ans' ability to practice their religion. The Constitution only protects individuals from being coerced by Government into acting contrary to their religious beliefs, if Government action is not otherwise justified by a compelling interest, the Court said. It seems to me anomalous for Congress, in the interest of accommodating free exercise values, to have within its power the opportunity to provide more protection for religious practice by legislation than the Supreme Court can provide through the Constitution, but that's the opportunity. I thank you for the opportunity to share my views with the committee. [Prepared statement of Mr. Woodruff appears in appendix.] Ms. ZELL. Thank you, Mr. Woodruff. Ms. Ing. STATEMENT OF MAHEALANI ING, EXECUTIVE DIRECTOR, MS. ING. Good afternoon, staff members of the committee. Thank you for allowing me this opportunity to present testimony relating to S. 1124. I want to say at the onset that we believe this legislation is a step in the right direction, but my testimony will be substantially in opposition to it because we feel it doesn't go far enough. Also, my written statement will be mailed to you. I apologize. I will be reading from an oral presentation that I only prepared last night. My apologies; I've had an extremely busy week, but a written statement should be forthcoming within 1 week from my office in Hawaii. I would like to begin by briefly describing the context within which the Federal Government claims jurisdiction over any Hawaiian lands at all. Briefly, less than 100 years ago the Federal Government took almost 2 million acres, which represents one-half of the entire State of Hawaii, from the Kingdom of Hawaii without any compensation to its native people. When Hawaii became a State, all but 400,000 acres were transferred to the State of Hawaii under a trust responsibility, that the revenues from these landsas well as the lands themselves-might be used to benefit the native people. The 400,000 acres that have been retained by the Federal Government are today used primarily for military purposes, as well as some Federal National Parks. I thought that as I presented my comments today, I think it is important that this committee as well as the members of the audience present understand that the native people are seeking return of those lands. As introduced, I am Mahealani Ing, Executive Director of a sixattorney public interest law firm called the Native Hawaiian Legal Corporation. Many members of the committee are already familiar with our work, which is to assert, defend, and protect Native Hawaiian assertions to land, natural resources, and related entitlements. We have been regularly consulted by this committee, as well as other Native American groups, even prior to the enactment of the original bill in 1978. One of our Board members, Randolph Kalahiki, served as a member of a national advisory committee which sought this legislation over 10 years ago. I would like to talk briefly about the instances in Hawaii where Native Hawaiians have been confronted with challenges to the exercise of their religious freedom. The native claims in Hawaii initially have arisen in the context of access to sacred lands. In the case of United States v. Mowat, several members of the Protect Kaho'olawe Ohana-Kaho'olawe is an island which has been used for bombing practice since World War II; the word "Ohana" in Hawaiian means "family"-the Protect Kaho'olawe Ohana members were charged with trespassing upon Kaho'olawe Island, contrary to Federal statutes and regulations. Based on these regulations, access onto Kaho'olawe was banned without advance consent by the Commandant of the 14th Naval District. The defendants claimed access based upon free exercise of religion; however, the court in that case concluded that requiring advance approval before entry was not unreasonable, as the island was used as a target for bombing practice, and the threat of explosion from live ordnance would put trespassers at risk. This risk, therefore, was deemed to outweigh any burden upon the free exercise of religion. The case did not specify exactly what religious ceremonial activities were to be practiced on the island by the defendants, but the religious, cultural, and historic significance to Native Hawaiians is similar to the claims made by Native Americans in the cases of Bedoni and Sequoyah, two cases which dealt with Indian sacred lands. In the Kaho'olawe case in Hawaii, a consent decree was signed by the parties in interest, such that limited access for a certain number of days every month was allowed. However, to this day the Navy continues to use the island as a bombing site, notwithstanding the fact that there are between 89 to 100 sites which are on the Federal Register and recognized. They still continue to destroy and bomb our religious sites today. We have not been able to invoke any law to protect our religious rights on that island. You may have copies of my longhand testimony. With Kaho'olawe, the court concluded that compelling Government interests in keeping outsiders off of dangerous land outweighed any burden on the