[Senate Hearing 108-630]
[From the U.S. Government Publishing Office]
S. Hrg. 108-630
RELIGIOUS FREEDOM ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
OVERSIGHT HEARING ON AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978
__________
JULY 14, 2004
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
95-104 PDF
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
Statements:
Bender, Paul, professor of law, Arizona State University
College of Law............................................. 17
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Echo-Hawk, Sr., Walter R., senior staff attorney, Native
American Rights Fund....................................... 13
Harjo, Suzan Shown, president, Morning Star Institute........ 11
Holtrop, Joel, deputy chief, USDA Forest Service, Department
of Agriculture............................................. 4
Pogue, Brian, BIA, Department of the Interior................ 2
Red Cherries, Jr., Northern Cheyenne Elk Society Headsman and
Sundance Arrow Priest...................................... 20
Appendix
Prepared statements:
Bender, Paul................................................. 32
Clark, David, president, Azee' Bee Nahagha of Dine Nation
(with attachment).......................................... 45
Echo-Hawk, Sr., Walter R. (with attachment).................. 47
Harjo, Suzan Shown........................................... 64
Holtrop, Joel................................................ 29
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
chairman, Committee on Indian Affairs...................... 27
Pogue, Brian................................................. 28
Society for American Archaeology............................. 27
Additional material submitted for the record:
Cheyenne Declaration Regarding the Protection of Sacred
Ceremonies................................................. 70
RELIGIOUS FREEDOM ACT
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WEDNESDAY, JULY 14, 2004
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room
418, Russell Senate Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell, Inouye, and Johnson.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON
INDIAN AFFAIRS
The Chairman. We will now turn to the oversight hearing of
the American Indian Religious Freedom Act of 1978.
In 1978, Congress passed and President Carter signed into
law the American Indian Religious Freedom Act, which provided
that freedom of religion is an inherent fundamental right
guaranteed to all Americans by the First Amendment to the U.S.
Constitution, and that the religious practices of Native
peoples are an integral part of their culture and form the
basis of Native identity; that the lack of a clear, consistent
Federal policy had often led to the abridgement of religious
freedom for those traditional American Indians; and that some
Federal laws designed for such worthwhile purposes as
conservation and preservation of natural species were passed
without consideration of their effects on Native religions,
often denying American Indians access to sacred sites; and that
Federal laws at times prohibited the use and possession of
sacred objects necessary to the exercise of religious rites and
ceremonies.
The AIRFA also called on the President to direct the
various Federal departments, agencies and other
instrumentalities responsible for administering relevant laws
to evaluate their policies and procedures in consultation with
Native traditional religious leaders in order to determine
appropriate changes necessary to protect and preserve Native
American religious cultural rites and practice.
Aside from this directive, no legal mechanism was provided
for enforcing the policy. In 1994, this act was amended to
provide for traditional Indian religious use of the peyote
sacrament. The amendment was prompted in part by the 1990
Supreme Court ruling that the First Amendment does not protect
Indian practitioners who use peyote in religious ceremonies.
Attention was focused again on Indian religious freedom
when in 1996 President Clinton issued Executive Order 13007,
the Indian Sacred Sites Order, which directed all executive
branch agencies with statutory or administrative responsibility
for the management of Federal lands, to the extent practicable
permitted by the law and not clearly inconsistent with
essential agency functions, first to accommodate access to and
ceremonial use of Indian sacred sites on Federal lands and to
avoid adversely affecting such sacred sites, and where
appropriate guard their confidentiality.
There has been much litigation in the area of religious
freedom and cultural practices since the late 1970's. We called
today's hearing to receive testimony regarding the issue on how
the 1978 Act has been implemented and whether there is a need
for further congressional action.
With that, I would like to turn to my good friend and Vice
Chairman Senator Inouye for any opening statement he might
have.
Senator Inouye. Mr. Chairman, I commend you for calling
this session. I wish to associate myself with your remarks and
I ask that my statement be made part of the record.
The Chairman. Your statement will be included in the
record.
[Prepared Statement of Senator Inouye appears in appendix.]
The Chairman. Senator Johnson, did you have any opening
statement on this issue?
Senator Johnson. No; I do not, only to commend you for
holding the hearing on this critically important issue. I look
forward to the testimony from a very distinguished panel.
The Chairman. Thank you.
We will start with the first panel. That will be Brian
Pogue, director, BIA, Department of the Interior, Washington,
DC; and Joel Holtrop, the deputy chief, USDA Forest Service,
Department of Agriculture.
Gentlemen, your complete written testimony will be included
in the record. If you would like to abbreviate, that will be
fine. Why don't we go ahead with Mr. Pogue first. I call on you
first. We will not flip a coin on this one.
STATEMENT OF BRIAN POGUE, DIRECTOR, BIA, DEPARTMENT OF THE
INTERIOR
Mr. Pogue. Mr. Chairman and Mr. Vice Chairman, my name is
Brian Pogue. I am the director of the BIA. I am pleased to be
here today to the Department's statement on the 25th
anniversary of the passage of the American Indian Religious
Freedom Act.
In 1978, the American Indian Religious Freedom Act [AIRFA]
was enacted and mandated that the Federal Government protect
and preserve for the American Indians their inherent right of
freedom to believe, express and exercise the traditional
religions of the American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to the access of sites,
the use and possession of sacred objects, and freedom to
worship through ceremonies and traditional rites.
Under AIRFA, Federal agencies are required to, one, seek
and consider the views of Indian leaders when a proposed land
use might conflict with traditional Indian religious beliefs or
practices and, two, avoid unnecessary interference whenever
possible with Indian religious practices during project
implementation.
In 1990, the Native American Graves Protection and
Repatriation Act [NAGPRA] was enacted to make easier the
efforts of the American Indians, Alaska Natives, and Native
Hawaiian organizations to claim ownership of certain cultural
items, including human remains, funerary objects, sacred
objects, and objects of cultural patrimony in control of
Federal agencies and museums that receive Federal funds. NAGPRA
requires agencies and museums to disclose holdings of such
human remains and objects, and to work with the appropriate
Indian tribes, Alaska Native villages and corporations and
Native Hawaiian organizations to repatriate such cultural
items.
Recently, the Secretary of the Interior appointed three
members to the Native American Graves Protection and
Repatriation Act Review Committee. The committee consists of
seven members who are charged with monitoring, reviewing and
assisting in the implementation of NAGPRA.
Appointments to the committee are selected from nominations
to the Secretary of the Interior by Indian tribes, Alaska
Native villages, Native Hawaiian organizations and national
museum and scientific organizations. Each appointee serves for
a 4-year term. Executive Order 13007 on Indian sacred sites,
issued in 1996, gives the Federal agencies guidance on dealing
with sacred sites. The order directs Federal land management
agencies, to the extent practicable, to accommodate access to
and ceremonial use of Indian sacred sites by Indian religious
practitioners and to avoid adversely affecting the physical
integrity of such sacred sites.
The Executive 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.
There is a growing concern among the public that Native
American burial grounds and other sacred places are being
desecrated by human encroachment by urban sprawl. The BIA
receives frequent requests for immediate intervention when
individuals believe a burial mound is being bulldozed or a
Native cemetery is being cleared for housing or other urban
development. Whenever possible, we refer these requests to the
appropriate agency.
The Administration and the Department continue to work with
Indian tribes, Alaska Native villages and corporations, and
Native Hawaiian organizations to ensure access to and to
protection of sacred sites and to comply with the law.
We support the American Indian Religious Freedom Act, which
protects and preserves for the American Indian, Eskimo, Aleut,
and Native Hawaiian the inherent right of freedom to believe,
express and exercise their traditional religions, access to
religious sites, and the use and possession of sacred objects,
and the freedom to worship through ceremonial and traditional
rites.
This concludes my prepared statement. I would be pleased to
answer any questions the committee may have.
[Prepared statement of Mr. Pogue appears in appendix.]
The Chairman. Okay. We will have a couple. Thank you.
Mr. Holtrop, why don't you go ahead and proceed?
STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF, USDA FOREST SERVICE,
DEPARTMENT OF AGRICULTURE
Mr. Holtrop. Thank you Mr. Chairman, Mr. Vice Chairman and
members of the committee. I am Joel Holtrop, deputy chief,
State and Private Forestry, USDA Forest Service.
It is the responsibility of state and private forestry to
provide technical and financial assistance to landowners and
natural resource managers to help sustain the Nation's urban
and rural forests and to protect communities and the
environment from wild land fire. Among our important partners
in this endeavor are tribal governments.
Thank you for this opportunity to provide the Department of
Agriculture's views on the interpretation and implementation of
the American Indian Religious Freedom Act of 1978 and followup
laws in two main areas: Repatriation and protection of sacred
places.
The Forest Services manages 192 million acres of public
lands nationwide for multiple use, including timber production,
recreation, grazing, habitat management, and water
conservation. The Forest Service Heritage Program manages
approximately 300,000 known heritage resources on National
Forest system lands, a great many of them important to American
Indians.
Under the direction of various statutes, executive orders
and agency directives, the Forest Service consults with tribes
regarding land and resource management policies, programs and
actions that could affect resources important to the tribes,
such as sacred sites. Executive Order 13007 requires Federal
land management agencies to accommodate access to and use of
Indian sacred sites, to avoid affecting the physical integrity
of such sites, and to maintain the confidentiality of sacred
sites locations.
Recently, the Forest Service chartered a task force on
sacred sites to develop policy and guidelines to better protect
the sacred sites that are entrusted to our care. The task force
has been meeting with tribal governmental and spiritual leaders
throughout Indian Country as part of this process.
Regarding repatriation, the Forest Service is implementing
the Native American Graves Protection and Repatriation Act of
1990, which addresses the protection of Native American burial
sites in the repatriation of human remains, funerary objects,
sacred objects, and objects of cultural patrimony. The Forest
Service is complying with the requirements to consult with
Indian tribes prior to intentional excavations, and
notification in the event of inadvertent discovery of human
remains or cultural items. We also have a process for the
repatriation of human remains and cultural items to the Indian
tribe or lineal descendants to whom these remains or items
belong.
