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APPENDIX

ADDITIONAL Material SubMITTED FOR THE RECORD

STATEMENT OF ROLAND G. ROBISON, DEPUTY DIRECTOR, BUREAU OF LAND MANAGEMENT,
UNITED STATES DEPARTMENT OF THE INTERIOR, BEFORE THE SELECT COMMITTEE ON
INDIAN AFFAIRS, UNITED STATES SENATE, ON S. 2250, A BILL "TO ENSURE THAT LANDS
ARE MANAGED IN A MANNER THAT DOES NOT IMPAIR THE EXERCISE OF TRADITIONAL
AMERICAN INDIAN RELIGION".

I appreciate the opportunity to appear before the Committee today to discuss the views of the Department of the Interior on S. 2250.

S. 2250 would amend Public Law 95-341, the Joint Resolution on American Indian Religious Freedom, by adding a new section 3 to provide that, except in cases involving compelling governmental interests of the highest order, Federal lands which have been historically indispensable to a traditional American Indian tradition shall not be managed in a manner that would seriously impair or interfere with the exercise or practice of such traditional American Indian Section 3(b) would give United States District Courts jurisdiction

religion.

to enforce the provision.

Although we are appreciative of the rights of American Indians to exercise

their religion, we strongly oppose enactment of S. 2250.

Section 2 of the American Indians Religious Freedom Act required 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 rights and practices.

For nearly two decades, the Native American Rights Fund has been committed to the preservation of the religious and cultural integrity of Indian people. On behalf of my organization and our clients, I sincerely commend the leadership, determination and fortitude demonstrated by the Chairman and Senator Cranston and Senator DeConcini for cosponsoring S. 2250.

I particularly want to extend my appreciation to this committee for the work it has done and the interest it has in the preservation of religious and cultural integrity and equality for Indian people. These represent one important attribute of our constitutional democracy that is oftentimes forgotten with respect to this small minority group of people that live in the United States.

One month ago, the U.S. Supreme Court in Lyng v. Northwest Indian Cemetery Protection Association dealt a potentially lifethreatening blow to Indian religion by removing from constitutional scrutiny perhaps the greatest threat to Indian religious practice, that being the management of Federal lands by various agencies in such a way as to unilaterally subordinate Indian religious values to the economic interests of timber, mineral and water power development.

Prior to the Lyng case, in Bowen v. Roy, a 1986 Supreme Court decision upon which the court relied heavily in the Lyng case, the Supreme Court had developed what is commonly referred to as an "effects" test where the court examines the nature of the effect of Government conduct on religious beliefs and practices as a means of determining whether an impermissible burden on religion was likely to occur. Under such circumstances, the Government's interests were required to be sufficiently compelling to outweigh the interests of the religious practitioner.

An exception to that effects test was made 2 years ago in the Bowen v. Roy, where Government conduct in that case was found to be purely internal in nature. The court said such conduct produces no external effects on the exercise or practice of religion and thus no religious infringement.

In the Lyng case, the court, in essence, changed the rules of the game again, but even more substantially and dramatically than in the Roy case. In the Lyng case, the court completely threw out the effects test, now requiring religious litigants to prove that Government conduct affirmatively coerces one to violate one's religion as a means of demonstrating religious infringement.

Key for this committee's understanding of the decision, the Supreme Court in the Lyng case ruled that mere incidental effects of government activities which do not produce affirmative coercion are permissible as a matter of law. Thus, the Supreme Court, in Justice Brennan's view, in dissent, elevated the nature or form of the Government's restraint of religion over the substance and effect of it.

As an aside, I believe it is important to add that this change stopped just short of an "intent to discriminate" standard that was rejected by a majority of the Supreme Court justices in Bowen v. Roy. In the Roy case, Chief Justice Berger would have required an individual challenging a government action on religious grounds to prove the Government intended by that action for there to be some result of religious infringement.

The retreat from the effects test in the Lyng case stands in striking contrast to the Federal Voting Rights laws which require litigants to demonstrate only that the effect of government conduct relating to voting practices is discriminatory, not that the Government intended to discriminate against a racial minority group in the conduct of elections.

In dissent in Lyng, Justice Brennan strongly urged the need for mutual accommodation between Indians and Government. Senator DeConcini made a reference a few moments ago to the importance of being able to mutually accommodate Indian interests and government interests. That is really the hallmark of Justice Brennan's dissent in Lyng, the importance of mutual accommodation and compromise from both sides.

