3

1 shall not be managed in a manner that will pose a substantial

2 and realistic threat of undermining and frustrating such reli

3 gion or religious practice.

4

"(b)(1) Subsection (a) shall not apply to management de

5 cisions which are necessary to—

10

11

"(A) carry out the legal responsibilities of the Federal Government,

or

"(B) protect a compelling governmental interest,

"(C) protect a vested property right.

"(2) In making management decisions described in para

12 graph (1), the Federal agency shall attempt to accommodate 13 the various competing interests and shall, to the greatest 14 extent feasible, select the course of action that is the least 15 intrusive on traditional Native American religions or religious 16 practices.

17

"(3) Nothing in this section shall be interpreted as re18 quiring any Federal agency to totally deny public access to 19 Federal lands.

20

"(c)(1) The United States district courts shall have juris21 diction over any civil action brought by any person to enforce 22 the provisions of this section and may issue such orders as 23 may be necessary to enforce the provisions of this section. "(2) Any person challenging a decision of a Federal

24

25 agency

in a civil action brought under this subsection shall

●S 1124 IS

4

1 have the burden of proving that the decision of the Federal 2 agency will pose a substantial and realistic threat of under3 mining and frustrating a traditional Native American religion 4 or religious practice. If such threat is established, the Federal 5 agency shall have the burden of demonstrating that the Fed6 eral agency's decision is based on one or more of the criteria 7 in subsection (b)(1). If the Federal agency's decision is found 8 to have been based on one or more of the criteria in subsec9 tion (b)(1), then the Federal agency shall have the burden of 10 proving that it selected the course of action that is the least 11 intrusive on the Native American religion or religious prac12 tice."

Senator McCAIN. I would like to call as our first two witnesses Mr. Jerry Rogers, Associate Director of Cultural Resources, National Park Service, and Mr. Allan J. West, Deputy Chief of the Forest Service. Mr. West will be accompanied by Mr. Robert Tippeconnic, Tribal Government Program Manager, Forest Service, U.S. Department of Agriculture.

Welcome, gentlemen. You are free, of course, to summarize your statements if you so choose. Your complete statements will be made a part of the record. Thank you for appearing before us today. Please proceed.

Mr. Rogers, would you care to go first?

STATEMENT OF JERRY ROGERS, ASSOCIATE DIRECTOR FOR CULTURAL RESOURCES, NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR

Mr. ROGERS. Mr. Chairman, let me first say that the National Park Service is extremely grateful for being invited to participate by the Select Committee on dealing with a very, very important issue, one about which we care very much.

My statement is extremely concise. If it doesn't tax your patience, I think it might be best if I do read most of it.

Senator MCCAIN. Before you proceed, could I make note that the distinguished chairman of the committee, Senator Inouye, is on the floor as the manager of the Department of Defense appropriations bill, which is being considered by the full Senate. That is why he is not here today. He has a very deep interest in this issue.

Please proceed, sir.

Mr. ROGERS. Thank you, sir.

The National Park Service respects Native American rights to exercise their religions, and we support the concept of managing Federal lands in a manner that poses no substantial threats to religions of Native Americans who are traditionally associated with those lands.

Consultations with Native Americans are required to determine whether threats exist and, if so, how mutually agreeable mitigation measures can be negotiated.

The Department of the Interior has instituted measures to meet the intent of the American Indian Religious Freedom Act. While some measures are still not as mutually satisfying as we would wish, the Department has consciously worked to respect the spiritual ties that bind certain Native American communities to sacred cultural and natural resources. Indeed, these concerns led the National Park Service to make it a matter of policy that resources traditionally associated with Native Americans would be managed without impeding customary religious practices. These policies make S. 1124 unnecessary for the National Park Service.

Quite aside from the compliance requirements of preservation and environmental law, the National Park Service's management policies commit the Service to protecting sacred resources to the extent practicable and in a manner consistent with the goals of the traditionally-associated Native American tribe or group. National Park Service policy further directs our land managers to be as unrestrictive as possible in permitting Native American access to and

use of traditional sacred resources for customary ceremonials. Responsiveness to Native Americans' concern for the continued integrity of their religious systems is as important, we believe, as protection for the integrity of the cultural and natural resource base of the parks themselves.

