AMERICAN INDIAN RELIGIOUS FREEDOM ACT—PART I OVERSIGHT HEARING BEFORE THE SUBCOMMITTEE ON NATR^ AMERICAN AFFAIRS OF THE COMMITTEE ON NATURAL RESOURCES HOUSE OF REPRESENTATIVES ONE HUNDRED THIRD CONGRESS FIRST SESSION ON EFFECTIVENESS OF P.L. 95-346—THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 (AIRFA) HEARING HELD IN WASHINGTON, DC FEBRUARY 23, 1993 Serial No. 103-7, Part I Printed for the use of the Committee on Natural Resources JUL 30 U.S. GOVERNMENT PRINTING OFFICE '•''•"''Cf)^.,'*»»»?' 68-194 WASHINGTON 1993 : AMERICAN INDIAN RELIGIOUS FREEDOM ACT—PART I 103-7-/PT. 1 OVERSIGHT HEARING BEFORE THE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS OF THE COMMITTEE ON NATURAL RESOURCES HOUSE OF REPRESENTATIVES ONE HUNDRED THIRD CONGRESS FIRST SESSION ON EFFECTIVENESS OF P.L. 95-346—THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 (AIRFA) HEARING HELD IN WASHINGTON, DC FEBRUARY 23. 1993 Serial No. 103-7, Part I Printed for the use of the Committee on Natural Resources Oii/i^-- Ms 1993 U.S. GOVERNMENT PRINTING OFFICE 68-194 WASHINGTON 1993 : COMMITTEE ON NATURAL RESOURCES House of Representatives GEORGE MILLER, California, Chairman PHILIP R. SHARP, Indiana DON YOUNG, Alaska, EDWARD J. MARKEY, Massachusetts Ranking Republican Member AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming SAM GEJDENSON, Connecticut JOHN J. DUNCAN, Jr., Tennessee RICHARD H. LEHMAN, CaUfomia JOEL HEFLEY, Colorado BILL RICHARDSON, New Mexico JOHN T. DOOLITTLE, California PETER A. DeFAZIO, Oregon WAYNE ALLARD, Colorado ENI F.H. FALEOMAVAEGA, RICHARD H. BAKER, Louisiana American Samoa KEN CALVERT, CaUfomia TIM JOHNSON, South Dakota SCOTT McINNIS, Colorado LARRY LaROCCO, Idaho RICHARD W. POMBO, California NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas CALVIN M. DOOLEY, California CARLOS ROMERO-BARCELO, Puerto Rico KARAN ENGLISH, Arizona KAREN SHEPHERD, Utah NATHAN DEAL, Georgia MAURICE D. HINCHEY, New York ROBERT A UNDERWOOD, Guam HOWARD BERMAN, California LANE EVANS, Illinois PATSY T. MINK, Hawaii THOMAS J. BARLOW III, Kentucky THOMAS M. BARRETT, Wisconsin Daniel P. Beard, StaffDirector Richard Meltzer, General Counsel Daniel Val Kish, Republican StaffDirector Subcommittee on Native American Affairs BILL RICHARDSON, New Mexico, Chairman PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming SAM GEJDENSON, Connecticut Ranking Republican Member ENI F.H. FALEOMAVAEGA, American DON YOUNG, Alaska Samoa RICHARD H. BAKER, Louisiana TIM JOHNSON, South Dakota KEN CALVERT, California NEIL ABERCROMBIE, Hawaii KARAN ENGLISH, Arizona Tadd Johnson, StaffDirector Steven J.W. Heeley, Counsel Marie Howard, Professional StaffMember Barbara Robles, Clerk Richard H. Houghton III, Republican Counsel on Native American Affairs (II) CONTENTS Page Hearing held: February 23, 1993 1 Background information 5 Member statements: Bill Richardson 1 Craig Thomas 1 Pat Williams 2 Ken Calvert 3 Tim Johnson 3 Neil Abercrombie 4 Witness statements: Panel consisting of: Jerry Flute, field director. Association on American Indian Affairs 7 Hon. James S. Hena, chairman, All Indian Pueblo Council, Albuquer- NM que, 16 NM Hon. Cedric Chavez, governor, Pueblo ofCochiti, 24 Hon. J. GibeNrtMSanchez, 1st It. governor, Pueblo of San Ildefonso, Santa Fe, 29 Panel consisting of: Hon. Francis B. Brown, president. Medicine Wheel Coalition for Sa- WY cred Sites ofNorth America, Riverton, 50 Hon. John Sun Child, Sr., chairman, business committee, Chippewa Cree Tribe ofthe Rocky Boy's Reservation, Box Elder, MT 55 Al Scott Johnnie, director, Lummi Cultural Resource Protection Of- WA fice, BeUingham, 65 Christopher H. Peters, executive director. Seventh Generation Fund, McKinleyville, CA 80 Panel consisting of: Nora Garcia, president. Inter Tribal Council ofArizona 91 Hon. Marshall Plummer, vice-president, Navajo Nation, Window Rock, AZ 97 Hon. Kina'u Boyd Kamali'i, trustee. Office ofHawaiian Affairs, Hono- lulu, HI 106 APPENDIX February 23, 1993 Additional material submitted for the record from: Santa Clara Indian Pueblo, Espanola, NM: Letter to Chairman Richard- son from Hon. Walter Dasheno, Governor, dated March 9, 1993 119 Native American Church of Navaholand, Inc., AZ: Prepared statements of Lorenzo Meix, Board ofDirectors, and Mike Kiyaani, spiritual leader 126 (III) EFFECTIVENESS OF PUBLIC LAW 95-346—THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 (AIRFA) TUESDAY, FEBRUARY 23, 1993 House of Representatives, Committee on Natural Resources, Washington, DC. The committee met at 9:45 a.m. in room 1324 of the Longworth House Office Building, the Hon. Bill Richardson presiding. STATEMENT OF HON. BILL RICHARDSON Mr. Richardson. Good morning. The