While we support the basic philosophy underlying S. 1124, we have concerns. Terms such as "substantial and realistic threat of undermining and frustrating" and "compelling governmental interest" need further definition. In addition, agreement on which Federal lands have "historically been considered sacred and indispensable" or "are necessary to the conduct of a Native American religious practice" may, in certain cases, be impossible.

We are also concerned that section 3(c) could be interpreted to allow a case to be taken directly to the United States District Courts, thus effectively circumventing the existing administrative appeals process. Because of these concerns we cannot support the enactment of S. 1124.

That concludes my testimony. Mr. Tippeconnic and I would be happy to answer questions.

[Prepared statement of Mr. West appears in appendix.]

Senator MCCAIN. I note presence of my distinguished colleague from Washington, Senator Gorton.

Do you have any statement you would like to make?
Senator GORTON. Not at this time.

Senator MCCAIN. Thank you, both witnesses.

Starting with you, Mr. Rogers, do you feel that present law adequately protects the rights of Native Americans to observe their religious practices?

Mr. ROGERS. Mr. Chairman, we believe that it does insofar as National Park Service lands are concerned. We cannot make judgments beyond that, but we believe▬▬

Senator MCCAIN. Obviously, only applying to those areas under your supervision. That's your view, that there is no requirement for a change in the law?

Mr. ROGERS. We believe that National Park Service policy, executed as it is written, would be adequate to do that.

Senator MCCAIN. What is your view, Mr. West?

Mr. WEST. We believe that it is adequate to respond within our policy at this time.

Senator MCCAIN. Mr. Rogers, does it arouse any curiosity in you that Native Americans almost unanimously believe-or the ones that are directly affected by this law-believe that some changes need to be made?

Mr. ROGERS. Senator, it certainly does. I think I understand that feeling, and I think it reflects more nearly Federal agencies' needing the time and the ability to build programs to implement present law than it does a deficiency in present law.

Senator MCCAIN. Mr. West, do you believe that your agency, the Forest Service, has exercised concern and consideration to Native Americans about the sacredness of various religious practices?

Mr. WEST. I would say that over time, we have not done the complete job we should have done. We have recently instituted a new policy, brought on board a Tribal Government Program Manager to look at that, and our belief is that with the changes we have made, we can meet the intent.

Senator MCCAIN. Mr. Rogers, would you believe that it might be appropriate to have one standard throughout the bureaucracy-the Park Service, the Forest Service, BLM, etc.? Would that be helpful?

Mr. ROGERS. In my opinion, Mr. Chairman, that not only would be helpful, but that will become the situation. One of the duties of the Secretary of the Interior is to provide coordination for the entire Executive Branch on matters dealing with cultural resources. We view ethnographic resources as falling within that definition.

Senator MCCAIN. Well, Mr. Rogers, we are nearing the end of the year 1989. We have been dealing with this issue for several years. I wonder if you would anticipate when that might come about?

Mr. ROGERS. I wish I could give you a date certain. I think it depends on the vagaries and the difficulties of budgeting, which are certainly not easy questions for anyone these days. But we definitely intend to carry out what we believe are the intentions of this bill.

Senator MCCAIN. Senator Gorton, do you have any questions?
Senator GORTON. Not at this time.

Senator MCCAIN. Mr. Rogers, you said in your statement that there are departmental regulations concerning your policy on Native American religious freedom?

Mr. ROGERS. Yes, sir. I would be happy to submit management policies of the National Park Service for the committee's use, if you are interested.

Senator MCCAIN. And you, Mr. West? Do you have departmental regulations?

Mr. WEST. We have a Forest Service policy written on the American Indian Religious Freedom Act activities.

Senator MCCAIN. Mr. West, to your knowledge has your agency participated in the development of an ethnographic data base similar to the one described by Mr. Rogers?

Mr. WEST. The question was, should we?
Senator MCCAIN. Are you? Or have you?

Mr. WEST. Let me ask Mr. Tippeconnic that.

Mr. TIPPECONNIC. Mr. Chairman, it is underway in places in California.

Mr. ROGERS. Mr. Chairman, I think it is important for us to have a clear understanding of this. The ethnographic data base which we need, we have not yet built. You are correct in pointing out that we are a long way from where we need to be.

