practices in Lyng v. Northwest Indian Cemetary Protective Association. The Court held that under the free exercise clause of the Constitution, the Federal government could not be prevented from destroying sacred sites of traditional Native American religions. The court, further held that the American Indian Religious Freedom Act did not create any enforceable legal right. Prior to this decision the Tribes were able to have federal agencies, responsible for managing federal lands, to take into consideration, albeit grudgingly, Native American religious concerns. However, since the decision of the Court, the attitude of personnel in the field who work for those land management agencies has been to press forward with their management decisions at the expense of sacred Tribal religious sites and artifact areas. For example, the Tribes have had and continue to have a particularly difficult time with the Corps of Engineers and to some extent with the Forest Service on Lake Kookanusa in northwestern Montana. The Lake is in an area of aboriginal land of the Kootenai Tribes. The Corps, with Forest Service appropriated funds, had constructed boat access ramps without adequate surveys or controls as to the impacts on Kootenai archeological and religious sites. This construction has led to direct damage and destruction of these sites. Unless Congress takes action to pass this bill, the attitude of ambivalence exhibited by the federal land managers will go unchecked. In addition, without national legislation, each land management region is free to set its own policy guidelines, which results in inconsistency of approach and also to conflicting policy. This leads to frustration and anger among our Tribal people who are trying to practice their religion.

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The political decision of this very conservative United States Supreme Court in Lyng v. Northwest Cemetery Protective Association, prohibiting and allowing for the destruction of sacred Indian religious sites, has set Federal Indian Policy back to the time of President Andrew Jackson. A period when the Supreme Court issued decisions sup

portive of protecting Indian rights, only to have those decisions

thwarted by the political policies of Andrew Jackson. Those policies, among other problems for Indians, produced the infamous "Trail of Tears" for the Cherokee people. Congressional legislation is necessary today to reverse this present dangerous policy shift by the Supreme Court.

Turning now to the bill itself with respect to particular provisions we offer the following comments. The bill as drafted first of all provides for the threshold requirement that a site must be considered to be historically sacred and indispensable by a "traditional" Native American religion. Presumably the bill envisions that most Tribal religious practices will be presumed to be "traditional" so that a Tribe can then qualify, to the satisfaction of the responsible federal agency, that a particular site is sacred from an historical perspective and is indispensible to the Tribal religion. In the absence of such a presumption of "traditional", the difficulty we have with this first part is that who within the particular land management agency would be qualified to make such a call, that a given Tribal religion or practice is traditional.

The burden under the bill then continues to rest on the Indian religion to demonstrate that the site is indispensable and has historically been regarded as sacred. It needs to be emphasized that Indian

people are strongly committed to protecting site-specific areas for the practice of their religion-large geographic areas are not affected, contrary to the testimony of federal land managers. The obligation of meeting these requirements would probably have to be done through Tribal religious leaders and to some minor extent by anthropologists. We emphasize the minor role that anthropologists should be given in this area, simply because Indian practitioners of traditional religion have deliberately not shared with anthropologists much of their religious practices or locations of sacred sites.

Once this threshold requirement is met the burden under the draft bill then shifts to the federal agency to demonstrate that its management decision is based on not less than one of three principles. The first of these is the fulfillment of carrying out the legal responsibilities of the Federal government. This particular language couldn't possibly be any broader in scope. It provides no standard whatsoever, whereby the federal action could be measured. The "legal responsibilities" language needs, obviously, to be refined.

Of the other two principles the one which requires the protection. of a vested property right is likewise without any tangible definition. Whose vested property right is being protected and secondly what kind of property right is being protected?

Lastly, and no less important, the Federal agency has the burden of showing that its decision is the least intrusive. This is the only real part of the bill that offers some modicum of protection for Indian religious practices. While it does continue to allow for the federal manager to follow a particular course of conduct and not prohibit it, it

does allow for the Tribes to challenge that action if it is not the least intrusive course which should be followed.

We thank you for the opportunity to comment on the bill and to offer our support for its enactment, if the ambiguous language is adequately changed.

Mr. Chairman and Honorable Committee Members, thank you for the opportunity you have given me to submit comments regarding S. 1124. As a Navajo Tribal Council Delegate representing Hardrock Chapter of the Navajo Nation, I support the proposed legislation which would "put some teeth" into the American Indian Religious Freedom Act. I am grateful to Congress, and especially Senator McCain and Representative Udall, for their recognition of our religion and their understanding of the special nature of our religious practices.

It must be understood that the loss or destruction of our religious sites through the actions of federal agencies is equivalent to a law preventing Christians or Jews from attending churches or synagogues. This is an apt parallel. Our land is our religion. The ways we worship, our ceremonies must be carried out not only in specific ways, but in exactly the right place. What I am saying is that Navajo religion, like probably most traditional Native American religion, must be correct as to location as well as procedure. It would be at least useless, if not sacrilegious, for us to carry out our ceremonies in an inappropriate place. When the federal government takes actions which deny us the use of certain places, or the right to perform certain acts in these places, it effectively takes away freedom of religion.