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S. HRG. 107–519, PT. 2

NATIVE AMERICAN SACRED PLACES

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

THE PROTECTION OF NATIVE AMERICAN SACRED PLACES AS THEY

ARE AFFECTED BY DEPARTMENT OF DEFENSE UNDERTAKINGS

JULY 17, 2002

WASHINGTON, DC

PART 2

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Bowekaty, Malcolm, Governor, Pueblo of Zuni, Zuni, NM ............................ 19

Boxer, Hon. Barbara, U.S. Senator from California ...................................... 2

Cachora, Lorey, housing director and consultant, Culture Committee,

Quechan Indian Tribe, Fort Yuma Indian Reservation, Yuma, AZ .......... 16

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman, Committee on Indian Affairs .............................................................. 2

Coyle, Courtney Ann, counsel, Quechan Indian Tribe................................... 16, 18

Harjo, Suzan, president, Morning Star Institute, Washington, DC ............. 26

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee

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

Jackson, Sr., Michael, president, Quechan Indian Tribe .............................. 16

Kearney, Christopher, deputy assistant secretary, Policy and International Affairs, Office of Policy, Management and Budget, Department

of the Interior ................................................................................................ 6

Masayesva, Vernon, executive director, Black Mesa Trust, Kykotsmovi,

AZ ................................................................................................................... 28

Nickels, Marilyn, group manager, Cultural and Fossil Resources, Bureau

of Land Management .................................................................................... 6

Parker, Patricia, chief, American Indian Liaison Office ............................... 6

Parsons, Stephen, hydrologist, Office of Surface Mining .............................. 6

Robbins, John, assistant director, Cultural Resources, Stewardship, Partnership, National Park Service .................................................................... 6

APPENDIX

Prepared statements:

Bowekaty, Malcolm .......................................................................................... 33

Coyle, Courtney Ann (with attachments) ....................................................... 213

Harjo, Suzan ..................................................................................................... 37

Kearney, Christopher ....................................................................................... 35

Masayesva, Vernon (with attachments) ......................................................... 41

Obey, Craig D., vice president, Government Affairs, National Parks Conservation Association (with letter) ............................................................... 60

Palmer, Fredrick D., executive vice president, Peabody Energy (with attachments) ..................................................................................................... 67

Trepp, Robert W. .............................................................................................. 189

Additional material submitted for the record:

Minthorn, Armand, chair, Cultural Resources Committee, Confederated

Tribes of the Umatilla Indian Reservation (letter) .................................... 195

Parker, LaRue, chairwoman, Caddo Nation of Oklahoma (Letter) .............. 202

Sutherland, PhD, Donald R., Principal Archeologist/Federal Preservation

Officer, BIA, Report on the Inspection of Construction Activity on Trust

Lands of the Poarch Creek Indians, Wetumpka, Alabama, to Determine

if Such Activity Might Have Occasioned a Violation of the Archeological

Resources Protection Act of 1979 ................................................................. 205

(1)

NATIVE AMERICAN SACRED PLACES

WEDNESDAY, JULY 17, 2002

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

The committee met, pursuant to recess, at 10:06 a.m. in room

485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of

the committee) presiding.

Present: Senators Inouye and Campbell.

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

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The Committee on Indian Affairs meets today for

the second in a series of hearings on Native American sacred sites.

Long before Europeans landed on the shores of America, the Native people of this Nation revered and protected the lands and natural resources that they knew as their homeland. Their cathedrals

had the sky as their ceilings and the mountains and the trees as

their walls. The sun and the moon and all of the natural elements

were respected as the manifestations of a creator who watched over

all the beings of the world.

With the advent of European settlement and westward expansion, the places that Native Americans held as sacred became vulnerable to desecration and destruction. In contemporary times, the

Government of the United States has slowly but surely begun to

understand that these sacred places must be protected and preserved.

Through these hearings, we hope to identify where the best protection practices are taking place and where we need to focus our

attention if we are to have improvement.

Like other Americans, among the places that Native Americans

hold sacred are the grave sites of their dear departed loved ones.

Because of the tragic record of the desecration and destruction of

Native American grave sites, the Congress enacted a law in 1990

to provide for the protection of graves. That law is an Indian law.

It is codified, as are all other laws enacted for the benefit of the

Native people of the United States, in title 25 of the United States

Code. It is intended to provide for the protection of Native American graves.

Today the committee will receive testimony on some of the land

management activities of the Department of the Interior and the

impact of those activities on the Federal policy which supports and

protects Native American sacred places.
2

May I now call upon the cochairman of the committee, Senator

Campbell.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

Senator CAMPBELL. Thank you, Mr. Chairman.

As the committee deals with the pressing needs of Indian people

like health care and housing, this issue often goes overlooked, but

it is extremely important. Today we will receive testimony on the

issue of Native sacred sites and how those sites have been or are

being impacted by the activities of our Department of the Interior.