Senator MCCAIN. Thank you very much for being here today. We appreciate it very much.

Mr. ROGERS. Thank you, sir.

Mr. WEST. Thank you.

Senator MCCAIN. The next witnesses will be Mr. Ivan Sidney, Chairman, Hopi Tribe, and Mr. Leonard Haskie, who is the Interim Chairman of the Navajo Tribe.

Welcome to both distinguished Arizonans and outstanding leaders. We are privileged to have you before us today.

Before you proceed, for Mr. West and Mr. Rogers, we will have further questions to which we would like written responses. We will keep the committee record open for 2 weeks.

Senator MCCAIN. Without objection we will include this document, which is Management Policies, U.S. Department of the Interior, National Park Service, 1988, in the record. [Document appears in appendix.]

Senator MCCAIN. Welcome. Which of you is senior? Do we go by age or time in office to choose?

Mr. SIDNEY. By looks. [Laughter.]

Senator MCCAIN. By looks? Mr. Haskie, please proceed.

I welcome both of my very good friends here today. Thank you for taking time from your very busy and heavy responsibilities to your tribes to be with us on this very important issue. We are grateful that you could be here. Thank you.

Go ahead, please.

STATEMENT OF HON. LEONARD HASKIE, INTERIM CHAIRMAN, NAVAJO TRIBAL COUNCIL, WINDOW ROCK, AZ

Mr. HASKIE. Thank you, Senator McCain, committee members. I am very pleased to be here, along with Chairman Ivan Sidney. I have a prepared statement to be placed in the record.

Senator MCCAIN. Without objection.

Mr. HASKIE. Mr. Chairman, members of the committee, I am honored to have been invited to testify before you on S. 1124, a bill to amend the American Indian Religious Freedom Act of 1978. On behalf of the Navajo Nation I would like to express my personal gratitude to you, Senator McCain, for introducing this measure.

The Religious Freedom Act was expressly designed to protect and preserve for American Indians the freedom to believe, express, preserve, and exercise their native religions. The act states that this includes the protection and preservation of access to sites and the use and possession of sacred objects. Mr. Chairman and members of the committee, this is a good and important policy.

This vital act must be designed and implemented with the utmost concern and sensitivity to the diversity and uniqueness of the religious practices of American Indians, Native Alaskans, and Native Hawaiians. The American Indian Religious Freedom Act embodies an objective which must be used to guide decisionmaking to preserve and protect religious freedom.

The proposed amendments will be essential to this effort. Since the act's creation American Indians who have earnestly sought protection of their right to exercise their religions have suffered tremendous disillusionment as courts have repeatedly interpreted the act as an empty Congressional acknowledgment of Ñative American culture.

Court decisions which appear to offer protection to native people to practice their religions have ultimately resulted in hollow victories. For example, in 1989 the Navajo Nation sought protection under the Religious Freedom Act to allow our people and religious leaders living in Southern Utah to continue to exercise their religion at the sacred site known as Rainbow Bridge. Denying our claims, the appellate court held that the drowning of our gods, denial of access to our prayer sites, and the desecration of our sacred site was not an infringement upon the free exercise right of our Navajo people and religious leaders. Our people sought only an accommodation of their religious interests, not a complete bar to the use of Rainbow Bridge by all others. Instead, our tribe has been forced to tolerate the unmitigated desecration of this religious site.

In 1983 the Navajo Nation, in a joint effort with the Hopi Tribe, fought another legal battle for religious freedom. In this instance we sought protection under both the Religious Freedom Act and the First Amendment to stop the desecration of an area, sacred to both our people, commonly known as the San Francisco Peaks. Again the act was interpreted by the court as a policy statement that only required "agencies to learn about, and to avoid unnecessary interference" with Indian religious practices. Because the act contained no explicit directives requiring agencies to do more, the sacredness of our honored mountains and the home of the Hopi Kachinas suffered in the hearts of our people and religious leaders as the way was cleared for the Snow Bowl Ski Resort expansion. In the court's opinion, our religious practices did not fall within First Amendment protection because Navajo and Hopi people were not denied access or coerced into practices against their religion.

