truly participate in the decision process and have effective remedies when wronged.

I thank the Chairman for allowing me to make this presentation today.

[Prepared statement of Mr. Lefthand appears in appendix:]

The CHAIRMAN. Thank you very much, Mr. Lefthand, for your testimony. Let me assure you we will study your statement very carefully.

Now I would like to call upon Ms. Miles, a very important witness, having participated in the Lyng case.

STATEMENT OF MARILYN B. MILES, ESQUIRE, CALIFORNIA INDIAN LEGAL SERVICES, EUREKA, CA

Ms. MILES. Thank you, Mr. Chairman.

My name is Marilyn Miles and I am Directing Attorney of the Eureka office of the California Indian Legal Services, which is a small field office serving the Indian people in Northern California. In my position as a field office attorney, I have had the opportunity and the great honor of representing the Indian people from my area who are involved in the case known as Lyng v. Northwest Indian Cemetery Protective Association. I have represented them through all administrative levels, through a 10-day trial, through the Federal Appellate Court system and most recently at the U.S. Supreme Court.

I speak to you today, not based only on my experience in that case, but on my experience in a field office that is located adjacent to at least three national forests, and the home also of numerous aboriginal tribes.

I speak today in strong support of Senator Cranston's bill. There is a strong need for this legislation. Much as others will try to make this problem out to be an environmental issue, an archeological protection or resource protection issue, this is not that type of issue. This is an issue of basic human rights: The freedom to practice one's religion. It is a basic inherent right that our Constitution has recognized for all others.

We complain so loudly when other countries deny their citizenry basic civil human rights. Yet in this country today, after the Lyng decision, we can destroy a religious practice predating this very Nation, a practice which has several thousand adherents. And there is not a single law on the books, not even the First Amendment, to offer any protection whatsoever.

Much as some people, including Federal agents and those who may speak against this legislation today would like, you cannot divorce the use of sacred sites from Indian religious freedom. I will ask the indulgence from other tribes that are here if I may generalize.

Indian people believe certain sites have been placed there and are invoked with special powers by the Great Creator. Accordingly, they go there to conduct religious practices and rituals which are very often at the very core of the religion itself, the very religious belief system on which they operate on a daily basis.

Most of the time there will be no conflict with the Indian use and the other uses of public land. The number of cases that have

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come up I can put on one hand. So, most of the time the administrative process will handle many of these competing uses. But the G-O-Road is a prime example that there are some circumstances where it will not. There has to be Federal law protection, since we do not have the First Amendment to come into play.

For example, relative to the G-O-Road area, prior to the Forest Service proposing this road, the area has been part of a national forest for over 50 years, and has always been managed for multiple uses. Those multiple uses include fishery enhancement, wilderness, primitive recreational uses, and many multiple uses. It has always worked very nicely. Yet, more recently, a proposal was presented that did away not only with those multiple uses, but with the religious use that was going on there.

What I want to get across is that it is important to realize that in most cases the uses can be compatible. I think it is absurd to argue that this legislation is going to create a problem so serious that we should turn our back on it altogether, because it will not. In fact, the judicial history demonstrates that it has not. When Indian people thought that the American Indian Religious Freedom Act and the First Amendment gave them such protection, we did not have the situation of hundreds of cases coming to destroy the ability of land managers to manage the public lands.

As I have noted, most of the time there will be accommodation. I would note for the committee and for the Chairman today, the Indians I represent are people who work on the land. The Chairman of the Northwest Indian Cemetery Protective Association is a logger. He logs for the Forest Service. He logs for private industry. That's what he does for a living. My other clients have worked in construction. They are not interested in being obstructionists. They are interested in protecting their religion, their Vatican, if I may put it in those words.

There comes a time when certain values, religious values are some, must be considered and have not been considered by the land manager.

There will be instances where the facts will demonstrate, such as G-O-Road has, that the only way of accommodating a particular use is by not allowing a particular project and allowing other multiple uses, including the religious use, to continue.

