BRIAN MCKAY ATTORNEY GENERAL State of Nevada 1900 OCT 16 W 9:51 Office of the Attorney General October 9, 1989 The Honorable John McCain United States Senator Ranking Minority Member Senate Select Committee on Indian Affairs 838 Hart Senate Office Building Washington, D.C. 20510 Re: American Indian Religious Freedom Act Amendments Dear Senator McCain: I understand that the record on the recent hearings for the proposed amendments has been left open for further comment. Enclosed is a letter concerning this issue which I recently sent to the members of Nevada's congressional delegation and which I would request be added to the record. Sincerely, Bui McKay BMCK/BC/1he BRIAN MCKAY ATTORNEY GENERAL State of Nevada Office of the Attorney General September 20, 1989 The Honorable Barbara Vucanovich 206 Cannon House Office Building Re: American Indian Religious Freedom Act Amendments Dear Congressman Vucanovich: The proposed amendments to the American Religious Freedom Act of 1978 are a matter of great concern to Nevada. Our State, because of the overwhelming amount of federally-owned land within its boundaries, is particularly dependent upon the use of and access to those lands provided under current federal law for economic and recreational pursuits. Mining, ranching, and hunting, fishing, hiking and other forms of recreation could all be curtailed by the legislation. There are several reasons why the legislation should be opposed. If a First, all three proposed amendments provide a veto power over the use of lands to Indian groups or individuals. group or individual claims an area of land as a site that is part of or necessary to or used in or indispensable to the practice of an Indian religion, absolute priority in the use of the land will be given to the practice of the religion. Any other use of the land that interferes with any aspect of any religious practice must surmount an unattainably high standard (such as showing a compelling governmental interest) or be entirely prohibited. power to determine which lands are religious sites (often on the basis of an oral tradition that is all but unchallengeable) rests solely with the Indian group or individual, and the power to preclude any other citizen from using that land for any other purpose is similarly placed with the group or individual. Second, most of Nevada's natural resources--from its wildlife to its mineral and oil and gas deposits to its scenic beauty--are on federally-owned land. The determinations by Indian groups or individuals that a significant number of The The Honorable Barbara Vucanovich September 20, 1989 Page 2 religious sites exist could decimate current use as well as development of those resources. An illustration of this result is contained in the case the amendments are designed to overturn, Lyng v. Northwest Cemetery Protection Association, 485 U.S. 99 L.Ed.2d 524 (1988). In Lyng, Forest Service attempts to protect eleven religious sites in a national forest by relocating a six mile section of existing road and setting aside 500 acre areas around each site were rejected by tribes asserting that the twenty-five square mile area surrounding the sites must be left entirely undisturbed and preserved for their exclusive use. The effect of demands for exclusive use of large areas are clear, but, further, it is a practical fact of life in Nevada that control of a critical area of land can entirely prevent access to the resources of a much larger area of land. The State has been successfully working to remedy this disabling control for some time now. The amendments will only exacerbate this situation. Third, the exclusive use of religious sites and surrounding areas contemplated by the amendments confers de facto ownership of the land upon the Indian group or individual. No other use will be permitted. All other uses will be preempted or terminated. The preemption or termination will occur even though the right to practice a traditional religion is already amply and specifically protected in existing federal statutes. Those statutes include the American Indian Religious Freedom Act itself, the National Forest Management Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, the National Historic Preservation Act, and the Archaeological Resources Protection Act. No such exclusive right to use, own and exclude others from publicly held lands in order to practice religion should be granted to any group or individual. Finally, the constitutionality of a law that expressly advances and protects one religion over all other religions is highly questionable. Only a traditional Indian religion is given preferential status by the amendments. Even if another religion (as many do) holds as a basic belief the significance or the sacredness of the earth and of nature, it will not be accorded equal status with a traditional Indian religion. These amendments advance, protect and prefer one religion of one portion of all of our citizens. They should not be supported for that reason. In summary, the proposed amendments to the American Indian Religious Freedom Act provide a veto power over uses of public lands to certain groups or individuals, provide control over the resources of vast areas, provide de facto ownership of those areas to particular groups and individuals, and place one religion in a position superior to all other religions practiced The Honorable Barbara Vucanovich September 20, 1989 Page 3 in the United States. The amendments are clearly insupportable, and I would urge you to oppose them. BMCK\BC\lhe Sincerely, I appreciate this opportunity to answer questions about the National Park Service Ethnographic and Native American programs which the Select Committee on Indian Affairs raised in its October 2 letter. My responses are not always as complete as I would like, but they incorporate the best available information on the status of the two programs. Question 1: "When do you expect to complete your ethnographic database identifying Native American religious sites?" The ethnographic database is in the earliest developmental stage. Its policy basis has been established, its conceptual approach has been formulated, and appropriate methodologies are being defined. The need for resource ethnographies and inventories has also been determined for approximately one-third or about 100 of the total National Park System units, especially units whose resources are ascribed traditional cultural value by associated Native Americans. The National Park Service looks to the Ethnography Program as a vehicle for developing a professionally sound and managementoriented database that will enhance our ability to reach culturally informed decisions. The program was vigorously endorsed by the National Park System Advisory Board in 1988 and in 1989 by the report on Research and Resource Management prepared by the National Parks and Conservation Association. To date, we have completed eight studies that address some ethnographic issues. If priority were given to completion of the database, it could be accomplished within 10 years. Otherwise we project it will take several decades. We plan to initiate a pilot 5-year program in FY90-FY94 by allocating some current funding to this program. Question 2: information?" "How is the National Park Service attempting to collect this Two principal types of ethnographic studies will yield data on the sacred value of resources under Service management. Both are conducted by applied cultural anthropologists who work cooperatively with the involved Native Americans. One study type is the Ethnographic Overview and Assessment which reviews available documentary data, and discusses findings with the involved Tribes in order to identify data gaps or biases. This generates the subsequent study, a field-based resource ethnography or Traditional |