
    The Chairman. I thank you very much, Mr. Kearney.
    [Prepared statement of Mr. Kearney appears in appendix.]
    The Chairman. The committee has been advised that last 
February an employee of the National Park Service segregated 
and destroyed several boxes of NAGPRA--that's the Native 
American Grave Protection and Repatriation Act--and archeology 
and ethnographic program documents. Did this ever happen? And 
what did they destroy, if they did?
    Mr. Kearney. Mr. Chairman, my understanding is that some 
answers and some questions related to that have been provided 
to you already. Is that correct, or have you received other 
information?
    The Chairman. Staff tells me it is not correct.
    Mr. Kearney. Okay. My understanding of the information was 
that this was as part of offices in the National Capital Region 
Office that they were moving to another office, that they were 
consolidating space, that they were going through old files and 
records, reducing what they had, and that there were no NAGPRA 
original records or materials that were destroyed. In fact, all 
of the material, as I understand it, was retrieved from the 
trash where it had been sent, and that the material was 
reviewed and examined, and that it was a range of magazines, of 
outdated forms, Government-related papers and so forth, 
miscellaneous materials.
    To the extent there was anything that was NAGPRA related, 
it was duplicative forms and information. There were no 
sensitive records or information destroyed is the information 
that I have. In fact, all of those boxes were retrieved, and it 
was simply a process associated with essentially throwing out 
outdated materials and records--not records, but outdated 
materials and forms and so forth.
    The Chairman. Is there an ongoing investigation or are you 
satisfied with your findings?
    Mr. Kearney. My understanding is that there was a thorough 
review and independent evaluation at that time, and that we are 
satisfied with that conclusion.
    The Chairman. So nothing relevant or important was 
destroyed?
    Mr. Kearney. That's correct.
    The Chairman. Some have suggested that the NAGPRA program 
office should be moved to the Office of the Secretary. What are 
your thoughts on that?
    Mr. Kearney. The Department's position is that, based on a 
review of that program last year and with a number of changes 
and actions that the Park Service has taken, we are satisfied 
that the program can remain within the Park Service and will 
remain in the Park Service; however, we are open to any 
suggestions and ideas by way of improving the management and 
the process and giving additional levels of comfort that the 
committee may need to ensure that that's the case, but we are 
satisfied that steps have been taken to ensure that the program 
can operate appropriately.
    In the Park Service, for example, staffing has been 
improved. There have been changes in individuals who oversee 
the program. And there is a redirection and a refocus of the 
program.
    The Chairman. So at the present time this move is not under 
serious consideration?
    Mr. Kearney. That's correct. That's right. The decision has 
been made to retain it at the Park Service.
    The Chairman. Was the explanation or description provided 
by Senator Boxer on the gold mine accurate from your 
standpoint?
    Mr. Kearney. I would defer to the technical folks on some 
of the specific aspects with respect to that in terms of 
whatever question you might want to ask about it.
    Ms. Nickels. Could you give me specifically what part of 
the testimony you were----
    The Chairman. Well, you were here when Senator Boxer 
testified.
    Ms. Nickels. Right.
    The Chairman. And she said, first, there was no 
consultation with members, appropriate members of the Indian 
nation. Second, it is a very sacred site listed as one of the 
10 most important by the Government of the United States, and 
it was once declared to be sacred and therefore inviolate, but 
then this Administration suddenly changed positions, without 
hearings or consultation. Are those statements correct?
    Ms. Nickels. It is my understanding that the Solicitor's 
opinion in the last Administration was reviewed. The 
Solicitor's opinion, which underlay the decision by the 
Secretary in the past Administration to deny the mining plan of 
operation was reviewed by Solicitor Meyers in this 
Administration, and that he advised the Secretary that, based 
upon his review, that that Solicitor's opinion should be 
overturned, and advised her to rescind that decision of denial.
    Pursuant to that decision by the Secretary, the Bureau of 
Land Management has proceeded forward with a review now of the 
mining plan of operation. It is to be preceded by validity 
examinations which are required before we approve the mining 
plan of operation or go forward with review of the mining plan 
of operation.
    The Chairman. Did you consult with the leaders of the 
nation?
    Ms. Nickels. I believe that the Bureau of Land Management 
was not involved directly at the decision at the Secretarial 
level, and so I would defer to the Secretary's office to answer 
questions about consultation with tribes on that decision.
    Mr. Kearney. We would be happy to respond to that in 
writing to be sure that we get the facts for you correctly.
    The Chairman. Was the Secretary's office or the appropriate 
offices aware that this site was considered one of the ten most 
sacred sites in the United States?
    Mr. Kearney. Again, I would be happy to get you an answer. 
The proceedings and the steps through which that unfolded is 
information we want to make sure that we have for you 
correctly, exactly what the full context and the story was.
    The Chairman. Well, I have a document here that says this 
is one of the top 10--in fact, the most sacred of all sites--
but the Interior Department wasn't aware of that?
    Mr. Kearney. Senator, I was not directly involved in the 
activities and the decisions, and rather than--I do not want to 
mischaracterize or characterize steps and actions, level of 
information that was aware. I'm certain that there was a full 
set of facts and information that went into these decisions. I 
simply want to make sure we have it accurate for the committee.
    The Chairman. Are you aware of the National Trust for 
Historic Preservation?
    Mr. Kearney. Yes, sir.
    The Chairman. Is that a worthy and meritorious 
organization?
    Mr. Kearney. Yes, sir; certainly they are.
    The Chairman. And they have set forth America's 11 most 
endangered historic sites. Have you seen this document?
    Mr. Kearney. I'm not immediately familiar with it. No, 
Senator.
    The Chairman. This appeared in the ``Atlantic Monthly,'' 
August 2002, so it is most recent. The first site described is 
the one that we are speaking of in Imperial County, California, 
Quechan Sacred Site.
    Ms. Nickels. Senator, we are aware of the list of the 
National Trust for Historic Preservation that lists Indian Pass 
as one of the most endangered, yes.
    The Chairman. But, notwithstanding that, you did not 
consult with the leaders of the nation?
    Ms. Nickels. As I mentioned before, at the Bureau level we 
must defer to the Department to characterize the discussions 
that went on and the decision to rescind the past denial.
    The Chairman. Well, if they break down St. Peter's 
Cathedral I hope we consult with them.
    What is a culturally unidentifiable human remain?
    Mr. Kearney. Under NAGPRA, culturally unidentifiable----
    The Chairman. Yes, yes.
    Mr. Kearney [continuing]. Human remains are human remains 
that cannot be culturally affiliated with a federally 
recognized tribe.
    The Chairman. And I have been told that you have a 
rulemaking regarding disposition. What is the rule that you are 
suggesting?
    Mr. Kearney. Under the original act one of the sections 
that further regulations were to be developed for was the 
disposition of culturally unidentifiable human remains, and the 
development of that rule is underway now.
    The Chairman. You are supposed to have a list of these 
remains; is that correct?
    Mr. Kearney. Yes; one of the first tasks regarding 
culturally unidentifiable human remains is the development of a 
list that----
    The Chairman. Have you completed this list?
    Mr. Kearney. No; that list is not complete, but it is 
underway.
    The Chairman. When that list is completed, will it be 
shared with us?
    Mr. Kearney. That list will be available to the public and 
we'll make sure that the committee has a copy of that list.
    The Chairman. Is there any government-to-government 
consultation that is taking place with Native Americans on this 
proposed rule?
    Mr. Kearney. The way that the--the terms of the rule, the 
draft was developed from recommendations that were developed by 
the Native American Graves Protection and Repatriation Review 
Committee, which is the citizens advisory committee under 
NAGPRA, and the recommendations of the committee were developed 
in several public meetings, the Review Committee's public 
meetings.
    The rule then has been drafted based on the committee's 
recommendations, and then again this is a draft rule which 
would then be available for public comment.
    The Chairman. It will be open to the leaders of Indian 
Country?
    Mr. Kearney. Yes.
    The Chairman. I have several more questions, but I'll call 
on our cochairman.
    Senator Campbell. Thank you, Mr. Chairman. We got our first 
call to vote, and we'll get a second one in 1 minute, so we're 
going to have to run. I assume you're going to take a break for 
a couple of minutes.
    The Chairman. Yes.
    Senator Campbell. Just in the couple of minutes I have, I 
don't want to reduce it just to asking a bunch of sanitized 
technical questions dealing with rules and times and dates. I'd 
just point out not too long ago I was on a CODEL and we stopped 
at Normandy, where I visited Omaha, Juno, and Sword, the 
beaches where so many Americans died. I know that my chairman 
understands the feeling of being a decorated military hero, 
himself. When you visit a place where your brothers fell, I 
guess I would only ask you--and you don't have to answer it out 
loud, but consider in your own heart how would you feel if your 
grandfather died there or your father and you found out a mine 
was going to be built on Omaha Beach.
    I think we get bogged down here in Congress so much with 
doing it by the book and doing it by rules that we don't do 
enough by the heart, and I want you to think about that while 
we're voting.
    Thank you, Mr. Chairman.
    The Chairman. We will stand in recess for 5 minutes.
    [Recess.]
    The Chairman. Any more questions?
    Senator Campbell. I have one or two, Mr. Chairman. Thank 
you for letting me continue with questions, since I didn't 
really get to ask one a while ago that I wanted an answer for.
    Mr. Kearney, I happen to be a westerner. I'm certainly 
sympathetic with the importance and the need to develop natural 
resources and at the same time to protect the environment. We 
really get caught in a cross-fire out west, as you might 
imagine, sometimes people calling it the War Between the Old 
West and the New West.
    I think the Secretary shares that view, too, coming from 
Colorado, and a person that has been involved in public policy 
so many years.
    Let me ask you about the Department. As I understand it, it 
has been engaged now for six years with tribes on sacred place 
protection. What is the end goal? And do we need more 
legislation or do we need a change in policy? We're certainly 
missing somewhere with the tribes.
    Mr. Kearney. Well, Senator, let me try to answer it this 
way and perhaps give you a further follow-up answer. We 
certainly find it to be critically important to take into 
account all matters related to sacred sites, and we are trying, 
as part of this working group, to give some guidance to the 
executive order. There are a number of issues that the working 
group will be looking at, and it may well be in that context 
that that can be examined. We're really trying to develop 
guidance that gives Federal land managers on the ground ways to 
address and deal in advance with issues like those that have 