Our policies also call for the Service to collaborate with Native Americans to develop a confidential data base that can alert park managers to the presence of traditional resources with religious significance to the contemporary group. We call these "ethnographic resources." We believe a data base of ethnographic resources is an essential first step toward the formulation of non-intrusive Federal actions because it will first alert Federal managers to the presence of sacred resources, and signal the need to consult Native Americans before any actions are undertaken; and, second, it facilitates the listing of sacred resources on the national registers maintained by the National Park Service, specifically the National Register of Historic Places and the National Historic and Natural Landmark Lists. These designations afford traditional protection against potentially adverse actions.

To implement this policy goal, funds will be programmed to develop such a data base as budgetary priorities permit. We believe that this emphasis on culturally-informed action and consultation and negotiation in good faith is crucial to meeting our policy objectives and the intent of S. 1124.

Other Federal agencies also make concerted efforts to accommodate American Indian religious rights. For example, Bureau of Land Management regulations require coordination with and meaningful involvement of Indian tribes in the development of resource management plans. Indian tribes are given opportunities to review plans. They are notified of intention to amend the plans, and they are asked to suggest topics and issues. The BLM also engages in many other activities to respect the intent of the American Indian Religious Freedom Act. For these reasons, we believe the enactment of S. 1124 is unnecessary.

Mr. Chairman, I would be pleased to attempt to answer your questions.

[Prepared statement of Mr. Rogers appears in appendix.] Senator MCCAIN. Thank you very much.

Mr. West.

STATEMENT OF ALLAN J. WEST, DEPUTY CHIEF, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY ROBERT TIPPECONNIC, TRIBAL GOVERNMENT PROGRAM MANAGER

Mr. WEST. Thank you, Mr. Chairman. Thank you for the opportunity to offer the Department of Agriculture's views on S. 1124. With me today is Bob Tippeconnic, the Tribal Government Program Manager for the Forest Service.

The Department of Agriculture and the Forest Service support and appreciate the rights of Native Americans to exercise their religious beliefs and practices. Under current law we identify, protect, and manage all significant cultural resources on National Forest System lands, including Native American cultural re

sources. We are attempting to work with Native Americans to ensure that their concerns are addressed.

Since the passage of the 1976 National Forest Management Act, we have placed substantially more emphasis on coordination with Native Americans in order to understand their needs, concerns, and values. We coordinate regional and forest planning with Native Americans and notify those whose lands or treaty rights are expected to be affected by agency activities. We also consider the objectives that Native Americans express, and where conflicts are identified, we consider alternatives to resolve the conflicts.

Our land management planning process provides special consideration for Native Americans. Once a Native American interest receives protection in a land and resource management plan, all of our subsequent actions must be consistent with such protection.

Beyond these National Forest Management Planning Act requirements, other laws also ensure that Native Americans' concerns are considered in our decisions. The National Environmental Policy Act requires that affected Indian tribes be consulted. The National Historic Preservation Act requires protection of historic and cultural sites. The effects of management on these sites involve consultation with interested parties, including Native Americans.

Native Americans also receive special consideration under the Archaeological Resources Protection Act. We attempt to identify Native Americans having aboriginal or historic ties to National Forest System lands. We also attempt to locate and determine the significance of areas or specific sites of religious or cultural importance for future planning.

We are continuing to strengthen our methods of considering Native American issues in management of the Forest Service. In 1988, we established the Tribal Government Program Manager position here in our national office to address Native American issues and to work with individuals and groups within the tribal community. We are trying to increase employee sensitivity to and awareness of Native American issues. We are also trying to establish more mutual and beneficial partnerships with tribal governments. Our policy has four major objectives.

The first is to maintain a governmental relationship with Federally-recognized tribal governments;

Second, implement our programs and activities honoring Indian treaty rights;

Third, administer programs and activities to address and be sensitive to traditional Native American religious beliefs and practices; and

Fourth, provide research, transfer of technology, and technical assistance to tribal governments.

Our goal is to gain a better understanding and appreciation of cultural and religious beliefs and practices so that related issues are identified and properly acknowledged in Forest Service programs and activities.

In summary, we believe we have much common ground with Native Americans in the management of the National Forest System. As we implement our policy, we are meeting more with tribal groups and others to seek creative solutions to specific concerns and to find common ground.