Subcommittee will come to order. Today we're conducting an oversight hearing on the Effectiveness of the American Indian Religious Freedom Act of 1978. In 1978, Congress enacted the American Indian Religious Free- dom Act in an effort to address the problems many Native Ameri- cans face in exercising their right to practice their religion. During the debate. Chairman Udall expressed his concern that the Act lacked teeth, and to the chagrin of many Native American religious leaders and practitioners, that quote has been repeated consistently in reference to the Act. Fourteen years of implementation of this legislation and two Su- preme Court cases have brought us to this day. In 1988, the Su- preme Court in the Lyng case held that this legislation did not con- fer a cause of action to Indians for the protection of religious sites for Federal land management decisions and, therefore, could not be used by Indians to challenge such decisions. In 1990, the Supreme Court further frustrated Native Americans in the case of Smith when it, in essence, threw out the longstand- ing practice of courts that, in order for the government to restrict an individual's right to religious practice, the government had to show it had an overriding "compelling interest" to do so. This is the first of two hearings the Subcommittee will hold on the effectiveness of this legislation. This morning we will hear from several tribal and religious leaders on their experiences and views of how to better protect Native Americans in their right to fi-eely exercise their religious practices. And it's a great pleasure for me to recognize the ranking minor- ity member, Mr. Thomas. STATEMENT OF HON. CRAIG THOMAS Mr. Thomas. Thank you, Mr. Chairman. (1) Just briefly, you, I think, have outlined well the purpose and the background for this hearing. Certainly, the American Indian Reli- gious Freedom Act was designed to recognize the importance and the cultural aspects of Native American religions and it was obvi- ously a strong step to do that. Clearly, it has not resulted in the kinds of things that some might have hoped that it would. So I think it's appropriate that we do have hearings, have a com- prehensive review of these laws and the problems £ind then do something to deal with it. So, Mr. Chairman, I look forward to the hearings. Thank you. Mr. Richardson. The Chair recognizes the gentleman from Mon- tana. STATEMENT OF HON. PAT WILLIAMS Mr. Williams. Thank you, Mr. Chairman. As you know, this is a matter of significance and importance to America's native people. It is critical, as this issue is discussed here and legislation drafted, that we retain the constitutional projec- tions against church/state entanglement. The intervention of gov- ernment in the affairs of religion is disadvantageous to both. Our Nation's chief architect, Thomas Jefferson, stated this. "All persons shall have full and free liberty of religious opinion. None shall be compelled to frequent or maintain any religious institu- tion." Thomas Jefferson wanted, not only for himself but for all his fellow citizens, not freedom from religion but rather freedom to pursue religion. The corollary to the Declaration of Independence is Jefferson's Bill for Religious Freedom. And it contains in the Preamble the rage of Thomas Jefferson against the hypocrisy and self-righteous- ness that he associated with what had been the historic alliance be- tween church and state. Jefferson believed that of all personal convictions those of reli- gion should be the least subject to authority or compulsion. The thoughts of Jefferson and Madison on this matter were not easily accepted then and are not easily accepted now and have been very difficult for this Nation to retain. So I personally believe that it is critical that as ^ve work hard and as best we can to ensure American Indian religious freedom, we take every step necessary to preserve the separation of church and state. Let me elaborate on that for a moment. I'm an advocate of religious freedom for all people, including our Native Americans. I am unconvinced that Native American people now enjoy that religious freedom. Having said that, I'm also torn about legislation which has been introduced in the past because I believe it has bumped up against entanglement of the Federal Gov- ernment with religion, with certain institutions or churches. For example, can't a Federal Government which delineates reli- gious practices are acceptable also be the Federal Government that will demon—strate which are not acceptable? If that's true^and I be- lieve it is then we have to be very, very cautious with this legisla- tion or all people, most notably, the first