Forest Service implementation and compliance with these
statutes depends on maintaining effective consultation and
collaboration with tribal governments. Recognizing that, the
Forest Service has recently taken action on several fronts, all
of which should improve the agency's collaborative
relationships with tribes and reduce conflicts over a number of
issues, including the protection of sacred sites.
For example, a forest service office of tribal relations
was established to provide the infrastructure and support
necessary to ensure high-quality interactions across programs
with Indian tribes on a government-to-government basis. In
March, the Forest Service issued new manual and handbook
direction on tribal relations that provides clear guidance for
agency-tribal relationships, spelling out specific obligations
for Forest Service officials in providing guidelines for
conducting government-to-government relations with tribes. And
the agency has instituted core skills training pertaining to
Forest Service policy with regard to tribal relations. The
training incorporates the need to protect sacred sites and
other culturally important areas.
The agency has identified certain recommendations that
cannot be fully implemented without legislation to create new
or clarify existing authorities. The legislative proposal which
was included in the Administration's fiscal year 2005 budget
would provide better access to National Forest system lands and
resources for traditional and cultural purposes, express
authority for reburials on National Forest system lands, and
authority to maintain the confidentiality of reburial and other
information. The legislative proposal is currently in clearance
at the Department.
Mr. Chairman, the religious freedom of American Indians is
and will continue to be an important factor in our management
of the National Forest system lands and all Forest Service
programs. The agency has made great strides to increase
awareness of all Forest Service employees of the agency's
responsibilities to Indian tribes. The Forest Service is eager
to work with Indian tribal governments. Together, we can take
appropriate actions to support the religious beliefs and
practices of American Indians on National Forest system lands.
I would be pleased to answer questions that members of the
committee may have.
[Prepared statement of Mr. Holtrop appears in appendix.]
The Chairman. Thank you, Mr. Holtrop. I am jotting a few
things down here.
Let me ask Mr. Pogue first, the American Indian Religious
Freedom Act was enacted in 1978, 26 years ago, but the
Department of the Interior statement on it is somewhat sparse.
Are there any positive examples of the Bureau's involvement
with the Religious Freedom or the Native American Graves
Protection and Repatriation Act issues that you care to share
with the committee?
Mr. Pogue. Yes; in 2002, we did form an interagency
committee that has been working on and with tribes. They have
consulted with tribes three times during that period of time.
We are in the process of looking at and developing the policy.
The last meeting was held in June of last year and this group
has been working on that development.
I have asked for some additional information on that. I
have not received it yet, though.
The Chairman. Okay. When you get it, would you please
forward it to the committee?
You said that was in 2002.
Mr. Pogue. The last meeting was in June of 2003.
The Chairman. Yes. It seems to me that was about the time
the Kennewick Man case was decided, which leads me to ask you,
who do you consult with? When you find remains that are so old,
you are not sure how to trace them. Tribes moved around from
time to time by their own volition or by forced movement. How
do you determine who you are supposed to consult with?
Mr. Pogue. Within our Trust Services Division, we have
archaeologists. We rely on our archaeologists to provide that
technical support in working with and identifying those
agencies that we need to work with.
The Chairman. Okay. The archaeology program is administered
by the Archaeology and Ethnography Program, according to my
notes, of the National Park Service. Is that right?
Mr. Pogue. Yes; but we try and coordinate with them when we
have questions.
The Chairman. You know, I do not want to say anything bad
about them. Maybe they are doing a fine job, but I remember
years ago when we were framing up the legislation for the
National Museum of the American Indian, which Senator Inouye
and I worked so hard on, one of the real glitches was from the
archaeologists who absolutely did not want the section involved
in that bill that would require the Smithsonian to start
returning some of the remains.
So I might tell you that some tribes think that it is a
conflict of interest having archaeologists make this
determination or being in charge of it when their traditional
goals were to keep those things forever and to keep studying
them, rather than to give them back. Have you had any
consultation or any feeling about that in talking to the
archaeologists who are authorized to do this work?
Mr. Pogue. I do not. I can check.
The Chairman. I understand, and please correct me if I am
wrong, that the BIA itself is one of the largest holders of
unrepatriated indigenous remains and relics. Can you confirm
whether that is true or not?
Mr. Pogue. I cannot.
The Chairman. I will tell you what. We will put it in
writing, and if you could respond in writing, I am sure this
committee would like to know, because we have been really
instrumental in trying to get those remains returned by other
agencies. I was rather surprised that in fact the Bureau was
not one of the lead agencies who would have volunteered to do
that.
Mr. Holtrop, looting of sacred sites has become a big
problem. Executive Order 13007 directs Federal agencies to
protect the confidentiality of sacred sites where appropriate,
for obvious reasons. If the word got out, you are going to find
looters sooner or later.
Let's say you do this, and you have some confidentiality
discussions on a sacred site. If that has been compromised or
leaked out, what do you do then?
Mr. Holtrop. If the information that was considered
confidential has been leaked out, what do we do at that point?
The Chairman. Yes; what is your plan B if that happens?
Mr. Holtrop. Our plan B if that were to happen would
probably include several steps that we would do. One of the
first steps that we would need to take is to make sure that
whatever steps we took were in consultation with the tribe or
tribes that were most interested in and associated with that
sacred site.
We would look at what are the mitigating actions that we
would need to take at that time, and to try to limit whatever
possible impacts that it could have, all the way up to, leading
to and in some cases closing recreational uses of areas and
those types of things in order to continue to protect sacred
sites, and there are examples of us having done so.
The Chairman. This is a little bit off the subject, but a
few years ago there was a devastating fire in Mesa Verde. After
the fire was contained, they found literally thousands of
relics that they had not known existed when the brush was
burned off. I assume that there are some places in the forest
when you have forest fires, you have the same effect. Some
things appear that you did not see before.
As you probably know, the Forest Service is using more and
more Indian smokejumpers. I do not know how many total number,
but they seem to have really found a niche. It is a very
dangerous job and they like the work. It gives them an
opportunity to show the traditional feeling of bravery in
adverse conditions and I think they do a real super job. Has
there been any dialog or negotiation, or any input on working
with some of those smokejumpers who might have cultural
knowledge about where they are jumping into to identify or spot
or pass on information about things that appear?
Mr. Holtrop. First of all, let me say as the deputy chief
with responsibility for fire and aviation management in the
Forest Service, we are proud to work with the Indian
smokejumpers and many other Indian crews in our fire management
responsibilities.
I think the question that you are asking causes me to
wonder the same thing. I do not know for sure that we have
examples of where we have done so, but it clearly has a great
deal of wisdom associated with it. It is something that I will
ask some questions about. If I find out that we have indeed
done so, I will be more than happy to share that with you.
The Chairman. If you could, if you have not done so, I
personally think that it would behoove the agency if it would
utilize that knowledge that may be there and willing to help.
Mr. Holtrop. Yes, sir. As you mentioned, we often do have
situations in which, like you mentioned in the Mesa Verde fire,
which I believe was called the ``long fire'' at the time, we
have many instances in which previously unexposed heritage
resources are discovered following the fires. One of the things
that we are able to do with, one of our programs is called the
Burned Area Emergency Rehab Program, is to utilize some
emergency funds for the identification and protection of those
sites immediately following a fire.
The Chairman. So if you find those after a fire, in the
Forest Service you have somebody pick them up or identify them?
What happens?
Mr. Holtrop. It depends very much on the site and the
object itself. If it is possible to be protected and there is
any sense that there is an opportunity for it to be protected
and undisturbed, that is the preferred approach.
The Chairman. Yes; good.
The Executive order on sacred sites was executed in 1996.
The task force is just now being developed. It seems like a
long time since 1996, if this is just being developed. Could
you tell the committee what has been done to date, and
particularly with its consultation with tribes in developing
this task force for sites?
Mr. Holtrop. Yes; I would be happy to. Yes, the Executive
order was in 1996 and we have been doing work with tribes since
the Executive order and before on consultation on sacred sites.
I can provide some examples of that.
What we have been doing in the recent past couple of years
is recognizing that there are some elevated efforts that we
need to take as an agency to redeem our responsibility of
working with tribes in a government-to-government relationship.
I alluded to some of those actions that we are taking.
One of the things in that process of increasing our self-
awareness and institutional awareness of the things that we
need to do is we became more and more aware that there are
several sacred sites issues around the country that we had been
dealing with more on a one at a time, case-by-case basis, that
we determined recently that we might be able to gain some
benefit by looking at it in a more holistic manner. That is
when we put the task force together.
The task force has been traveling around through Indian
country. I know that it spent a long week in Alaska recently,
for instance, visiting with tribal leaders. The reports that I
am getting is that there is a great deal of appreciation for
the consultation and the input that the task force has been
able to get.
The Chairman. Okay. Do you have all the statutory authority
you need to implement the actions of the task force, or do we
need to do something from the standpoint of this committee?
Mr. Holtrop. In the legislative proposal that I have
mentioned that is still in clearance, there are some additional
needs that we have identified, some of which deal with some
additional perhaps statutory authorities to maintain
confidentiality, either burial sites, traditional ecological
knowledge that is shared by tribal members with our scientists,
and some things like that.
When that legislation clears the executive branch, I would
be more than happy to come up and talk with you and the
committee in some detail about what the proposal is.
The Chairman. That will be fine. I appreciate that.
Senator Inouye.
Senator Inouye. Thank you.
Mr. Pogue, you have testified that the Religious Freedom
Act requires your agency to consult and discuss a matter if you
feel that there is a conflict of interest involved in the use
of the land by your agency. Who decides when there is a
conflict? Let's put it another way. Tribe A goes to Interior
and tells you that what you are doing with the land is in
violation of religious freedom. At that moment, what is your
position?
Mr. Pogue. I think I would need to find out a little bit
more about what was going on with the use of the land and who
was involved. I can give some examples that at one of our
reservations we had proposed to construct a school. Every site
that they chose turned out to have some artifacts. We actually
went through five sites and have not found a site yet.