Since in Lyng the majority decision took away the constitutional free exercise rights of Indian people, returning to a "balance" of mutual accommodation means returning some semblance of fairness, equity and balance in an area which Justice Brennan referred to as, "One of the key stress joints between divergent world views in American society." If left alone, the decision in Lyng will only further polarize these divergent world views and attitudes.

Under the American Indian Religious Freedom Act, if amended as proposed, Indians would know in express terms what standard of proof was required of them. They would know in clear terms that more than an allegation of sacredness of land is required. In such a situation, Indians would be forced to make decisions, sometimes difficult, about what to protect and what to let go, where to fight and where to accommodate the needs of the broader American society. Thus, the fear or paranoia raised by the Administration and by representatives of timber and mineral development interests this morning about thousands of challenges to Federal land management activities are unfounded. But I am convinced that not even the majority of American society believes that Indians should never be able to win in this balance between religious needs and needs of the broader American society.

What a cruel irony that in Lyng, the one to be litigated through the Federal Appellate Court system where the Indians won at the Court of Appeals level, the Supreme Court then changed the rules of the game so that the Indians would lose. What message does the Lyng decision send to Indian people? That the American constitutional democracy does not respect your uniqueness, your unique religions and cultures? Unlike black people, who before the Civil Rights era were forced to the back of the bus, but at least could sit on and ride the bus, the Lyng decision by the Supreme Court last month tells Indians in no uncertain terms that they cannot even ride on the bus.

Felix Cohen, the preeminent scholar in the field of Indian law and jurisprudence spoke these hallowed words approximately 40 years ago: "Like the miner's canary, the treatment of the American Indian by the American Government reflects the rise and fall of our democratic faith. If and when the smallest and most indefensible cultural and religious minority group in America today, the native American, can be so deliberately and purposefully persecuted, as the Supreme Court has demonstrated in Lyng, all other reli

gious minority groups should up and take notice, for one of them is next. I can assure you of that.

While I do not agree with every last detail of S. 2250, the Cranston bill to amend AIRFA, I today congratulate you for your courage, fortitude and dedication to the cause of shifting the balance between Indians and the Federal Government back again to a point where some measure of religious free exercise is afforded to Indian people, to a point where Indian people can continue to look Federal bureaucrats in the eye and expect to be treated with respect as opposed to indignance and derision, to a point where Indians can believe that they are not the only ones to be forced to give, give, give and give again, and to a point where they are allowed on the bus of religious freedom.

The Supreme Court has denied to the Indians the right of religious free exercise as a constitutional right. This body can begin the long process of restoring that right as a Federal statutory right.

In conclusion, I pledge the support of myself and the Native American Rights Fund in working with you and your staff to achieve the still elusive goal of religious freedom for America's first inhabitants.

I would be happy to answer any question you might have. [Prepared statement of Mr. Mcore appears in appendix.] The CHAIRMAN. Thank you very much, sir.

May I now cali on Dr. Walker.

STATEMENT OF DR. DEWARD E. WALKER, JR., PROFESSOR OF ANTHROPOLOGY, UNIVERSITY OF COLORADO, BOULDER, CO Dr. WALKER. I wish to express my appreciation for being invited to participate in what I think is a historically very important action in which several centuries of religious persecution of native Americans is beginning to be corrected.

In 1978, the American Indian Religious Freedom Act was passed with the intention, however unfortunately necessary, of granting to native Americans the religious freedom that other Americans took for granted. It is my view that the action undertaken initially on the American Indian Religious Freedom Act of 1978 was only a beginning and that this beginning must be followed by a continuing effort; this is merely one step that we are now taking to help reverse a long-standing program of Federal persecution and Federal hostility to the practice of native American religions.

This morning I want to comment on a couple of aspects of the proposed Cranston bill. The proposed Cranston bill is absolutely necessary. The present American Indian Religious Freedom Act has not worked well for a number of reasons. However well-intentioned, however carefully crafted, the American Indian Religious Freedom Act is flawed in a number of respects. The Cranston amendment proposes to correct some of those flaws and in so doing, it is to be applauded as a major step forward.

It is my view that the flaws in this act, however, are not limited solely to the lack of court jurisdiction or to the absence of a meaningful standard by which judgements are to be made. It is also my view that these other shortcomings in the American Indian Religious Freedom Act should be reviewed by this committee as it un

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