regard to public lands. Such is not a proper principle on which to manage federal lands. Instead, the principles of multiple use, accommodation of interests, and cooperation between parties should be the basis of the government's management of public land. Finally, S.1124 is unnecessary. Existing statutes and regulations presently in effect provide protection for Native American religions, and allow Native Americans to participate effectively in the management of federal lands. I. THE LEGAL EFFECT OF S.1124 WILL BE TO The legal effect of S.1124 will be to give certain Native Americans, as individuals or groups, an effective veto power over both the government's management of its property and the public's right to use public land. This is so because the statutory preference for traditional Native American religious interests will, in practice, be absolute given the language of the bill. Accordingly, all other interests and activities on public lands will be made subordinate and inferior to the religious interests of just one group of Americans. Effective Veto. S.1124 applies to all federal land which has "historically been considered sacred and indispensable" and is "necessary to the conduct of" a Native American Indian religion. As to all such federal land, no use will be permitted if it will "pose a substantial and realistic threat of undermining and frustrating such religion or religious practice." This language would require governmental agencies responsible for managing federal lands to prohibit any activity - recreation, resource development, or even religious activity of a non-traditional type if it would merely "pose" a threat to traditional Indian religious practices. As such, this provision would place a veto power in the hands of an unknown number of Native American individuals or groups over all federal land decisions because only such persons will be in a position to decide (1) what their traditional religious practices are, (2) where their religious practices take place, (3) what lands are necessary to the conduct of their religion and (4) what other activities on federal land "pose a substantial and realistic threat to their practices. Indian religions and religious practices are for the most part undocumented and unwritten. They are often considered secret by their adherants. Native Americans historically practiced their religions in a vast number of unrecorded locations throughout the United States, which are known today, if at all, only through cral traditions. Consequently, traditional Indian religious practices, especially as they relate to the land, are not readily subject to objective examination, factual scrutiny, or even clear description. For example, in United States v. Means, 627 F. Supp. 247 (S.D. 1985), while the court accepted the claim that the Black Hills of South Dakota was a traditional religious area for the Lakota Nation, there was no clear factual evidence of the precise history or extent of tribal use of the area. Acknowledging the lack of evidence, the judge speculated that the Black Hills might have been used by the tribe "for 117 years" or "217 or 417 years." Id. at 253. Similarly, the size of the area of religious significance was also unclear. In fact, the specific 800-acre area claimed by the Indian plaintiffs in that case "did not have specific religious significance prior to the time it was chosen" by them for religious use in 1981. Id. Nevertheless, they claimed that their use of the area was indispensable to their traditional religious practice. Id. In sum, because of the limited factual evidence on historical Indian religious practices on the land, S.1124 would compel governmental agencies and courts would to rely on, and thus wholly defer to, Indians' own claims about the character and location of their traditional religious practices. Similarly, there is no objective or impartial way to determine when activities of others on federal land would "pose a substantial and realistic threat" to traditional Indian religious practices. Only the Indians asserting a traditional religious practice would be in a position to say whether and to what extent other activities posed a threat to their practice. This would leave governmental agencies and courts in an impossible situation. As the United States Supreme Court recently pointed out, any rule prohibiting substantial interference with Indian religious practices on federal land would result either in the government having uncritically to accept the Indians' own assertions about their religion (and what would interfere with it), or in the government improperly intruding itself into Indians' religious beliefs and practices in order to determine when they are truly threatened by other activity. The former approach would make the "substantial and realistic threat" standard effectively meaningless, and the latter would lead to improper governmental entanglement with religion. Lyng v. Northwest Indian Cemetary Protective Association, 485 U.S.. 99 L. Ed. 2d 534, 552 (1988). In sum, because only Native Americans can say what their traditional practices are, where they take place and when they are threatened, S.1124 would hand over to an unknown number of Native American Groups and individuals controlling power of federal land use decisions.1 Unqualified Veto. S.1124 attempts to limit this veto power where a federal agency can demonstrate that the its management decision is necessary to (a) carry out the legal responsibilities of the government, (b) protect a compelling governmental interest, or (c) protect a vested property right. These 1 The "G-0 Road" case illustrates the consequences of allowing just one group of Americans decide when their religion is threatened by other uses of public land. The Forest Service attempted to pave a six-mile section of an existing road through a national forest. Indian tribes objected, arguing that an entire twenty-five square mile area was sacred country, which had to be maintained in a completely pristine, natural state for the practice of their religion. The Forest Service attempted to accommodate the Indians' religions concerns by relocating the proposed road as far as possible from where the Indians actually carried out their religious practices. In addition, the Forest Service offered to set aside 500 acres, free from development, around each of the eleven sacred sites identified by the Indians. The Indians rejected this offer, demanding that the entire twenty-five square miles be kept totally free from proposed activity because the mere sight and sound of the distant road threatened their religious activities which required, they argued, complete privacy, silence, and isolation to be effective. Lyng, 99 L. Ed. 2d at 542. 549-550. Had S. 1124 been the law at the time of the G-0 Road case, the Indian plaintiffs would have been able to gain control of twenty-five square miles of public land for their exclusive use. limitations are without substance and necessarily ineffective. As to the first, it is self evident that the only way the government may act is pursuant to its legal responsibilities. It is, by its very nature, a creature of the law. governmental actions are condoned by the bill, or - Hence, either all - more likely courts will find this limitation to be restricted by the second, and no activities will be permissible without a "compelling governmental interest." In short, the first limitation on the Indian veto power which the bill creates is meaningless. The "compelling governmental interest" limitation is also ineffective because the standard cannot, in practice, ever be met with regard to the use of federal land. The compelling federal interest language is taken from Supreme Court cases in which the Court imposes the heaviest, most difficult-to-meet burden on the government to justify its conduct. To satisfy the standard, the government must show both that its conduct concerns "interests of the highest order" and that there exists no alternative means by which its interests can be served. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972); Sherbert v. Verner, 374 U.S. 398, 407 (1963). This standard is rarely used by the courts because, except in the rarest circumstances, no government activity, and certainly no private activity merely permitted or approved by the government, can satisfy this standard. Because non-Indian uses of federal land will never be able to satisfy the "compelling governmental interest" standard, the Native American |