Once it is identified, we take a look at that site and make
some determinations from there as to what the proper use should
be or how we would use the land.
Senator Inouye. And your belief is that you have been very
cooperative with the Indian nations?
Mr. Pogue. Yes, sir.
Senator Inouye. Why is it that the Indian nations are now
trying to make certain that the law is implemented by bringing
suit against the Interior Department? They seem to be
unsatisfied, that they are not getting consultation.
Mr. Pogue. I do not know about that. I will have to find
out and get back to you. I am not aware of this lawsuit.
Senator Inouye. I would suggest that, Mr. Pogue, you remain
here while the next panel testifies because I am certain some
of the witnesses will bring up cases where they feel that they
have not been consulted and they have been ignored.
Is it your view that no legislative remedy is required to
ensure that agencies consistently accommodate the concerns of
Indian nations? Or would you like to hear them out first?
Mr. Pogue. I would rather hear them out first.
Senator Inouye. I would like to shift slightly. You have
operation and maintenance responsibilities for 74 detention
centers in Indian Country, of which 39 are owned by BIA. What
sort of religious practices are permitted for inmates in these
facilities? Do they have the full array?
Mr. Pogue. Senator, I do not know the answer to that
question, but I can find out.
Senator Inouye. We have received reports from Federal
prisons that have suggested that recidivism rates of inmates
are very profoundly reduced when they are encouraged to engage
in religious and cultural practices. Do you encourage religious
and cultural practices among inmates?
Mr. Pogue. I would, but I am not sure that that is what is
happening right now. I need to check with my law enforcement
folks and find out exactly what is happening in our detention
centers.
Senator Inouye. I can only suggest that in a few minutes
the other panel will come up and I am certain they will have a
few things to say about this.
If I may ask Mr. Holtrop, you have said that you have made
attempts to identify all Indian artifacts or aboriginal sites
in order to locate sacred sites. Because some of the tribes
have been removed or have been forcibly transferred to some
other place, does that make the task a little more difficult?
Mr. Holtrop. Yes; it does.
Senator Inouye. Do you consult with those tribes that have
been transferred out?
Mr. Holtrop. When we are able to determine the cultural
heritage of sites in areas, that is our intention to do so. I
would not pretend to think that we have been successful in all
cases, but it would be our intention.
Senator Inouye. What is the nature of your consultation? I
say this very seriously because in some agencies, consultation
is after the fact.
Mr. Holtrop. There may be instances in which it is after
the fact in our agency as well, but again it is not our
intention. The nature of our consultation depends a great deal
on the nature of the issue or the situation in which we are
consulting over. Many of the National Forest system lands have
off-reservation treaty rights that tribes have off-reservation
treaty rights on. Anytime that we are going to carry out any
type of a land management activity, whether it is the
development of a recreation site, a timber sale, a mineral
geology exploration, any of those things, the consultation
occurs with the tribal entities beforehand.
In certain circumstances, when we are going into a
situation in which we are expecting to find cultural remains,
heritage sites, objects of significance to the American
Indians, our intention is to consult before that happens. There
are times in which we unexpectedly come across those types of
objects, at which point we have policies that require us to
consult immediately after that and determine together, in
consultation, what is the right next course of action.
Senator Inouye. You have spoken of your task force. When
will the task force finish its business?
Mr. Holtrop. We are working on trying to have a policy in
place based on the work of the task force by October 2005. The
task force is continuing to do some additional listening
sessions in Indian country around different parts of the
country. I believe that most of that work will likely conclude
here in the next few months, and then they will go to work as
to taking all of the information that they have learned and
decide the recommendations that they should make, go through
our processes, and get to the point where hopefully we have a
new policy in place by October 2005.
Senator Inouye. I assume that the report will be shared
with this committee?
Mr. Holtrop. That would be my assumption as well. I will
make sure that that happens.
Senator Inouye. What nature of expertise do you have on
this task force?
Mr. Holtrop. We have several of our tribal relations
program leaders, the regional tribal relations program leaders
from the regions around the country. We also have legal counsel
on that. I do not have the entire makeup of the task force in
my mind, but we also have some of the people who we will be
needing to implement some of the policy recommendations, line
officers, district rangers, forest supervisors and such. I
cannot tell you from my memory right now for sure that they are
on the task force, but I know as the task force was being put
together that we have processes in place to make sure that we
are consulting with them as we go through the process.
Senator Inouye. Am I correct to assume that there are many
Native Americans on your task force?
Mr. Holtrop. Yes; you are correct in assuming that.
Senator Inouye. I thank you, sir.
Mr. Holtrop. From the Southwest, from the Middle Rocky
Mountains and on the West Coast, a good geographic mix.
Senator Inouye. Were they recommended by the Indian tribes,
or were they selected by you?
Mr. Holtrop. They were officially selected by the Forest
Service, but again we had discussions with tribal entities as
we went about making up the makeup of the task force. When
there are over 500 tribal entities, I would again not pretend
to tell you that we consulted with each one of them in our
decisionmaking process. We went to those that we recognized
that had some of the greatest issues as we were working on
putting the task force together.
Senator Inouye. Thank you very much, Mr. Holtrop.
Mr. Holtrop. You are welcome.
The Chairman. Thank you.
Let me ask one further question, because Senator Inouye has
jogged my thinking about this. I understand how you formed the
task force and who is on the task force to do the consultation.
Who is on the other side? When you go out to do some
consultation with the tribes, do you just go through the tribal
councils? Do you let them pick whoever they want to be the ones
you consult with? Or do you go directly to the spiritual
leaders, who are rarely elected officials within a tribe? How
do you do that?
Mr. Holtrop. Are you asking about for the work of the task
force on sacred sites that is going around Indian Country right
now? They are consulting with both tribal leaders, as well as
spiritual leaders.
The Chairman. I see. Okay, good. Thank you. I have no
further questions, but there may be some written questions by
other members of the committee who are not in attendance today.
Thank you for being here. I appreciate it.
We will now go to the second panel, which will be Suzan
Shown Harjo, my friend and colleague, president of the Morning
Star Institute of Washington, DC; Walter Echo-Hawk, Sr., the
senior staff attorney for the Native American Rights Fund;
Bernard Red Cherries, Jr., Northern Cheyenne Elk Society
Headsman and Sundance Arrow Priest from Valley, Washington; and
Paul Bender, professor of law, Arizona State University.
If you folks would all come and sit down, we will start in
that order. As I said to the first panel, all your written
testimony will be included, so if you would like to abbreviate
that will be fine.
Walter, you look very dapper in that Western hat.
Mr. Echo-Hawk. Thank you, Mr. Chairman. I thought you might
like it. [Laughter.]
The Chairman. We will start with Ms. Harjo first. Suzan,
nice to see you here.
You have been with this issue since day one, haven't you?
Ms. Harjo. Well, I have actually before day one.
The Chairman. You have lived with it.
Ms. Harjo. Since 1967.
The Chairman. Yes.
Ms. Harjo. Senator Inouye, of course, was one of the
original sponsors of the American Indian Religious Freedom Act,
and staff director and counsel, Patricia Zell has been on this
issue as well from day one. Of course, you, Mr. Chairman and
Paul Moorehead have been involved in much of the follow-on
legislation, particularly the Repatriation Act.
STATEMENT OF SUZAN SHOWN HARJO, PRESIDENT, THE MORNING STAR
INSTITUTE
Ms. Harjo. It has been 25 years that we have been waiting
for a cause of action to protect sacred places; 26 years ago,
the Forest Service was successful in lobbying Congress to strip
the American Indian Religious Freedom Act of a cause of action
and to make statements on the House floor that would guarantee
that there would be no such cause of action in this bill.
The Supreme Court, because of that action and that
successful lobby effort by the Forest Service, basically said
in 1988 that, not only did the Religious Freedom Act not offer
a cause of action, but the freedom of religion clauses of the
First Amendment did not offer any protection for us.
We have no way of getting into court on this matter. We
have no way of staying in court to protect our sacred places.
The Federal agencies know that. That is why they are pretty
cavalier about ignoring what we have to say about access and
protection of our sacred places on what they view as their
land.
The authority for the Forest Service and other Federal
agencies to allow us access to medicine places, for example, is
in the fact that those lands are our lands. They were
confiscated by the Federal Government. They were taken by these
Federal agencies and I believe are held illegally. But even if
you allow that they are taken and held under the color of law,
it does not make it right, and we still have prior and
paramount rights to those gathering areas.
There should be no question that Federal agencies can
permit closure of certain areas for ceremonial purposes, permit
taking of what was referred to in one testimony as ``forest
products.'' Those are our medicine plants. Those are our sacred
objects. Those are our sacred items. Those things are
guaranteed to us by the natural laws, by the original laws, by
the laws that put us in these places.
We thought that the American Indian Religious Freedom Act
provided some protection. It is so sad that, after 25 years,
the Department of the Interior sends the BIA up and a witness
that clearly knows nothing about the subject, to deflect
attention from the Bureau of Land Management, which is
desecrating and damaging and destroying site after site after
site across the country, all without consultation. The
committee has heard in three oversight hearings on sacred
places that that is being done.
I think it is important to point out where the BLM is doing
a good job and, as we pointed out in those hearings, that is at
Kasha-Katuwe Tent Rocks National Monument. But aside from that,
the BLM has done a terrible job and is doing a terrible job at
Quechan Indian Pass and other places, and Medicine Lake, where
they are destroying sacred places and have plans to destroy
sacred places and have plans to permit others to destroy sacred
places, all without consultation. It is either consultation
after the fact or not at all. When there is consultation, it is
often ignored.
We heard in those oversight hearings from Mr. Bettenberg
from the Department of the Interior on behalf of the
Administration, that the Administration wants a confidentiality
provision in law to protect sacred places information. It is a
good thing. We thought it was a good thing then. Now, today we
hear from the Forest Service official that that is still a
policy that is being tested, that is being discussed.
