IMPROVEMENT OF THE AMERICAN INDIAN

RELIGIOUS FREEDOM ACT

WEDNESDAY, MAY 18, 1988

U.S. SENATE,

SELECT COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 9:00 a.m., in room 485, Russell Senate Office Building, Hon. Daniel K. Inouye (chairman of the committee) presiding.

Present: Senators Inouye, McCain, DeConcini, and Murkowski.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, CHAIRMAN, SELECT COMMITTEE ON INDIAN AFFAIRS The CHAIRMAN. The hearing will please come to order. This morning we take up the amendments to the American Indian Religious Freedom Act.

When Congress passed the American Indian Religious Freedom Act in 1978, it set forth a policy that the United States Government would protect and preserve the right of American Indians, Eskimos, Aleuts, and native Hawaiians to express and exercise their traditional religions. Pursuant to this policy, Federal agencies are required by law to restrict the customs, ceremonies and traditions of native American religions.

When the American Indian Religious Freedom Act was passed it included a requirement that a Federal Agencies Task Force be established to report to Congress within the year on recommendations for policy changes which would appropriately implement the act. The requirement for this report was included in the act in recognition of the need to specifically identify where Federal practices may conflict with native religious practices and how they may be effectively protected.

Although the task force wrote a report and made recommendations, no further action was ever taken. In the meantime, a number of court cases have emerged involving the rights of native Americans to engage in traditional practices. Recently, the Supreme Court issued a decision on a case in Northern California that concluded that while the construction of a road through tribal burial sites "could have devastating effects on traditional Indian religious practices, the First Amendment must apply to all citizens alike and can give none a veto over public programs that do not prohibit the free exercise of religion."

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This decision could undermine the ability of traditional cultures in our land to exercise essential practices. It is now appropriate that Congress revisit the American Indian Religious Freedom Act. [Text of S. 2250 follows:]

To ensure that Federal lands are managed in a manner that does not impair the exercise of traditional American Indian religion.

II

IN THE SENATE OF THE UNITED STATES

MARCH 31, 1988

Mr. CRANSTON (for himself, Mr. INOUYE, and Mr. DECONCINI) introduced the following bill; which was read twice and referred to the Select Committee on Indian Affairs

A BILL

To ensure that Federal lands are managed in a manner that does not impair the exercise of traditional American Indian religion.

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Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That Public Law 95-341 is amended by adding at the end 4 thereof the following new section:

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"SEC. 3. (a) Except in cases involving compelling gov6 ernmental interests of the highest order, Federal lands that 7 have been historically indispensable to a traditional America 8 Indian religion shall not be managed in a manner that would

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1 seriously impair or interfere with the exercise or practice of

2 such traditional American Indian religion.

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"(b) United States district courts shall have the author

4 ity to issue such orders as may be necessary to enforce the 5 provisions of this section.".

The CHAIRMAN. This morning we will hear from a number of witnesses who each bring a different perspective to how this act has been implemented and what may be done to improve it.

Our first witness this morning will be the Deputy Director of the Bureau of Land Management, Department of the Interior, Mr. Roland Robison. Mr. Robison, welcome, sir.

STATEMENT OF ROLAND ROBISON, DEPUTY DIRECTOR, BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

Mr. ROBISON. Thank you, Mr. Chairman. I appreciate the opportunity to appear before the committee today to discuss the views of the Department of the Interior on S. 2250.

It would amend Public Law 95-341, the Joint Resolution on American Indian Religious Freedom, by adding a new section 3 to provide that, except in cases involving compelling governmental interests of the highest order, Federal lands which have been historically indispensable to a traditional American Indian tradition shall not be managed in a manner that would seriously impair or interfere with the exercise or practice of such traditional American Indian religion. Section 3(b) would give United States District Courts jurisdiction to enforce the provision.

Although we are appreciative of the rights of American Indians to exercise their religion, we strongly oppose enactment of S. 2250. Section 2 of the American Indian Religious Act required the President to direct the various Federal departments, agencies and other instrumentalities responsible for administering relevant laws, to evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve native American religious cultural rights and practices. We believe that Federal agencies are respecting the intent of the American Indian Religious Freedom Act.

For instance, BLM's 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, are notified of intentions to amend plans and suggest topics and issues.

BLM assures that its programs are consistent with programs of Indian tribes as long as they remain consistent with Federal laws and regulations.

The provision that S. 2250 would add to the American Indian Religious Freedom Act would impose very strict limitations on the exercise of Federal agency mandates and goes far beyond what is required by section 2 of the American Indian Religious Freedom Act. In addition, it is questionable that it would accomplish what we believe is its purpose.

The wording of section 3(a) is vague and unworkable. Specifically, terms such as "compelling governmental interests of the highest order," "historically indispensable," and "seriously impair or interfere with," are subject to a great variety of interpretations. There are no finite standards on which to weigh land management decisions against American Indian religious exercises, nor is there any