defendants' free exercise of religion. In the case of Aluli v. Brown, Kaho'olawe was again at issue. There the plaintiffs sought to stop the military from bombing the island to prevent further destruction of archaeological sites which had religious and historical significance to Native Hawaiians. Although the Federal District Court denied the injunction, it held that the military was required to file annual environmental impact statements pursuant to the National Environmental Policy Act. That has not been a very meaningful remedy. The filing of an EIS merely states the case. It merely describes an ongoing practice of continuing to use the island as a bombing site. So it is not viewed by native practitioners of the Hawaiian religion to be a meaningful remedy at all. The court concluded in that case that bombing archaeological sites might be harmful to human beings. We don't consider that very meaningful. Following up, the next case, Dedman v. Board of Land and Natural Resources, our office represented Native Hawaiians who challenged a decision permitting geothermal drilling in an area significant to native religious practitioners who honor the deity Pele. We also call her Tutu Pele, "Tutu" meaning "grandmother" in Hawaiian. The proposed development has impinged on the right of Pele practitioners to free religious exercise, since geothermal development requires drilling into the body of Pele and sapping her energy and lifeblood. The Hawaii Supreme Court acknowledged the sincerity of the religious claims at issue. It then considered whether the approval by the Board of Land and Natural Resources of the proposed geothermal development would unconstitutionally infringe upon Native Hawaiian religious practices. On this question, the court found controlling the absence of proof that religious ceremonies were held in the area proposed for development. In other words, they required site specificity, which could not be demonstrated by our practitioners. Without evidence of a burden on the free exercise of native religion, the court did not reach the compelling State interest question. Accordingly, the court concluded that no free exercise clause violation had occurred. The Dedman court's application of a narrow analysis of free exercise infringement accounted for its failure to find any burden on Native Hawaiian religious practices. Under the court's view, a burden on the free exercise of religion exists when Government action regulates or directly impinges on Native Hawaiian religious practices. Furthermore, only Government conduct which compelled irreverence of religious beliefs or penalized individuals for their religious actions would warrant free exercise protection. Few practitioners of native religion can meet this standard. Such a constricted approach consigns free exercise protection to the far end of a rapidly-diminishing spectrum of native rights. The free exercise clause of the First Amendment guarantees to Native Hawaiians the freedom to practice their religion. In so stating, I strongly disagree with the testimony presented by Governor Matheson. I believe that what Native Americans desire is just the equal protection afforded them under the Constitution. To Native Hawaiians, this means the freedom to practice a way of life involving a unique form of worship, centered on a highly-developed mythology and a code of conduct. The scope of free exercise protection, however, depends on the court's interpretation of the free exercise clause. Such interpretation has a long and varied history. I give a short overview of the development of cases under the free exercise clause, which basically have gone from a dichotomy between belief and the actual practice, to requiring the State to demonstrate a compelling State interest, to a point today, pursuant to the Lyng case, where the burden is on the practitioner to show that there is no undue infringement. The express purpose of the American Indian Religious Freedom Act was to require that Federal policies comply with the Constitu tional mandate of the free exercise of religion. Section 2 of the act illustrates this purpose by instructing Federal agencies to consult with native religious leaders concerning the changes in policies or practices necessary to preserve traditional religions. Despite its Congressional directive to safeguard traditional religious practices, AIRFA has afforded little protection. Again, to spare this committee, I have presented short summaries of the cases in which AIRFA has been of little help. Some of these cases have been attested to by earlier witnesses. Finally, with all due respect and in consultation with native practitioners in Hawaii, we do not believe that the amendments proposed in S. 1124 will correct AIRFA's shortcomings. For one thing, available exemptions are overboard. I cannot think of one Federal management decision which cannot be construed to be "necessary to carry out the legal responsibilities of the Federal Government," thus qualifying for an exemption. The two remaining exemptions, which are "protecting a governmental interest" and "protecting a vested