So we have gone backward, it seems, from an Administration
position favoring a confidentiality provision 2 years ago and 1
year ago, to a position where the Forest Service is asking for
that kind of Administration position. We applauded that
position in a previous hearing and I do not know what to do
about it now.
You will hear later testimony about how happy we are with
consultation from the National Park Service in the
implementation of the Repatriation Act. Indian country is
calling for the repatriation laws to be taken out of the
stewardship, the administration, the implementation of the
National Park Service. We have National Park Service and its
nearly 100 percent archaeological officers--I think there is
one exception to that--and no Native people in their NAGPRA
office running repatriation issues, deciding these life and
death and death and death and observance of death kinds of
matters that are so important to us, and often deciding against
us unless our interests coincide with the archaeologists.
They have severe conflicts of interest which they have not
acknowledged. They have not dealt honestly. They have by
administrative fiat taken sacred objects belonging to deceased
Indians. They have tried through administrative fiat, through
regulatory proposals, to classify our dead relatives as the
property of these entities that hold them. This is shocking and
stunning stuff and I do not think that Congress intended this,
even people who were only vaguely interested in the subject
never intended this kind of result.
We have had good relations with certain agencies, with the
Department of Navy for example, on access to sacred places
issues over 25 years. We have had very good relations in most
of the Defense agencies. It is these squishy agencies that have
a long history of suppressing Native people and being used by
the other agencies as the entities that go out and pretend to
be nice to the Indians, and then aid in our destruction. That
is where we have the problem, especially within the Interior
Department. And, with all due respect to the Forest Service
witness, they already have authority to do everything they want
except for the confidentiality requirement, but that they can
also carryout under secretarial discretionary authority under
the Freedom of Information Act, under scientific exemptions.
The requirement that is ongoing under the American Indian
Religious Freedom Act is not for the Forest Service to consult
with people who are on their payroll, whether they are Indian
or not. The requirement is for them to consult with the
traditional religious leaders. So I think we should just step
back and read the actual Religious Freedom Act and take a look
at what is being said all across Indian country about the
problems over 25 years, particularly with the agencies that
testified here today, and by that I include all of the
Department of the Interior. At the moment, BIA is probably the
least egregious agency, but that is a contest I think it would
not want to enter.
Thank you.
[Prepared statement of Ms. Harjo appears in appendix.]
The Chairman. Thank you.
Walter, why don't you proceed, please?
STATEMENT OF WALTER R. ECHO-HAWK, Sr., SENIOR STAFF ATTORNEY,
NATIVE AMERICAN RIGHTS FUND
Mr. Echo-Hawk. Good morning, Mr. Chairman and Mr. Vice
Chairman. It is with a great deal of pleasure that I come
before the committee today. I really do appreciate the
opportunity to offer testimony on AIRFA implementation issues.
As this committee is well aware, during the course of the
history of this Nation, prior to 1978 there was an absence of
adequate legal protections to protect Native American worship.
As a result, Native people suffered a long history of religious
intolerance and religious discrimination through the machinery
of government.
However, through the leadership of this very committee in
1978 American began to address that human rights problem. In
the subsequent generation, 25 years, this committee has
legislated followup legislation in that area to address the
fundamental human rights needs of our Native people. I feel
that for each member of this committee, this leaves a major
legacy for each of you. It has certainly been my privilege to
have participated in that. All of Indian country knows and
appreciates the work and the strides made by this committee,
not only in enacting legislation, but monitoring the
implementation of that legislation.
Today, I wanted to talk about three subjects. The first
concerns the NAGPRA legislation which was enacted 14 years ago.
The NAGPRA legislation at the time that it was enacted was very
lengthy, complicated legislation. A lot of people have worked
to implement that legislation in the intervening 14 years.
Today it is timely to tinker with the statute to improve it,
and make sure we are back on the right path of the original
intent of Congress and the original national dialog panel that
worked on that legislation that Professor Bender is going to be
testifying about, and to make sure that as we implement that
legislation that it is done efficiently, without unnecessary
delay, without unnecessary litigation and in accordance with
the original intent of Congress and this very committee that
advanced that measure to the floor.
There is a need to tinker with the statute in light of
Bonnichen v. United States that Professor Bender is going to be
talking about. This is the highly publicized Kennewick Man
decision. That case, as I have indicated in my testimony,
basically seized on two words, that is in the definition of
``Native American,'' and rewrote the entire statute as very
clearly pointed out in the legal analysis provided to the
committee by Professor Bender. The court ruled that human
remains that are indigenous to the United States are not Native
American unless there is some threshold proof of some
relationship to a presently existing tribe.
The court utilized those two words ``that is'' in that
particular definition to strictly narrowly restrict the scope
of the statute. There are many provisions that Professor Bender
will go into that are now written out of the statute as a
result of that interpretation.
Professor Bender has provided some very sound, simple
potential amendments that would get us back on that track. It
is very telling that the Ninth Circuit did not cite any
legislative history to support its narrow construction of that
statute. Indeed, there is no legislative history on the
definition of ``Native American'' because to my knowledge
everyone who worked on that legislation, it was a non-
controversial term. Everyone logically assumed that any remains
indigenous to the United States are Native American. There was
no debate. There was no discussion. It was a logical
assumption. So to then have the court take that construction is
well out of kilter. It not only renders many provisions
superfluous as Professor Bender is going to talk about, but it
creates two standards, one for Indian tribes in terms of their
coverage where they have to meet this new standard of the court
in the Kennewick case, and Native Hawaiians.
The Ninth Circuit said that Congress knew how to make
remains indigenous to a geographic area by virtue of the
language that it used in Native Hawaiians. So the court created
two disparate standards of coverage. That that was clearly not
intended by the committee when it advanced that measure.
Professor Bender's testimony discusses and provides a very
sound legal analysis of that opinion on the implementation of
NAGPRA. He makes some very sound, simple recommendations to fix
it. I supplement his testimony by pointing out some dicta in
the lower court decision which is a very lengthy opinion
covering all aspects of the statute. This dicta of the District
Court may create some confusion by agencies in implementing the
statute, whether joint claims can be presented by multiple
tribes, which was certainly what was being at the time in 1988,
1989, and 1990 when Congress was confronted with this
legislation, and whether the statute itself should be subject
to Indian canons of statutory construction.
Despite the fact that this bill originated in this
committee, is codified in 25 U.S. Code and has a provision that
says it was enacted pursuant to Congress' relationship with
Native people and Native Hawaiians, the District Court at the
hearing could not bring itself to think that this was really an
Indian statute and therefore marginalized those important
canons of statutory construction.
Even though the Ninth Circuit did not technically address
that dicta, the committee may still want to take a look at it,
because of the confusion that it could prompt and the
unnecessary litigation that it could engender.
The second area that I wanted to cover is in the area of
sacred sites. The protection of Native worship at holy places
in the United States is perhaps the paramount political and
legal challenge in the implementation of the American Indian
Religious Freedom Act. I know that this committee has labored
over the years to examine aspects of this problem. But the need
for such legislation is crystal clear in the 15 years of the
hearings of this committee. We are not going to get any smarter
in terms of the factual need for that legislation.
Regardless of these difficulties, all world religions have
their sacred places and it is the responsibility of each Nation
to protect those sites. I personally have not been involved in
that issue much lately, having been diverted into water law
litigation, but in my quieter moments I have pondered this
issue. My testimony presents the elements of a short cause of
action statute and an equal protection rationale for that
statute. Even though there are no legal protections for Native
worship other than a patchwork of limited procedural
protections that are unenforceable, Federal law does provide
protection for religious property. But each of these Federal
statutes exclude Native American religious places.
The RFRA legislation in 1993 provided a cause of action
that could have been used to protect native worship at sacred
places in that cause of action, but the committee reports and
the legislative history, the floor statements said that RFRA is
not intended to cover the government's use of its own property.
This would exclude protection of religious sites on Federal
land. That double standard was continued in the Religious Land
Use and Institutionalized Persons Act of 2000, which provides a
cause of action, but you have to own the property. You have to
have an easement or some kind of an ownership. So therefore it
does not protect the dispossessed Native Americans who no
longer own these sites.
This disparity raises an equal protection of the Federal
laws problem. We need to have a short cause of action statute
that accords equal protection of the existing Federal laws to
protect Native American worship, to be inclusive of Native
American religion. I suggest a cause of action statute very
similar to the Federal undertaking cause of action in the
Religious Land Use Statute that I mentioned and propose in my
testimony.
It is good to have Federal Executive orders and Federal
land use changes and some consultation, but at bottom what is
needed is a cause of action statute to level the playing field.
My final area that I wanted to touch on in my testimony
goes back to NAGPRA, I attached the National Congress of
American Indian emergency resolution concerning NAGPRA. NCAI,
as well as my client, who is a working group of very prominent
Native Americans, that has been following the issue of the
disposition of hundreds of thousands of culturally
unidentifiable human remains under NAGPRA.
NAGPRA contemplated that despite its detailed procedures
and the best efforts of all parties that there would remain
unidentifiable human remains, unknown Native Americans. The
reasons for that are many. But NAGPRA intended a disposition of
those remains. Part of that dealt with the development of
recommendations by the NAGPRA Review Committee, who is also
under the statute supposed to develop an inventory of those
remains, in consultation with native people and some
regulations governing their disposition.
Deep concerns have emerged over that. It has been 14 years.
The inventory has not been completed and no consultation, aside
from some discussions at some of the Review Committee meetings,
have taken place. Indeed, Indian country is not able to conduct
informed consultation until we get that inventory so we know
what the facts are. The history of the Park Service and
particularly the conflict of interest concerns that we have,
has convinced many in Indian country that we cannot expect an
impartial disposition of those unknown Native Americans because
of the conflict of interest that the agency has in upholding
the archaeological resource protection statutes, which promote
science as well as the very staff that are implementing this.
The Park Service employees in the NAGPRA office are to a person
members of the Society for American Archaeology, which is the
very organization that on this particular issue differs with
native people, and yet they are charged with implementing these
regulations.