been raised by GLAMIS and others so that we have some sense of 
what we're dealing with before we go into situations to try to 
minimize controversy and to take into consideration the 
concerns of the tribes and others. So that is our commitment 
and that's what we are focused on.
    Senator Campbell. But tribes really don't have a veto. That 
means if you go out and meet with them and you listen to their 
concerns, whoever wants to develop the mining area, if they've 
got enough clout it tends to get done, in my view, because, as 
I understand it, tribes may complain, they may register their 
views on it, but bottom line is it can be run over the top of. 
Is that correct or not? Unless they go to court, and maybe the 
courts might uphold their claim.
    Mr. Kearney. Well, I think, Senator, that there is a 
commitment to do everything possible to maximize and take into 
consideration the concerns and the impacts and the effects on 
tribes and taking steps necessary to mitigate those to every 
extent that we possibly can. That is in every regard. We always 
will try to do that.
    Senator Campbell. Can you give the committee a couple of 
instances in which tribal complaints have stopped a big 
development, say a mine development?
    Mr. Kearney. In my direct experience, nothing immediately 
comes to mind, but I would be happy to try to check for you and 
see if anything falls into that category.
    Senator Campbell. I'd appreciate it if you would, because 
it is my information that they have never been able to stop 
one. I mean, there might be some consultation, but the bottom 
line is it gets done.
    Thank you, Mr. Chairman.
    The Chairman. I thank you very much.
    If I may for a moment go back to the destruction of 
documents, according to my files here the committee was advised 
that several solicitors conducted an inventory and reviewed the 
documents in the boxes, and that, contrary to your 
understanding, the boxes contained NAGPRA records, personnel 
records, financial records, and travel records. Can you provide 
the committee with a clarification of this in writing?
    Mr. Kearney. Certainly.
    The Chairman. I am certain you are aware that a very famous 
dance shirt, the ghost dance shirt of Crazy Horse, was sold by 
Sothebys, and the Department did not pursue this matter because 
it did not have a final rule in place. Is there such a rule now 
that can stop the sale?
    Mr. Kearney. I apologize, Senator. I was taking a note on 
your previous request. Could you repeat that question, please?
    The Chairman. It is the committee's understanding that one 
of the items of cultural patrimony, the ghost dance shirt of 
Crazy Horse--in minds of Native Americans, that's a very 
important shirt----
    Mr. Kearney. Yes, sir.
    The Chairman [continuing]. Was sold by Sothebys and the 
Department did not pursue the matter because the Department did 
not have a final rule in place. Do you have a final rule in 
place?
    Mr. Kearney. I believe so, but I'd defer to----
    The Chairman. On civil penalty regulations?
    Mr. Kearney. I believe so.
    Mr. Robbins. Currently the rule in place is an interim rule 
on civil penalties, and the final rule continues to be in 
development.
    The Chairman. So if we have another valuable shirt of this 
nature, you can't do anything to stop its sale?
    Mr. Robbins. The decision to pursue civil penalties or not 
is a decision taken in consultation with the Solicitor's 
Office, and I have not been part of any of those decisions. But 
on the matter of interim and final rule, currently an interim 
rule is in effect and the final rule is in preparation.
    The Chairman. So with this interim rule, would the 
Government have been able to save Crazy Horse's shirt?
    Mr. Robbins. I would have to respond to that. I would 
request that I would be able to respond to that in writing.
    The Chairman. Please do.
    I would like to know in your response also what is the 
status of the civil penalty rule. It is an interim rule. How 
long will it be interim?
    Mr. Robbins. We will include that in the response.
    The Chairman. Do you have any idea how long it will be?
    Mr. Robbins. The final rule is in preparation now, and I 
would want to give you an accurate status report on where that 
is in the process towards final rulemaking.
    Mr. Kearney. We'll be sure to get that to you, Senator, as 
soon as we can.
    The Chairman. Going back to the GLAMIS gold mine, the 
former Secretary of the Interior based his findings that the 
open pit cyanide heat leach gold mine would cause undue 
impairment to cultural and natural resources; however, the 
present Secretary rescinded the earlier denial of the mine 
permit on the grounds that the Department did not have 
regulations that defined undue impairment, and that lack of 
such definition thus prohibited the Department from denying the 
mine, despite the fact that the statutory standard has been in 
place for 20 years in the California desert conservation area.
    If that is the case, what information did the Department 
rely on to make its rescission of the denial of the proposed 
mine project ?
    Mr. Kearney. Senator, I would be happy to respond to you in 
writing. I was not directly involved in that and do not have 
the information to provide to you at this time with respect to 
that.
    The Chairman. Anyone here involved in it?
    Mr. Kearney. No; Senator.
    The Chairman. Do you know what undue impairment is?
    Mr. Kearney. Not familiar with the term specifically as it 
relates that it was the basis for that.
    The Chairman. Does the BLM consider sites of religious and 
cultural significance to Native Americans to be one of the 
resources to be protected under the existing authority, 
including the Federal Land Policy and Management Act?
    Ms. Nickels. Yes, Senator; we do include that category of 
property in all of our considerations under the Federal Land 
Policy and Management Act, the American Indian Religious 
Freedom Act, the executive order on sacred sites, and the 
National Historic Preservation Act requirement, so a suite of 
laws govern our decisionmaking process and the process that we 
go through before we reach these decisions.
    The Chairman. That being your view, I presume you will 
define ``undue impairment,'' won't you?
    Ms. Nickels. Again, I would have to defer to the Department 
and to the Solicitor's Office for that in answering that 
question.
    The Chairman. Don't you think it is important?
    Ms. Nickels. Yes, Senator; it is important.
    The Chairman. Because if that is not promulgated, BLM may 
not be able to implement the Congressional mandate in the 
California desert conservation area and protect that area; 
isn't that correct? It will be just two words, ``undue 
impairment.''
    In 2000 the Bureau of Land Management withdrew the Indian 
Pass area from new mining claims to protect the Indian cultural 
and religious values found there. Is the Bureau of Land 
Management considering any action to rescind the withdrawal of 
the area from mineral entry?
    Ms. Nickels. To my knowledge we are not.
    The Chairman. Can we get an official response from the BLM 
on that?
    Ms. Nickels. We would be happy to followup with answer in 
writing.
    The Chairman. Thank you very much.
    Ms. Nickels. I am advised, Senator, it is a standard 20-
year withdraw, the action that was taken originally.
    The Chairman. Could you find out for this committee, 
because it is our understanding that the Bureau of Land 
Management did not consult with the Quechan Nation and other 
affected tribes before it rescinded the denial of the mine 
permit. And you said you have no idea?
    Ms. Nickels. I'd like to clarify my response. The decisions 
with regard to the rescission of the denial that was provided 
to her by the Solicitor--I asked about extent to which tribes 
were consulted in that decision which the Secretary made.
    The Chairman. I think it would be important to the 
committee to know whether there was or there was not 
consultation with the Nation.
    Does the Office of Surface Mining have a tribal 
consultation policy?
    Mr. Kearney. Yes; my understand is yes, sir, they do. Yes, 
sir, my understanding is that they do, and they can speak to 
more detail.
    Mr. Parsons. Yes; we have a directive, a Bureau directive, 
on consultation with Indian tribes regarding the permitting and 
other activities associated with coal mining and BLM activities 
and that sort of thing.
    The Chairman. In the Peabody Mine activities, with whom did 
the Office of Surface Mining consult regarding activities 
affecting the Hopi community, or did you consult pursuant to 
the policy?
    Mr. Parsons. Yes; from the time that the permanent program 
application for Surface Mining Control and Reclamation Act 
permit came in in 1985, I believe, the Hopi Tribe and the 
Navajo Nation, as well, were involved, consulted, involved in 
review. They were provided with the same materials that we 
receive, and----
    The Chairman. So you did consult with the national leaders 
of the Hopi Nation?
    Mr. Parsons. Yes.
    The Chairman. I have several other rather technical 
questions. May I submit them to you?
    Mr. Kearney. Yes, Senator; we would be happy to do that.
    Senator Campbell. Mr. Chairman, I will also submit some 
further questions.
    I would like to just say a sentence or two since you 
brought up the question of Crazy Horse's shirt and dealt with 
rules in your questions, too.
    Years ago you and I worked very hard on a bill to authorize 
the building of the Museum of the American Indians with the 
Smithsonian, as you remember. That is being built now and is 
going to be open in a few years to the enjoyment of millions of 
people throughout the world to be able to visit that. But when 
we authorized that bill we put a section in there that required 
the Smithsonian to return skeletal remains and funerary 
objects, many that were taken by force or stolen. And, by the 
way, that's still going on in some places, as you probably 
know. There are museums all over the country if not all of the 
world, things that were taken from burial sites of Indian 
people. You can put yourself in that same feeling, if you 
would, you know, just recognize how you would feel if something 
was taken out of your grandmother's grave and you saw it in a 
museum later. It is an extremely touchy issue.
    But the rules, when they are promulgated, when we passed 
that bill we found there was a glitch, and that was that some 
of those things are not returned because they don't have a 
clear chain of possession from the time it disappeared from the 
tribe to the time they suddenly have it in their glass case in 
the Smithsonian. I think I can apply that logic to all the 
rules with all the agencies. If they don't have that very 
clear-cut progression in writing somewhere, then they assume 
that they can't give it back, which I think is wrong. Cheyennes 
have been trying to get a pipe back for 15 years and can't do 
it because there is a hole in from the time it disappeared 
until the time it showed up in the Smithsonian collection.
    I don't want to malign the Smithsonian because I am a big 
supporter of it, but I think that shows you the intent of 
Congress sometimes really is foiled by the rules. By the time 
they get done with the rules, that's not what we meant when we 
wanted to do something good for people. I would just like this 
committee to keep that in mind.
    Thank you, Mr. Chairman.
    The Chairman. I just want to note that I am also involved 
in DOD matters, and I always find that, in discussing sacred 
sites with the highest officials of DOD, they are always 
prepared to respond as to policy matters. I hope when we have 
the next meeting on sacred sites the Department will be able to 
give us some response on policy matters.
    Mr. Kearney. Yes, sir.
    The Chairman. With that, I thank you very much, sir. Thank 
you very much.
    Now may I call upon the third panel: Michael Jackson, 
Senior, president of the Quechan Indian Nation; accompanied by 
Lorey Cachora, Housing Director, consultant to the Culture 
Committee, Quechan Indian Nation, Fort Yuma Indian Reservation 
in Arizona; Malcolm Bowekaty, Governor of the Pueblo of Zuni of 
New Mexico.
    The Chairman. President Jackson, welcome, sir.

