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95–104 PDF 2004

S. HRG. 108–630

RELIGIOUS FREEDOM ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

OVERSIGHT HEARING ON AMERICAN INDIAN RELIGIOUS FREEDOM ACT

OF 1978

JULY 14, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Bender, Paul, professor of law, Arizona State University College of Law ... 17

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 1

Echo-Hawk, Sr., Walter R., senior staff attorney, Native American Rights

Fund ............................................................................................................... 13

Harjo, Suzan Shown, president, Morning Star Institute .............................. 11

Holtrop, Joel, deputy chief, USDA Forest Service, Department of Agriculture ............................................................................................................ 4

Pogue, Brian, BIA, Department of the Interior ............................................. 2

Red Cherries, Jr., Northern Cheyenne Elk Society Headsman and

Sundance Arrow Priest ................................................................................. 20

APPENDIX

Prepared statements:

Bender, Paul ..................................................................................................... 32

Clark, David, president, Azee’ Bee Nahagha of Dine Nation (with attachment) .............................................................................................................. 45

Echo-Hawk, Sr., Walter R. (with attachment) ............................................... 47

Harjo, Suzan Shown ......................................................................................... 64

Holtrop, Joel ...................................................................................................... 29

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 27

Pogue, Brian ..................................................................................................... 28

Society for American Archaeology ................................................................... 27

Additional material submitted for the record:

Cheyenne Declaration Regarding the Protection of Sacred Ceremonies ..... 70

(1)

RELIGIOUS FREEDOM ACT

WEDNESDAY, JULY 14, 2004

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 418,

Russell Senate Building, Hon. Ben Nighthorse Campbell (chairman

of the committee) presiding.

Present: Senators Campbell, Inouye, and Johnson.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.

SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

The CHAIRMAN. We will now turn to the oversight hearing of the

American Indian Religious Freedom Act of 1978.

In 1978, Congress passed and President Carter signed into law

the American Indian Religious Freedom Act, which provided that

freedom of religion is an inherent fundamental right guaranteed to

all Americans by the First Amendment to the U.S. Constitution,

and that the religious practices of Native peoples are an integral

part of their culture and form the basis of Native identity; that the

lack of a clear, consistent Federal policy had often led to the

abridgement of religious freedom for those traditional American Indians; and that some Federal laws designed for such worthwhile

purposes as conservation and preservation of natural species were

passed without consideration of their effects on Native religions,

often denying American Indians access to sacred sites; and that

Federal laws at times prohibited the use and possession of sacred

objects necessary to the exercise of religious rites and ceremonies.

The AIRFA also called on 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 rites and practice.

Aside from this directive, no legal mechanism was provided for

enforcing the policy. In 1994, this act was amended to provide for

traditional Indian religious use of the peyote sacrament. The

amendment was prompted in part by the 1990 Supreme Court ruling that the First Amendment does not protect Indian practitioners

who use peyote in religious ceremonies.

Attention was focused again on Indian religious freedom when in

1996 President Clinton issued Executive Order 13007, the Indian
2

Sacred Sites Order, which directed all executive branch agencies

with statutory or administrative responsibility for the management

of Federal lands, to the extent practicable permitted by the law and

not clearly inconsistent with essential agency functions, first to accommodate access to and ceremonial use of Indian sacred sites on

Federal lands and to avoid adversely affecting such sacred sites,

and where appropriate guard their confidentiality.

There has been much litigation in the area of religious freedom

and cultural practices since the late 1970’s. We called today’s hearing to receive testimony regarding the issue on how the 1978 Act

has been implemented and whether there is a need for further congressional action.

With that, I would like to turn to my good friend and Vice Chairman Senator Inouye for any opening statement he might have.

Senator INOUYE. Mr. Chairman, I commend you for calling this

session. I wish to associate myself with your remarks and I ask

that my statement be made part of the record.

The CHAIRMAN. Your statement will be included in the record.

[Prepared Statement of Senator Inouye appears in appendix.]

The CHAIRMAN. Senator Johnson, did you have any opening

statement on this issue?

Senator JOHNSON. No; I do not, only to commend you for holding

the hearing on this critically important issue. I look forward to the

testimony from a very distinguished panel.

The CHAIRMAN. Thank you.

We will start with the first panel. That will be Brian Pogue, director, BIA, Department of the Interior, Washington, DC; and Joel

Holtrop, the deputy chief, USDA Forest Service, Department of Agriculture.

Gentlemen, your complete written testimony will be included in

the record. If you would like to abbreviate, that will be fine. Why

don’t we go ahead with Mr. Pogue first. I call on you first. We will

not flip a coin on this one.

STATEMENT OF BRIAN POGUE, DIRECTOR, BIA, DEPARTMENT

OF THE INTERIOR

Mr. POGUE. Mr. Chairman and Mr. Vice Chairman, my name is

Brian Pogue. I am the director of the BIA. I am pleased to be here

today to the Department’s statement on the 25th anniversary of

the passage of the American Indian Religious Freedom Act.

In 1978, the American Indian Religious Freedom Act [AIRFA]

was enacted and mandated that the Federal Government protect

and preserve for the American Indians their inherent right of freedom to believe, express and exercise the traditional religions of the

American Indian, Eskimo, Aleut, and Native Hawaiians, including

but not limited to the access of sites, the use and possession of sacred objects, and freedom to worship through ceremonies and traditional rites.

Under AIRFA, Federal agencies are required to, one, seek and

consider the views of Indian leaders when a proposed land use

might conflict with traditional Indian religious beliefs or practices

and, two, avoid unnecessary interference whenever possible with

Indian religious practices during project implementation.
3

In 1990, the Native American Graves Protection and Repatriation Act [NAGPRA] was enacted to make easier the efforts of the

American Indians, Alaska Natives, and Native Hawaiian organizations to claim ownership of certain cultural items, including human

remains, funerary objects, sacred objects, and objects of cultural

patrimony in control of Federal agencies and museums that receive

Federal funds. NAGPRA requires agencies and museums to disclose holdings of such human remains and objects, and to work

with the appropriate Indian tribes, Alaska Native villages and corporations and Native Hawaiian organizations to repatriate such

cultural items.

Recently, the Secretary of the Interior appointed three members

to the Native American Graves Protection and Repatriation Act Review Committee. The committee consists of seven members who are

charged with monitoring, reviewing and assisting in the implementation of NAGPRA.

Appointments to the committee are selected from nominations to

the Secretary of the Interior by Indian tribes, Alaska Native villages, Native Hawaiian organizations and national museum and

scientific organizations. Each appointee serves for a 4-year term.

Executive Order 13007 on Indian sacred sites, issued in 1996, gives

the Federal agencies guidance on dealing with sacred sites. The

order directs Federal land management agencies, to the extent

practicable, to accommodate access to and ceremonial use of Indian

sacred sites by Indian religious practitioners and to avoid adversely

affecting the physical integrity of such sacred sites.

The Executive order also requires Federal agencies to consult

with tribes on a government-to-government basis whenever plans,

activities, decisions, or proposed actions affect the integrity of or

access to the sites.

There is a growing concern among the public that Native American burial grounds and other sacred places are being desecrated

by human encroachment by urban sprawl. The BIA receives frequent requests for immediate intervention when individuals believe

a burial mound is being bulldozed or a Native cemetery is being

cleared for housing or other urban development. Whenever possible, we refer these requests to the appropriate agency.

The Administration and the Department continue to work with

Indian tribes, Alaska Native villages and corporations, and Native

Hawaiian organizations to ensure access to and to protection of sacred sites and to comply with the law.

We support the American Indian Religious Freedom Act, which

protects and preserves for the American Indian, Eskimo, Aleut, and

Native Hawaiian the inherent right of freedom to believe, express

and exercise their traditional religions, access to religious sites,

and the use and possession of sacred objects, and the freedom to

worship through ceremonial and traditional rites.

This concludes my prepared statement. I would be pleased to answer any questions the committee may have.

[Prepared statement of Mr. Pogue appears in appendix.]

The CHAIRMAN. Okay. We will have a couple. Thank you.

Mr. Holtrop, why don’t you go ahead and proceed?
4

STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF, USDA

FOREST SERVICE, DEPARTMENT OF AGRICULTURE

Mr. HOLTROP. Thank you Mr. Chairman, Mr. Vice Chairman and

members of the committee. I am Joel Holtrop, deputy chief, State

and Private Forestry, USDA Forest Service.

It is the responsibility of state and private forestry to provide

technical and financial assistance to landowners and natural resource managers to help sustain the Nation’s urban and rural forests and to protect communities and the environment from wild

land fire. Among our important partners in this endeavor are tribal

governments.

Thank you for this opportunity to provide the Department of Agriculture’s views on the interpretation and implementation of the

American Indian Religious Freedom Act of 1978 and followup laws

in two main areas: Repatriation and protection of sacred places.

The Forest Services manages 192 million acres of public lands

nationwide for multiple use, including timber production, recreation, grazing, habitat management, and water conservation. The

Forest Service Heritage Program manages approximately 300,000

known heritage resources on National Forest system lands, a great

many of them important to American Indians.

Under the direction of various statutes, executive orders and

agency directives, the Forest Service consults with tribes regarding

land and resource management policies, programs and actions that

could affect resources important to the tribes, such as sacred sites.

Executive Order 13007 requires Federal land management agencies

to accommodate access to and use of Indian sacred sites, to avoid

affecting the physical integrity of such sites, and to maintain the

confidentiality of sacred sites locations.

Recently, the Forest Service chartered a task force on sacred

sites to develop policy and guidelines to better protect the sacred

sites that are entrusted to our care. The task force has been meeting with tribal governmental and spiritual leaders throughout Indian Country as part of this process.

Regarding repatriation, the Forest Service is implementing the

Native American Graves Protection and Repatriation Act of 1990,

which addresses the protection of Native American burial sites in

the repatriation of human remains, funerary objects, sacred objects,

and objects of cultural patrimony. The Forest Service is complying

with the requirements to consult with Indian tribes prior to intentional excavations, and notification in the event of inadvertent discovery of human remains or cultural items. We also have a process

for the repatriation of human remains and cultural items to the Indian tribe or lineal descendants to whom these remains or items

belong.