So there are conflict of interest concerns and we would
hope that steps could be made to inquire and see if there is
anything available that could move this NAGPRA implementation
to a neutral agency. That is all we want, is a level playing
field.
With that, I conclude my testimony. I was handed a two-page
statement here by the Native American Church of Navajoland to
request that their statement be put into the record.
The Chairman. We will include that in the record, too, if
you will leave that with us.
[Prepared statement of Mr. Clark appears in appendix.]
Mr. Echo-Hawk. Thank you, Mr. Chairman.
[Prepared statement of Mr. Echo-Hawk appears in appendix.]
The Chairman. Thank you for appearing here. I have not seen
you for about 3 years. I did not realize you were off fighting
the water wars.
Mr. Echo-Hawk. That is right. When you have a water case,
you just drop off the end of the earth indefinitely.
[Laughter.]
The Chairman. But in the American West, it is becoming a
very, very much more valuable resource and the conflicts with
Indian tribes and State governments and everybody else is on
the rise. So I commend you and wish you well in those battles.
Mr. Echo-Hawk. Thank you.
The Chairman. Professor Bender, would you like to proceed?
Your complete testimony will also be included in the record.
STATEMENT OF PAUL BENDER, PROFESSOR OF LAW, ARIZONA STATE
UNIVERSITY COLLEGE OF LAW
Mr. Bender. Thank you, Mr. Chairman and Senator Inouye.
My name is Paul Bender. I am professor of law at Arizona
State University College of Law. The committee has invited me
to testify about the implementation of NAGPRA. I have not been
involved as much as the other witnesses on this panel with that
subject.
I assume the reason the committee asked me to testify was
that I was a facilitator of the national dialogue panel that
Mr. Echo-Hawk just referred to, which was put together at the
recommendation of this committee to try to reach a consensus
between the Indian community and the museum community and
archaeologists about repatriation issues. The panel did reach a
consensus. I testified before the committee about that
consensus in presenting the committee's report. NAGPRA and the
committee's report are very similar in their content and the
panel supported the enactment of NAGPRA.
The reason why I was glad to have this opportunity to
testify now is because, as Mr. Echo-Hawk just mentioned, the
Ninth Circuit a few months ago, in February, issued a decision
about the meaning of NAGPRA which is not only seriously
incorrect, but potentially destructive of the purposes of the
statute. I wanted to bring that to your attention and suggest
the possibility of some corrective legislation before that
incorrect interpretation became too ingrained in the law.
The case involved Kennewick Man. The result of the case,
which is that Kennewick Man would not be repatriated, is not
the principal cause of my concern. The principal cause of my
concern is the route by which the Ninth Circuit reached that
result. They reached their decision by holding that the
Kennewick Man remains were not Native American remains covered
by NAGPRA. They said NAGPRA was entirely irrelevant to what
should happen those remains. That was a startling holding for
somebody like myself who was involved in the framing of NAGPRA.
I think it would startle every member of our dialog panel. I
think it would startle every member of the Senate committee
that recommended that Congree enact NAGPRA.
The reason for this surprise is that NAGPRA was not solely
concerned with repatriation issues. Those were very important,
but I think equally important were its provisions regarding
consultation with the Indian community, something that has been
mentioned here this morning several times. Indeed the biggest
problem that the dialog panel found with regard to relations
between the Indian community and museums and archaeologists was
the lack of consultation, the lack of participation, the lack
of ability to participate of the Indian community--both the
traditional community and tribal governments--in decisions
about what should happen to remains, how remains should be
treated and classified and what should happen to funerary
objects and sacred objects.
Indians had been completely excluded from that process in a
lot of instances. They had made requests for repatriation which
were ignored. They had not been given information about what
kinds of materials the Smithsonian had, about what kinds of
materials were in the possession of universities and museums.
It was extremely important to the dialog panel, and I think to
the committee in recommending NAGPRA, that that situation be
changed. NAGPRA therefore, contains many provisions that
require consultation.
By excluding materials from NAGPRA unless there is a prior
determination that the materials are related to a presently
existing tribe, the Nith Circuit Court decision really ruins
those consultation requirements. For example, museums were
required bt NAGPRA to go through their holdings and make
inventories of Native American materials. They were supposed to
consult with Indians and tribes in doing that and in deciding
how to classify those materials.
Under the Ninth Circuit's decision, however, a museum could
say, well, there is no existing tribe that is related to these
materials so they are not under NAGPRA, so we do not have to
consult with any part of the Indian Community. The same thing
would be true if, as with Kennewick Man, human remains are
discovered on Federal lands. The discoverer could say, well,
they look too old to be connected to a present-day tribe so we
do not have to consult with any tribe or tribes.
With regard to unaffiliated remains, the Ninth Circuit
decision reads them out of NAGPRA altogether, and yet NAGPRA
clearly has provisions that are intended to deal with how
unaffiliated remains should be treated. For example, if
unaffiliated remains are found on tribal lands, under NAGPRA
the tribe on whose lands they are found has repatriation
rights. The Ninth Circuit decision changes that because it says
that unaffiliated remains are not covered by NAGPRA, and
therefore NAGPRA's repatriation right of the tribe on whose
lands the remains are found is eliminated.
Even if remains are not found not on present tribal lands,
but on aboriginal lands that have been adjudicated to be
aboriginal lands of a tribe, the tribe has NAGPRA repatriation
rights regardless of whether there is any cultural affiliation.
NAGPRA is absolutely clear on that, yet under the Ninth Circuit
decision NAGPRA does not apply if there is no preexisting
finding of affiliation, so that the repatriation right is
destroyed.
Then there is the culegory of unaffiliated remains that the
panel was divided about. The legislation left to the review
committee to provide rules about how those remains were to be
treated. Those were remains that are in possession of museums
and universities and also that are found after the enactment of
NAGPRA. Under the Ninth Circuit decision, the review committee
has nothing to do with regard to unaffiliated remains because
unaffiliated remains are not covered by NAGPRA. That eliminates
from the statute the really important provision which was going
to let the Indian community, through its representation on that
review committee, participate in decisions about what should be
done with the unaffiliated materials.
So the decision is wrong as a matter of statutory
construction because it ignores the fact that the statute
contains provisions about what should be done with unaffiliated
materials, and instead says all unaffiliated materials are not
under NAGPRA at all, which makes nonsense of those provisions.
Even more important than as a matter of statutory
construction, it frustrates what I consider in some ways the
most central purpose of NAGPRA which was to get the Indian
community involved, to give them a right to be involved in
decisions about characterizing materials, about are they
affiliated and if so with whom are they affiliated, and if they
are not affiliated, what should be done with them.
The purpose of NAGPRA was to provide a right to that
consultation, and by at the outset eliminating from the statute
materials that the possessor believes are not affiliated with
any current tribe just frustrates that entire consultation
procedure. It is an interpretation of the statute which turns
on the fact that they use the word ``is,'' rather than ``is or
were'' in a provision which as Walter has pointed out, nobody
had any doubt that that provision referred to all indigenous
materials, all materials by people who were indigenous to the
United States before the European community came into the
United States.
So Kennewick Man is clearly Native American within the
meaning of NAGPRA. That, then, plugs in the NAGPRA consultation
procedures and the NAGPRA procedures about what should be done
with it. Under NAGPRA, you have to decide whether it was found
on aboriginal lands; if so, the tribe whose lands have a right
to it. If not, it is to go to the review committee to decide
what to do with it. The Ninth Circuit decision is wrong in
cutting out all of those provisions.
So I think in order to get NAGPRA back on track, to make
sure that those consultation and participation rights are
there, it is really important to clarify the language of that
definitional provision to make clear that NAGPRA applies to all
indigenous American materials, not only the narrow class of
indigenous materials that relates to a present-day tribe.
If that is not done, my fear is that we will return to the
situation where possessors of materials said to tribes, you do
not have any connection to these materials so we will not even
talk to you. That was the thing that created the most
antagonism between the Indian community and the museums.
Looking on the other side of that coin, that consultation,
everything that I have heard about it, suggests that that
consultation has been enormously fruitful. Archaeologists and
museums have learned a tremendous amount through that
consultation. So by excluding those materials from NAGPRA and
excluding the consultation, the Ninth Circuit decision also I
think strikes a blow at the advancement of science.
So I really urge the committee to consider the possibility
of making a small change in this definitional provision to
correct that error. I would be glad to work with the committee
staff in doing that if they wanted me to.
Thank you very much.
[Prepared statement of Mr. Bender appears in appendix.]
The Chairman. Thank you.
We will now go to Mr. Red Cherries. I just got a note that
I have to leave the room for a bit to be where they are short a
member for a quorum for the Energy Committee, so I will have to
leave. Senator Inouye will go on with the hearing.
I might tell you, Mr. Red Cherries, if you were not home on
the Fourth of July in Lame Deer, you missed a very, very good
function. Assistant Secretary Anderson came up for it and it
was just a terrific homecoming.
Would you handle this, Senator Inouye, please?
Senator Inouye. I would be pleased. Sure.
The Chairman. Thank you.
Senator Inouye. Mr. Red Cherries.
STATEMENT OF BERNARD RED CHERRIES, Jr., NORTHERN CHEYENNE ELK
SOCIETY HEADSMAN AND SUNDANCE ARROW PRIEST
Mr. Red Cherries. I am glad and honored to be here to be
able to address and direct our concerns from the traditional
standpoint.
As you probably are aware, I am one of the chiefs of the
Cheyenne Nation. I am also one of the Sundance leaders, which
is a religion that was given to us by the Creator at the
beginning of time.
Our religion has been with us since the beginning of time.
As such, our religion is passed down from generation to
generation in a very sacred manner. This religion is a renewal
of our complete way of life from one year to another. This
Sundance is now being held out of our traditional jurisdiction.
Non-Natives have now adopted our religion. They have now taken
it into U.S. Forest jurisdiction where we as traditional tribal
leaders have no jurisdiction with the U.S. Forest Service.