 STATEMENT OF MICHAEL JACKSON, Sr., PRESIDENT, QUECHAN INDIAN 
    TRIBE, ACCOMPANIED BY LOREY CACHORA, HOUSING DIRECTOR, 
CONSULTANT TO THE CULTURE COMMITTEE, QUECHAN INDIAN TRIBE, FORT 
   YUMA INDIAN RESERVATION, YUMA, AZ AND COURTNEY ANN COYLE, 
                 COUNSEL, QUECHAN INDIAN TRIBE

    Mr. Jackson. Good morning. Again, it is an honor, Senator 
Inouye and Senator Campbell, to be among you.
    Our nation is located in Fort Yuma, California, Imperial 
County. My shava and tribal member, Mr. Cachora, is seated next 
to me. We have come a long way to bring from our tribe, from 
our most elders, and also from our most precious resource, our 
younger generation of our tribe.
    Our religion, our culture, our tradition has been handed 
down from time immemorial through our elders for generations, 
so we will not let our beliefs die.
    Our most sacred site, Indian Pass, is under attack to be 
destroyed by a mining company, which we all know. We have 
spoken about it this morning. It plans to operate an open pit 
cyanide leach operation.
    Years ago we followed the correct legislative process, 
which the United States requested us to follow, which we did. 
We followed the permit process, environmental process, numerous 
hearings, consultation process between our government and the 
Federal Government. We had tremendous support throughout the 
country. Finally, Secretary Babbitt, under the Clinton 
administration, denied the mine, which was a great victory for 
the Quechan Nation to save our history.
    Immediately under the new Bush administration the decision 
was reversed. Gale Norton made the decision against the Quechan 
people without consulting with our nation, without sitting down 
at the table and talking to us, looking into our eyes, hearing 
from our hearts why this was a most sacred site to our people 
for our past and our future. She did not follow the correct 
legislative process, and still today she refuses to sit down 
and talk to us.
    As you asked the questions this morning, no, there was no 
consultation period with us. I would know. I am the president 
of our tribe. The process follows that they'll call me saying 
that we want to talk to you about this very important matter 
that affects you. I'll contact my council, the president of our 
Culture Committee, Mr. Cachora, will set a time and date. I'm 
still young. My mind is still sharp. I did not forget, so this 
never happened.
    When this happened, when the reverse decision was made, 
this is something that our younger generation in our tribe just 
doesn't understand. We thought we won the victory, then it was 
taken away before we had a chance to celebrate. Our elders just 
shake their heads, knowing this has happened too many times in 
the past.
    Since that time, our sacred sites have been placed on the 
most endangered historic places, which was said this morning. 
The Quechan Nation is watching and waiting for the Federal 
Government to make the only right decision--that is, to make a 
final decision to deny the gold mine once again.
    Our ancestors left Indian Pass for a reason--to pass on to 
the generations to come--that is us today and our youngsters. 
Mother Earth is in our bodies, our blood. The river water runs 
through us. It is very sacred to us. Native Americans across 
the country, as you know, are the ones who saved Mother Earth. 
They cherish Mother Earth, and they will do anything to save 
what we walk on.
    I bring the very hearts of our people to you today to help 
save our history, our past, to preserve it through the ages. We 
only talk the truth. Hopefully, somebody will listen to us, 
what we are trying to say. Without Indian Pass, we can't carry 
on our culture, our tradition, our religious beliefs. They will 
be gone forever should this land mine be permitted to proceed.
    In closing, I would like to make a final statement. Senator 
Inouye, you posed a question to the group here earlier, and it 
really strikes me that they didn't answer the questions 
completely. When they make a decision against somebody, there 
should be a reason why a decision is made. Hopefully like you 
said, in the future you'll come up and let us know why such a 
decision was made without walking the ground, looking at the 
site. Gale Norton should be on the site with us to know what we 
are fighting for. If she would come tomorrow, we'll take her to 
the site. I know for a fact that she mostly will likely change 
her mind about helping us save our site and not go against us. 
You cannot make a decision against the people until you know 
what decision you're making and what they're fighting for.
    I would just really like to state to you that we would like 
a meeting with her in the future. She has to know from our 
hearts what we are trying to say.
    And that word ``undue impairment,'' that was a play of 
words on the decision that was reversed. Hopefully the 
officials that sat up here earlier will understand what the 
word means and how it affects our tribe.
    Thank you.
    The Chairman. I thank you very much, Mr. President.
    Does Mr. Cachora want to testify?
    Mr. Cachora, you are recognized.

  LOREY CACHORA, HOUSING DIRECTOR, CONSULTANT TO THE CULTURE 
COMMITTEE, QUECHAN INDIAN TRIBE, FORT YUMA INDIAN RESERVATION, 
                            YUMA, AZ

    Mr. Cachora. Thank you, Mr. Chairman and members of the 
committee. Normally when I give presentation I'm on my feet, 
but in this case it's kind of awkward for me to sit behind a 
table. In either case, I am Lorey Cachora. I'm here today in my 
role as a Quechan Tribal Cultural Committee consultant.
    I am pleased to be here today to testify on the matter of 
the important legal subject related to the cultural 
preservation law. As you well know, I am accompanied by Mr. 
Jackson and Courtney Coyle, attorney.
    The Quechan Tribal Council and the Cultural Committee and 
the Quechan community has addressed concerns about prehistoric 
cultural sites, lands that have been affected or could be 
affected.
    The lectures, presentations to the community, county, 
State, national level have been consistent with the commitment 
of non-Indians and the Indians of the Nation to help preserve 
freedom to practice the Quechan religion and culture.
    The Quechan people have acknowledged the unique relations 
with the U.S. Government--that as sovereign nation they retain 
their inherent rights to self-government. They have expressed 
what others have expressed long ago. This is the lack of 
enforcement of provisions in existing preservation laws that 
should protect sacred sites.
    This generation recognizes the problem again today. Someone 
in the Federal Government is failing to recognize American 
Indian traditional cultural values.
    The Department of Interior follows its own regulations and 
other controlling laws, but they do not adhere to the 
requirements of the due process; therefore, they cannot reach 
their final resolution. This causes the agency to make up rules 
and regulations as they see fit.
    Now the history of the Quechan Tribe along the lower 
Colorado River--share an ideology and cosmology that 
encompasses the entire region. Although there are some 
linguistic differences among the river tribes, they are closely 
related linguistically and culturally. The Quechan Tribe, also 
known as the Yumas, includes people of all the Colorado River 
and other groups with the Lower Colorado River and Gila River 
as a focus of their lifeway, share a history and belief system, 
and common ancestry.
    All of the river people have since been incorporated into a 
decisionmaking regarding the cultural landscapes of the region. 
Topographic features along the Lower Colorado River and Gila 
River are major focal points in the cosmology of the river 
people. This area includes the Indian Pass area and others 
along the river system. Important events occurred at these 
locations, and the Quechan of the area have a very, very strong 
belief that geographic locations in the performance of ritual, 
which is vital to their effectiveness.
    A synthesis of extremely complex creation story--difficult 
to accomplish because the tale takes four days to tell. 
However, it encompasses not only the creation of the world and 
its inhabitants, but the teaching of how to live in the world 
with proper respect for one's surroundings and other 
inhabitants of those surroundings, as well as the proper way to 
treat the resources that have been provided by the spiritual 
beings.
    The Quechan Tribes were in existent in this region and they 
are imbued with spiritual power. A web of continuity of power 
spiritually connects these locations with other features in the 
land as sort of a nervous system.
    If there is a break in the web, it affects the entire 
cosmo. Although peaks are most important in the valley, between 
peaks and the desert pavement floor are the pathways for the 
web that flows through from one peak to the other.
    This is a brief statement which entails the Quechan 
practice, beliefs, lifeway, existence. Unfortunately, comments, 
statements, public education, and national government 
statements have fallen on deaf ears.
    I ask that someone in Washington, DC enforce the 
responsibility of the Federal Government. If the mining or 
other industry is permitted on any sacred sites, this will 
destroy the lifeway of the American Indian.
    Today we are here to stay for an indefinite future as 
Americans. If we say it is sacred, we ask that you impose the 
maximum degree of protection.
    These words that I have expressed here come from the 
community, Cultural Committee, and Council members. Thank you 
for listening today.
    The Chairman. Thank you very much, Mr. Cachora.
    Now may I call upon Governor Malcolm Bowekaty.

