In addition to the above-mentioned activities with regard to the sacred sites and sacred objects, the tribes have come to the forefront of the issues of repatriation of the remains of native Americans which languish in public museums and in private collections throughout the country. What other racial group in this country has been forced to endure the sacrilege of watching the remains of our relatives ripped from their burial sites and displayed to satisfy a totally unfathomable and morbid sense of scientific curiosity?

The continued excavation and curation of American Indian remains is as detrimental to Indian religious freedom as would be the spiriting away and display of the remains of the Saints of the Catholic faith. There is absolutely no difference and there is no justification either morally or scientifically for such practices to continue.

Presuming such remains are properly catalogued as to location where found, the repatriation of the remains to a burial site in the area of original location is not an insurmountable task. Tribes should not have to prove the bones are those of their ancestors. Tribes occupying an area where the remains were found should be presumed to have the right to repatriate them. In the absence of tribal presence, repatriation to or near the original burial site should be done by the Federal Government at its expense.

The Salish and Kootenai tribes of the Flathead nation have also been at the forefront of the issues of possession and use of sacred objects and plants as well and their movement across international borders. Our sacred bundles, our sacred objects, our sacred plants and traditional medicines, continue to be a source of controversy with Federal agencies which control border crossings and access to the sites from where these items must be gathered. This access can be denied just as effectively by the designated Federal use as it can be by outright prohibition or by Federal regulation inconsistent with traditional use.

The inappropriate handling and insensitive viewing of our sacred objects and medicines by Federal authorities, especially Customs officials, can be very detrimental as well as totally destructive to the effectiveness of the sacred objects and medicines.

I would like to address some areas of specific concern. The tribes are specifically concerned that the mandates given to the various Federal agencies by Federal statutes, especially the National Historic Preservation Act and the Archaeological Resource Protection Act, result in irreversible damage to sacred sites designated for excavation and curation. All too often, the decision to excavate and curate is made in a scientific vacuum in which every decision is weighed on the side of allowing the activities for the sake of scientific curiosity.

Archeological significance, the death knell for many sacred sites, is determined without the benefit of an assessment of the impact it will have on Indian religious practice. Initial decisions to dig up and shelve are made by those predisposed to digging and shelving. The propriety of the decision, if questioned, is subjected to peer review by others already predisposed to digging and shelving.

The effectiveness of the native American consultation processes in NHPA and ARPA can be summed up by paraphrasing the comment of one official of the Advisory Council on Historic Preserva

tion: "If you refuse to participate in the process the decision to go ahead will proceed without you.'

Legislation calling for consultation and consideration is all too often toothless, as was so aptly pointed out by Justice O'Connor in the Lyng decision. Federal decision-making which impact Indian religious freedom should not relegate tribal concerns to the status of a consideration which can be ignored by the Federal decisionmaker. In fact, the Federal decision-making processes should be made, in part, by the affected tribe or tribes. In the absence of effective remedies, anything short of allowing the affected tribes to be an integral part of the process by which religious concerns are addressed and effects mitigated, insures the destruction of Indian religious practices.

I would like to discuss some concerns relative to the proposed amendment language.

As presently worded, the proposed amendment puts the final determination of compelling governmental interest, historically indispensible, traditional religion, and serious impairment or interference, squarely in the hands of the bureaucrats. They are the same Federal decision-makers from whom the Indian tribes need protection.

The threshold of serious impairment and interference will be used to the tribal detriment as well as the bureaucratic determinations of indispensability and traditionality. The restriction to Federal land activities will hamstring the tribes in relation to those issues germane to the border crossing, importation of religious objects, gathering plants and medicines, and the repatriation of Indian remains. A more meaningful reference would be to Federal activities which detrimentally impact upon Indian religious freedom.

The present language seems to be narrowly drafted to mitigate the negative impact of the Lyng decision which may or may not have been the intent of the drafters. In the absence of more comprehensive legislation dealing with the other issues we have set forth in this testimony, the Confederated Salish and Kootenai tribes recommend a strengthening of the amendment language. Such strengthening should allow for the affected Indian tribes to become an integral part of the decision process.

The determinations of indispensability, traditionality, impairment and interference are best made with the presence of the Indian tribes in the decision-making body. Federal court remedies should be made explicitly available to the Indian tribes whose concerns are overridden by the Federal decision-maker.

The tribes are also extremely concerned that the issue of guaranteeing confidentiality for Indian religious information is not addressed. Confidentiality for religious information when making the determination of indispensability, traditionality, serious impairment and interference, must be maintained if the Indian tribes are to be able to utilize the full protections of the amendment. The disclosure of sensitive information, inadvertent or otherwise, can be as harmful to and prohibitive of Indian religious freedom as could be affirmative Federal land activities.

The Confederated Salish and Kootenai tribes urge the committee to strengthen the amendment language so that Indian tribes can

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.

Í 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

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.