When we go and attempt to consult with the U.S. Forest
Service, we are told that they wish to not keep the
constitutional right of religion from anybody. Joel Holtrop, he
testified that the U.S. Forest Service very much would like to
work with Indian tribes. When we as Indian tribes came together
two years ago, we formed a coalition of Sundance leaders from
various tribes across the country. The Sundance religion is
exclusive of probably less than 10 tribes on this entire
continent, yet many tribes have adopted our way of worship.
We do not have a problem with people praying with us. What
we do have a problem with is the leadership, the interpretation
roles and the authoritative roles that those non-natives have
assumed. It has impacted our traditional way of life. It has
impacted the way our children view things.
We had asked Region XI Forestry Supervisor Gary Harris to a
meeting of traditional leaders on June 19. Mr. Harris declined.
He said that he was advised by his superiors in the U.S. Forest
Service that he not attend our meeting. We had attempted to
consult with Hoosier National Forest officials who have a
permit process by which they allow non-natives to hold our
sacred Sundance on their U.S. Forest grounds.
We have an issue with that in the traditional realm. We
have unwritten laws. I as a traditional chief of my people make
those decisions if a person is worthy enough. He brings his
request to us and we decide. We have certain traditional laws
that we need to meet traditional requirements before a person
is allowed to proceed.
Yet these individuals have gone out of our jurisdiction and
we are at a loss. We do not have jurisdiction. This law, the
AIRFA law, we feel today is being used in conflict with the
constitutional right to gather and worship. Today, we are in a
struggle to try to protect and preserve our traditional ways of
worship.
We have formed, like I said, a coalition of traditional
leaders. Sometimes we are at odds with our own tribal
governments because our governments are elected officials. We
are hereditary leaders. I am a sixth generation direct
descendant of Chief Little Wolf, who along with Dull Knife, led
our people out of Indian Territory, Oklahoma, in 1878. I am a
hereditary chief in the Elk Horn Scrapers Society of which my
grandfather was at the time of his death.
These roles, these positions are passed on from generation
to generation. I would urge and plead with this committee to
please take into consideration the impacts that this is having
on our children and what lies ahead. We are certainly not
prepared for it in Indian Country, but yet we are continuing to
try to bring this focus to the forefront of our legislators and
leaders in Washington, DC.
Thank you for your time.
Senator Inouye. Thank you very much, Mr. Red Cherries.
I am just looking at my clock. Unfortunately, this
committee will have to vacate this room by noon because another
committee will be coming in at that time.
I have a few questions to ask. But before I do, may I
request that Ms. Harjo, Mr. Echo-Hawk and Professor Bender
share with us your recommendations for legislative changes,
because all of you testified that you had some recommendations
to make. We have not had the opportunity to study them, but we
would like to do that.
Mr. Bender. There are some suggestions at the end of my
written testimony. I think Walter and Suzan may have different
ones.
Senator Inouye. All right.
Ms. Harjo, you mentioned that the BIA has the largest
collection of human remains. Is that correct or did I hear
wrong?
Ms. Harjo. I do not know that that is the case.
Senator Inouye. Or the earlier panel said that. I was under
the impression that the Smithsonian had the largest.
Ms. Harjo. Smithsonian certainly has one of the largest
collections. As I understand it, most of the agencies within
the Department of the Interior are not in compliance with the
repatriation laws. They have very large holdings. The Park
Service, BIA and BLM have very large holdings of human remains
and sacred objects and funerary objects and they are not in
compliance, particularly the Park Service, with its own
regulations.
Senator Inouye. When I became one of the leaders of this
committee, I am certain all of you are aware that I had very
little knowledge or any knowledge of Indian affairs. When I was
made aware that the Smithsonian had something like 14,000
Indian skulls and remains and that most of them were not
identifiable because no one knew where they came from exactly,
very enthusiastic soldiers that just dug them up and sent them
over.
What do you recommend we do with the unidentifiable human
remains? There are thousands lying in green boxes in the
Smithsonian at this moment.
Ms. Harjo. In a meeting that was held at Arizona State
University 2 years ago, conducted at the College of Law by
Professor Rebecca Tsosie, the people who represented the large
museums said that some 90 percent of all of the remains that
they have categorized as unidentifiable can be identified if
only the Park Service will let Indian country have that
information. One of the main people who said this was from the
Harvard Peabody Museum, who said that they were unable to make
determinations as between tribes, say two tribes or three or
five in a region.
But if the Indians had that information--if those people
had that information, then people could determine by the year
that these were taken, by the placement, by the information
about them, which institution has them most of the people now
categorized as ``unidentifiable'' would be identified.
All we have been trying to do in Indian country is get the
Park Service to give us that information, to give that
information to the tribes that are involved or just make it
available generally. So far, they have not. Instead, they tried
to categorize all of them as property belonging to the entities
that declared them unidentifiable. But most of those, the
overwhelming majority of the human remains now classified as
unidentifiable can be identified by the statements and
testimony of the entities themselves who are holding them.
Senator Inouye. Even those held by the Smithsonian?
Ms. Harjo. Most of the ones held by the Smithsonian can be
because most of them have letters attached to them saying where
the Army officer was when he ``waited until cover of darkness,
until the grieving family left the grave'' and then exhumed the
body and decapitated the head and forwarded it. That kind of
material is in the Anthropological Archives of the United
States. So most of those remains can be identified.
For those that cannot, the people in the region step
forward and try to reinter them, to try to put them to rest
finally. That was the model that existed before passage of the
Repatriation Act, these coalitions of tribes coming together in
those instances where not enough information existed for the
people to be identified. Everyone would come forward and speak
for the dead.
Senator Inouye. Do you have any thoughts?
Mr. Echo-Hawk. Yes; I do. Thank you, Mr. Chairman.
I think what Suzan was referring to there was that it is a
difficult issue about these unknown native dead. That is why we
have been wanting to get the Park Service to produce this
inventory so that we can look at the facts, how many are they,
where are they located, how were they obtained, so that Indian
country can enter into informed consultation with the NAGPRA
Review Committee to determine in perhaps a very particularized
way what would be their appropriate disposition.
Now, some of these remains could be identified perhaps;
others, we could assess the scientific value. I think for many
of these remains because they are unknown have no scientific
value. It might just be a bone fragment in a sack and you do
not know where it came from or who it belongs to and have no
earthly scientific value. So things of this nature could I
think be sorted out through the regulations that would be
called for under the NAGPRA Review Committee recommendations.
That is why we want to have a neutral agency be involved in
those deliberations, so that we can not have a biased set of
staff decisionmakers that are working solely for the
archaeologists. I think we need to find a neutral forum within
the executive branch to address this difficult problem in a
very rational way.
That is my thought on it. The over-arching policy concern
and my own personal thinking is that all of the statutes and
the ordinances in the 50 States and the District of Columbia
guarantee that every person is going to get a burial, whether
you are a pauper and you cannot afford it; whether you are a
stranger who may have died someplace. These statutes say
society is going to bury you at some time, at some point. We
think that those policies and sensibilities that safeguard the
right of each and every one of us to be buried should be
ultimately be applied to the unknown Native American dead. That
is an over-arching policy in my mind.
Senator Inouye. Some of you may recall that when we learned
of the large collection of skulls and human remains by the
Smithsonian, we proposed that an appropriate memorial be
constructed in the middle of the Mall and place all these
remains there, the ones we cannot identify. But as you may also
recall, the opposition came from Indian Country. Instead, we
built the museum.
Does your proposal, is it part of your recommendation,
legislative change?
Mr. Echo-Hawk. What I have recommended in my testimony with
regard to the disposition of these unknown Native American dead
is, first of all the NCAI resolution has registered deep
concerns about the process that is currently being followed by
the Park Service on this very difficult issue. On behalf of my
client and my testimony at page 11, I urge that the committee
attempt to determine when the inventory will be completed that
is presently called for by the statute, of these unknown Native
American dead, and made available to Indian country.
Second, that no recommendations or proposed regulations
concerning their disposition be made by the Review Committee
until it enters into some informed consultation with the tribes
and gives them the information necessary to enter into a set of
discussions about that.
Then finally, the third recommendation would be for the
committee to investigate any steps that may be available, and I
understand it is sensitive separation of powers, but whether
there are any available steps to ensure that the implementation
of this NAGPRA issue is moved to neutral agency within the
executive branch. Because right now, there is just a loss of
confidence due to conflict of interest on a very sensitive and
a very important and a very complex issue, and we really do
need a neutral forum there to focus on that complex set of
issues.
Senator Inouye. Do you have any suggestions as to what
agency?
Mr. Echo-Hawk. I was afraid you were going to ask that
question. My thought was the United States military. The United
States Army has a repatriation office where in fact their job
is to go across the world and repatriate military men and bring
them back home and work with the families to ensure their
reburial. I had occasion in representing the Pawnee and the
Arikara and Wichita Tribes to work with that office to
repatriate some Pawnee scouts, U.S. military veterans that had
been decapitated and wound up in the Smithsonian.
With the help of the committee, that particular unit got
involved here in town in effectuating and helping us to
actually carry out that repatriation. They did it in a very
professional, very caring, very sensitive professional manner.
These are professionals that do that every day. It seems to me
that that is one office that really does that day in and day
out for our military veterans. They have no vested interests at
stake here, one way or the other. So the Defense Department
might be a place to look at.
Senator Inouye. I shall make an official inquiry and see
where we go.
Professor Bender, I will be a devil's advocate. I do not
know enough to discuss Kennewick, but I presume the remains are
homo sapien.
Mr. Bender. Yes.
Senator Inouye. What would the law be if we found remains
akin to, say, homo erectus?
Mr. Bender. That is a very interesting question, which I do
not think anybody had thought of at the time of NAGPRA. The
statutory language is ``Native American'' means of or relating
to a tribe, people or culture that is indigenous to the United
States. That seems to suggest they are talking about homo
sapiens. So without thinking about it very much, my initial
reaction is NAGPRA probably does not apply to something that is
pre our present species, and maybe something should be written
into the statute about that, but there was no issue about that
at the time that NAGPRA was drafted.