STATEMENT OF MALCOLM BOWEKATY, GOVERNOR, PUEBLO OF ZUNI, ZUNI, 
                               NM

    Mr. Bowekaty. Thank you, Chairman Inouye and Vice Chairman 
Campbell.
    Before I get started, on behalf of my Zuni people I want to 
have the privilege of introducing a delegation with me that 
accompanied me for this as well as tomorrow's session. We have 
Lieutenant Governor Barton Martza in the audience, as well as 
our special assistant to the Council, Pablo Padilla. We also 
have some people that have been working with us on this 
particular issue--Jaime Chavez from the Water Network.
    I'm going to be talking a little bit about the Zuni Salt 
Lake as a specific example of how the Department of the 
Interior has not protected the sacred sites under any stretch 
of the imagination, whether it be regulatory acts or whether it 
be through executive orders. The Zuni Salt Lake is a very 
sacred place. Most of our tribes in the southwest have had some 
linkages prior to the United States becoming a nation. We have 
certain protocols and diplomatic ties that were established 
long before that was even contemplated by our U.S. Government.
    The southwest tribes in all the areas of New Mexico, 
Arizona, and Colorado made pilgrimages to the Salt Lake to 
harvest salt. Although some of the tribes were actually at war 
during those historic and pre-historic times, as well as the 
collective memories of our respective tribes in the southwest, 
they basically agreed to set aside a sanctuary district that is 
at least 12 miles from the center of the Salt Lake, a circle 
surrounding that radius, where they considered it a neutral 
zone, where warring parties actually came in and encountered in 
that area would actually not fight each other. Hostilities 
ceased. I think that really underscores the sanctity of the 
area.
    The Salt Lake is a very unique geological feature. It is 
actually a salt marsh within a volcano within a volcano. It is 
what they call a ``volcanic marr.'' There are two cinder cones 
that are in a bigger caldera. The surrounding area has always 
been protected, has a lot of shrines for all the Pueblos, as 
well as the Navajo Nation, as well as the Apache Nations, the 
White Mountain Apache Nation, the Mescalero, as well as the 
Jicarilla Apache Nation.
    The domestic uses for the salt have been for pilgrimages 
where tribes went there for treks to pray, ask for spiritual 
guidance and protection, and also for the basic utilitarian 
support of basically using the salt for preservative for their 
meats and for a lot of their produce.
    The Zuni Salt Lake is in real danger of disappearing. In 
the late 1980's the Salt River Project, an Arizona-based power 
company, began purchasing land and applying for coal leases 
from the Bureau of Land Management, as well as purchasing 
private land and ranches to consolidate a logical mine unit. 
These specific Salt River Project proposes an 18,000-acre coal 
strip mine. It is roughly 25 sections. You look at 25 sections, 
each section is considered a mile-by-mile width.
    The Salt River Project proposes to strip mine the coal, 
haul it on a 45-mile railroad corridor to their Arizona 
Coronado Generating Station. We have, as a tribe, collectively, 
with prior governors and tribal councils, have fought since the 
early 1980's to stop this coal mine from occurring. We have 
played by the rules and played the games as far as the 
regulations are concerned.
    The National Environmental Protection Agency, as well as 
the act, the National Historic Preservation Act, as well as the 
Executive orders have consistently failed to provide due 
process for our tribe's behalf and on behalf of all the tribes 
in the southwest.
    We have gone to the extreme of actually trying to be 
reasonable neighbors with our counterparts, both at the Salt 
River Project, with the State of New Mexico, and with the 
Federal Bureau of Indian Affairs, as well as Department of the 
Interior. We have gone into private settlement negotiations. 
All those broke down. We are here to beseech and implore this 
committee to strengthen the National Environmental Protection 
Acts as they relate to sacred sites to make sure that the due 
process and due diligence by those Federal officials are 
ultimately the sole objective.
    We also beseech this committee to look at the National 
Historic Preservation Act, not to retrofit it to historic 
architecture, but, more importantly, to create a new section 
that looks at tribes' perspectives.
    Everybody uses mitigation. Mitigation is not in our 
vocabulary. Mitigation assumes that when a project is created 
and conceived that it will go and bulldoze its way through, no 
matter what the obstacles, to have a mine open. That is not the 
intent and perspective for a lot of our Indian nations.
    I would like to point out some of those irregularities in 
the National Environmental Protection Act as it relates 
specifically to Zuni experiences in those processes.
    The Zuni Tribe has been trying to regulate the regulators. 
We have had to exploit and explore the environmental protection 
processes, to look at the environmental impact statements. We 
have had to use our tribe's resources to disprove and to 
highlight the questions that I know will become evident in your 
mind as you hear the rest of the testimony.
    I also at this point in time wanted to ask the honorable 
chairman to ask the same questions of the Secretary and the 
Assistant Secretary in your further hearings about the 
questions that may arise from our testimony here.
    One of the things we had to do was look at the water 
resources. We are only looking at two issues relative to the 
mine. The issues are the water as well as the archeological 
sites and the traditional cultural properties that are within 
the Zuni Salt Lake area, as well as the logical mine area of 
the proposed coal mine.
    The water issue--the Bureau of Land Management, the Office 
of State Engineer for New Mexico, the Coal Surface Mining 
Commission of New Mexico, the Bureau of Land Management all in 
their environmental assessments stated that there is going to 
be no hydrological connections between the Zuni Salt Lake and 
the proposed mining unit, which is 12 miles away. It took 4 
years for our tribe to find this way and prove enough 
scientific merit to raise the questions.
    Just this past July the New Mexico State Mining and 
Minerals Division issued a revised cumulative hydrological 
impact assessment that stipulated that there is a hydrological 
connection.
    We are raising the same kind of issues relative to 
archeological sites. It is ironic that you have individuals in 
responsible, decisionmaking positions--and I'll give you two 
examples. The former State Historic Preservation Officer for 
the State of New Mexico considered the sanctuary district as 
ineligible for inclusion in the National Register of Historic 
Places. We have had to make two trips here to meet with the 
keeper of the Treasury as well as the National Advisory Council 
on Historic Preservation. They deemed the tribe's input as very 
meritorious, and they actually declared the site as an eligible 
site.
    Given that, we have actually had to work with the same 
exact executive director for the State Historic Preservation 
Office of New Mexico to look at the archeological sites and to 
deem those within the classification system of archeological 
sites under criteria A, B, C, and D. Most of those 
archeological sites are classified as D, where it specifically 
states that it is of informational value. In no place did they 
even consider criteria A or B, which means--and I quote at this 
point in time--``Criteria A, places important to events in 
history, critical to a culture's history.'' I will show--and I 
beg the committee's permission to submit this map of the 
logical mine area that has depicted the 5-year mining plan and 
the areas of disturbance for the proposed coal mine. It has 
here a lot of numbers and a lot of dots. Each of those number 
and each of those dots are a proposed surface visible 
archeological site.
    It is very critical, and these were obtained under the 
Freedom of Information Act, so these are public information. 
The significance behind this map is indicated and predicate on 
our tribe's Zuni Cultural Resource Enterprises. We have an 
archeological clearance company that has been in business for 
20 years doing business with New Mexico State, the Federal 
Government, the Navajo Nation, the Hopi Nation, and our own 
tribe. They have 20 years of experience where they have gone 
out in the whole Four Corners area, excavated archeological 
sites.
    Their experiences indicate that, depending on the 
archeological classification of a site--and I remind you, there 
are a lot of numbers and a lot of dots--each of these are sites 
within the logical mine unit. Some of these numbers indicate 
that is identified as a site related to a particular time 
period. You're talking at the ``paleolithic'' Indian period, 
the archaic period, the pit structure of early Pueblo and later 
Pueblo. If you look at these archeological sites and look at 
the classification system that is promulgated by the State of 
New Mexico, some of these sites are classified as 
``paleolithic'' Indian, which means that there is a low 
probability that you're going to find 5 to 10 human remains 
when you excavate that particular site with that 
classification.
    Contrast that with the probability--and there are a lot of 
sites. There are over 600 sites identified in this mine area. 
Five hundred of those are probably within the late Pueblo or 
early Pueblo periods. There is a very high probability, based 
on our experiences--on-the-ground, 20-year experience where we 
have done excavation--there is a very high probability that you 
will find 800 to 500 human remains in one of those sites.
    Given that, this area would probably harbor, if these were 
excavated and strip mined, thousands of human remains. That is 
an abomination to our tribe, on behalf of all the southwest 
tribes.
    The driving force behind that is New Mexico's own 