people, will rue the day that the Federal Government ever set foot on this quicksand. I want to welcome, Mr. Chairman, all of the witnesses but espe- cially the Honorable John Sun Child, Chairman of the Chippewa Cree Tribe of the Rocky Boy Reservation in our State of Montana. Chairman Sun Child and I have been friends for many years and I'm pleased to see him here today. And I appreciate your inviting him to be one of our witnesses. Thanks very much, Mr. Chairman. Mr. Richardson. Thank you. The Chair recognizes the gentleman from California. STATEMENT OF HON. KEN CALVERT Mr. Calvert. Thank you, Mr. Chairman. I'm also very interested in the American Indian Religious Act. I also believe in the rights to pursue religion with few constraints and look forward to your testimony. Thank you very much. Mr. Richardson. The Chair recognizes the gentleman from South Dakota. STATEMENT OF HON. TIM JOHNSON Mr. Johnson. Thank you, Mr. Chairman. I commend you for holding this critically important hearing on an issue that is of great controversy and great importance. I want to welcome all the members of the three panels, all of whom I think will make very valuable contributions. But I'd like to extend a special welcome to Jerry Flute, who is not only the Field Director for the Association of American Indian and a very well known leader of Native American issues nationwide, but also a member of the Sisseton-Wahpeton Tribe in my home State of South Dakota. We're proud of Jerry Flute's contributions. I'm looking forward to the testimony on this issue. Much of the religious controversy centers around access and use and preserva- tion of sacred sites. Inasmuch as some of the sacred sites involve literally thousands of squaire miles of public lands, there will al- ways be some tension in the management of these areas relative to general access to the general public, multiple use and what in fact can be done in some of these huge areas that benefit the gen- eral public, but yet at the same time, preserve the sacredness of the region. And I'm looking forward to the insights fi-om all the panelists on what we can do to assure the preservation, as much as possible, of sacred sites and access and preservation of Indian religion. I regret that I have another hearing going on in only a few min- utes involving land management in my home state. And I'm going to have to excuse myself to attend that hearing. So I'm not going to be able to be here personally throughout this hearing, Mr. Chair- man. But I think it's very valuable and I'm studying the testimony my that's been submitted in writing. I'm going to be working with staff and working with you as we strive, throughout the course of this Congress, to come to some better resolution than we have to now over this Native American religious issue. Thank you. Mr. Richardson. I thank the gentleman. The Chair recognizes the gentleman from Hawaii. STATEMENT OF HON. NEIL ABERCROMBIE Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. I'm dehghted to be able to this morning have as part of our hear- ing record, I think the last testimony in our array here, that of one of my dearest and oldest friends, the Hon. Kina'u Boyd Kamali'i from Hawaii. I served in the legislature with Kina'u and she's now a Trustee of the Office of Hawaiian Affairs. I think this is a recognition, Mr. Chairman, of the people in Hawaii, of our Hawaiian brothers and sisters, in this Committee's jurisdiction, thanks in great measure to your insight and that of Chairm—an Miller, as well as your per- sistence. I want to recognize today inasmuch as this is the first time that someone from Hawaii has had a chance to testify—that we now recognize formally in the jurisdiction of this subcommittee literally the existence of Native Hawaiians. Let me just add then that, with respect to the subject under dis- cussion today, religious freedom, there are particular elements as- sociated with contemporary Hawaiian life that are intimately con- nected to the subject matter before us today. And Kina'u will ex- plain that to us in detail. So, suffice to say then, that this is a great opportunity for us to recognize your leadership and actually the beginnings of this Com- mittee. I'm sure it's going to prove an invaluable resource to the Committee on Natural Resources. Mr. Richardson. I thank the gentleman. I ask that the background be made part of the record. Let me also state, before we get started, that as of this moment the Subcommittee has not drafted any legislation. So we have no preconceived decisions on any amendments and we're willing to We look at all proposals. do intend to draft a piece of legislation. [Background information follows:]