Senator Inouye. Many years ago in preparing for these
hearings, I read several articles about the human trek of men
and women from Mongolia and others from the south, going across
the 48 States.
Mr. Bender. Across the land bridge.
Senator Inouye. The articles suggested that they do not
know where the Indians came from. What are your thoughts?
Mr. Bender. It is interesting. I have just spent two weeks
in Peru on an archaeological trip. I asked the archaeologist
who was leading the trip more or less the same question,
because I think the oldest human remains that have been found
in North America are Kennewick Man, and they are about 8,000 or
9,000 years old. And yet, they believe that human beings
inhabited the Pacific Coast to South America as long ago as
12,000 or 15,000 years ago.
I said, why do you insist on thinking that all those people
came across the land bridge and down, rather than that they
started there or that they came from someplace else? He had a
detailed explanation which apparently the scientific community
agrees with that the land bridge idea is really the only way to
account for the civilizations that they found down along the
west coast.
I do not understand that completely. It seems to me it is
at least plausible that human beings arose in South America, as
well as that human beings only arose in the Middle East. But
archaeologists do not believe that. What I do not understand
is, what is the explanation for not finding older remains in
the northwest of the United States, because if those people
passed down through there, you would think that older remains
would have been found, and yet they have not been.
But the main issue for us today is that all of those
remains of the people who lived here, wherever they came from,
whether they came from Asia or whether they came from the east,
as long as they are human beings, are Native American remains
within the meaning of NAGPRA. It is really important to clarify
that the statute applies to all of them so that the procedures
that Walter was just referring to, the Review Committee can
make decisions about what to do with the unidentifiable
remains.
Under the Ninth Circuit's decision, that whole process does
not apply and everything is left in limbo.
Senator Inouye. I cannot speak for the committee, but I
agree with you. If you were the Ninth Circuit, what would the
disposition of the Kennewick Man be?
Mr. Bender. I think that the issue in Kennewick Man would
be first of all whether the land on which the remains were
found was the aboriginal land of any of the tribes that
requested repatriation under the provision of NAGPRA that talks
about that. If that was the aboriginal land within the meaning
of NAGPRA, then that tribe or tribes should have repatriation
rights.
If not, then I think NAGPRA provides that it goes to the
Review Committee to decide what to do with them. The Review
Committee, I gather, has not made that decision yet. It is
really important. That was the big unresolved question at the
time of NAGPRA. It was supposed to be decided by a group of
people that included traditional people and tribal governments
and scientists.
My own view of what the right answer to that is, is that if
you know the area the remains came from, and I think in almost
all cases you know where they were found, then the right thing
to do is to repatriate it to the tribe or tribes that have a
relationship to that area. If you do not know where they were
found, if they are truly unidentifiable, then I think the
Indian community should make a decision about what the right
form of reburial is, whether it is here in Washington or
somewhere else in the country.
I think that is a relatively small percentage of the
remains. For almost all of them, I think we know where they
were found. Then I think the spirit of NAGPRA is to let the
tribe with association with that are, or the tribe or tribes.
It is important not to think of this as one tribe against
another tribe, because sometimes you do not know whether it is
this tribe or that tribe, but you know it is one of two or
three or four.
So tribes have to be able to be given the chance to get
together and decide collectively what to do. It seems to me
that is the right thing to do.
Senator Inouye. Is the Ninth Circuit decision under appeal?
Mr. Bender. The Kennewick decision? There was a petition
for rehearing to the Ninth Circuit which was denied. As far as
I know, a cert petition has not been filed. I think the time
for filing a cert petition is almost up. I am not in contact
with the people litigating that case, but I do not believe that
a cert petition has been filed.
Senator Inouye. As of February 1987, 18,000-plus skulls and
human remains of Native Americans are in green boxes in the
Smithsonian. Of that number, I supposed slightly less than
1,000 have been repatriated. I agree with all of you. Something
has to be done.
Mr. Bender. It is just extraordinary that this much time
has passed since NAGPRA and there still has not been
repatriation of those remains.
Senator Inouye. Mr. Red Cherries, let me assure you that
this committee will do its utmost to see that human remains be
accorded the full dignity and respect that they deserve. We
commend you for maintaining your religion. It is very
important.
Mr. Red Cherries. If I may, this religion forms the whole
foundation of our entire existence. We cannot lose it. We have
a prophecy in the Cheyenne Nation. We have lost the land. We
have lost most of what we had. All we have is our religion and
we are supposed to hang onto that. I aim to hang onto it.
Thank you.
Senator Inouye. I thank all of you very much. I am sorry
that we have to cut it at this point, but we will be sending,
because I know that Chairman Campbell would want to, to submit
to all of you written questions and we hope we can get your
response. The record will be kept open for another month.
Thank you very much.
[Whereupon, at 12 noon, the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii,
Vice Chairman, Committee on Indian Affairs
Mr. Chairman, I want to thank you for scheduling this hearing
today.
Several years ago, we began a series of hearings on Native American
sacred sites to explore how the various land managing agencies were
addressing the responsibilities with which they are charged to protect
and preserve sites that are sacred to the Native people of this land.
These issues are closely related to the protections that were first
enacted into law in 1978 as the American Indian Religious Freedom Act.
Later, in 1990, the Congress enacted the Native American Graves
Protection and Repatriation Act.
Together, these laws provide a framework for the repatriation of
Native American human remains, funerary objects, and the protection of
cultural artifacts and sacred places.
I think the question I would pose to each of the witnesses today is
whether this framework of laws is sufficient, or whether we need to
consider amendments to the American Indian Religious Freedom Act, for
instance, to assure that Native people have a cause of action that they
can bring when the spirit and intent of the law are not being honored.
I look forward, as you do Mr. Chairman, to hearing the testimony
that will be presented by our witnesses today.
______
Prepared Statement of the Society for American Archaeology
The Society for American Archaeology appreciates this opportunity
to submit testimony to the Senate Committee on Indian Affairs on the
subject of implementation of the American Indian Religious Freedom Act
of 1978 [AIRFA] and expresses its appreciation to the committee for
holding this important hearing.
SAA is an international organization that, since its founding in
1934, has been dedicated to the research, interpretation, and
protection of the archaeological heritage of the Americas. With more
than 6,900 members, the Society represents professional archaeologists
in colleges and universities, museums, government agencies, and the
private sector. SAA has members in all 50 States as well as many other
nations around the world.
Prior to the enactment of AIRFA, the constitutional right of Native
Americans to exercise their freedom of religion was severely
circumscribed. This injustice was part of a set of cultural policies
pursued by the Federal Government and many state governments from the
mid-19th Century through the first one-half of the 20th Century. The
goal of these policies was to actively subjugate Native American
cultures and ways of life. In addition to religious intolerance, these
policies also included prohibitions on the use of Native languages, and
forced ``adoptions'' of Native children by non-Native families.
Although these practices were halted, the damage done to Native
cultures is still very evident.
The enactment of AIRFA was an important step taken by Congress to
try to rectify the past injustice of government-sponsored religious
discrimination. The act made it the official policy of the Federal
Government to protect Native Americans' freedom of worship by allowing
access to the sites and possession of the objects sacred to the various
tribes and necessary for those tribes to carryout the expression of
their religious beliefs.
Since the passage of AIRFA, there have been a number of additional
efforts to address these historical inequities at the national level.
Revision of the regulations implementing the Archaeological Resources
Protection Act [ARPA] and adoption of sentencing guidelines for
violations of the act have greatly strengthened penalties for those
caught looting ancestral sites on public and tribal lands. The 1992
amendments to the National Historic Preservation Act [NHPA] greatly
increased the ability of tribes to protect historic cultural and sacred
sites on their own lands and to be consulted about agency
decisionmaking affecting such sites on the public lands.
In 1990, President George H.W. Bush signed the Native American
Graves Protection and Repatriation Act [NAGPRA], which among other
provisions, mandates the repatriation to tribes of sacred objects and
objects of cultural patrimony needed for traditional religious
practices. In 1996, President Clinton signed Executive Order 13007,
which required Federal agencies to take a more active role in the
protection of Native American religious freedom by delineating a
specific set of procedures that agencies mast take in order to ensure
the physical integrity of Indian sacred sites, as well as Native
Americans' access to such sites.
SAA actively participated in the development of the ARPA
regulations and NHPA amendments as well as in the development and
passage of NAGPRA, and we strongly support better and more proactive
implementation of AIRFA and E013007.
______
Prepared Statement of Brian Pogue, Director, BIA, Department of the
Interior
Mr. Chairman and members of the committee, my name is Brian Pogue
and I am the director, of the Bureau of Indian Affairs [BIA]. I am
pleased to be here today to provide the Administration's statement on
the 25th anniversary of the passage of the American Indian Religious
Freedom Act.
In 1978, the American Indian Religious Freedom Act, [AIRFA] was
enacted and mandated that the Federal Government ``protect and preserve
for the American Indians their inherent right of freedom to believe,
express, and exercise the traditional religions of the American Indian,
Eskimo, Aleut, and Native Hawaiians, including but not limited to
access to sites, use and possession of sacred objects, and freedom to
worship through ceremonials and traditional rites.'' Under AIRFA,
Federal agencies are required to (1) seek and consider the views of
Indian leaders when a proposed land use might conflict with traditional
Indian religious beliefs or practices, and (2) avoid unnecessary
interference, whenever possible, with Indian religious practices during
project implementation.
In 1990, the Native American Graves Protection and Repatriation Act
[NAGPRA] was enacted to make easier the efforts of American Indians,
Alaska Natives, and Native Hawaiian organizations to claim ownership of
certain cultural items including human remains, funerary objects,
sacred objects, and objects of cultural patrimony in the possession or
control of Federal agencies and museums that receive Federal funds.
NAGPRA requires agencies and museums to disclose holdings of such human
remains and objects and to work with appropriate Indian tribes, Alaska
Native villages and corporations, and. Native Hawaiian organizations to
repatriate such cultural items.