publication for the Mining and Minerals Division. This is a 
copy of a map of all the coal fields in the area. This is the 
San Juan Basin. The Zuni Salt Lake is one of those fields. 
That's the driving force for a lot of these activities.
    As I stated before, some of the areas that we're talking 
about are the sacred pilgrimages by different tribes. We have 
documented the Hopi Nation, the Zuni Nation, and the Acoma 
Nation's Salt Lake pilgrimage trails. Those will be bisected by 
the proposed railroad corridor. I don't believe that there has 
been any mitigation that has been promulgated within this 
process.
    To that extent, we again re-emphasize to this committee 
that the process and the rules and the name of the game have 
been played by this tribe, yet we have not managed to stop the 
mine, simply because mitigation is the end-all under any of 
these three acts that I have cited.
    We need to move to a different category where you have 
absolutely no adverse effects, no impacts should tribes deem 
that.
    I'm glad that the vice chairman asked the question of the 
previous panel, ``Is there ever an incident where a decision by 
the Secretary to oppose and stop a mine?'' There has never been 
any. We assume and we hope that we will see that in the near 
future.
    It is especially critical because traditional cultural 
properties for a lot of our tribes is the understanding that it 
is our collective history, it is the oral history of a lot of 
tribes. We consider every one of those archeological sites as a 
traditional cultural property for our tribe. Why? Because it is 
our recordation, it is our documented history of the wanderings 
and the origins of our Zuni people. Our origin stories talk 
about when we emerged from the Grand Canyon area, where we 
broke into four different bands. One group went south toward 
Land of the Everlasting Sun through South America, Central 
America. We have never seen those brothers come back. The other 
three have circled the Mesa Verde area, the Monument Valley 
area, and have come back to present day Zuni. The two remaining 
ones went as far as the Great Plains and have come back. And 
the current one, the third one, is the one that we identify 
with.
    Those are our history. Those archeological sites are our 
history book, so to speak, and to that end I beg this committee 
to make sure that we up and remodify the National Environmental 
Protection Act so that it is more sensitive to sacred sites. We 
need to beef that up.
    We must also create a new section of the National Historic 
Preservation Act so it is not a retrofitting of protecting 
historic architecture. We need to create a subsection that 
actually looks at archeological sites as deemed by the 
necessary American Indian tribes, hopefully with the 
consultations that our previous panel have been talking about 
as being promulgated right now.
    We must also look at the executive orders. Those are good, 
but they are absolutely toothless paper tigers. It depends on 
the President who is in there who believes here and here and 
consolidates those to make it meaningful. I think we need to 
put more teeth behind that.
    On that note, I would like to beg the committee's 
indulgence by submitting these three pieces of paper that I can 
assure you are free of any antlers--the map with all the 
archeological sites, this map of the State of New Mexico and 
Arizona where the proposed coal mine areas are, and a copy of 
all the religious pilgrimage trails.
    On my Zuni people's behalf, I thank you very much.
    The Chairman. Without objection, your documents will be 
received by the committee and made part of the file.
    Mr. Bowekaty. Thank you.
    The Chairman. I thank you very much, Governor. May I assure 
you that the purpose of this hearing is to determine whether we 
need new rules, new regulations, and new legislation.
    Mr. Bowekaty. Thank you.
    [Prepared statement of Mr. Bowekaty appears in appendix.]
    The Chairman. I thank you both very much, and we will have 
the next panel coming up.
    The next panel consists of the president of Morning Star 
Institute, Suzan Harjo; the executive director of the Black 
Mesa Trust of Arizona, Vernon Masayesva; and the Inter-Tribal 
Sacred Land Trust of Tulsa, Robert W. Trepp.
    I'm sorry. Governor and President, we'd like to ask a few 
questions if we may.
    Senator Campbell. Just one or two. If you have some first, 
go ahead, Mr. Chairman.
    The Chairman. No.
    Senator Campbell. You don't have to all come back to the 
table. You can just sit close by there.
    The Chairman. I just want the record to show once again, 
President Jackson, no one ever consulted with you?
    Mr. Jackson. No, Mr. Senator; we were not consulted with at 
all. We went through the process, like I said, the legislative 
process, the correct legislative process that we requested. We 
went through all that, years and years of it. In the end, like 
I said, a decision came down in support of us, but when the new 
Administration came on we got word from Gale Norton--I think it 
was a four-line letter to our attorney--that she rescinded that 
decision and reversed it.
    The Chairman. It was a letter from the Department?
    Mr. Jackson. Gale Norton to our attorney.
    The Chairman. It was----
    Mr. Jackson. The record of decision, the four-line letter 
changing the decision, denying it--rescinding it. But before 
that, you would think that she would have consulted with us, 
but no consultation ever took place with our tribe and our 
people.
    The Chairman. But it was not sent to you?
    Mr. Jackson. No; it wasn't. It wasn't sent directly to our 
tribe, our people that was impacted by the decision. No. We got 
it through our attorney. It wasn't sent to her. It wasn't 
formally provided, she instructs me. She just happened to get 
it off the Internet, I guess.
    The Chairman. Governor, may I call upon you and your staff 
to sit down with my staff to work out legislation if such be 
necessary?
    Mr. Jackson. We would be privileged.
    The Chairman. Mr. Vice Chairman.
    Senator Campbell. Thank you, Mr. Chairman.
    The Interior appropriations bill has already gone through 
committee, but we may be able to introduce something on the 
floor in conference to at least hold this up for a while until 
we can involve you.
    Mr. Jackson, Secretary Norton approved the mining permits 
in late 2001. What actions, legal or otherwise, has the tribe 
undertaken? Have you filed suit or have you met with Neal 
McCaleb about this matter?
    Mr. Jackson. We have met with Neal McCaleb and members of 
his staff. We talked to them of the importance of us meeting 
with his boss, Gale Norton, to discuss the decision she made. 
We told him it is imperative that our people meet with her, our 
council, but at this time we are still trying to get a meeting 
with her, but to no avail at this time.
    Senator Campbell. Okay.
    Mr. Jackson. It is very disturbing, like I said earlier, 
when somebody makes a drastic decision against your people, 
your history, without even talking to you.
    Senator Campbell. What would your view be if--the Secretary 
has to make a lot of difficult decisions and balance a lot of 
interests. She has the trust responsibility to protect the 
Indian resources, too. What would your view be if there was a 
coal project proposed by neighboring tribes, proposed by 
another tribe but the first tribe objected under whatever 
grounds? Perhaps that was a sacred site to them in past history 
or something of that nature? In other words, it really pits one 
tribe against another when one wants to develop the resources 
and another one might say that that was a sacred area, even 
though it is not within their reservation. Do you have a view 
on that?
    Mr. Jackson. Well, we, as our brothers and sisters across 
the country, if another tribe for some reason wanted to do it, 
it's not our tribal stance to get in the way of any other 
tribe, what they want to do with their land, their sacred 
sites, if you say it's sacred sites. But if there is a reason 
for them to do it, it has to be a very strong reason that 
they're completely without resources to feed their people or 
education, for health and welfare, for housing. That's why some 
tribes will do it. But our tribe will never do that. Our 
Quechan Nation will not set one dollar, one nickel, one penny 
for that coal mine that they want to operate there.
    Senator Campbell. Good.
    Mr. Bowekaty, I didn't want this hearing to paint all 
mining as all bad, because in fact in many cases it has helped 
Indian tribes. They have sort of a mixed review, you might say, 
in American history of some who believe mining is to spoil the 
environment and others believe that almost all new wealth that 
has made this Nation strong came from mining in one form or 
another. And even Indians, themselves, have been mining for a 
thousand years. If you go to Pipestone, Minnesota, they still 
mine, but it is not done for profit, it is done for ceremony--
although I guess now perhaps it is done for profit. They make 
some souvenirs out of that pipestone. But Indians, themselves, 
are not exactly new to mining.
    I wanted to ask you about that map. You pointed out maybe 
600 points on that map you showed us. Are all of those off Zuni 
Reservation?
    Mr. Bowekaty. A large percentage of those are off Zuni 
Reservation; however, the upper northwest quadrant of that map 
that I showed you are Federal lands. The rest are a combination 
of State lands, as well as private lands. But our Zuni Salt 
Lake Reservation is 12 miles from that area.
    Also, to expound on what you just mentioned, our tribe has 
never deemed extracted mining as a total ban. Our tribe looks 
at the impacts to sacred areas. That is the only reason why the 
Salt Lake is such a vital and dear project for us, because it 
directly impacts our sacred site. Otherwise, we would have no 
objections.
    Senator Campbell. Thank you. Last question--in your written 
testimony, is the legend of Salt Lake and Salt Mother in your 
written testimony so they can be part of the record?
    Mr. Bowekaty. No.