Native peoples, perhaps more than most, are affected because the

places we hold dear are being encroached on by the needs and demands of the modern economy and economic activities such as mining, logging, recreation, and building. The dichotomy, of course, is

that in this day and age sometimes Indian people need those activities, themselves, for jobs and making sure that their families are

well fed.

Many of the most sacred places are now located on private lands,

which makes the protection of those sites even more difficult than

usual.

A legitimate question to ask: How has the Federal Government

responded to those needs, particularly in a Nation that historically

has turned our sacred sites on non-Indian land, such as battlefield

and cemeteries, into tourist attractions? Just as President Nixon

launched the Indian Self-Determination Act in 1970, 1 year later,

in 1971, he signed important legislation returning the Blue Lake

Band to the Pueblo of Taos, which holds them sacred. A real awakening has taken place since 1971.

Next year we will celebrate the 25th anniversary of the American

Indian Religious Freedom Act, and we are joined today by one of

the people on the panel, our good friend, Suzan Harjo, who was instrumental in working the halls of Congress and the White House

to get that key legislation passed.

As much as a milestone as the American Indian Religious Freedom Act was, the courts have interpreted it to be lacking in enforcement authority. In the years since that enactment, there have

been other efforts to protect the Native sites—NAGPRA in 1990,

President Clinton’s 1996 Executive Order on Sacred Sites, and progressive action by many agencies at the Federal level. Just as Native people continue to try and protect their sacred places, it is evident to me that the legal protections now in place for cultural and

religious sites in America are lacking in many respects.

With that, Mr. Chairman, I thank you for convening this hearing

and look forward to the testimony of our witnesses.

The CHAIRMAN. It is my great pleasure and honor to recognize

the distinguished Senator from the State of California, The Honorable Barbara Boxer.

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM

CALIFORNIA

Senator BOXER. Thank you so much, Mr. Chairman, and thank

you so much, Senator Campbell, for holding this important hearing
3

and for your stewardship on the whole issue of Indian affairs. It

is so important, and you both are there every day, and I can’t tell

you how much I appreciate it.

Before I start my testimony, which probably goes about 4 minutes, I would like to ask if it would be possible for you to submit

some questions on my behalf to the Administration and ask them

to answer these in writing for me.

The CHAIRMAN. We will submit those questions.

Senator BOXER. I thank you so very much.

This whole issue of sacred sites has become very personal with

me because I was introduced to a particular issue I will talk about

today and thought that it was all resolved. It turns out it isn’t. I’m

going to need your help.

I am very happy that today there are two witnesses here, in particular, President Jackson and Lorey Cachora on behalf of the

Quechan Nation. I have had a long relationship with this tribe, a

relationship that came about because of unfortunate circumstances

I will describe in a few minutes.

Let me first try to elaborate on your eloquence on the importance

of sacred sites and how strongly I feel that they must be protected.

Mr. Chairman, in this world there are a number of sacred sites

that we all recognize, respect, and revere as sacred, regardless of

our individual faith. The very idea of placing, say, an oil rig next

to the Wailing Wall or making a parking lot out of Notre Dame or

placing that same oil rig near the Blue Mosque or Westminster

Abbey, it is to preposterous to even say or to even imagine. Yet,

there are numerous Native American sites, sacred sites, that are

unknown, but many that are known that are currently being ravaged and destroyed in these very same ways.

I feel comfortable saying that in this room we all understand the

importance of sacred sites and the role they play in the spiritual

and religious life of a tribe, but there’s a difference between understanding that sacred sites exist and respecting these sites, being

cognizant of their importance and protecting them with the full

force of the Federal law.

The protection of sacred sites is certainly not a new issue. It has

been dealt with a number of times, as Senator Campbell has alluded to, through executive order and Federal laws and regulations. However, even all that doesn’t change the fact that sacred

sites are being threatened today in my State of California and

across this Nation.

I want to tell you about a specific sacred site in which I have

been intimately involved, one that involves the Quechan Nation. It

is an epic battle against a proposed gold mine.

The story spans nearly a decade and began in 1994 when the Canadian-based GLAMIS Imperial Corporation proposed development

of an open pit gold mine that would impact over 1,600 acres of land

in Southern California. ‘‘Impact’’ is a term that can mean many

things. This proposed mine wouldn’t just impact these lands, it

promises to destroy them.

Open pit gold mining, which is what GLAMIS proposed, literally

alters the very face of the landscape, and, because of the scope and

the damage, it is so hard to comprehend. I did bring a chart, and

it doesn’t even do it justice, but imagine this. This are is all—this
4

is another are in my State, not far from where this is, and it was

all beautiful, green, rolling hills, and you can see what happens.

We also have—and you can’t see it, it’s in the small part here—

yellowish-orange rivers near this mine. The rivers are dead zones—

dead zones—and have been poisoned by the cyanide used in this

type of gold mining.

We know how Indians, Indian tribes, Native Americans love the

land, the water, respect and treasure it, and here we have a situation of dead zone that has been poisoned by cyanide from this type

of gold mining that has been proposed by GLAMIS.