Recently, the Secretary of the Interior appointed three members to
the Native Protection and Repatriation Review Committee. The committee
consists of seven members who are charged with monitoring, reviewing,
and assisting in the implementation of the NAGPRA. Appointments to the
committee are selected from nominations to the Secretary of the
Interior by Indian tribes, Alaska Native villages, Native Hawaiian
organizations, and national museum and scientific organizations. Each
appointee serves for a 4-year term.
Executive Order 13007, on Indian Sacred Sites, issued in 1996 gives
Federal agencies guidance on dealing with sacred sites. The order
directs Federal land management agencies, to the extent practicable, to
accommodate access to and ceremonial use of Indian sacred sites by
Indian religious practitioners and to avoid adversely affecting the
physical integrity of such sacred 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.
There is a growing concern among the public that Native American
burial grounds and other sacred places are being desecrated by human
encroachment or ``urban sprawl.'' The BIA receives frequent requests
for immediate intervention when individuals believe a burial mound is
being bulldozed or a Native cemetery is being cleared for housing or
other urban development. Whenever possible, we refer these requests to
the appropriate agency.
The Administration and the Department continue to work with Indian
tribes, Alaska Native villages and corporations, and Native Hawaiian
organizations to ensure access to and protection of sacred sites and to
comply with repatriation laws. We support the American Indian Religious
Freedom Act, which protects and preserves for the American Indian,
Eskimo, Aleut, and Native Hawaiian the inherent right of freedom to
believe, express, and exercise their traditional religions, access
their religious sites, use and possess sacred objects, and the freedom
to worship through ceremonial and traditional rites.
This concludes my prepared statement. I would be pleased to answer
any questions the Committee may have.
______
Prepared Statement of Joel Holtrop, Deputy Chief State and Private
Forestry USDA Forest Service, Department of Agriculture
I am Joel Holtrop, Deputy Chief, State and Private Forestry [S&PF],
USDA Forest Service. It is the responsibility of the S&PF to provide
technical and financial assistance to landowners and natural resource
managers to help sustain the Nation's urban and rural forests and to
protect communities and the environment from wildland fire. Among our
important partners in this endeavor are tribal governments. Recently,
the Forest Service established an Office for Tribal Relations within
S&PF that I will discuss later in my statement.
Thank you for this opportunity to provide the Department of
Agriculture's views on the interpretation and implementation of the
American Indian Religious Freedom Act of 1978 [AIRFA] and follow-up
laws in two main areas: repatriation and protection of sacred places.
AIRFA declares that ``. . . it shall be the policy of the United
States to protect and preserve for American Indians their inherent
right of freedom to believe, express, and exercise the traditional
religions of the American Indian, Eskimo, Aleut, and Native Hawaiians
including but not limited to access to sites, use and possession of
sacred objects and the freedom to worship through ceremonial and
traditional rites.'' The act explicitly recognizes the importance of
traditional Indian religious practices and directs all Federal agencies
to ensure that their policies will not abridge the free exercise of
Indian religions.
The USDA Forest Service manages 192 million acres of public lands
for multiple use nationwide, including lands in 44 States, Puerto Rico,
and the Virgin Islands. The National Forest System [NFS] includes 155
National Forests, 20 National Grasslands, 20 National recreation areas,
a National tall grass prairie, and 4 National monuments. The NFS is
managed for multiple use, including timber production, recreation,
wilderness, minerals, grazing, fish and wildlife habitat management,
and soil and water conservation. The Forest Service Heritage program
manages approximately 300,000 known heritage resources on NFS lands, a
great many of them important to American Indians.
Because tribes are affected by NFS land and resource management
policies, programs and actions, the Forest Service must consult with
Tribes on a government-to-government basis under various statutes,
Executive Orders, and agency directives.
Under the 1982 planning regulations, the Forest Service is required
to coordinate regional and forest planning efforts with Indian tribes,
to notify tribes whose lands or treaty rights are expected to be
affected by the agency's activities, to review and consider the
objectives of Indian tribes as expressed in their plans and policies,
and where conflicts are identified, to consider alternatives so
conflict may be resolved.
Beyond the planning requirements, other existing laws ensure that
American Indians have an opportunity to participate in land management
decisions. The Forest Service National Environmental Policy Act [NEPA]
procedures require the Forest Service to determine the scope of issues
to be addressed in an environmental analysis. Under the National
Historic Preservation Act, the Forest Service is required to identify
historic properties on NFS lands. The process of determining the
effects of management on these sites provides for consultation of
interested parties, including Indian tribes.
The Archaeological Resources Protection Act of 1979 prohibits the
disturbance or destruction of archaeological resources, including
Native American religious and cultural sites located on Federal lands
except under a permit issued by the appropriate Federal land manager.
The land manager must notify and consult with concerned Indian tribes
regarding any permit that may harm an Indian religious artifact. As
part of this program, the Forest Service attempts to identify all
Indian tribes having aboriginal or historic ties to NFS lands and to
determine the location and nature of the specific sites of religious or
cultural importance for future reference for management decisions
affecting the land.
Executive Order 13007 directs Federal land management agencies, to
the extent permitted by law, and not clearly inconsistent with
essential agency functions, to accommodate access to and use of Indian
sacred sites, to avoid affecting the physical integrity of such sites
wherever possible, and, where appropriate, to maintain the
confidentiality of sacred sites. Federal agencies are required to
establish a process for ensuring that reasonable notice is provided to
affected tribes of proposed Federal actions or policies that may affect
Indian sacred sites. Sacred sites are identified by tribes.
Recently, the Forest Service chartered a Task Force on Sacred Sites
to develop policy and guidelines to specifically address EO 13007 and
our other statutory and regulatory responsibilities to better protect
the sacred sites that are entrusted to our care. The Task Force has
been meeting with tribal governmental and spiritual leaders throughout
Indian Country.
The Native American Graves Protection and Repatriation Act of 1990
[NAGPRA] addresses the protection of Native American burial sites and
the repatriation of human remains, funerary objects, sacred objects,
and objects of cultural patrimony. NAGPRA requires Federal land
management agencies to consult with Indian tribes prior to intentional
excavations and requires notification in the event of inadvertent
discovery of human remains or cultural items. NAGPRA also sets forth a
process for the repatriation of human remains and cultural items in the
possession of Federal agencies and museums to the Indian tribe or
lineal descendants to whom these remains or items belong.
Across all Federal land management agencies, NAGPRA compliance is
very emotional, highly sensitive and a high priority for tribes. A
related concern, but one not addressed in NAGPRA, involves reburial of
human remains and cultural items on lands that Indian tribes used and
occupied traditionally, which includes NFS lands. Reburials have been
occurring on NFS lands in certain regions even though a consistent
national policy did not exist until direction was provided in the
Forest Service Manual in March 2004. For example, there have been
formal regional FS policies in the southern and southwestern regions,
developed in collaboration with tribes. In addition, providing
confidentiality of information related to reburial sites has been a
primary concern of Indian tribes regarding reburial.
In addition to cases of individual remains, the Forest Service and
tribes are working together in situations involving complex cultural
affinities to identify disposition preferences for large collections of
artifacts and remains. These will involve reburial at locations other
than archaeological sites and thus entail a higher level of
environmental analysis and documentation, and concern over the
confidentiality of that documentation.
Forest Service implementation and compliance with AIRFA and NAGPRA
depends on maintaining effective consultation and collaboration with
tribal governments. Several years ago, the Forest Service's National
Leadership Team [NLT] concluded that the agency's working relationship
with many tribal governments needed significant improvement. The
leadership commissioned a National Tribal Relations Program Task Force
[Task Force] to address recurring issues that affected our work with
Indian tribes. The finding and recommendations of the Task Force were
published as the ``Report of the National Tribal Relations Program Task
Force: A Vision for the Future''. The report provided recommendations
to improve the consistency and effectiveness of program delivery and to
institutionalize long-term collaborative relationships with tribal
governments.
Based on the Task Force report, the Forest Service has taken action
on several fronts, all of which should improve the agency's
collaborative relationships with Tribes and reduce conflicts with
Tribes over a number of issues, including the protection of sacred
sites and reburial.
Office of Tribal Relations--The Forest Service established an
Office of Tribal Relations to provide the infrastructure and support
necessary to ensure high quality interactions across programs with
Indian tribes on a government-to-government basis. The office will
integrate tribal issues across Deputy Areas, advise the chief on tribal
issues and concerns, and ensure that tribal government relations are a
standard operating procedure for the agency.
Directives--In March, the Forest Service issued new manual and
handbook direction on tribal relations that provides clear guidance for
agency tribal relationships, spelling out specific obligations of
Forest Service officials and providing guidelines for conducting
government-to-government relations with tribes.
Training--The agency has instituted core skills training pertaining
to Forest Service policy with regard to tribal relations. The training
also incorporates the need to protect sacred sites and other culturally
important areas. All agency line officers and staff who regularly
interact with Tribes will be required to demonstrate a core competency
in tribal relations. Supplemental and specialized training for agency
positions that involve interactions with tribal governments will also
be developed.
The agency has identified certain recommendations that cannot be
fully implemented without legislation to create new or clarify existing
authorities. The legislative proposal, which was included in the
Administration's Fiscal Year 2005 Budget would provide:
authority for the Forest Service to close specific
areas of NFS lands to the general public for the shortest
duration of time necessary to accommodate various tribal uses,
including traditional tribal use.
authority to provide forest products free of charge to
Indian Tribes for traditional and cultural purposes.
express authority for reburials on NFS land.
authority to maintain the confidentiality of reburial
and other information.
The legislative proposal is currently in clearance at the
Department.
Mr. Chairman, the religious freedom of American Indians is, and
will continue to be, an important factor in our management of the
National Forest System. The agency has made great strides under the
leadership of Chief Dale Bosworth to increase awareness of all FS
employees of the agency's responsibilities to Indian tribes. The Forest
Service is eager to work with Indian tribal governments. Together we
can take appropriate actions to support the religious beliefs and
practices of American Indians on NFS lands.
I would be pleased to answer questions that members of the
committee may have.
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