Additional material submitted for the record: A Preliminary Assessment of the Significance of Navajo Sacred Places in the Vicinity of Big Mountain, Arizona, report Page 318 Management Policies, U.S. Department of the Interior, National Park 409 Snell, Frank W., chief, Division of Recreation, Cultural and Wilderness Resources U.S. Department of the Interior, Bureau of Land Management, memorandum with attachments.. 468 RELIGIOUS FREEDOM ACT AMENDMENTS OF 1989 THURSDAY, SEPTEMBER 28, 1989 U.S. SENATE, SELECT COMMITTEE ON INDIAN AFFAIRS, Washington, DC. The committee met, pursuant to notice, at 1:55 p.m., in room 485, Russell Senate Office Building, Hon. John McCain (vice chairman of the committee) presiding. Present: Senators McCain, Daschle, and Gorton. Staff present: Eric Eberhard, Dan Lewis, Steve Heeley, Alan Parker, Patricia Zell, Lurline McGregor, Bob Arnold, Kathleen Hooker, Roy Atwood, Dale Lloyd, Don Cash, Sara Yager, and Hawley Manwarring. STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM ARIZONA, VICE CHAIRMAN, SELECT COMMITTEE ON INDIAN AFFAIRS Senator MCCAIN. As a dramatic departure from our usual procedure, this hearing will start early today. I would like to welcome all the witnesses here today to testify on S. 1124, the American Indian Religious Freedom Act Amendments of 1989, especially my friends from Arizona, Chairman Haskie and Chairman Sidney. I originally introduced S. 1124 for discussion purposes in order to provoke serious thought and discussion on these issues. It is a very complicated area of law which provokes strong, deeply-held views. It is my hope that S. 1124 will help to spark a genuine consensus on the changes that are necessary to make the American Indian Religious Freedom Act into an effective law. In 1978 the Congress enacted the American Indian Religious Freedom Act. It commits the United States to the protection of religious freedom for American Indians. The act required the President to direct Federal agencies to evaluate their policies and practices, in consultation with native traditional religious leaders, in order to determine appropriate changes necessary to protect and preserve Native American cultural rights and practices. In the years since 1978 the Federal courts have been called upon on numerous occasions to determine whether the land management decisions of Federal agencies have been contrary to the provisions of AIRFA. Unfortunately, the vague provisions of AIRFA have led to a great deal of confusion regarding the interpretation and implementation of the act. In Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court was faced with a case involving plans to permit logging on Forest Service lands in (1) an area which was regarded as sacred by traditional Indian religious practitioners. The Indians claimed that preservation of the area in its pristine condition was essential for their religious practices. In their decision, the Supreme Court acknowledged that the logging in the area could devastate or destroy the traditional Indian religious practices. Despite this finding, the Supreme Court decided the case in favor of the Forest Service, noting that the Forest Service had taken some steps to mitigate the harm to native religious practices. This decision has stirred enormous controversy among Native Americans, Federal officials, and other parties. S. 1124 is an attempt to strike a balance among many of the competing interests involved in Federal land management decisions. Under S. 1124, Federal lands which have been considered sacred and indispensable to a Native American religion which are necessary to the conduct of that religion are entitled to protection. These lands should not be managed in a way that will pose a "substantial and realistic threat of undermining and frustrating" the Native American religion or religious practice. Under the bill, Federal officials are granted latitude to act to carry out legal responsibilities of the Federal Government; to protect a compelling governmental interest; or to protect a vested property right. These land management officials shall, to the greatest extent feasible, select a course of action that is the least intrusive on traditional Native American religions or religious practices. Nothing in this bill compels a Federal official to totally deny public access to Federal lands. The bill establishes explicit burdens of proof for all parties in any judicial challenge to a Federal land management decision. Petitioners in such cases will need to prove that the Federal decision poses a substantial and realistic threat of undermining and frustrating a traditional Native American religion or religious practice. If this burden of proof is met, the Federal agency must show that its decision was necessitated by law to protect a compelling governmental interest or to protect a vested property right. In all cases, the agency must prove that their decision reflects a course of action which is the least intrusive on the traditional Native American religion or religious practice. The Federal courts would have the authority to enter any order necessary to carry out the purposes of the bill. It is my hope that this bill retains the spirit and intent of AIRFA and provides the necessary guidance for the resolution of the conflicts between the concepts inherent in Indian and native cultures, and Federal land management practices. This balance of competing interests must be fully informed by the Constitution, our moral and legal obligations to Native Americans, and the legitimate interest of the Federal Government in the sound management of Federal lands for the benefit of all Americans. It is incumbent upon us to ensure that those who occupied the lands of our Nation before us be ensured of their religious freedom. I look forward to the testimony we will hear today in the hopes that we will be able to find that common ground which will accommodate the seemingly incompatible views of all affected parties. [Text of S. 1124 follows:] To provide a means to ensure that the management of Federal lands does not undermine and frustrate traditional Native American religious practices. IN THE SENATE OF THE UNITED STATES JUNE 6 (legislative day, JANUARY 3), 1989 Mr. MCCAIN introduced the following bill; which was read twice and referred to the Select Committee on Indian Affairs II A BILL To provide a means to ensure that the management of Federal lands does not undermine and frustrate traditional Native American, religious practices. 1 Bé it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. This Act may be cited as the "American 4 Indian Religious Freedom Act Amendments of 1989". 5 6 7 8 9 SEC. 2. The Congress finds that— (1) unlike any other established religion, many traditional Native American religions are site-specific in that the Native American religions hold certain lands or natural formations to be sacred; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 2 (2) such sacred sites are an integral and vital part of the Native American religions and the religious practices associated with such religions; (3) many of these sacred sites are found on lands which were formerly part of the aboriginal territory of the Indians but which now are held by the Federal Government; and (4) lack of sensitivity or understanding of traditional Native American religions on the part of Federal agencies vested with the management of Federal lands has resulted in the lack of a coherent policy for the management of sacred sites found on Federal lands and has also resulted in the infringement of religious freedom for Native Americans. SEC. 3. Public Law 95-341 (42 U.S.C. 1996), popular 16 ly known as the American Indian Religious Freedom Act, is 17 amended by adding at the end thereof the following new sec18 tion: 19 "SEC. 3. (a) Except as otherwise provided in this sec 20 tion, Federal lands that 21 22 23 24 25 "(1) have historically been considered sacred and indispensable by a traditional Native American religion, and "(2) are necessary to the conduct of a Native American religious practice, ●S 1124 IS |