Forest Service implementation and compliance with these statutes depends on maintaining effective consultation and collaboration with tribal governments. Recognizing that, the Forest Service

has recently taken action on several fronts, all of which should improve the agency’s collaborative relationships with tribes and reduce conflicts over a number of issues, including the protection of

sacred sites.

For example, a forest service office of tribal relations was established to provide the infrastructure and support necessary to en-
5

sure high-quality interactions across programs with Indian tribes

on a government-to-government basis. In March, the Forest Service

issued new manual and handbook direction on tribal relations that

provides clear guidance for agency-tribal relationships, spelling out

specific obligations for Forest Service officials in providing guidelines for conducting government-to-government relations with

tribes. And the agency has instituted core skills training pertaining

to Forest Service policy with regard to tribal relations. The training

incorporates the need to protect sacred sites and other culturally

important areas.

The agency has identified certain recommendations that cannot

be fully implemented without legislation to create new or clarify existing authorities. The legislative proposal which was included in

the Administration’s fiscal year 2005 budget would provide better

access to National Forest system lands and resources for traditional and cultural purposes, express authority for reburials on National Forest system lands, and authority to maintain the confidentiality of reburial and other information. The legislative proposal is

currently in clearance at the Department.

Mr. Chairman, the religious freedom of American Indians is and

will continue to be an important factor in our management of the

National Forest system lands and all Forest Service programs. The

agency has made great strides to increase awareness of all Forest

Service employees of the agency’s responsibilities to Indian tribes.

The Forest Service is eager to work with Indian tribal governments. Together, we can take appropriate actions to support the religious beliefs and practices of American Indians on National Forest system lands.

I would be pleased to answer questions that members of the committee may have.

[Prepared statement of Mr. Holtrop appears in appendix.]

The CHAIRMAN. Thank you, Mr. Holtrop. I am jotting a few

things down here.

Let me ask Mr. Pogue first, the American Indian Religious Freedom Act was enacted in 1978, 26 years ago, but the Department

of the Interior statement on it is somewhat sparse. Are there any

positive examples of the Bureau’s involvement with the Religious

Freedom or the Native American Graves Protection and Repatriation Act issues that you care to share with the committee?

Mr. POGUE. Yes; in 2002, we did form an interagency committee

that has been working on and with tribes. They have consulted

with tribes three times during that period of time. We are in the

process of looking at and developing the policy. The last meeting

was held in June of last year and this group has been working on

that development.

I have asked for some additional information on that. I have not

received it yet, though.

The CHAIRMAN. Okay. When you get it, would you please forward

it to the committee?

You said that was in 2002.

Mr. POGUE. The last meeting was in June of 2003.

The CHAIRMAN. Yes. It seems to me that was about the time the

Kennewick Man case was decided, which leads me to ask you, who

do you consult with? When you find remains that are so old, you
6

are not sure how to trace them. Tribes moved around from time to

time by their own volition or by forced movement. How do you determine who you are supposed to consult with?

Mr. POGUE. Within our Trust Services Division, we have archaeologists. We rely on our archaeologists to provide that technical

support in working with and identifying those agencies that we

need to work with.

The CHAIRMAN. Okay. The archaeology program is administered

by the Archaeology and Ethnography Program, according to my

notes, of the National Park Service. Is that right?

Mr. POGUE. Yes; but we try and coordinate with them when we

have questions.

The CHAIRMAN. You know, I do not want to say anything bad

about them. Maybe they are doing a fine job, but I remember years

ago when we were framing up the legislation for the National Museum of the American Indian, which Senator Inouye and I worked

so hard on, one of the real glitches was from the archaeologists who

absolutely did not want the section involved in that bill that would

require the Smithsonian to start returning some of the remains.

So I might tell you that some tribes think that it is a conflict of

interest having archaeologists make this determination or being in

charge of it when their traditional goals were to keep those things

forever and to keep studying them, rather than to give them back.

Have you had any consultation or any feeling about that in talking

to the archaeologists who are authorized to do this work?

Mr. POGUE. I do not. I can check.

The CHAIRMAN. I understand, and please correct me if I am

wrong, that the BIA itself is one of the largest holders of

unrepatriated indigenous remains and relics. Can you confirm

whether that is true or not?

Mr. POGUE. I cannot.

The CHAIRMAN. I will tell you what. We will put it in writing,

and if you could respond in writing, I am sure this committee

would like to know, because we have been really instrumental in

trying to get those remains returned by other agencies. I was rather surprised that in fact the Bureau was not one of the lead agencies who would have volunteered to do that.

Mr. Holtrop, looting of sacred sites has become a big problem.

Executive Order 13007 directs Federal agencies to protect the confidentiality of sacred sites where appropriate, for obvious reasons.

If the word got out, you are going to find looters sooner or later.

Let’s say you do this, and you have some confidentiality discussions on a sacred site. If that has been compromised or leaked out,

what do you do then?

Mr. HOLTROP. If the information that was considered confidential

has been leaked out, what do we do at that point?

The CHAIRMAN. Yes; what is your plan B if that happens?

Mr. HOLTROP. Our plan B if that were to happen would probably

include several steps that we would do. One of the first steps that

we would need to take is to make sure that whatever steps we took

were in consultation with the tribe or tribes that were most interested in and associated with that sacred site.

We would look at what are the mitigating actions that we would

need to take at that time, and to try to limit whatever possible im-
7

pacts that it could have, all the way up to, leading to and in some

cases closing recreational uses of areas and those types of things

in order to continue to protect sacred sites, and there are examples

of us having done so.

The CHAIRMAN. This is a little bit off the subject, but a few years

ago there was a devastating fire in Mesa Verde. After the fire was

contained, they found literally thousands of relics that they had not

known existed when the brush was burned off. I assume that there

are some places in the forest when you have forest fires, you have

the same effect. Some things appear that you did not see before.

As you probably know, the Forest Service is using more and

more Indian smokejumpers. I do not know how many total number,

but they seem to have really found a niche. It is a very dangerous

job and they like the work. It gives them an opportunity to show

the traditional feeling of bravery in adverse conditions and I think

they do a real super job. Has there been any dialog or negotiation,

or any input on working with some of those smokejumpers who

might have cultural knowledge about where they are jumping into

to identify or spot or pass on information about things that appear?

Mr. HOLTROP. First of all, let me say as the deputy chief with

responsibility for fire and aviation management in the Forest Service, we are proud to work with the Indian smokejumpers and many

other Indian crews in our fire management responsibilities.

I think the question that you are asking causes me to wonder the

same thing. I do not know for sure that we have examples of where

we have done so, but it clearly has a great deal of wisdom associated with it. It is something that I will ask some questions about.

If I find out that we have indeed done so, I will be more than

happy to share that with you.

The CHAIRMAN. If you could, if you have not done so, I personally

think that it would behoove the agency if it would utilize that

knowledge that may be there and willing to help.

Mr. HOLTROP. Yes, sir. As you mentioned, we often do have situations in which, like you mentioned in the Mesa Verde fire, which

I believe was called the ‘‘long fire’’ at the time, we have many instances in which previously unexposed heritage resources are discovered following the fires. One of the things that we are able to

do with, one of our programs is called the Burned Area Emergency

Rehab Program, is to utilize some emergency funds for the identification and protection of those sites immediately following a fire.

The CHAIRMAN. So if you find those after a fire, in the Forest

Service you have somebody pick them up or identify them? What

happens?

Mr. HOLTROP. It depends very much on the site and the object

itself. If it is possible to be protected and there is any sense that

there is an opportunity for it to be protected and undisturbed, that

is the preferred approach.

The CHAIRMAN. Yes; good.

The Executive order on sacred sites was executed in 1996. The

task force is just now being developed. It seems like a long time

since 1996, if this is just being developed. Could you tell the committee what has been done to date, and particularly with its consultation with tribes in developing this task force for sites?
8

Mr. HOLTROP. Yes; I would be happy to. Yes, the Executive order

was in 1996 and we have been doing work with tribes since the Executive order and before on consultation on sacred sites. I can provide some examples of that.

What we have been doing in the recent past couple of years is

recognizing that there are some elevated efforts that we need to

take as an agency to redeem our responsibility of working with

tribes in a government-to-government relationship. I alluded to

some of those actions that we are taking.

One of the things in that process of increasing our self-awareness

and institutional awareness of the things that we need to do is we

became more and more aware that there are several sacred sites

issues around the country that we had been dealing with more on

a one at a time, case-by-case basis, that we determined recently

that we might be able to gain some benefit by looking at it in a

more holistic manner. That is when we put the task force together.

The task force has been traveling around through Indian country. I know that it spent a long week in Alaska recently, for instance, visiting with tribal leaders. The reports that I am getting

is that there is a great deal of appreciation for the consultation and

the input that the task force has been able to get.

The CHAIRMAN. Okay. Do you have all the statutory authority

you need to implement the actions of the task force, or do we need

to do something from the standpoint of this committee?

Mr. HOLTROP. In the legislative proposal that I have mentioned

that is still in clearance, there are some additional needs that we

have identified, some of which deal with some additional perhaps

statutory authorities to maintain confidentiality, either burial sites,

traditional ecological knowledge that is shared by tribal members

with our scientists, and some things like that.

When that legislation clears the executive branch, I would be

more than happy to come up and talk with you and the committee

in some detail about what the proposal is.

The CHAIRMAN. That will be fine. I appreciate that.

Senator Inouye.

Senator INOUYE. Thank you.

Mr. Pogue, you have testified that the Religious Freedom Act requires your agency to consult and discuss a matter if you feel that

there is a conflict of interest involved in the use of the land by your

agency. Who decides when there is a conflict? Let’s put it another

way. Tribe A goes to Interior and tells you that what you are doing

with the land is in violation of religious freedom. At that moment,

what is your position?

