Honorable John McCain Response: The Establishment Clause was designed to prevent the imposition of the religious values of a dominant sect on a minority, or the use of public funds to support a particular religion, but not others. Obviously, no such danger is posed by S. 1124. Indian religions are not positively supported over others by the bill. In fact, the bill takes no positive steps at all to assist or encourage any religious practice. The bill is passive, not active. It merely directs the Government to abstain from certain actions that imperil the practice and even the existence of Indian religions. Even so, one might conceivably argue that a legislative action that directs the government not to interfere with Religion A but fails to protect Religion B runs afoul of the Establishment or Equal Protection Clauses. Clearly, however, S 1124 does no such thing. It protects all Indian religions from threats that are unique to them and are not posed to western type religious practices. Simply put, government uses of public lands impact on Indian religions in a way they do not on other religions. Unlike western religions, most Indian religions are site-specific. A particular site is holy, and religious practices must take place there. A high value is placed on the interrelationship of man and that particular natural site. Indian religions are thus burdened and threatened by federal actions on public lands and in public forests in ways other religions are not. Without S. 1124, Indian religions are actually disfavored as against other religions. Question 3. How would you respond to Governor Matheson's assertions that S. 1124 would fail the Lemon vs. Kurtzman test because there is no secular purpose? Response: The "secular purpose" of the bill is to protect Indian tribes as distinct political societies. A society includes culture and that can include religious practices. The United States' trust responsibility exists to protect that Indian culture and society. This, indeed, is its central purpose. Indian lands and other property rights are protected so that the society may persevere, not as ends in themselves. This is why we have Indian reservations. As part of its power in Indian affairs, Congress could unquestionably set aside certain religious sites as part of Indian reservations, for exclusive Indian use. It has done so in the past, by treaty and otherwise, and could do so now. An historic example is non-exclusive access by the Sioux to the Honorable John McCain pipestone quarries, Treaty of April 19, 1858, 11 Stat. 743; Act of February 16, 1891, 26 Stat. 764; see Yankton Sioux Tribe v. United States, 272 U.S. 351, 356-357 (1926). A more modern example is the restoration of Blue Lake national forest lands to the Taos Pueblo. Act of December 15, 1970, 84 Stat. 1437, see S. Rep. No. 91-1345 (1970). S. 1124 merely takes the lesser step of protecting non-exclusive Indian use of sites outside existing reservations on lands still in public ownership. This is rationally tied to Congress' unique obligations to Indians. Question 5. How would you address the problem raised in the hearing, i.e. that S. 1124 presents an unconstitutional "federal entanglement" by requiring federal agencies to make certain administrative determinations regarding religious practices? Response: As I set forth in my testimony and written statement, I am concerned that S. 1124 does overinvolve federal agencies in decisions about religion. For that reason, I prefer a simpler policy--that once a tribe or Indian religious group makes a sincere and good faith certification that a particular land use imperils its religious practices, the use should cease unless it is justified by a particular statute directing it or the agency can show a compelling justification for its use of the lands. The agency should not become embroiled in deciding whether a particular use is "indispensable" to the religion or the religion is "traditional." Many This would not in my view give Indians a "veto" over all federal land uses. The compelling interest test is a balancing standard, with the burden of proof on the agency. federal actions would satisfy the standard. Even if they did not, Congress could by statute authorize the federal land use even over Indian religious objections. Questions 6 and 7 (together). How does the administrative process change under S. 1124 from the process currently used to evaluate a Federal land management decision impacting Native Religious sites? Do you feel that there is enough similarity between the Federal agencies, such as BLM, the Forest Service and the Park Service to warrant the development of uniform regulations and administrative process to ensure the protection of Native American religions and religious practices? Response: I think the federal agencies involved should have uniform practices for deferring to Indian religious uses. Honorable John McCain And I think the bill if enacted would force the land management agencies to respect Indian religious uses and practices in ways that they do not today. The G-O road is a dramatic but typical example. There was clearly and concededly no compelling justification for the road. It was justified under the so-called "multiple use" concept. These kinds of decisions are made daily in the Park Service, the Corps of Engineers, the Bureaus of Reclamation and Land Management and like agencies. The bill would greatly enhance the protection of Indian religious values by forcing these agencies to abstain from this kind of nonessential uses of land that interfere with Indian religious sites. Conclusion Again, Senator, thank you for the honor of being invited to appear before the Committee, and also for your leadership on this question of such vital importance to Indian people. I both commend your great courage in supporting this bill against powerful mineral, timber and other development interests that favor widespread use of the public lands, forests and other resources, and hope for the prompt enactment of this curative legislation Kind personal regards. Sincerely, Reed Cl C Reid Peyton Chambers RPC: bnm TESTIMONY OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES BEFORE THE UNITED STATES SENATE SELECT COMMITTEE ON INDIAN AFFAIRS ON S. 1124 A BILL TO AMEND THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 SEPTEMBER 28, 1989 Mr. Chairman and distinguished members of this Committee: The Confederated Salish and Kootenai Tribes of the Flathead Nation appreciate the opportunity to provide testimony to this Committee on S. 1124. This bill seeks to amend the American Indian Religious Freedom Act of 1978. The action by Congress in 1978, in passing the Act originally, was and is viewed by the Tribes of the Flathead Nation as a very positive manifestation of Congress' recognition of the unique and profoundly important need for Tribal access to sacred religious sites on federal lands. Unlike other religions, Native American do not erect edifices to manifest their respect for the creator, rather they are drawn and directed to specific natural surroundings because of the spirituality of those special places where they live to practice their religion. Other religions in the United States choose to practice their religion in a different fashion, this shows the religious cultural diversity which exists throughout this country. As the first citizens of this land, on which we now all live on together, we only ask and feel it is our right to ask that our religious practices be respected and not prohibited. This country as you are aware has a history of prohibiting Indians from practicing their religions. For example, Indians were prevented for sometime from holding ghost dances, sundances, and as well, medicine bundles were destroyed or confiscated by representatives of the Federal Government. The passage of the American Indian Religious Freedom Act signaled a new era of Congressional policy and understanding of Indian religious practices. The effectiveness, however, of the 1978 Act which recognized this unique aspect was stripped away completely in April of 1988 when the United States Supreme Court issued its decision on Tribal religious |