    Senator Campbell. Thank you. No further questions, Mr. 
Chairman.
    The Chairman. Thank you very much.
    And now may I call upon the president of Morning Star 
Institute, Suzan Harjo.

 STATEMENT OF SUZAN HARJO, PRESIDENT, MORNING STAR INSTITUTE, 
                         WASHINGTON, DC

    Ms. Harjo. Thank you, Mr. Chairman and my Cheyenne brother 
and chief, Mr. Vice Chairman.
    I'm Cheyenne and Hodulgee Muscogee and I'm here because the 
white people didn't kill all my ancestors and we have sacred 
places because the white people did not destroy all our sacred 
places. We have a rich legacy from our people and we have an 
obligation to our ancestors and to our coming generations to 
protect those places where our people historically and 
traditionally have gone and continue to go for solace, for 
healing, for commemoration, for vision questing, for emergence, 
for burials, for mourning, for all of these purposes.
    We have been controlled for more than 1 century as Native 
Peoples by regulations, first by the civilization regulations 
that drove so many of our Native nations' traditional religions 
underground and nearly two-thirds to the point of extinction.
    The most endangered species in the United States of America 
are traditional Native Peoples, and it is so distressing to 
hear the ignorance and the arrogance, however kindly spoken and 
however well-meant, from the Administration witnesses earlier. 
The notion that our sacred places just need to be taken into 
account and that they lack guidance about sacred place 
protection is startling. The Lyng Decision of the Supreme Court 
which said that the American Indian Religious Freedom Act and 
the First Amendment do not provide a cause of action for us to 
get into court to protect our sacred places or defend them 
against desecration or destruction also says something very 
important in the way of guidance. It says that there shall be 
no impact or no impairment audiolly, aurallys, visually, or 
physically. That covers a lot of territory--literally a lot of 
territory. Everything that you have heard today involves an 
impact or an impairment that affects the site or sound or smell 
or physicality of tangible places involving living cultures, 
living traditional religions. So it is stunning to hear that 
there is guidance that needs to be gotten.
    I think that the Interior witnesses must have read the Lyng 
Decision only to the point where it said ``no cause of action'' 
and did not read what they need to do and how they need to take 
into account the American Indian Religious Freedom Act and the 
First Amendment when it comes to protection of our sacred 
lands.
    Be that as it may, we need a cause of action. We need 
something to protect our sacred places, because we see that the 
Department of the Interior and most Federal agencies are not 
going to do it on their own. We need legislation that provides 
a way for us to defend ourselves and to get in the courtroom 
door. That's very important. We need legislation that is a 
Native American statute to protect even the information about 
these sacred places. We need further guidance on the existing 
law, Native American Graves Protection and Repatriation Act, 
for example, because the people who are implementing it have 
gotten horribly off track.
    There was a statement made earlier today that the 
culturally unidentifiable human remains are those remains that 
cannot be identified with a federally recognized tribe. That is 
such an ignorant reading of the act. We're not dealing with 
federally recognized tribes, we are dealing with the people who 
are the relatives of the dead Native people who are in the 
possessions of these Federal agencies and museums and 
educational institutions--Native Hawaiians, Native Alaskans, 
non-federally recognized tribes, federally recognized tribes. 
The ignorance in that statement, alone, is stunning to me.
    The guidance is in the law. The guidance is in specific 
laws. For NAGPRA, where we have to look is to the dozen years 
of implementation since its enactment. We can get a lot of 
information about how the Department of the Interior might 
implement future legislation on sacred lands and how we have to 
tie down everything so it is not left up to regulatory fiat or 
just to customary practice, because if it is left up to 
customary practice more and more of our people are going to be 
under attack as we have been for more than a century, and more 
and more of our sacred places are going to be destroyed, and 
fewer and fewer of our dead relatives are going to be 
protected.
    We understand that the Department of the Interior, the 
National Park Service, is permitting and perhaps funding 
studies on the culturally unaffiliated human remains. I heard 
the response earlier. We have taken some steps as a working 
group on culturally unidentified human remains to find the 
facts of this matter. And, our legal counsel, Walter Echo-Hawk 
of the Native American Rights Fund, has written on our behalf 
on July 11 to the Department of the Interior asking for any 
studies that are underway to stop, asking for any information 
about those studies to be given over to us under the Freedom of 
Information Act, asking for the regulations on culturally 
unidentifiable human remains that are in the works be halted 
until certain steps are taken, like the Park Service completing 
a task it hasn't completed since 1995 in listing who has what 
culturally unidentified human remains.
    These are not remains that cannot be identified. They could 
be identified for the most part, we believe, to living Native 
Peoples if we knew who submitted them, who has them, where they 
are, under what circumstances did they acquire them, how are 
they keeping them. If we only had that information, which the 
Park Service is already required to prepare and to make public, 
we could help with that process of changing them from the 
category of unidentifiable or unidentified to culturally 
affiliated.
    We have heard various estimates from six months to two 
years that it will take the Park Service to finish that task. 
Until such time as they finish that task, they should not issue 
these regulations, because the regulations turn on that 
information being in place. They don't even know what is in 
that category that they're issuing the regulations about.
    Having delayed by so many years to this point, a little 
more delay to satisfy the Native interest should not hurt.
    Also, these regulations flip NAGPRA on its head by saying 
that the scientists are in control of the Native human remains, 
and the repositories where they are now, the Federal agencies 
and museums, can make the discretionary decision as to whether 
or not to return or keep the human remains. NAGPRA is so 
clearly a Native American statute--and I really appreciate the 
chairman's clarification of that earlier today. That probably 
comes as news to some of the Interior witnesses, and I hope 
they take it to heart, because they have actually said, some of 
them, with straight faces, that NAGPRA is not a Native American 
statute.
    We beg you to help stop these studies that are going on on 
our ancestors and our relatives and to stop the destruction of 
documents that is taking place, to instruct Interior that 
NAGPRA documents are trust documents, that NAGPRA does involve 
trust assets. It involves people and material who are Native 
Peoples, and the Department of the Interior has a trust 
relationship there and an obligation, and they have to live up 
to that.
    Thank you for working with us on laws that you have already 
implemented to make sure they get back on track, and then 
working with us to develop new legislation that will try to do 
the right thing by protection of sacred lands.
    Thank you so much, Mr. Vice Chairman and Mr. Chairman.
    The Chairman. Thank you very much, Ms. Harjo.
    [Prepared statement of Ms. Harjo appears in appendix.]
    The Chairman. Now may I recognize Mr. Masayesva.