Mr. POGUE. I think I would need to find out a little bit more

about what was going on with the use of the land and who was involved. I can give some examples that at one of our reservations

we had proposed to construct a school. Every site that they chose

turned out to have some artifacts. We actually went through five

sites and have not found a site yet.

Once it is identified, we take a look at that site and make some

determinations from there as to what the proper use should be or

how we would use the land.

Senator INOUYE. And your belief is that you have been very cooperative with the Indian nations?
9

Mr. POGUE. Yes, sir.

Senator INOUYE. Why is it that the Indian nations are now trying to make certain that the law is implemented by bringing suit

against the Interior Department? They seem to be unsatisfied, that

they are not getting consultation.

Mr. POGUE. I do not know about that. I will have to find out and

get back to you. I am not aware of this lawsuit.

Senator INOUYE. I would suggest that, Mr. Pogue, you remain

here while the next panel testifies because I am certain some of the

witnesses will bring up cases where they feel that they have not

been consulted and they have been ignored.

Is it your view that no legislative remedy is required to ensure

that agencies consistently accommodate the concerns of Indian nations? Or would you like to hear them out first?

Mr. POGUE. I would rather hear them out first.

Senator INOUYE. I would like to shift slightly. You have operation

and maintenance responsibilities for 74 detention centers in Indian

Country, of which 39 are owned by BIA. What sort of religious

practices are permitted for inmates in these facilities? Do they have

the full array?

Mr. POGUE. Senator, I do not know the answer to that question,

but I can find out.

Senator INOUYE. We have received reports from Federal prisons

that have suggested that recidivism rates of inmates are very profoundly reduced when they are encouraged to engage in religious

and cultural practices. Do you encourage religious and cultural

practices among inmates?

Mr. POGUE. I would, but I am not sure that that is what is happening right now. I need to check with my law enforcement folks

and find out exactly what is happening in our detention centers.

Senator INOUYE. I can only suggest that in a few minutes the

other panel will come up and I am certain they will have a few

things to say about this.

If I may ask Mr. Holtrop, you have said that you have made attempts to identify all Indian artifacts or aboriginal sites in order

to locate sacred sites. Because some of the tribes have been removed or have been forcibly transferred to some other place, does

that make the task a little more difficult?

Mr. HOLTROP. Yes; it does.

Senator INOUYE. Do you consult with those tribes that have been

transferred out?

Mr. HOLTROP. When we are able to determine the cultural heritage of sites in areas, that is our intention to do so. I would not pretend to think that we have been successful in all cases, but it

would be our intention.

Senator INOUYE. What is the nature of your consultation? I say

this very seriously because in some agencies, consultation is after

the fact.

Mr. HOLTROP. There may be instances in which it is after the

fact in our agency as well, but again it is not our intention. The

nature of our consultation depends a great deal on the nature of

the issue or the situation in which we are consulting over. Many

of the National Forest system lands have off-reservation treaty

rights that tribes have off-reservation treaty rights on. Anytime
10

that we are going to carry out any type of a land management activity, whether it is the development of a recreation site, a timber

sale, a mineral geology exploration, any of those things, the consultation occurs with the tribal entities beforehand.

In certain circumstances, when we are going into a situation in

which we are expecting to find cultural remains, heritage sites, objects of significance to the American Indians, our intention is to

consult before that happens. There are times in which we unexpectedly come across those types of objects, at which point we have

policies that require us to consult immediately after that and determine together, in consultation, what is the right next course of action.

Senator INOUYE. You have spoken of your task force. When will

the task force finish its business?

Mr. HOLTROP. We are working on trying to have a policy in place

based on the work of the task force by October 2005. The task force

is continuing to do some additional listening sessions in Indian

country around different parts of the country. I believe that most

of that work will likely conclude here in the next few months, and

then they will go to work as to taking all of the information that

they have learned and decide the recommendations that they

should make, go through our processes, and get to the point where

hopefully we have a new policy in place by October 2005.

Senator INOUYE. I assume that the report will be shared with

this committee?

Mr. HOLTROP. That would be my assumption as well. I will make

sure that that happens.

Senator INOUYE. What nature of expertise do you have on this

task force?

Mr. HOLTROP. We have several of our tribal relations program

leaders, the regional tribal relations program leaders from the regions around the country. We also have legal counsel on that. I do

not have the entire makeup of the task force in my mind, but we

also have some of the people who we will be needing to implement

some of the policy recommendations, line officers, district rangers,

forest supervisors and such. I cannot tell you from my memory

right now for sure that they are on the task force, but I know as

the task force was being put together that we have processes in

place to make sure that we are consulting with them as we go

through the process.

Senator INOUYE. Am I correct to assume that there are many Native Americans on your task force?

Mr. HOLTROP. Yes; you are correct in assuming that.

Senator INOUYE. I thank you, sir.

Mr. HOLTROP. From the Southwest, from the Middle Rocky

Mountains and on the West Coast, a good geographic mix.

Senator INOUYE. Were they recommended by the Indian tribes,

or were they selected by you?

Mr. HOLTROP. They were officially selected by the Forest Service,

but again we had discussions with tribal entities as we went about

making up the makeup of the task force. When there are over 500

tribal entities, I would again not pretend to tell you that we consulted with each one of them in our decisionmaking process. We
11

went to those that we recognized that had some of the greatest

issues as we were working on putting the task force together.

Senator INOUYE. Thank you very much, Mr. Holtrop.

Mr. HOLTROP. You are welcome.

The CHAIRMAN. Thank you.

Let me ask one further question, because Senator Inouye has

jogged my thinking about this. I understand how you formed the

task force and who is on the task force to do the consultation. Who

is on the other side? When you go out to do some consultation with

the tribes, do you just go through the tribal councils? Do you let

them pick whoever they want to be the ones you consult with? Or

do you go directly to the spiritual leaders, who are rarely elected

officials within a tribe? How do you do that?

Mr. HOLTROP. Are you asking about for the work of the task

force on sacred sites that is going around Indian Country right

now? They are consulting with both tribal leaders, as well as spiritual leaders.

The CHAIRMAN. I see. Okay, good. Thank you. I have no further

questions, but there may be some written questions by other members of the committee who are not in attendance today.

Thank you for being here. I appreciate it.

We will now go to the second panel, which will be Suzan Shown

Harjo, my friend and colleague, president of the Morning Star Institute of Washington, DC; Walter Echo-Hawk, Sr., the senior staff

attorney for the Native American Rights Fund; Bernard Red Cherries, Jr., Northern Cheyenne Elk Society Headsman and Sundance

Arrow Priest from Valley, Washington; and Paul Bender, professor

of law, Arizona State University.

If you folks would all come and sit down, we will start in that

order. As I said to the first panel, all your written testimony will

be included, so if you would like to abbreviate that will be fine.

Walter, you look very dapper in that Western hat.

Mr. ECHO-HAWK. Thank you, Mr. Chairman. I thought you might

like it. [Laughter.]

The CHAIRMAN. We will start with Ms. Harjo first. Suzan, nice

to see you here.

You have been with this issue since day one, haven’t you?

Ms. HARJO. Well, I have actually before day one.

The CHAIRMAN. You have lived with it.

Ms. HARJO. Since 1967.

The CHAIRMAN. Yes.

Ms. HARJO. Senator Inouye, of course, was one of the original

sponsors of the American Indian Religious Freedom Act, and staff

director and counsel, Patricia Zell has been on this issue as well

from day one. Of course, you, Mr. Chairman and Paul Moorehead

have been involved in much of the follow-on legislation, particularly the Repatriation Act.

STATEMENT OF SUZAN SHOWN HARJO, PRESIDENT, THE

MORNING STAR INSTITUTE

Ms. HARJO. It has been 25 years that we have been waiting for

a cause of action to protect sacred places; 26 years ago, the Forest

Service was successful in lobbying Congress to strip the American

Indian Religious Freedom Act of a cause of action and to make
12

statements on the House floor that would guarantee that there

would be no such cause of action in this bill.

The Supreme Court, because of that action and that successful

lobby effort by the Forest Service, basically said in 1988 that, not

only did the Religious Freedom Act not offer a cause of action, but

the freedom of religion clauses of the First Amendment did not

offer any protection for us.

We have no way of getting into court on this matter. We have

no way of staying in court to protect our sacred places. The Federal

agencies know that. That is why they are pretty cavalier about ignoring what we have to say about access and protection of our sacred places on what they view as their land.

The authority for the Forest Service and other Federal agencies

to allow us access to medicine places, for example, is in the fact

that those lands are our lands. They were confiscated by the Federal Government. They were taken by these Federal agencies and

I believe are held illegally. But even if you allow that they are

taken and held under the color of law, it does not make it right,

and we still have prior and paramount rights to those gathering

areas.

There should be no question that Federal agencies can permit

closure of certain areas for ceremonial purposes, permit taking of

what was referred to in one testimony as ‘‘forest products.’’ Those

are our medicine plants. Those are our sacred objects. Those are

our sacred items. Those things are guaranteed to us by the natural

laws, by the original laws, by the laws that put us in these places.

We thought that the American Indian Religious Freedom Act

provided some protection. It is so sad that, after 25 years, the Department of the Interior sends the BIA up and a witness that clearly knows nothing about the subject, to deflect attention from the

Bureau of Land Management, which is desecrating and damaging

and destroying site after site after site across the country, all without consultation. The committee has heard in three oversight hearings on sacred places that that is being done.

I think it is important to point out where the BLM is doing a

good job and, as we pointed out in those hearings, that is at KashaKatuwe Tent Rocks National Monument. But aside from that, the

BLM has done a terrible job and is doing a terrible job at Quechan

Indian Pass and other places, and Medicine Lake, where they are

destroying sacred places and have plans to destroy sacred places

and have plans to permit others to destroy sacred places, all without consultation. It is either consultation after the fact or not at all.

When there is consultation, it is often ignored.

We heard in those oversight hearings from Mr. Bettenberg from

the Department of the Interior on behalf of the Administration,

that the Administration wants a confidentiality provision in law to

protect sacred places information. It is a good thing. We thought

it was a good thing then. Now, today we hear from the Forest Service official that that is still a policy that is being tested, that is

being discussed.