At the end of a long legal battle, in 1988, the U.S. Supreme Court delivered a further blow to the religious freedom of Native American people in a decision which stated that the free exercise clause of the First Amendment did not forbid the Government from constructing a timber road through a sacred site. Through this decision the Supreme Court undermined the foundation of religious freedom by denying American Indians the protections afforded to other Americans.

This record of disappointment evidences the need for Congress to reconfirm the goals and strengthen the enforcement of the act. The protection and respect accorded to the religions of native people must be equal to those accorded other religions. It is because of these concerns that the Navajo Nation supports S. 1124 as an effort to strengthen the policy behind the Religious Freedom Act.

S. 1124 is correct in its finding that the traditional practices of Native American religions are inseparably bound to land and natural formations. Land and other natural resources are as sacred to us as churches, synagogues and cathedrals are to other religious people around the world. Equally important is the declaration that "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." The lack of coherent management and basic respect for sacred sites has resulted in the sad history of infringement of religious freedom suffered by Native Americans.

The strength of the proposed amendments is contained in section 3(a). The Navajo Nation supports the proposition that Federal lands which contain sacred sites whose use is necessary to the practice of native religions shall not be managed in a manner which will pose a substantial and realistic threat of undermining and frustrating such religion or religious practice. It is the position of the Navajo Nation that the original intent of the act can be carried out only with a clear mandate as stated in section 3(a).

However, the strength of section 3(a) is diluted by the express exception found in section 3(b)(1)(A), which affords agencies broad and dangerous discretion. The Navajo Nation strongly urges that the language of section 3(b)(1)(A) be altered so that the stated intent of the act is not consumed by the exception.

The Navajo Nation realizes that accommodating the divergent interests between native people, who seek protection of their right to exercise their religious practices, and Federal agencies responsible for the management of Federal lands, is not an easy task.

In the effort to reach mutual accommodation we recommend that the amendments to the act direct agencies which manage Federal lands to keep complete records of agency consultations and decisions which concern and impact native religious practices. Complete recordkeeping will assist agencies in becoming aware of the legitimate concerns of native people with whom the agencies have consulted. Complete documentation will then be available as a full record of the agency policy that took place in reaching a final decision. Such a procedure will add substance to the decision-making and credibility to the review process.

In closing, I would like to express my thanks to each of you for your efforts to protect the heritage of my people. In addition, I would like to remind you that by protecting our religious heritage you protect and defend your own heritage of religious freedom for all Americans.

Thank you for this opportunity to communicate to you the position of the Navajo Nation on S. 1124.

[Prepared statement of Mr. Haskie appears in appendix.] Senator MCCAIN. Thank you, Chairman Haskie.

As you may have noticed, there is a vote on the floor of the Senate, which will be followed by several votes. Since we have several panels here that need to be heard from, in keeping with the rules of the Senate I will ask Mr. Parker and Mr. Eberhard to take over further conduct of the hearing until such time as I can return. We appreciate your being here and your testimony, so please proceed.

STATEMENT OF HON. IVAN SIDNEY, CHAIRMAN, HOPI TRIBAL COUNCIL, KYKOTSMOVI, AZ

Mr. SIDNEY. Thank you, Mr. Chairman, for allowing me to present testimony on S. 1124, the American Indian Religious Freedom Act Amendments of 1989. Also, it is an honor to sit alongside the chairman of the Navajo Nation, Mr. Haskie.

The Hopi Tribe of Arizona is proudly one of the longest surviving inhabitants of the North American continent. Our village of Oraibi is indisputably the oldest continuously occupied settlement in the continental United States. We reside and have worshipped freely in northeastern Arizona lands, centuries before Columbus discovered America. At the heart of our longevity is our religion, an infinite source of strength from generation to generation.

Our religion embodies a world view of life which is deeply intertwined with and represented by the natural land structures of our region. Hopi existence relies upon the unbroken observance of natural laws. Our religious ceremonies are adherent in maintaining the harmony of the universe. The Hopi people continuously attempt to preserve, to the greatest extent possible, observance of their ceremonial customs. This, of course, means preservation of the natural land sites and natural resource materials used as part