 STATEMENT OF VERNON MASAYESVA, EXECUTIVE DIRECTOR, BLACK MESA 
                     TRUST, KYKOTSMOVI, AZ

    Mr. Masayesva. Thank you, Mr. Chairman and Mr. Vice 
Chairman. I am from Hopi. I am the director of a new 
environmental organization called Black Mesa Trust, and I was 
the former chairman of the Hopi Tribe.
    Before I go into my testimony, I would like to support what 
my brother from the Zuni told you. His recommendations are 
excellent. I completely support what he says, and I am thankful 
to my brother, and for that I will compose you a song, my 
brother.
    I am a descendent of [Native word], the ancient people that 
came and finally settled in what is now called Northern 
Arizona. My ancestors, like your ancestors who came to American 
in search of a new life, also came to the fingertips of Black 
Mesa in search of a new beginning. I am here to address the 
failure of the surface mining, reclamation, and enforcement to 
fulfill their trust responsibility to the Hopis and to our 
neighbors and brothers and sisters, the Navajo people.
    For more than 10 years OSM has allowed the world's largest 
mining company, Peabody, to take billions of gallons of 
pristine groundwater and billions of gallons more of surface 
water from Black Mesa without conducting a complete and 
objective assessment of the environmental and cultural impacts 
of such a loss.
    OSM's failure is all the more inexcusable because water is 
so sacred and scarce in the high desert countries of northern 
Arizona and all the more harmful because water is so sacred to 
us.
    OSM's irresponsibility has left our way of life seriously 
threatened. A discussion of how OSM has responded to our recent 
concerns about the loss of water, particularly, or, more 
accurately put, how OSM has failed to respond to those concerns 
should begin with some understanding of how much water means to 
my people. Only with this understanding can one begin to 
appreciate the depth of the wounds OSM's actions and inactions 
have inflicted.
    For centuries, the land and waters of Black Mesa have been 
central to our culture, religion, and likelihood. In the Hopi 
view of life, all plants, animals, birds, fishes, insects, 
human beings, exist in a delicate natural and spiritual 
balance. Hopi people believe that earth, itself, is alive; that 
water is the earth's life blood; and that life on Earth comes 
from and returns to water.
    When my ancestors settled on Black Mesa, they were given 
three things by which to live by a deity we call Ma'saw, who is 
the guardian of Mother Earth. We were given an ear of corn, a 
planting stick, and a gourd of water. With these simple tools, 
the Hopi entered into a covenant with Ma'saw to live a simple 
life of reverence and respect for the land. They agreed to help 
steward the land. Thus, the Hopi people not only drink and 
bathe in the pristine waters of the Navajo Aquifer, it is also 
sacred to us. It is used to worship and to water crops.
    Corn, for example, has such spiritual meaning that it is 
the first thing that touches a baby's lips and it is the bed on 
which the bodies of those who have died are laid for their 
journey back to the water world from which all life on earth 
has sprung.
    As important as the water is, it is by no means the only 
cultural and environmental concern we have about the operation 
of the Black Mesa Mine. The Hopi and Navajo have a number of 
concerns that were set forth in detail in a comment submitted 
to OSM by Black Mesa Trust on April 29th of this year. Copies 
of those comments have been provided to members of this 
committee.
    Among those concerned is the withholding of 250 million 
gallons of surface water impounded by Peabody. The loss of 
surface water was addressed by my friend and president of Black 
Mesa Trust, Leonard Selestewa, during a hearing held before 
this committee on June 4.
    OSM has never been short of words in proclaiming a 
commitment to protect the interests of Indian people. In a 
directive issued on March 28, 1996, OSM describes in great 
detail its trust responsibility to Indian people. OSM's 
director recognized that the United States ``has charged itself 
with moral obligations of the highest responsibility and trust. 
At a minimum'' OSM goes on to say ``it has to protect tribal 
lands, assets, resources, and treaty rights, as well as a duty 
to carry out the mandates of Federal law with respect to 
American Indians and Alaska Native tribes.''
    As the regulatory authority for surface coal mining and 
reclamation operations located on Indian lands, and as a 
Federal agency of the Department of the Interior, OSM 
acknowledges its trust responsibility to ``ensure that the 
lands and trust resources of Federally recognized tribes and 
their family members are identified, conserved, and 
protected.'' I repeat that--``identified, conserved, and 
protected,'' not just mitigated.
    Unfortunately, OSM's actions have not lived up to its 
rhetoric. At no time in more than ten years has OSM conducted a 
full and fair assessment of the cultural and environmental 
impacts of Black Mesa Mine. To begin with, OSM has not 
approached an impact assessment using the values and cultural 
perspectives of the people it claims to protect, but rather 
from the utilitarian perspective of the company it is supposed 
to regulate.
    For example, OSM does not view groundwater and surface 
water as part of the integrated whole of the living Earth. It 
sees water contained in a separate inanimate compartment. OSM 
does not view water drawn from the Navajo Aquifer as sacred, 
but as a commodity whose value lies in its utility. 
Consequently, OSM does not see the that draw-down of an aquifer 
has profound religious and cultural impacts. Similarly, OSM 
does not look at how the mine's 200 water impoundment affects 
the flow of surface water to the Moenkopi farmers at the foot 
of Black Mesa.
    OSM's analysis of environmental and cultural impacts is 
seriously flawed on a more technical level, as well. OSM now 
concedes that the USGS groundwater model it has used for years 
is inaccurate and has now been rejected. The USGS model 
provides no basis to rationally assess the impacts of pumping a 
billion gallons of water each year from the Navajo Aquifer.
    Even in the face of this shortcoming, OSM disregarded our 
view, our science, the way we looked at the aquifers. We say 
that people are connected to the land and water. Hopi 
practitioners of Hopi science see sacred springs as passageways 
to the world from which we came and eventually return. The 
springs are breathing holes. When they stop breathing, the 
water stops flowing. For years, Hopi farmers and ranchers who 
walk the land have been saying what hard data now shows. Large-
scale withdrawals have seriously damaged the Navajo Aquifer.
    OSM's criteria known as ``cumulative hydrologic impact 
assessments,'' criteria for CHIA show serious damage to the 
aquifer. Springs now produce far less water. Some have 
completely dried up. Monitoring wells show significant lower 
water table. Moenkopi Wash that used to run all year long is 
now completely dry, completely dry.
    Despite evidence of serious damage as shown by OSM's own 
criteria, the Agency has taken no action towards restoring the 
health of the Navajo Aquifer. OSM's regulations require a mine 
applicant to submit a reclamation plan, yet OSM has never--and 
I repeat, never--required Peabody to submit a reclamation plan 
for the aquifer as part of its mine application. The agency has 
offered no explanation for its failure to take any action to 
protect and restore our water.
    Just as troubling is the agency's failure to include us in 
a meaningful discussion. In an application submitted by the 
Peabody Mine, it describes the location of the mine with terms 
such as ``township, range, and sections,'' which are 
meaningless to most Hopi and Navajo people. The application, 
itself, contains more than 1,000 pages, much of it in highly 
technical jargon. The application was deposited at just two 
locations on Black Mesa, two hours or more by care from some of 
the villages, assuming every person living on Black Mason would 
have access to an automobile.
    The application has never been summarized or translated 
into Hopi and Navajo languages, despite an executive order 
requiring agencies to take steps to ensure that persons with 
limited English proficiency can meaningfully access the 
Agency's programs and activities.
    OSM did not deny its obligation to try to reach out to 
Indian communities. Instead, the reason it offered for not 
translating public notices and other vital documents relating 
to Peabody's mine application is not, in their view--I'm sorry, 
they denied this saying that in their view ``Hopi is not yet a 
written language.'' This response is astonishing, given the 
fact that Hopi has been written since the 1850s and a number of 
books have been written in Hopi, including a major Hopi/English 
dictionary that took a Hopi scholar 15 years to complete.
    The comment period also started during the month of 
February, which is the month of [Native word] or purification, 
which is the last of the three major religious ceremonies held 
on Hopi every year. During February, all political meetings are 
suspended, including tribal meetings, so therefore if we had 
commented we would have been in violation of our traditional 
laws.
    More recently, on June 19, 2002, OSM wrote to me saying 
that the Agency has decided to call all public hearings on 
Peabody's mine application to mine additional 189 million tons 
of coal and to increase pumping by 37 percent.
    Weeks ago, OSM had agreed the hold five such hearings later 
this summer. The reason OSM gave for calling off the hearing 
was that on May 14th Peabody had submitted a letter claiming to 
have ``identified'' an alternative source of water for the coal 
slurry and requests that the public hearing be put off.
    No information is provided showing that such an alternative 
source is even feasible and is going to be feasible and cost 
effective. In fact, an application submitted to the California 
Public Utility Commission by Southern California Edison, which 
operates a power plant using coal from Black Mesa, states that, 
``The feasibility and cost of the alternative is still being 
investigated.'' Nevertheless, OSM decided to renege on its 
commitment to hold public hearing without consulting the people 
of Black Mesa.
    Black Mesa Trust responded to OSM on July 6. We have 
demanded that the public hearings move forth. To date, we have 
received no response.
    As things stand now, the people most affected by Black Mesa 
mines have been shut out of the public participation process. 
As a result, the depletion--and, in my personal opinion, an 
illegal depletion--of Federal trust assets, coal and water, 
continues.
    In conclusion I leave with you the same question my friend 
Leonard Selestewa left you with on June 4. Why? Why? Why? Why 
has there been such a failure by all agencies of the Federal 
Government who have trust responsibilities failed to correct 
the problem? Why in more than ten years has there not been a 
comprehensive and fair assessment of the cultural and 
environmental impacts of the Black Mesa Mine? Why has OSM been 
more responsive to a company that it is supposed to be 
regulating than to the people who it is obligated to protect?
    I ask of Secretary Norton: Why are you continuing to ignore 
a provision in the Hopi/Peabody contract which states that if 
the waters of Black Mesa are endangered, the Secretary has 
discretionary powers to direct the mining company, if they want 
to continue the mining operations using slurry operations, to 
find an alternative water source at its own expense, not at the 
taxpayers' expense?
    Senator Campbell. Mr. Masayesva, we will have to conclude 
the hearing. I'm sorry. Senator Inouye had a conflict that he 
already had to leave to and I'm already overdue, too, but your 
complete written testimony that you didn't finish will be 
included in the record.
    [Prepared statement of Mr. Masayesva appears in appendix.]
    Senator Campbell. I have no questions, but I am gratified 
to see that at least one person from the Administration stayed 
to hear your testimony. Too often people from agencies come and 
make their statement and they leave and they don't hear from 
the opposing view. Hopefully, the message that you put forth in 
your testimony will be taken back.
    Mr. Trepp, I'm sorry to say that you won't be able to 
testify, but if you will give us your written testimony we'll 
study it copiously.
    Mr. Trepp. Thank you, sir.
    [Prepared statement of Mr. Trepp appears in appendix.]
    Senator Campbell. I think, in my own view, the big 
difference between everybody else in this country and American 
Indians is that everybody else came here from somewhere else. 
They had nothing to lose and everything to gain by coming here. 
It was called ``upward mobility'' in sociology terms. Only the 
American Indian had everything to lose and nothing to gain, and 
they have lost almost everything, with a little bit of land 
base left, and the thing that they hang on to the most is their 
religious beliefs and the memories of their ancestors. It just 
seems terrible to me that we would take those away through some 
bureaucratic method because of opportunity for profits. I know 
Senator Inouye agrees with me that that's just plain wrong, and 
we've got to take another look at these issues or get the 
Administration to take another look at them.
    So I commit that to you and appreciate your testimony.
    The hearing record will stay open for 2 weeks. If anybody 
in the audience wants to add something in written form, please 
submit that and we'll include that for 2 weeks.
    Thank you very much for being here today. With that, the 
committee is adjourned.
    [Whereupon, at 12:20 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
=======================================================================


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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