So we have gone backward, it seems, from an Administration position favoring a confidentiality provision 2 years ago and 1 year

ago, to a position where the Forest Service is asking for that kind
13

of Administration position. We applauded that position in a previous hearing and I do not know what to do about it now.

You will hear later testimony about how happy we are with consultation from the National Park Service in the implementation of

the Repatriation Act. Indian country is calling for the repatriation

laws to be taken out of the stewardship, the administration, the

implementation of the National Park Service. We have National

Park Service and its nearly 100 percent archaeological officers—I

think there is one exception to that—and no Native people in their

NAGPRA office running repatriation issues, deciding these life and

death and death and death and observance of death kinds of matters that are so important to us, and often deciding against us unless our interests coincide with the archaeologists.

They have severe conflicts of interest which they have not acknowledged. They have not dealt honestly. They have by administrative fiat taken sacred objects belonging to deceased Indians.

They have tried through administrative fiat, through regulatory

proposals, to classify our dead relatives as the property of these entities that hold them. This is shocking and stunning stuff and I do

not think that Congress intended this, even people who were only

vaguely interested in the subject never intended this kind of result.

We have had good relations with certain agencies, with the Department of Navy for example, on access to sacred places issues

over 25 years. We have had very good relations in most of the Defense agencies. It is these squishy agencies that have a long history

of suppressing Native people and being used by the other agencies

as the entities that go out and pretend to be nice to the Indians,

and then aid in our destruction. That is where we have the problem, especially within the Interior Department. And, with all due

respect to the Forest Service witness, they already have authority

to do everything they want except for the confidentiality requirement, but that they can also carryout under secretarial discretionary authority under the Freedom of Information Act, under scientific exemptions.

The requirement that is ongoing under the American Indian Religious Freedom Act is not for the Forest Service to consult with

people who are on their payroll, whether they are Indian or not.

The requirement is for them to consult with the traditional religious leaders. So I think we should just step back and read the actual Religious Freedom Act and take a look at what is being said

all across Indian country about the problems over 25 years, particularly with the agencies that testified here today, and by that I

include all of the Department of the Interior. At the moment, BIA

is probably the least egregious agency, but that is a contest I think

it would not want to enter.

Thank you.

[Prepared statement of Ms. Harjo appears in appendix.]

The CHAIRMAN. Thank you.

Walter, why don’t you proceed, please?

STATEMENT OF WALTER R. ECHO-HAWK, SR., SENIOR STAFF

ATTORNEY, NATIVE AMERICAN RIGHTS FUND

Mr. ECHO-HAWK. Good morning, Mr. Chairman and Mr. Vice

Chairman. It is with a great deal of pleasure that I come before
14

the committee today. I really do appreciate the opportunity to offer

testimony on AIRFA implementation issues.

As this committee is well aware, during the course of the history

of this Nation, prior to 1978 there was an absence of adequate legal

protections to protect Native American worship. As a result, Native

people suffered a long history of religious intolerance and religious

discrimination through the machinery of government.

However, through the leadership of this very committee in 1978

American began to address that human rights problem. In the subsequent generation, 25 years, this committee has legislated followup legislation in that area to address the fundamental human

rights needs of our Native people. I feel that for each member of

this committee, this leaves a major legacy for each of you. It has

certainly been my privilege to have participated in that. All of Indian country knows and appreciates the work and the strides made

by this committee, not only in enacting legislation, but monitoring

the implementation of that legislation.

Today, I wanted to talk about three subjects. The first concerns

the NAGPRA legislation which was enacted 14 years ago. The

NAGPRA legislation at the time that it was enacted was very

lengthy, complicated legislation. A lot of people have worked to implement that legislation in the intervening 14 years. Today it is

timely to tinker with the statute to improve it, and make sure we

are back on the right path of the original intent of Congress and

the original national dialog panel that worked on that legislation

that Professor Bender is going to be testifying about, and to make

sure that as we implement that legislation that it is done efficiently, without unnecessary delay, without unnecessary litigation

and in accordance with the original intent of Congress and this

very committee that advanced that measure to the floor.

There is a need to tinker with the statute in light of Bonnichen

v. United States that Professor Bender is going to be talking about.

This is the highly publicized Kennewick Man decision. That case,

as I have indicated in my testimony, basically seized on two words,

that is in the definition of ‘‘Native American,’’ and rewrote the entire statute as very clearly pointed out in the legal analysis provided to the committee by Professor Bender. The court ruled that

human remains that are indigenous to the United States are not

Native American unless there is some threshold proof of some relationship to a presently existing tribe.

The court utilized those two words ‘‘that is’’ in that particular

definition to strictly narrowly restrict the scope of the statute.

There are many provisions that Professor Bender will go into that

are now written out of the statute as a result of that interpretation.

Professor Bender has provided some very sound, simple potential

amendments that would get us back on that track. It is very telling

that the Ninth Circuit did not cite any legislative history to support its narrow construction of that statute. Indeed, there is no legislative history on the definition of ‘‘Native American’’ because to

my knowledge everyone who worked on that legislation, it was a

non-controversial term. Everyone logically assumed that any remains indigenous to the United States are Native American. There

was no debate. There was no discussion. It was a logical assumption. So to then have the court take that construction is well out
15

of kilter. It not only renders many provisions superfluous as Professor Bender is going to talk about, but it creates two standards, one

for Indian tribes in terms of their coverage where they have to

meet this new standard of the court in the Kennewick case, and

Native Hawaiians.

The Ninth Circuit said that Congress knew how to make remains

indigenous to a geographic area by virtue of the language that it

used in Native Hawaiians. So the court created two disparate

standards of coverage. That that was clearly not intended by the

committee when it advanced that measure.

Professor Bender’s testimony discusses and provides a very

sound legal analysis of that opinion on the implementation of

NAGPRA. He makes some very sound, simple recommendations to

fix it. I supplement his testimony by pointing out some dicta in the

lower court decision which is a very lengthy opinion covering all aspects of the statute. This dicta of the District Court may create

some confusion by agencies in implementing the statute, whether

joint claims can be presented by multiple tribes, which was certainly what was being at the time in 1988, 1989, and 1990 when

Congress was confronted with this legislation, and whether the

statute itself should be subject to Indian canons of statutory construction.

Despite the fact that this bill originated in this committee, is

codified in 25 U.S. Code and has a provision that says it was enacted pursuant to Congress’ relationship with Native people and

Native Hawaiians, the District Court at the hearing could not bring

itself to think that this was really an Indian statute and therefore

marginalized those important canons of statutory construction.

Even though the Ninth Circuit did not technically address that

dicta, the committee may still want to take a look at it, because

of the confusion that it could prompt and the unnecessary litigation

that it could engender.

The second area that I wanted to cover is in the area of sacred

sites. The protection of Native worship at holy places in the United

States is perhaps the paramount political and legal challenge in

the implementation of the American Indian Religious Freedom Act.

I know that this committee has labored over the years to examine

aspects of this problem. But the need for such legislation is crystal

clear in the 15 years of the hearings of this committee. We are not

going to get any smarter in terms of the factual need for that legislation.

Regardless of these difficulties, all world religions have their sacred places and it is the responsibility of each Nation to protect

those sites. I personally have not been involved in that issue much

lately, having been diverted into water law litigation, but in my

quieter moments I have pondered this issue. My testimony presents the elements of a short cause of action statute and an equal

protection rationale for that statute. Even though there are no

legal protections for Native worship other than a patchwork of limited procedural protections that are unenforceable, Federal law

does provide protection for religious property. But each of these

Federal statutes exclude Native American religious places.

The RFRA legislation in 1993 provided a cause of action that

could have been used to protect native worship at sacred places in
16

that cause of action, but the committee reports and the legislative

history, the floor statements said that RFRA is not intended to

cover the government’s use of its own property. This would exclude

protection of religious sites on Federal land. That double standard

was continued in the Religious Land Use and Institutionalized Persons Act of 2000, which provides a cause of action, but you have

to own the property. You have to have an easement or some kind

of an ownership. So therefore it does not protect the dispossessed

Native Americans who no longer own these sites.

This disparity raises an equal protection of the Federal laws

problem. We need to have a short cause of action statute that accords equal protection of the existing Federal laws to protect Native American worship, to be inclusive of Native American religion.

I suggest a cause of action statute very similar to the Federal undertaking cause of action in the Religious Land Use Statute that

I mentioned and propose in my testimony.

It is good to have Federal Executive orders and Federal land use

changes and some consultation, but at bottom what is needed is a

cause of action statute to level the playing field.

My final area that I wanted to touch on in my testimony goes

back to NAGPRA, I attached the National Congress of American

Indian emergency resolution concerning NAGPRA. NCAI, as well

as my client, who is a working group of very prominent Native

Americans, that has been following the issue of the disposition of

hundreds of thousands of culturally unidentifiable human remains

under NAGPRA.

NAGPRA contemplated that despite its detailed procedures and

the best efforts of all parties that there would remain unidentifiable human remains, unknown Native Americans. The reasons for

that are many. But NAGPRA intended a disposition of those remains. Part of that dealt with the development of recommendations

by the NAGPRA Review Committee, who is also under the statute

supposed to develop an inventory of those remains, in consultation

with native people and some regulations governing their disposition.

Deep concerns have emerged over that. It has been 14 years. The

inventory has not been completed and no consultation, aside from

some discussions at some of the Review Committee meetings, have

taken place. Indeed, Indian country is not able to conduct informed

consultation until we get that inventory so we know what the facts

are. The history of the Park Service and particularly the conflict

of interest concerns that we have, has convinced many in Indian

country that we cannot expect an impartial disposition of those unknown Native Americans because of the conflict of interest that the

agency has in upholding the archaeological resource protection

statutes, which promote science as well as the very staff that are

implementing this. The Park Service employees in the NAGPRA office are to a person members of the Society for American Archaeology, which is the very organization that on this particular issue differs with native people, and yet they are charged with implementing these regulations.