property right," are already strongly supported by the free exercise clause in the cases which were interpreted today. Frankly, these amendments would appear to exacerbate the problem rather than correct it. Further, language that would suggest that the Federal agency attempt to accommodate various competing interests and pick the course of action least intrusive somehow does not have the ring of First Amendment Constitutional rights to it. The lofty and paramount Constitutional right to freely exèrcise one's religion is relegated to some base type of political expedient, which we find unacceptable. Last, I have participated as a Native Hawaiian in religious services at Volcanoes National Park. We have had to endure gawking tourists and insensitive park personnel. Therefore, I think there are times when there needs to be exclusive access only by native practitioners. For these reasons we cannot wholly support S. 1124 although, again, we feel it is a step in the right direction. Thank you. [Prepared statement of Ms. Ing appears in appendix.] Ms. ZELL. Thank you, Ms. Ing. Mr. Chambers. STATEMENT OF REID CHAMBERS, ATTORNEY, SONOSKY, Mr. CHAMBERS. Counsel Zell, Counsel Eberhard, thank you for inviting me to participate here today. I have also submitted a written statement, and I will try to just summarize it here in a few moments. First, I want to address the Constitutional power of Congress to deal with Indian affairs, because I think that the Establishment Clause issues must be considered in the context of that power. The constitutional power of Congress dealing with Indian affairs-I don't need to tell any of my colleague lawyers up there—is extremely broad. It is rooted in the Commerce Clause. It is rooted in the treaty power. There are some historical antecedents, even in the war power and the public property clause. There is only one case in the history of the United States that has ever held an Act of Congress exceeded the constitutional power of Congress, when it is legislating with respect to Indian affairs. Modern cases talk about an act of Congress being constitutional if it is uniquely tied to the obligations of trust that Congress bears to the American Indians. It is hard for me to conceive of legislation more directly tied to the obligations of trust that Congress bears to American Indians than S. 1124. Now, the cases dealing with the trust responsibility, as the committee knows, have dealt mostly with property rights-water rights, rights to hunt and fish, rights to timber, rights to minerals-not just land. But the trust responsibility is not limited to property that Indians hold today, nor is it limited just to commerce with Indians. The purpose of the trust responsibility was expounded by Chief Justice Marshall 160 years ago, in the Cherokee cases. The purpose is to allow Native American communities to maintain a distinct political society. Now, the Supreme Court has said that Indian tribes are not simply private voluntary organizations, they are governments and communities. A distinct political society encompasses more than just a government. It encompasses a culture, and a religion is but a part of that distinct political society. So this legislation is carrying out the trust responsibility further than you carried it 10 years ago, when you enacted AIRFA to protect religious sites of American Indian tribes and their members. The courts really haven't implemented the act as Congress intended it 10 years ago. It seems to me that that's within your Constitutional province. Congress could, for example, establish an Indian reservation on each of those religious sites today. You could set aside religious sites, like San Francisco Peaks or the area around the G-O Road. You could set those aside as an Indian reservation. You've done it recently. You've done it recently with Taos Blue Lake when the Forest Service was mewing piteously about how it needed those lands for a forest. So there is no question that you have the constitutional power to set aside sites for exclusive use of Indians. And I shouldn't think there would be any question that you would have the constitutional power to take a lesser step, which is to allow American Indians the non-exclusive use of those sites as you determine. And that's what this bill seems to me to be designed to do. Obviously, you don't have the power to avoid First Amendment rights, or exceed other constitutional restrictions, so I want to address the Establishment Clause. I agree with Governor Matheson that the Lemon case best sets forth the standards for the Establishment clause the "secular purpose and effect" standard, for example. In enacting legislation to protect the trust responsibility, I suggest to you that you are carrying forth a secular purpose and effect of the most extraordinary importance, the protecting American Indian tribes and their societies and their distinct political communities. That's the secular purpose, that's the secular effect of this legislation. Now, on the issue of preferring Indian religions over other religions, I agree—and here I am going to refer to my statement—with |