[Congressional Record Volume 142, Number 30 (Thursday, March 7, 1996)]
[House]
[Pages H1968-H1969]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 THE NEW CONTINUING RESOLUTION IS BAD FOR AMERICAN INDIANS, RELIGIOUS 
                      FREEDOM, AND SELF-GOVERNANCE

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from American Samoa [Mr. Faleomavaega] is recognized for 5 
minutes.
  Mr. FALEOMAVAEGA. Madam Speaker, I want to make sure that the 
American public is aware of two very dangerous provisions in H.R. 3019, 
a continuing resolution which would fund, among other things, Interior 
spending for the remainder of the fiscal year. Though these two 
majority sponsored provisions primarily affect American Indians, I 
believe they have far reaching implications for the rest of the country 
as well. Why should we care? Because as the great jurist Felix Cohen 
observed,

       The Indian plays much the same role in our American 
     society, that the Jews played in Germany. Like the miner's 
     canary, the Indian marks the shift from fresh air to poison 
     gas in our political atmosphere; and our treatment of 
     Indians, even more than our treatment of other minorities, 
     reflects the rise and fall in our democratic faith.

  This country was founded on two great principles--the inalienable 
right of a people to govern themselves and the solemn right of a people 
to freely practice their religion. Yet there are two provisions in this 
spending bill that are an affront to those principles and the rights of 
our people. I am afraid to think what our Founding Fathers would think 
of these measures. Had this bill been brought up under an open rule, I 
would have offered an amendment to strike both of them.
  The first provision that deeply concerns me is the Mt. Graham rider 
contained in section 335 of the general provisions of the Interior 
portion of the bill which would waive applicable law, reverse three 
court decisions and permit immediate construction of an observatory on 
Mt. Graham in Arizona. This is a measure of the worse sort that should 
be stricken as soon as possible.
  First, this rider approves the destruction and mechanized desecration 
of the single-most sacred site of the San Carlos Apache Tribe. Can you 
imagine waiving the law to approve the clearing of part of the Wailing 
Wall in Jerusalem or the Vatican in Rome? Well that is what this 
provision does, not to mention the fact the telescope's owners plan to 
charge rent to other users even though it lies on public land. This 
rider ignores the rights of those who prayed and worshiped on the 
mountain for centuries and is an assault on religion.
  Second, this rider is wrong because it waives the very laws and 
procedures

[[Page H1969]]

designed to ensure that we respect cultural and religious traditions. 
It circumvents the American Indian Religious Freedom Act and the 
National Historic Preservation Act which charge the Federal agencies to 
protect against harm to such sites. The rider does this over the 
repeated opposition expressed in tribal council resolutions and now in 
the resolutions of the National Congress of American Indians.
  Third, this rider has never been properly considered by Congress. It 
surfaced mysteriously in the third Interior conference committee 
without having been included in either of the House or Senate 
appropriations bills. But to add insult to injury, its sponsors took 
out a provision of far greater importance in order to get it in--a 
report on American Indian HIV/AIDS prevention needs. The only hearing 
ever held on this matter was a joint hearing of two House authorizing 
committees in 1990 at which the General Accounting Office reported that 
the irregularities involved in granting the original permit were so 
great that it would not have withstood judicial scrutiny except for the 
waiver provided in the last days of the 100th Congress. The official 
who signed the original permit admitted at that hearing that he had 
exceeded his legal authority in granting it.
  Finally, this rider is bad for the environment because it waives the 
requirements of the Endangered Species Act and the National 
Environmental Policy Act. All these laws ask is that the agencies 
examine alternatives to see whether less harmful means are available to 
achieve the same end. Even if the ESA might preclude the project as 
proposed, exemptions are available for regionally significant projects. 
It seems that given the fact that the observatory sits on a world class 
ecological site left behind by the glaciers that is the home of 
numerous species of animals and plants, some of medicinal value, and 
several that are virtually unknown anywhere else, we should at least 
weigh the alternatives and ask the developers to begin the permit 
application process. This rider sets a dangerous precedent for further 
site-specific waivers when the laws of this country get in the way of 
development.
  Since the President vetoed the last Interior appropriations measure 
in December, Mt. Graham has become a cause celebre. Grammy award-
winning rock musicians Pearl Jam have featured it in a new Website for 
citizenship and the Indian band Red Thunder has also spoken out against 
the project in their tours and radio appearances. I am proud that this 
Nation's youth is involved in today's issues, so I would ask that 
this Congress set a better example for them. We should return to a 
higher standard of substantive discussion, procedural honesty, and 
simple justice by striking the Mt. Graham rider.

  The second provision which gravely concerns me is the so-called 
``Lummi'' provision contained in section 115 of the general provisions 
of Interior portion of bill. Under the guise of ``property rights'', 
the measure that would penalize any self-governance tribe in the State 
of Washington, but particularly the Lummi Nation, for exercising its 
sovereign on-reservation rights. This provision is dangerous because it 
sets a precedent for fiscally punitive actions against any tribe in any 
State, self-governance or not, that tries to exercise its legitimate 
governmental powers. This act of intimidation flies in the face of the 
longstanding congressional policy of self-determination and the 
fiduciary relationship between the United States and the 557 American 
Indian and Alaska Native tribes in this nation.
  This unwarranted and unprecedented intrusion into tribal matters goes 
against the grain of every anti-Washington, antibureaucracy sentiment 
embodied in the Contract With America. This provision is unnecessary 
because it is an extraordinary attempt to unduly influence ongoing and 
fruitful negotiations between the tribe and local on-reservation 
property owners. This is a local issue that can and should be resolved 
through negotiations without the heavy hand of big brother. The Lummi 
provision is unprecedented in its attack on Indian sovereignty and the 
ability of tribes to manage their own natural resources.
  My history tells me that the tribe acquired its senior water rights 
more than 140 years ago in the Treaty of Point Elliot in which the 
tribe reserved enough water to sustain the reservation as a homeland 
and to support the fisheries resource of the Nooksack Basin. But by 
penalizing the tribe's funding--up to 50 percent of its self-governance 
funding which are used to fund education, social services, natural 
resources, and law and order--for exercising the tribe's senior water 
rights, the sponsors are doing nothing short of rewriting federal 
western water law to suit their own purposes.
  I would also point out that I am not alone in my assessment because 
the President in his December 18, 1995 veto message specifically 
identified the same provision as a reason for his veto. The President 
rightly noted that in penalizing ``these tribes financially for using 
legal remedies in disputes with non-tribal owners of land on their 
reservations'' this provision does not serve the interests of our 
nation and its citizens.
  Madam Speaker, this action has an unblemished record when it comes to 
breaking Indian treaties--we have broken every one--so perhaps it 
should come as no surprise that we are trying to break another. But I 
for one, and my Democratic colleagues agree, that it is time for us to 
stop. If we can override federal treaties and laws simply because we do 
not happen to agree with the claims of one party in a dispute, what 
does that mean for the rest of us, not to mention any of the other 556 
tribes in this country? I have always been proud of the fact that we 
are a nation of laws, and of our rich history of justice. But this 
provision, Mr. Speaker, this provision is not justice.
  Madam Speaker, in closing, I'd just like to say that if we as 
Americans take our rights seriously, if we cherish those principals 
which made our country great such as the freedom to practice our 
religion and the freedom of self-determination, then we need to really 
think about our treatment of Native Americans, and ask ourselves if we 
can do better. We can start by eliminating the Mt. Graham and Lummi 
provisions. I urge the White House and the Senate to reject these 
measures.

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