So there are conflict of interest concerns and we would hope that

steps could be made to inquire and see if there is anything avail-
17

able that could move this NAGPRA implementation to a neutral

agency. That is all we want, is a level playing field.

With that, I conclude my testimony. I was handed a two-page

statement here by the Native American Church of Navajoland to

request that their statement be put into the record.

The CHAIRMAN. We will include that in the record, too, if you will

leave that with us.

[Prepared statement of Mr. Clark appears in appendix.]

Mr. ECHO-HAWK. Thank you, Mr. Chairman.

[Prepared statement of Mr. Echo-Hawk appears in appendix.]

The CHAIRMAN. Thank you for appearing here. I have not seen

you for about 3 years. I did not realize you were off fighting the

water wars.

Mr. ECHO-HAWK. That is right. When you have a water case, you

just drop off the end of the earth indefinitely. [Laughter.]

The CHAIRMAN. But in the American West, it is becoming a very,

very much more valuable resource and the conflicts with Indian

tribes and State governments and everybody else is on the rise. So

I commend you and wish you well in those battles.

Mr. ECHO-HAWK. Thank you.

The CHAIRMAN. Professor Bender, would you like to proceed?

Your complete testimony will also be included in the record.

STATEMENT OF PAUL BENDER, PROFESSOR OF LAW, ARIZONA

STATE UNIVERSITY COLLEGE OF LAW

Mr. BENDER. Thank you, Mr. Chairman and Senator Inouye.

My name is Paul Bender. I am professor of law at Arizona State

University College of Law. The committee has invited me to testify

about the implementation of NAGPRA. I have not been involved as

much as the other witnesses on this panel with that subject.

I assume the reason the committee asked me to testify was that

I was a facilitator of the national dialogue panel that Mr. EchoHawk just referred to, which was put together at the recommendation of this committee to try to reach a consensus between the Indian community and the museum community and archaeologists

about repatriation issues. The panel did reach a consensus. I testified before the committee about that consensus in presenting the

committee’s report. NAGPRA and the committee’s report are very

similar in their content and the panel supported the enactment of

NAGPRA.

The reason why I was glad to have this opportunity to testify

now is because, as Mr. Echo-Hawk just mentioned, the Ninth Circuit a few months ago, in February, issued a decision about the

meaning of NAGPRA which is not only seriously incorrect, but potentially destructive of the purposes of the statute. I wanted to

bring that to your attention and suggest the possibility of some corrective legislation before that incorrect interpretation became too

ingrained in the law.

The case involved Kennewick Man. The result of the case, which

is that Kennewick Man would not be repatriated, is not the principal cause of my concern. The principal cause of my concern is the

route by which the Ninth Circuit reached that result. They reached

their decision by holding that the Kennewick Man remains were

not Native American remains covered by NAGPRA. They said
18

NAGPRA was entirely irrelevant to what should happen those remains. That was a startling holding for somebody like myself who

was involved in the framing of NAGPRA. I think it would startle

every member of our dialog panel. I think it would startle every

member of the Senate committee that recommended that Congree

enact NAGPRA.

The reason for this surprise is that NAGPRA was not solely concerned with repatriation issues. Those were very important, but I

think equally important were its provisions regarding consultation

with the Indian community, something that has been mentioned

here this morning several times. Indeed the biggest problem that

the dialog panel found with regard to relations between the Indian

community and museums and archaeologists was the lack of consultation, the lack of participation, the lack of ability to participate

of the Indian community—both the traditional community and tribal governments—in decisions about what should happen to remains, how remains should be treated and classified and what

should happen to funerary objects and sacred objects.

Indians had been completely excluded from that process in a lot

of instances. They had made requests for repatriation which were

ignored. They had not been given information about what kinds of

materials the Smithsonian had, about what kinds of materials were

in the possession of universities and museums. It was extremely

important to the dialog panel, and I think to the committee in recommending NAGPRA, that that situation be changed. NAGPRA

therefore, contains many provisions that require consultation.

By excluding materials from NAGPRA unless there is a prior determination that the materials are related to a presently existing

tribe, the Nith Circuit Court decision really ruins those consultation requirements. For example, museums were required bt

NAGPRA to go through their holdings and make inventories of Native American materials. They were supposed to consult with Indians and tribes in doing that and in deciding how to classify those

materials.

Under the Ninth Circuit’s decision, however, a museum could

say, well, there is no existing tribe that is related to these materials so they are not under NAGPRA, so we do not have to consult

with any part of the Indian Community. The same thing would be

true if, as with Kennewick Man, human remains are discovered on

Federal lands. The discoverer could say, well, they look too old to

be connected to a present-day tribe so we do not have to consult

with any tribe or tribes.

With regard to unaffiliated remains, the Ninth Circuit decision

reads them out of NAGPRA altogether, and yet NAGPRA clearly

has provisions that are intended to deal with how unaffiliated remains should be treated. For example, if unaffiliated remains are

found on tribal lands, under NAGPRA the tribe on whose lands

they are found has repatriation rights. The Ninth Circuit decision

changes that because it says that unaffiliated remains are not covered by NAGPRA, and therefore NAGPRA’s repatriation right of

the tribe on whose lands the remains are found is eliminated.

Even if remains are not found not on present tribal lands, but

on aboriginal lands that have been adjudicated to be aboriginal

lands of a tribe, the tribe has NAGPRA repatriation rights regard-
19

less of whether there is any cultural affiliation. NAGPRA is absolutely clear on that, yet under the Ninth Circuit decision NAGPRA

does not apply if there is no preexisting finding of affiliation, so

that the repatriation right is destroyed.

Then there is the culegory of unaffiliated remains that the panel

was divided about. The legislation left to the review committee to

provide rules about how those remains were to be treated. Those

were remains that are in possession of museums and universities

and also that are found after the enactment of NAGPRA. Under

the Ninth Circuit decision, the review committee has nothing to do

with regard to unaffiliated remains because unaffiliated remains

are not covered by NAGPRA. That eliminates from the statute the

really important provision which was going to let the Indian community, through its representation on that review committee, participate in decisions about what should be done with the unaffiliated materials.

So the decision is wrong as a matter of statutory construction because it ignores the fact that the statute contains provisions about

what should be done with unaffiliated materials, and instead says

all unaffiliated materials are not under NAGPRA at all, which

makes nonsense of those provisions.

Even more important than as a matter of statutory construction,

it frustrates what I consider in some ways the most central purpose

of NAGPRA which was to get the Indian community involved, to

give them a right to be involved in decisions about characterizing

materials, about are they affiliated and if so with whom are they

affiliated, and if they are not affiliated, what should be done with

them.

The purpose of NAGPRA was to provide a right to that consultation, and by at the outset eliminating from the statute materials

that the possessor believes are not affiliated with any current tribe

just frustrates that entire consultation procedure. It is an interpretation of the statute which turns on the fact that they use the word

‘‘is,’’ rather than ‘‘is or were’’ in a provision which as Walter has

pointed out, nobody had any doubt that that provision referred to

all indigenous materials, all materials by people who were indigenous to the United States before the European community came

into the United States.

So Kennewick Man is clearly Native American within the meaning of NAGPRA. That, then, plugs in the NAGPRA consultation

procedures and the NAGPRA procedures about what should be

done with it. Under NAGPRA, you have to decide whether it was

found on aboriginal lands; if so, the tribe whose lands have a right

to it. If not, it is to go to the review committee to decide what to

do with it. The Ninth Circuit decision is wrong in cutting out all

of those provisions.

So I think in order to get NAGPRA back on track, to make sure

that those consultation and participation rights are there, it is really important to clarify the language of that definitional provision

to make clear that NAGPRA applies to all indigenous American

materials, not only the narrow class of indigenous materials that

relates to a present-day tribe.

If that is not done, my fear is that we will return to the situation

where possessors of materials said to tribes, you do not have any
20

connection to these materials so we will not even talk to you. That

was the thing that created the most antagonism between the Indian community and the museums.

Looking on the other side of that coin, that consultation, everything that I have heard about it, suggests that that consultation

has been enormously fruitful. Archaeologists and museums have

learned a tremendous amount through that consultation. So by excluding those materials from NAGPRA and excluding the consultation, the Ninth Circuit decision also I think strikes a blow at the

advancement of science.

So I really urge the committee to consider the possibility of making a small change in this definitional provision to correct that

error. I would be glad to work with the committee staff in doing

that if they wanted me to.

Thank you very much.

[Prepared statement of Mr. Bender appears in appendix.]

The CHAIRMAN. Thank you.

We will now go to Mr. Red Cherries. I just got a note that I have

to leave the room for a bit to be where they are short a member

for a quorum for the Energy Committee, so I will have to leave.

Senator Inouye will go on with the hearing.

I might tell you, Mr. Red Cherries, if you were not home on the

Fourth of July in Lame Deer, you missed a very, very good function. Assistant Secretary Anderson came up for it and it was just

a terrific homecoming.

Would you handle this, Senator Inouye, please?

Senator INOUYE. I would be pleased. Sure.

The CHAIRMAN. Thank you.

Senator INOUYE. Mr. Red Cherries.

STATEMENT OF BERNARD RED CHERRIES, JR., NORTHERN

CHEYENNE ELK SOCIETY HEADSMAN AND SUNDANCE

ARROW PRIEST

Mr. RED CHERRIES. I am glad and honored to be here to be able

to address and direct our concerns from the traditional standpoint.

As you probably are aware, I am one of the chiefs of the Cheyenne Nation. I am also one of the Sundance leaders, which is a religion that was given to us by the Creator at the beginning of time.

Our religion has been with us since the beginning of time. As

such, our religion is passed down from generation to generation in

a very sacred manner. This religion is a renewal of our complete

way of life from one year to another. This Sundance is now being

held out of our traditional jurisdiction. Non-Natives have now

adopted our religion. They have now taken it into U.S. Forest jurisdiction where we as traditional tribal leaders have no jurisdiction

with the U.S. Forest Service.

