[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
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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

                              ----------                              
                                                                   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

                              ----------                              


                        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

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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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