This legislation is not a veto. It is not a bill that gives anyone special rights beyond what other people have. It would come into play only in those instances where after administrative levels have been tried and worked through, that Indian people would be given impartial judicial review of the situation. That's all they ask in this legislation. Not a veto, but to have someone other than the Federal administrator take a look at the situation and see if, in fact, it deserves the protection that is being sought.

Regarding any establishment concerns that the legislation may bring up, I think it is clear in the law that Congress has the legal right and ability to accommodate free exercise values. Indeed, the Supreme Court itself has said, in the case of Gillette v. United States, quite apart from the question of whether the free exercise clause might require some sort of accommodation, it is hardly impermissible for Congress to attempt to accommodate free exercise values.

In addition, the other valuable and valid secular purposes such legislation would have would be to protect the very integrity and self-determination of Indian tribes.

In closing, I would just make a couple of comments relative to the Department of Interior's comments earlier this morning.

I would first note that it is curious that relative to the G-O-Road case, the Executive Department including the Justice Department, argued to the Supreme Court that one reason the Court did not have to extend First Amendment protection is because Congress could protect such Indian concerns. In that way they could limit the concern that Constitutional interpretation would apply to all situations. If you needed special legislation for Indian people, Congress could do it. To now come forth after that decision to argue against that special legislation, I find very appalling.

Secondly, the notion that Indian religions are so vague and the areas cannot be defined and therefore, no legislation should be adopted. Again, G-O-Road is a prime example where, even when it is understood what the exact nature of the practice is, where it takes place-Indeed the Forest Service spent over $250,000 studying the religious practice and came to the conclusion through its experts, consultants and so forth that, yes there were core rituals that were occurring in the area. Nevertheless after there was no vagueness left in the case, the Forest Service rejected the findings and decided that regardless of the devastating impact on the religion, it would choose a route through the area.

I submit to you that is one reason for the need for this legislation. I would be happy to answer any questions.

[Prepared statement of Ms. Miles appears in appendix.] The CHAIRMAN. I thank you very much, Ms. Miles.

Now may I call on Ms. Mahealani Ing.

STATEMENT OF MAHEALANI ING, EXECUTIVE DIRECTOR, NATIVE HAWAIIAN LEGAL CORPORATION, HONOLULU, HI MS. ING. Thank you, Mr. Chairman. Aloha, Aloha Kakahiaka. Good morning.

Senator Inouye, members and staff of the Senate Select Committee on Indian Affairs. Aloha Kakou. I bring all of you greetings from home and our beautiful people of Hawaii nei. I bring a heartfelt Mahalo as well for your many years of advocacy on behalf of native Hawaiian health education and economic development needs and concerns.

There are few of us who have not benefitted from your efforts as well as the support and efforts of committee members and many others in this room throughout the years. So, since I may never have this opportunity again to thank you, I wanted to do so at this time.

I would like to spend some time this morning talking about the living religion of Kanaka mauoli, the native people of Hawaii.

I am Mahealani Ing, the Executive Director of a public interest law firm known as the Native Hawaiian Legal Corporation. We were incorporated in 1974 for the exclusive purpose of asserting, defending and protecting native Hawaiian rights and traditional practices.

We were participants 10 years ago in the round of hearings which finally resulted in enactment of Public Law 95-341. It is a special privilege and honor to be here today to support passage of the bill which seeks to amend and give teeth to that law, and to create enforceable legal rights which would authorize a District Court injunction and other appropriate relief.

Others who have preceded me here this morning have already expertly dealt with the technical aspects of case law and the Constitution's free exercise clause. You have already heard described G-O-Road and Yoder cases with their torturous balancing tests. The language of the proposed S. 2250 does not appear to overcome the burden placed upon an individual challenging a government abridgement of free exercise of religion by first having to show a protectable religious interest, and that this interest has been significantly burdened by the Governmental action. Only if a burden is shown would the Government be required to demonstrate or prove, "compelling interest of the highest order" to override the interest claiming protection.

S. 2250 therefore may be a restatement or codification of case law which has failed Indian litigants unable to reach the second inquiry when the court has determined there is no burdening of a protectable religious interest.