When we go and attempt to consult with the U.S. Forest Service,

we are told that they wish to not keep the constitutional right of

religion from anybody. Joel Holtrop, he testified that the U.S. Forest Service very much would like to work with Indian tribes. When

we as Indian tribes came together two years ago, we formed a coalition of Sundance leaders from various tribes across the country.

The Sundance religion is exclusive of probably less than 10 tribes
21

on this entire continent, yet many tribes have adopted our way of

worship.

We do not have a problem with people praying with us. What we

do have a problem with is the leadership, the interpretation roles

and the authoritative roles that those non-natives have assumed.

It has impacted our traditional way of life. It has impacted the way

our children view things.

We had asked Region XI Forestry Supervisor Gary Harris to a

meeting of traditional leaders on June 19. Mr. Harris declined. He

said that he was advised by his superiors in the U.S. Forest Service

that he not attend our meeting. We had attempted to consult with

Hoosier National Forest officials who have a permit process by

which they allow non-natives to hold our sacred Sundance on their

U.S. Forest grounds.

We have an issue with that in the traditional realm. We have

unwritten laws. I as a traditional chief of my people make those

decisions if a person is worthy enough. He brings his request to us

and we decide. We have certain traditional laws that we need to

meet traditional requirements before a person is allowed to proceed.

Yet these individuals have gone out of our jurisdiction and we

are at a loss. We do not have jurisdiction. This law, the AIRFA law,

we feel today is being used in conflict with the constitutional right

to gather and worship. Today, we are in a struggle to try to protect

and preserve our traditional ways of worship.

We have formed, like I said, a coalition of traditional leaders.

Sometimes we are at odds with our own tribal governments because our governments are elected officials. We are hereditary leaders. I am a sixth generation direct descendant of Chief Little Wolf,

who along with Dull Knife, led our people out of Indian Territory,

Oklahoma, in 1878. I am a hereditary chief in the Elk Horn Scrapers Society of which my grandfather was at the time of his death.

These roles, these positions are passed on from generation to

generation. I would urge and plead with this committee to please

take into consideration the impacts that this is having on our children and what lies ahead. We are certainly not prepared for it in

Indian Country, but yet we are continuing to try to bring this focus

to the forefront of our legislators and leaders in Washington, DC.

Thank you for your time.

Senator INOUYE. Thank you very much, Mr. Red Cherries.

I am just looking at my clock. Unfortunately, this committee will

have to vacate this room by noon because another committee will

be coming in at that time.

I have a few questions to ask. But before I do, may I request that

Ms. Harjo, Mr. Echo-Hawk and Professor Bender share with us

your recommendations for legislative changes, because all of you

testified that you had some recommendations to make. We have

not had the opportunity to study them, but we would like to do

that.

Mr. BENDER. There are some suggestions at the end of my written testimony. I think Walter and Suzan may have different ones.

Senator INOUYE. All right.

Ms. Harjo, you mentioned that the BIA has the largest collection

of human remains. Is that correct or did I hear wrong?
22

Ms. HARJO. I do not know that that is the case.

Senator INOUYE. Or the earlier panel said that. I was under the

impression that the Smithsonian had the largest.

Ms. HARJO. Smithsonian certainly has one of the largest collections. As I understand it, most of the agencies within the Department of the Interior are not in compliance with the repatriation

laws. They have very large holdings. The Park Service, BIA and

BLM have very large holdings of human remains and sacred objects and funerary objects and they are not in compliance, particularly the Park Service, with its own regulations.

Senator INOUYE. When I became one of the leaders of this committee, I am certain all of you are aware that I had very little

knowledge or any knowledge of Indian affairs. When I was made

aware that the Smithsonian had something like 14,000 Indian

skulls and remains and that most of them were not identifiable because no one knew where they came from exactly, very enthusiastic

soldiers that just dug them up and sent them over.

What do you recommend we do with the unidentifiable human

remains? There are thousands lying in green boxes in the Smithsonian at this moment.

Ms. HARJO. In a meeting that was held at Arizona State University 2 years ago, conducted at the College of Law by Professor Rebecca Tsosie, the people who represented the large museums said

that some 90 percent of all of the remains that they have categorized as unidentifiable can be identified if only the Park Service

will let Indian country have that information. One of the main people who said this was from the Harvard Peabody Museum, who

said that they were unable to make determinations as between

tribes, say two tribes or three or five in a region.

But if the Indians had that information—if those people had that

information, then people could determine by the year that these

were taken, by the placement, by the information about them,

which institution has them most of the people now categorized as

‘‘unidentifiable’’ would be identified.

All we have been trying to do in Indian country is get the Park

Service to give us that information, to give that information to the

tribes that are involved or just make it available generally. So far,

they have not. Instead, they tried to categorize all of them as property belonging to the entities that declared them unidentifiable.

But most of those, the overwhelming majority of the human remains now classified as unidentifiable can be identified by the

statements and testimony of the entities themselves who are holding them.

Senator INOUYE. Even those held by the Smithsonian?

Ms. HARJO. Most of the ones held by the Smithsonian can be because most of them have letters attached to them saying where the

Army officer was when he ‘‘waited until cover of darkness, until the

grieving family left the grave’’ and then exhumed the body and decapitated the head and forwarded it. That kind of material is in the

Anthropological Archives of the United States. So most of those remains can be identified.

For those that cannot, the people in the region step forward and

try to reinter them, to try to put them to rest finally. That was the

model that existed before passage of the Repatriation Act, these
23

coalitions of tribes coming together in those instances where not

enough information existed for the people to be identified. Everyone would come forward and speak for the dead.

Senator INOUYE. Do you have any thoughts?

Mr. ECHO-HAWK. Yes; I do. Thank you, Mr. Chairman.

I think what Suzan was referring to there was that it is a difficult issue about these unknown native dead. That is why we have

been wanting to get the Park Service to produce this inventory so

that we can look at the facts, how many are they, where are they

located, how were they obtained, so that Indian country can enter

into informed consultation with the NAGPRA Review Committee to

determine in perhaps a very particularized way what would be

their appropriate disposition.

Now, some of these remains could be identified perhaps; others,

we could assess the scientific value. I think for many of these remains because they are unknown have no scientific value. It might

just be a bone fragment in a sack and you do not know where it

came from or who it belongs to and have no earthly scientific value.

So things of this nature could I think be sorted out through the

regulations that would be called for under the NAGPRA Review

Committee recommendations.

That is why we want to have a neutral agency be involved in

those deliberations, so that we can not have a biased set of staff

decisionmakers that are working solely for the archaeologists. I

think we need to find a neutral forum within the executive branch

to address this difficult problem in a very rational way.

That is my thought on it. The over-arching policy concern and

my own personal thinking is that all of the statutes and the ordinances in the 50 States and the District of Columbia guarantee

that every person is going to get a burial, whether you are a pauper and you cannot afford it; whether you are a stranger who may

have died someplace. These statutes say society is going to bury

you at some time, at some point. We think that those policies and

sensibilities that safeguard the right of each and every one of us

to be buried should be ultimately be applied to the unknown Native

American dead. That is an over-arching policy in my mind.

Senator INOUYE. Some of you may recall that when we learned

of the large collection of skulls and human remains by the Smithsonian, we proposed that an appropriate memorial be constructed in

the middle of the Mall and place all these remains there, the ones

we cannot identify. But as you may also recall, the opposition came

from Indian Country. Instead, we built the museum.

Does your proposal, is it part of your recommendation, legislative

change?

Mr. ECHO-HAWK. What I have recommended in my testimony

with regard to the disposition of these unknown Native American

dead is, first of all the NCAI resolution has registered deep concerns about the process that is currently being followed by the Park

Service on this very difficult issue. On behalf of my client and my

testimony at page 11, I urge that the committee attempt to determine when the inventory will be completed that is presently called

for by the statute, of these unknown Native American dead, and

made available to Indian country.
24

Second, that no recommendations or proposed regulations concerning their disposition be made by the Review Committee until

it enters into some informed consultation with the tribes and gives

them the information necessary to enter into a set of discussions

about that.

Then finally, the third recommendation would be for the committee to investigate any steps that may be available, and I understand it is sensitive separation of powers, but whether there are

any available steps to ensure that the implementation of this

NAGPRA issue is moved to neutral agency within the executive

branch. Because right now, there is just a loss of confidence due

to conflict of interest on a very sensitive and a very important and

a very complex issue, and we really do need a neutral forum there

to focus on that complex set of issues.

Senator INOUYE. Do you have any suggestions as to what agency?

Mr. ECHO-HAWK. I was afraid you were going to ask that question. My thought was the United States military. The United

States Army has a repatriation office where in fact their job is to

go across the world and repatriate military men and bring them

back home and work with the families to ensure their reburial. I

had occasion in representing the Pawnee and the Arikara and

Wichita Tribes to work with that office to repatriate some Pawnee

scouts, U.S. military veterans that had been decapitated and

wound up in the Smithsonian.

With the help of the committee, that particular unit got involved

here in town in effectuating and helping us to actually carry out

that repatriation. They did it in a very professional, very caring,

very sensitive professional manner. These are professionals that do

that every day. It seems to me that that is one office that really

does that day in and day out for our military veterans. They have

no vested interests at stake here, one way or the other. So the Defense Department might be a place to look at.

Senator INOUYE. I shall make an official inquiry and see where

we go.

Professor Bender, I will be a devil’s advocate. I do not know

enough to discuss Kennewick, but I presume the remains are homo

sapien.

Mr. BENDER. Yes.

Senator INOUYE. What would the law be if we found remains

akin to, say, homo erectus?

Mr. BENDER. That is a very interesting question, which I do not

think anybody had thought of at the time of NAGPRA. The statutory language is ‘‘Native American’’ means of or relating to a tribe,

people or culture that is indigenous to the United States. That

seems to suggest they are talking about homo sapiens. So without

thinking about it very much, my initial reaction is NAGPRA probably does not apply to something that is pre our present species,

and maybe something should be written into the statute about

that, but there was no issue about that at the time that NAGPRA

was drafted.