 Prepared Statement of Malcolm B. Bowekaty, Governor of the Zuni Tribe

    On behalf of the Zuni Tribe, I want to thank Chairman Inouye and 
Vice Chairman Campbell for convening this Oversight Hearing regarding 
the U.S. Department of the Interior and the protection of sacred 
places. This is an important subject to American Indians and Alaskan 
Natives, and one that has not been given the National attention it 
deserves.
    The Zuni Salt Lake is a sacred place. Located southeast of our 
Reservation in west central New Mexico, this saline lake is a unique 
geological feature and home to our Ma'lokyattsik'i, Salt Mother. For 
centuries, indigenous tribes from the Southwest have made pilgrimages 
to the Zuni Salt Lake to request spiritual guidance and rain, make 
offerings, and collect salt for ceremonial, ritual and domestic use. 
The surrounding land has always been respected as a sanctuary zone, 
where waiting tribes put weapons down and shared in the sanctity of the 
Salt Mother. just this past weekend, our brothers and sisters from the 
Hopi, Yaqui, Pueblo, Xicano, Navajo and others joined us in a 260 mile 
run from Hopi and Phoenix to Zuni to pay homage to her, as well as to 
spiritually prepare us for this testimony today.
    The Zuni Salt Lake is in real danger of disappearing. In the late 
1980's, the Salt River Project [SRP], an Arizona-based power company, 
began purchasing land and applying for coal leases from the Bureau of 
Land Management. SRP proposes to develop an 18,000-acre coal strip mine 
10 miles from the Lake. SRP also plans to use up to 85 gallons a minute 
of water a year for 40 years for mining purposes. Finally, SRP proposes 
a 44-mile railroad corridor from the proposed mine to the Coronado 
Generating Station, which would dissect pilgrimage trails used by 
tribes for centuries. Last month, to the dismay of the Zuni people, the 
Department of the Interior approved the Life of Mine Plan, which gives 
Federal Government approval for this project.
    Protection of the Zuni Salt Lake and Sanctuary Zone has always 
rested with the Zuni. In 1976, Senator Domenici from New Mexico 
testified to the U.S. House Committee on Interior and Insular Affairs 
and fought hard to have this land given back to the Zuni Tribe: This 
bill [S. 877] will permit the Zuni Indian people to acquire a shrine 
that has been theirs for literally centuries. Government intervention 
and the inequities of history have prevented this great salt shrine 
from being included in the boundaries of their reservation. This is 
very important to their way of life, and is presently used by them as 
part of their religious culture.
    Twenty-five years later today, the Zuni Tribe feels that the U.S. 
Department of the Interior has failed us in its obligations under 
existing law and trust responsibility to continue to protect this 
sacred lake and associated cultural resources from destruction.
    In 1990, the Bureau of Land Management issued an Environmental 
Impact Statement (EIS) for the proposed coal mine. This report was 
flawed scientifically with regard to hydrology and failed to capture 
the cultural importance of the Zuni Salt Lake. After repeated demands 
from the Zuni Tribe to then Secretary of Interior Bruce Babbit and 
others, a supplemental EIS was conducted in 1996. Since its issuance of 
this SEIS, at least four major hydrological reports have been produced 
which invalidate or contradict information contained in the SEIS. Yet 
after several attempts by the past and current Zuni tribal councils, we 
received a letter recently from the Office of Surface Mining stating 
that DOI will base its decision on the 1996 SEIS and feels it not 
necessary to amend the environmental impact analysis.
    That the National Environmental Policy Act (NEPA) is oriented 
toward process rather than outcome is a fact that the Zuni Tribe is 
well aware of. We are thankful that the recently approved Federal Life 
of Mine Plan contains provisions that somewhat protect the aquifers 
that feed the Lake. However, it is unfortunate to realize that our 
tribe had to go through such great lengths and expend resources it does 
not have to prove to the regulators that the original hydrological 
studies were flawed and biased toward the coal company. We believe that 
is not the intent of NEPA nor of the Department of the Interior's 
implementing regulations. American Indians and Alaskan Natives 
protecting their sacred places should not have to carry the burden of 
proof with regard to environmental impact analysis for projects 
sponsored by Federal agencies. The Federal Government must be more 
objective in its decisions and not bend toward industry.
    As we understand it, the National Historic Preservation Act of 1966 
was originally created to protect architecture, not sacred places. 
There are subsequent problems with retrofitting this law when applying 
it to the protection of sacred places. For example, with regard to the 
protection of archaeological sites and traditional cultural properties 
around the Lake, mitigation has meant digging, recording, and report 
writing. The Zuni Tribe feels that protecting the information of a site 
and then destroying it is not same as protecting the site itself In 
other words, cultural resources are sacred not for the information they 
contain, but because they have been placed their by our ancestors for a 
purpose and should not be disturbed nor destroyed. This concept is very 
difficult to convey to Federal agencies charged with compliance under 
the National Historic Preservation Act using standard western 
methodologies. A quick glance at eligibility requirements for inclusion 
in the National Register of Historic Places (36 CFR 60.4) will reveal 
that most sites are eligible under criteria D, information value.
    This situation is exacerbated when applying scientific inquiry to 
burials and associated funerary objects. Needless to say, the Zuni 
Tribe finds it impossible to rationalize the displacement of our 
ancestor's burials for the sake of making money. Therefore the Zuni 
Tribe and other culturally affiliated tribes are extremely concerned 
with the desecration that will occur, given the density of Puebloan 
archaeological sites recorded in the mining site and the nature of 
strip mining. Coupled with the fact that the implementation of the 
Native American Grave Protection Repatriation Act (NAGPRA) has had 
limited success with regard to actually protecting buries from 
desecration, we are struggling to come to a resolve on the issue with 
the Federal Government and the coal company.
    While it is true that section 106 of the National Historic 
Preservation Act and the National Park Service Bulletin 38 outline 
methods of consultation with American Indians and Alaskan Natives to 
protect cultural resources, the Zuni Tribe feels that the process does 
not work effectively. Navigating through the consultation process for 
this undertaking, the Zuni Tribe found itself in a bind when it comes 
to the release of esoteric information. While the Federal agencies were 
very sensitive to our need to protect esoteric information, it was 
still difficult for us to convey the importance of specific cultural 
resources without giving away information that was esoteric. Also, a 
genuine sense of trust from the Federal Government is missing from the 
consultation process, as we attempt to explain that a plant is sacred 
to us without stating why it is sacred to us.
    The Zuni Tribe understands the difficulty the Federal Government 
has in dealing with competing interests. One of the major obstacles the 
Department of the Interior has in protecting sacred sites like our Salt 
Lake sterns from its organizational structure. The Office of Surface 
Mining has a mission to regulate mining; the Bureau of Land Management 
has a mission of leasing Federal resources; and the Bureau of Indian 
Affairs has a mission to protect resources held in trust for American 
Indians by the United States Government. Since these three offices are 
housed under one Department charged with making a decision either way 
on a particular issue, it stands to reason that one mission will 
override the other. This is evident in the number of disagreements and 
failed negotiations that took place within the DOI concerning whether 
to approve or disapprove the Life of Mine Plan.
    Engage tribes meaningfully in NEPA, NHPA and other processes early 
on. This sentiment was echoed in the recommendations by the National 
Research Council on Hardrock, Mining on Federal Lands, commissioned by 
the U.S. Congress in 1999 (National Academy Press, Washington DC, 1999, 
pg. 70).
    Create legislation similar to what Congressman Rahall is proposing 
in his draft Native American Sacred Lands Act. Legislation is needed 
due to the fact that the existing Executive Orders on the subject do 
not have the weight of law, existing laws are not working, and sacred 
sites are being destroyed at an alarming rate without the tools 
American Indian and Alaska Native governments need to engage industry 
and governments.
    Reorganize the decisionmaking process within the Department of the 
Interior to better facilitate American Indian and Alaskan Native 
concerns over sacred places.
    Thank you very much for the opportunity to speak with you today on 
this most important topic. The Zuni Tribe is willing to work with your 
Committee and others in any way we can. E'lah:kwa.
                                 ______
                                 

Prepared Statement of Christopher Kearney, Deputy Assistant Secretary, 
      Policy and International Affairs, Department of the Interior

    Mr. Chairman and Members of the Committee, it is my pleasure to be 
here today to discuss the Department's role in protecting Native 
American Sacred Places. My name is Chris Kearney and I am the Deputy 
Assistant Secretary for Policy and International Affairs in the Office 
of the Assistant Secretary for Policy, Management and Budget. I am 
accompanied today by Stephen Parsons, Hydrologist, Office of Surface 
Mining; Patricia L. Parker, Chief, American Indian Liaison Office, and 
John Robbins, Assistant Director, Cultural Resources, Stewardship and 
Partnerships, National Park Service; and Marilyn Nickels, Group 
Manager, Cultural and Fossil Resources, Bureau of Land Management.
    Executive Order No. 13007, 61 Fed. Reg. 26,771, Indian sacred 
sites, was issued in 1996. The Order requires Federal land management 
agencies to the extent practicable, permitted by law, and not clearly 
inconsistent with essential agency functions, accommodate access to and 
ceremonial use of Indian sacred sites by Indian religious practitioners 
and avoid adversely affecting the physical integrity of such sacred 
sites. Where practicable and appropriate, implement procedures to 
ensure reasonable notice is provided of proposed actions or policies 
that may restrict future access to or ceremonial use of, or adversely 
affect the physical integrity of these sites. The Order also requires 
Federal agencies to consult with tribes on a government-to-government 
basis whenever plans, activities, decisions, or proposed actions affect 
the integrity of, or access to, the sites. Each relevant Cabinet agency 
was required to send an implementation report to the President within 1 
year of the Order's issuance.
    Coordination of the Department of the Interior's implementation was 
assigned to the Office of American Indian Trust (OAIT). The OAIT is 
responsible for ensuring department-wide compliance and overall 
consistency of the Sacred Sites Executive Order. To assist that Office 
to communicate with the various bureaus in the Department, an 
interagency Working Group on the Implementation of the Sacred Sites 
Executive Order was created, comprising representatives of each 
departmental bureau, appropriate departmental offices and the Office of 
the Solicitor.
    The Working Group has actively sought input from Tribal 
representatives on all aspects of the Department's implementation 
process. The Department asked for Tribal input on the structure, 
location and content for consultations and hosted three formal 
discussion meetings between tribal and Federal representatives focusing 
on implementation from both a procedural and substantive perspective. 
The meetings were held in Portland, Oregon; Denver, Colorado; and 
Reston, Virginia in March and early April 1997. Topics at the meetings 
included: how to conduct meaningful consultation; how and when 
consultation processes are triggered; how to protect the physical 
integrity of sacred sites; how to protect the confidentiality of 
culturally sensitive information; how to accommodate access and use; 
and dispute resolution.
    In October 2001, the Department attended the Sacred Lands Forum in 
Boulder, Colorado. Through considerable internal review and the dialog 
with interested participants at the forum, it became clear that we 
needed to move forward on establishing policies and procedures for 
protecting sacred lands. At the ``Overcoming the Challenges'' symposium 
held on March 20, 2002, which was held as part of the DC Sacred Lands 
Forum, we announced our intent to reconvene the Department's Sacred 
Sites Working Group.
    In June 2002, each of the Department of the Interior offices and 
bureaus involved with sacred sites was notified of the plans to 
reconvene the Working Group and they were asked to assign a 
representative to the Working Group. Our objective is to renew the 
momentum within the bureaus for establishing the necessary procedures 
to carry out our obligations understood in the policy we created and to 
ensure that we fully take into account Tribal concerns. It is also our 
intent, working with the Tribes, to finalize and then to publish these 
policies and procedures and provide them to Tribes and other interested 
parties, and then to ensure that implementation occurs in a timely 
manner. The Office of American Indian Trust is responsible for 
coordination, logistics and staff assistance within the Department.
    The first Working Group meeting occurred on July 2, 2002, in the 
office of the Assistant Secretary for Indian Affairs. We are in the 
process of identifying the current status of sacred site management 
across the bureaus. That will be followed at future meetings with 
developing management changes and tools to ensure full compliance with 
the Executive Order. In addition, and as a result of the DC Sacred 
Lands Forum, on August 14 the Department of the Interior and the 
Advisory Counsel on Historic Preservation are sponsoring an interagency 
meeting on sacred lands and cultural resources, under the auspices of 
the Interagency Working Group on Environmental Justice. These meetings 
are meant to help bring awareness and enhance coordination of sacred 
site issues, not just within the Department of the Interior, but 
government-wide.
    This concludes my statement. I would be pleased to answer any 
questions the committee might have.
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