I have listened to Marilyn's testimony and I may be incorrect. My staff and I haven't had an opportunity to consult with Indian law attorneys, but we do have some concern about that language. It appears that the language of the proposed amendment could be improved by attending to the threshold question of burden. That is, more precision with respect to the meaning of "seriously impair," and "interfere," as used in S. 2250.

We are in full support of section 3(b) which makes clear Congress' intent that Public Law 95-341 be enforced. However, it does fall short of our proposal back in 1979 that civil as well as criminal penalties be imposed for violations. We are willing to support this language as an expedient and an improvement over no enforcement provision at all.

Now I would like to take a little of the remaining time I have left to talk about the native Hawaiian religion as it is practiced in Hawaii today.

Imagine, if you will, the sound and fury, the conflagration of molten lava and the heaving, living spirit of our Hawaiian volcano goddess, Pele. We have lived by her side since the time of the great ocean migrations over a thousand years ago. How could we but fail to honor her? How could she fail to inspire awe and reverence? Her corporeal form manifests in living red magma, which gives us our 'aina, our land, the source of all our bounty. When we honor her, we say prayers of supplication and we bring her gifts. Our gifts are objects of the highest order that we believe would be most pleasing to her. We may share food, mea'ai, or drink, 'ino, or sweet wild berries, 'ohelo. We love and respect her and her gift to us in return is the 'aina-new land-and most importantly, a humble spirit.

Pele is everywhere everywhere along our island chain she manifests. As the first two lines of our traditional chant recites: [Remarks given in native tongue.] She lives everywhere in Hawaii,

but her home is in Halema'uma'u. As you know, Halema'oma'o is located within a national park system on the island of Hawaii.

At the present time, we must pay to enter this park unless we declare that we are entering for religious purposes. On many occasions, native Hawaiians have suffered obnoxious interrogation by park personnel who believe native Hawaiians are devil worshippers or, in any case, engaging in practices of hocus pocus which gives them the heebie jeebies.

Our native religion is beautiful, coherent, integrated and of profound spiritual depth in origin. We have this in common with our native American brothers and sisters. We have a problem and that problem is the indignities suffered at the hands of ignorant and insensitive park personnel.

We do not believe we should even have to explain our presence, our desire to be with Tutu, Grandmother Pele. We consider this, plus the ogling and jostling we must endure from tourists, an unacceptable intrusion upon our right to freely exercise our native religion. So we are filing a lawsuit. Here is where a law with enforcement teeth and sanctions could help us.

Another example: Our 'aina Kahoʻolawe Island. Kaho'olawe has been used for bombing practice since World War II by the Navy. Annually the Navy invites other countries to bomb our island. The entire island is on the National Register of Historic Sites, but the "compelling governmental interests of the highest order," national security, has provided the window through which the U.S. Government unleashes its deadly arsenal.

Consider if you will, the image of a Catholic priest or nun lying completely prostrate in humble obeisance to the Holy Father, arms outstretched, face down. This is the collective posture, the spiritual relationship of our people to the 'aina, the land. We love her. We want to protect her. Her pulse gives rise to the living heart within us. She is our nurturing mother and it is a difficult thing for our people to stand by and watch their mother being brutally assaulted year after year. And it is a difficult thing to stand helplessly by while the perpetrator invites others to take their turn.

What I am sharing with you is an honest characterization of the native Hawaiian sensibility with respect to any desecration of land. We have tried with feeble success to stop the bombing going on 20 years now.

I would like to conclude my remarks with a poem. I wrote it on the plane ride over here and I believe it expresses our pain, how we feel about the continuing mutilation of our sacred ‘aina. I call this "Great Father." Great father in this poem is America.

Great father in your arms, we were baptized in fire. In through the soft fontanel we breathed in your blue flame. It seared our raised swollen skin, turning it black as burnished leather. And in your eternal fire, we bled until desiccated, our hearts and entrails so much powder for your national apothecary. And all that funereal time. What is left of us-Ghosts, in red, white and blue bottles.

Senator Inouye, I thank you for the privilege and opportunity to come before you today and I thank you for the continuing opportunity to come and work out solutions for all our benefit.

The CHAIRMAN. I thank you all very much for your moving and compelling testimony. Although the other members of the commit