Senator INOUYE. Many years ago in preparing for these hearings,

I read several articles about the human trek of men and women

from Mongolia and others from the south, going across the 48

States.
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Mr. BENDER. Across the land bridge.

Senator INOUYE. The articles suggested that they do not know

where the Indians came from. What are your thoughts?

Mr. BENDER. It is interesting. I have just spent two weeks in

Peru on an archaeological trip. I asked the archaeologist who was

leading the trip more or less the same question, because I think the

oldest human remains that have been found in North America are

Kennewick Man, and they are about 8,000 or 9,000 years old. And

yet, they believe that human beings inhabited the Pacific Coast to

South America as long ago as 12,000 or 15,000 years ago.

I said, why do you insist on thinking that all those people came

across the land bridge and down, rather than that they started

there or that they came from someplace else? He had a detailed explanation which apparently the scientific community agrees with

that the land bridge idea is really the only way to account for the

civilizations that they found down along the west coast.

I do not understand that completely. It seems to me it is at least

plausible that human beings arose in South America, as well as

that human beings only arose in the Middle East. But archaeologists do not believe that. What I do not understand is, what is the

explanation for not finding older remains in the northwest of the

United States, because if those people passed down through there,

you would think that older remains would have been found, and

yet they have not been.

But the main issue for us today is that all of those remains of

the people who lived here, wherever they came from, whether they

came from Asia or whether they came from the east, as long as

they are human beings, are Native American remains within the

meaning of NAGPRA. It is really important to clarify that the statute applies to all of them so that the procedures that Walter was

just referring to, the Review Committee can make decisions about

what to do with the unidentifiable remains.

Under the Ninth Circuit’s decision, that whole process does not

apply and everything is left in limbo.

Senator INOUYE. I cannot speak for the committee, but I agree

with you. If you were the Ninth Circuit, what would the disposition

of the Kennewick Man be?

Mr. BENDER. I think that the issue in Kennewick Man would be

first of all whether the land on which the remains were found was

the aboriginal land of any of the tribes that requested repatriation

under the provision of NAGPRA that talks about that. If that was

the aboriginal land within the meaning of NAGPRA, then that

tribe or tribes should have repatriation rights.

If not, then I think NAGPRA provides that it goes to the Review

Committee to decide what to do with them. The Review Committee,

I gather, has not made that decision yet. It is really important.

That was the big unresolved question at the time of NAGPRA. It

was supposed to be decided by a group of people that included traditional people and tribal governments and scientists.

My own view of what the right answer to that is, is that if you

know the area the remains came from, and I think in almost all

cases you know where they were found, then the right thing to do

is to repatriate it to the tribe or tribes that have a relationship to

that area. If you do not know where they were found, if they are
26

truly unidentifiable, then I think the Indian community should

make a decision about what the right form of reburial is, whether

it is here in Washington or somewhere else in the country.

I think that is a relatively small percentage of the remains. For

almost all of them, I think we know where they were found. Then

I think the spirit of NAGPRA is to let the tribe with association

with that are, or the tribe or tribes. It is important not to think

of this as one tribe against another tribe, because sometimes you

do not know whether it is this tribe or that tribe, but you know

it is one of two or three or four.

So tribes have to be able to be given the chance to get together

and decide collectively what to do. It seems to me that is the right

thing to do.

Senator INOUYE. Is the Ninth Circuit decision under appeal?

Mr. BENDER. The Kennewick decision? There was a petition for

rehearing to the Ninth Circuit which was denied. As far as I know,

a cert petition has not been filed. I think the time for filing a cert

petition is almost up. I am not in contact with the people litigating

that case, but I do not believe that a cert petition has been filed.

Senator INOUYE. As of February 1987, 18,000-plus skulls and

human remains of Native Americans are in green boxes in the

Smithsonian. Of that number, I supposed slightly less than 1,000

have been repatriated. I agree with all of you. Something has to

be done.

Mr. BENDER. It is just extraordinary that this much time has

passed since NAGPRA and there still has not been repatriation of

those remains.

Senator INOUYE. Mr. Red Cherries, let me assure you that this

committee will do its utmost to see that human remains be accorded the full dignity and respect that they deserve. We commend

you for maintaining your religion. It is very important.

Mr. RED CHERRIES. If I may, this religion forms the whole foundation of our entire existence. We cannot lose it. We have a prophecy in the Cheyenne Nation. We have lost the land. We have lost

most of what we had. All we have is our religion and we are supposed to hang onto that. I aim to hang onto it.

Thank you.

Senator INOUYE. I thank all of you very much. I am sorry that

we have to cut it at this point, but we will be sending, because I

know that Chairman Campbell would want to, to submit to all of

you written questions and we hope we can get your response. The

record will be kept open for another month.

Thank you very much.

[Whereupon, at 12 noon, the committee was adjourned, to reconvene at the call of the Chair.]
(27)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,

VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Mr. Chairman, I want to thank you for scheduling this hearing today.

Several years ago, we began a series of hearings on Native American sacred sites

to explore how the various land managing agencies were addressing the responsibilities with which they are charged to protect and preserve sites that are sacred to

the Native people of this land.

These issues are closely related to the protections that were first enacted into law

in 1978 as the American Indian Religious Freedom Act.

Later, in 1990, the Congress enacted the Native American Graves Protection and

Repatriation Act.

Together, these laws provide a framework for the repatriation of Native American

human remains, funerary objects, and the protection of cultural artifacts and sacred

places.

I think the question I would pose to each of the witnesses today is whether this

framework of laws is sufficient, or whether we need to consider amendments to the

American Indian Religious Freedom Act, for instance, to assure that Native people

have a cause of action that they can bring when the spirit and intent of the law

are not being honored.

I look forward, as you do Mr. Chairman, to hearing the testimony that will be

presented by our witnesses today.

PREPARED STATEMENT OF THE SOCIETY FOR AMERICAN ARCHAEOLOGY

The Society for American Archaeology appreciates this opportunity to submit testimony to the Senate Committee on Indian Affairs on the subject of implementation

of the American Indian Religious Freedom Act of 1978 [AIRFA] and expresses its

appreciation to the committee for holding this important hearing.

SAA is an international organization that, since its founding in 1934, has been

dedicated to the research, interpretation, and protection of the archaeological heritage of the Americas. With more than 6,900 members, the Society represents professional archaeologists in colleges and universities, museums, government agencies,

and the private sector. SAA has members in all 50 States as well as many other

nations around the world.

Prior to the enactment of AIRFA, the constitutional right of Native Americans to

exercise their freedom of religion was severely circumscribed. This injustice was

part of a set of cultural policies pursued by the Federal Government and many state

governments from the mid-19th Century through the first one-half of the 20th Century. The goal of these policies was to actively subjugate Native American cultures

and ways of life. In addition to religious intolerance, these policies also included prohibitions on the use of Native languages, and forced ‘‘adoptions’’ of Native children
28

by non-Native families. Although these practices were halted, the damage done to

Native cultures is still very evident.

The enactment of AIRFA was an important step taken by Congress to try to rectify the past injustice of government-sponsored religious discrimination. The act

made it the official policy of the Federal Government to protect Native Americans’

freedom of worship by allowing access to the sites and possession of the objects sacred to the various tribes and necessary for those tribes to carryout the expression

of their religious beliefs.

Since the passage of AIRFA, there have been a number of additional efforts to

address these historical inequities at the national level. Revision of the regulations

implementing the Archaeological Resources Protection Act [ARPA] and adoption of

sentencing guidelines for violations of the act have greatly strengthened penalties

for those caught looting ancestral sites on public and tribal lands. The 1992 amendments to the National Historic Preservation Act [NHPA] greatly increased the ability of tribes to protect historic cultural and sacred sites on their own lands and to

be consulted about agency decisionmaking affecting such sites on the public lands.

In 1990, President George H.W. Bush signed the Native American Graves Protection and Repatriation Act [NAGPRA], which among other provisions, mandates the

repatriation to tribes of sacred objects and objects of cultural patrimony needed for

traditional religious practices. In 1996, President Clinton signed Executive Order

13007, which required Federal agencies to take a more active role in the protection

of Native American religious freedom by delineating a specific set of procedures that

agencies mast take in order to ensure the physical integrity of Indian sacred sites,

as well as Native Americans’ access to such sites.

SAA actively participated in the development of the ARPA regulations and NHPA

amendments as well as in the development and passage of NAGPRA, and we strongly support better and more proactive implementation of AIRFA and E013007.

PREPARED STATEMENT OF BRIAN POGUE, DIRECTOR, BIA, DEPARTMENT OF THE

INTERIOR

Mr. Chairman and members of the committee, my name is Brian Pogue and I am

the director, of the Bureau of Indian Affairs [BIA]. I am pleased to be here today

to provide the Administration’s statement on the 25th anniversary of the passage

of the American Indian Religious Freedom Act.

In 1978, the American Indian Religious Freedom Act, [AIRFA] was enacted and

mandated that the Federal Government ‘‘protect and preserve for the American Indians their inherent right of freedom to believe, express, and exercise the traditional

religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including

but not limited to access to sites, use and possession of sacred objects, and freedom

to worship through ceremonials and traditional rites.’’ Under AIRFA, Federal agencies are required to (1) seek and consider the views of Indian leaders when a proposed land use might conflict with traditional Indian religious beliefs or practices,

and (2) avoid unnecessary interference, whenever possible, with Indian religious

practices during project implementation.

In 1990, the Native American Graves Protection and Repatriation Act [NAGPRA]

was enacted to make easier the efforts of American Indians, Alaska Natives, and

Native Hawaiian organizations to claim ownership of certain cultural items including human remains, funerary objects, sacred objects, and objects of cultural patrimony in the possession or control of Federal agencies and museums that receive

Federal funds. NAGPRA requires agencies and museums to disclose holdings of such

human remains and objects and to work with appropriate Indian tribes, Alaska Native villages and corporations, and. Native Hawaiian organizations to repatriate

such cultural items.

Recently, the Secretary of the Interior appointed three members to the Native

Protection and Repatriation Review Committee. The committee consists of seven

members who are charged with monitoring, reviewing, and assisting in the implementation of the NAGPRA. Appointments to the committee are selected from nominations to the Secretary of the Interior by Indian tribes, Alaska Native villages, Native Hawaiian organizations, and national museum and scientific organizations.

Each appointee serves for a 4-year term.

Executive Order 13007, on Indian Sacred Sites, issued in 1996 gives Federal agencies guidance on dealing with sacred sites. The order directs Federal land management agencies, to the extent practicable, to accommodate access to and ceremonial

use of Indian sacred sites by Indian religious practitioners and to avoid adversely

affecting the physical integrity of such sacred sites. The order also requires Federal

agencies to consult with tribes on a government-to-government basis whenever
29

plans, activities, decisions, or proposed actions affect the integrity of, or access to,

the sites.

There is a growing concern among the public that Native American burial

grounds and other sacred places are being desecrated by human encroachment or

‘‘urban sprawl.’’ The BIA receives frequent requests for immediate intervention

when individuals believe a burial mound is being bulldozed or a Native cemetery

is being cleared for housing or other urban development. Whenever possible, we

refer these requests to the appropriate agency.

The Administration and the Department continue to work with Indian tribes,

Alaska Native villages and corporations, and Native Hawaiian organizations to ensure access to and protection of sacred sites and to comply with repatriation laws.

We support the American Indian Religious Freedom Act, which protects and preserves for the American Indian, Eskimo, Aleut, and Native Hawaiian the inherent

right of freedom to believe, express, and exercise their traditional religions, access

their religious sites, use and possess sacred objects, and the freedom to worship

through ceremonial and traditional rites.

This concludes my prepared statement. I would be pleased to answer any questions the Committee may have.

PREPARED STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF STATE AND PRIVATE

FORESTRY USDA FOREST SERVICE, DEPARTMENT OF AGRICULTURE

I am Joel Holtrop, Deputy Chief, State and Private Forestry [S&PF], USDA Forest Service. It is the responsibility of the S&PF to provide technical and financial

assistance to landowners and natural resource managers to help sustain the Nation’s urban and rural forests and to protect communities and the environment from

wildland fire. Among our important partners in this endeavor are tribal governments. Recently, the Forest Service established an Office for Tribal Relations within

S&PF that I will discuss later in my statement.

Thank you for this opportunity to provide the Department of Agriculture’s views

on the interpretation and implementation of the American Indian Religious Freedom Act of 1978 [AIRFA] and follow-up laws in two main areas: repatriation and

protection of sacred places.

AIRFA declares that ‘‘. . . it shall be the policy of the United States to protect

and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut,

and Native Hawaiians including but not limited to access to sites, use and possession of sacred objects and the freedom to worship through ceremonial and traditional rites.’’ The act explicitly recognizes the importance of traditional Indian religious practices and directs all Federal agencies to ensure that their policies will not

abridge the free exercise of Indian religions.

The USDA Forest Service manages 192 million acres of public lands for multiple

use nationwide, including lands in 44 States, Puerto Rico, and the Virgin Islands.

The National Forest System [NFS] includes 155 National Forests, 20 National

Grasslands, 20 National recreation areas, a National tall grass prairie, and 4 National monuments. The NFS is managed for multiple use, including timber production, recreation, wilderness, minerals, grazing, fish and wildlife habitat management, and soil and water conservation. The Forest Service Heritage program manages approximately 300,000 known heritage resources on NFS lands, a great many

of them important to American Indians.

Because tribes are affected by NFS land and resource management policies, programs and actions, the Forest Service must consult with Tribes on a governmentto-government basis under various statutes, Executive Orders, and agency directives.

Under the 1982 planning regulations, the Forest Service is required to coordinate

regional and forest planning efforts with Indian tribes, to notify tribes whose lands

or treaty rights are expected to be affected by the agency’s activities, to review and

consider the objectives of Indian tribes as expressed in their plans and policies, and

where conflicts are identified, to consider alternatives so conflict may be resolved.

Beyond the planning requirements, other existing laws ensure that American Indians have an opportunity to participate in land management decisions. The Forest

Service National Environmental Policy Act [NEPA] procedures require the Forest

Service to determine the scope of issues to be addressed in an environmental analysis. Under the National Historic Preservation Act, the Forest Service is required to

identify historic properties on NFS lands. The process of determining the effects of

management on these sites provides for consultation of interested parties, including

Indian tribes.
30

The Archaeological Resources Protection Act of 1979 prohibits the disturbance or

destruction of archaeological resources, including Native American religious and cultural sites located on Federal lands except under a permit issued by the appropriate

Federal land manager. The land manager must notify and consult with concerned

Indian tribes regarding any permit that may harm an Indian religious artifact. As

part of this program, the Forest Service attempts to identify all Indian tribes having

aboriginal or historic ties to NFS lands and to determine the location and nature

of the specific sites of religious or cultural importance for future reference for management decisions affecting the land.

Executive Order 13007 directs Federal land management agencies, to the extent

permitted by law, and not clearly inconsistent with essential agency functions, to

accommodate access to and use of Indian sacred sites, to avoid affecting the physical

integrity of such sites wherever possible, and, where appropriate, to maintain the

confidentiality of sacred sites. Federal agencies are required to establish a process

for ensuring that reasonable notice is provided to affected tribes of proposed Federal

actions or policies that may affect Indian sacred sites. Sacred sites are identified by

tribes.

Recently, the Forest Service chartered a Task Force on Sacred Sites to develop

policy and guidelines to specifically address EO 13007 and our other statutory and

regulatory responsibilities to better protect the sacred sites that are entrusted to our

care. The Task Force has been meeting with tribal governmental and spiritual leaders throughout Indian Country.

The Native American Graves Protection and Repatriation Act of 1990 [NAGPRA]

addresses the protection of Native American burial sites and the repatriation of

human remains, funerary objects, sacred objects, and objects of cultural patrimony.

NAGPRA requires Federal land management agencies to consult with Indian tribes

prior to intentional excavations and requires notification in the event of inadvertent

discovery of human remains or cultural items. NAGPRA also sets forth a process

for the repatriation of human remains and cultural items in the possession of Federal agencies and museums to the Indian tribe or lineal descendants to whom these

remains or items belong.

Across all Federal land management agencies, NAGPRA compliance is very emotional, highly sensitive and a high priority for tribes. A related concern, but one not

addressed in NAGPRA, involves reburial of human remains and cultural items on

lands that Indian tribes used and occupied traditionally, which includes NFS lands.

Reburials have been occurring on NFS lands in certain regions even though a consistent national policy did not exist until direction was provided in the Forest Service Manual in March 2004. For example, there have been formal regional FS policies

in the southern and southwestern regions, developed in collaboration with tribes. In

addition, providing confidentiality of information related to reburial sites has been

a primary concern of Indian tribes regarding reburial.

In addition to cases of individual remains, the Forest Service and tribes are working together in situations involving complex cultural affinities to identify disposition

preferences for large collections of artifacts and remains. These will involve reburial

at locations other than archaeological sites and thus entail a higher level of environmental analysis and documentation, and concern over the confidentiality of that documentation.

Forest Service implementation and compliance with AIRFA and NAGPRA depends on maintaining effective consultation and collaboration with tribal governments. Several years ago, the Forest Service’s National Leadership Team [NLT] concluded that the agency’s working relationship with many tribal governments needed

significant improvement. The leadership commissioned a National Tribal Relations

Program Task Force [Task Force] to address recurring issues that affected our work

with Indian tribes. The finding and recommendations of the Task Force were published as the ‘‘Report of the National Tribal Relations Program Task Force: A Vision

for the Future’’. The report provided recommendations to improve the consistency

and effectiveness of program delivery and to institutionalize long-term collaborative

relationships with tribal governments.

Based on the Task Force report, the Forest Service has taken action on several

fronts, all of which should improve the agency’s collaborative relationships with

Tribes and reduce conflicts with Tribes over a number of issues, including the protection of sacred sites and reburial.

Office of Tribal Relations—The Forest Service established an Office of Tribal Relations to provide the infrastructure and support necessary to ensure high quality

interactions across programs with Indian tribes on a government-to-government

basis. The office will integrate tribal issues across Deputy Areas, advise the chief

on tribal issues and concerns, and ensure that tribal government relations are a

standard operating procedure for the agency.
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Directives—In March, the Forest Service issued new manual and handbook direction on tribal relations that provides clear guidance for agency tribal relationships,

spelling out specific obligations of Forest Service officials and providing guidelines

for conducting government-to-government relations with tribes.

Training—The agency has instituted core skills training pertaining to Forest

Service policy with regard to tribal relations. The training also incorporates the

need to protect sacred sites and other culturally important areas. All agency line

officers and staff who regularly interact with Tribes will be required to demonstrate

a core competency in tribal relations. Supplemental and specialized training for

agency positions that involve interactions with tribal governments will also be developed.

The agency has identified certain recommendations that cannot be fully implemented without legislation to create new or clarify existing authorities. The legislative proposal, which was included in the Administration’s Fiscal Year 2005 Budget

would provide:

• authority for the Forest Service to close specific areas of NFS lands to the general public for the shortest duration of time necessary to accommodate various

tribal uses, including traditional tribal use.

• authority to provide forest products free of charge to Indian Tribes for traditional and cultural purposes.

• express authority for reburials on NFS land.

• authority to maintain the confidentiality of reburial and other information.

The legislative proposal is currently in clearance at the Department.

Mr. Chairman, the religious freedom of American Indians is, and will continue to

be, an important factor in our management of the National Forest System. The

agency has made great strides under the leadership of Chief Dale Bosworth to increase awareness of all FS employees of the agency’s responsibilities to Indian

tribes. The Forest Service is eager to work with Indian tribal governments. Together

we can take appropriate actions to support the religious beliefs and practices of

American Indians on NFS lands.

I would be pleased to answer questions that members of the committee may have.
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