It is fair to say that this type of gold mining creates sacrifice

zones, and in this case GLAMIS proposed that the sacrifice zone

be a location that is sacred to the Quechan people.

During the permit review process, President Clinton’s Advisory

Council on Historic Preservation testified that the mine would essentially—and I’m quoting, Mr. Chairman:

Essentially destroy the tribe’s ability to practice and transmit to future generations the ceremonies and values that sustain their cultural existence.

I think that is an eloquent quote. I’m going to say it one more

time. The President’s Advisory Council on Historic Preservation

testified that the mine would:

Essentially destroy the tribe’s ability to practice and transmit to future generations the ceremonies and values that sustain their cultural existence.

To me, I would put it in even starker words. It says that this

mine would rip the heart out of the tribe’s religious center.

The tribe, the its credit, played by the rules, Mr. Chairman. They

participated in the environmental review process, they expressed

their objections. I repeatedly expressed mine in writing, verbally.

I met with Secretary Babbitt to let him know of my opposition. I

was very strong.

In January 2001, the Clinton administration did the right thing.

In an unprecedented move, it denied GLAMIS the necessary permits. Never before had the Bureau of Land Management denied a

mine because of cultural impacts. The Administration’s decision to

reject the mine was based, in part, on the fact that:

The proposed project is in an area determined to have nationally significant Native American values and historic properties and would cause unavoidable adverse

impacts to these resources.

The day that decision was made was a day when the Federal

Government honored its legal and ethical obligations to protect the

interest of the Quechan Tribe. It sent a powerful and positive message that Native American religious rights would be honored and

their sacred sites would be protected.

Mr. Chairman and Mr. Cochairman, that was a wonderful day

when that decision came down, but the victory didn’t last long. In

November 2001, Secretary Gale Norton came up with a new interpretation of mining law and decided she was going to reopen consideration of the GLAMIS proposal. Although the initial permit denial took 6 years and hundreds of hours of consultation, the decision to reopen the permit involved no public input and took only

a few months.

Nowhere in the convoluted explanation that Secretary Norton

gave to justify this decision did she ever address the tribe’s con-
5

cerns. She simply acted as if it didn’t matter, or maybe she knew

there was no legal or moral justification she could give.

The decision is a rejection of her trust obligations to that tribe.

It ignores her duty to comply with the executive order on sacred

sites and it rejects her obligation to comply with the Native American Grave Protection and Repatriation Act.

But what really bothers me deeply is that Secretary Norton met

with the GLAMIS Corporation, a private Canadian company, prior

to reversing the Clinton decision, but from everything we can gather—and we’ve asked everyone, and you can ask, yourself—she did

not meet with or consult with the tribe. In fact, it is my understanding that she still has not met with the tribe, despite her plans

to move forward with a project that will tear the heart out of their

culture.

I hope that today’s witness for the Administration can give us

confirmation that the Secretary will meet with the tribe in the near

future to discuss this.

When I ask myself how this could happen, the only conclusion I

can draw is that Secretary Norton views the GLAMIS project as

just another mining project, but I’m here to tell you it isn’t. The

GLAMIS project is about the desecration of a sacred site, the Notre

Dame, the Wailing Wall, Westminster Abbey.

We in Congress must find a way to ensure that the Quechan Nation sacred sites and the sacred sites of other tribes are not allowed

to fall prey to this type of destruction. Although I have mentioned

one situation in my State, I know that this is not a State-specific

issue, it is a national issue, and that is why I am so grateful to

you for putting this issue on the map. It must be addressed at the

national level.

I once again thank you, Mr. Chairman and Mr. Cochairman for

convening this series of hearings and to your dedication to making

sure that these sacred sites are forever protected.

Thank you very much.

The CHAIRMAN. Your strong and moving words will be kept in

mind as we progress, madam.

Senator BOXER. Thank you. Thank you so very much.

Senator CAMPBELL. May I just say to Senator Boxer that I certainly agree with her and I intend to write a letter to the Secretary

and try to talk to her about it personally.

I’m glad you have such a good feeling, too, about these sacred

sites. You know, Indian sacred sites are not just based on where

remains lie. It is where the spirits of their ancestors lie. I guess,

because of our history of America, in which many of them were not

recorded or documented or located, in some cases you have to ask

Indian people, obviously, where they are. They know because their

fathers and their grandfathers have told them, but it wasn’t recorded in some book in Washington, D.C.

As I understand it—as you do—there is an obligation, when

opening a new mine for instance, to negotiate with the tribes, but

meeting with them and consulting and then doing what you want

anyway is not my idea of fulfilling an obligation with two parties

involved.

I just wanted you to know I am certainly willing to help you.
6

Senator BOXER. I just want to say how grateful I am to you and

to Senator Inouye, and I think there is not an understanding here.

Look, for people who haven’t really focused on this, it is the whole

notion. You’re dealing with sovereign nations. You’re right—it’s not

a matter of having filed a form with another nation.

What you say I agree with 100 percent, and I thank you again.

The CHAIRMAN. Our next witness is the deputy assistant secretary, Policy and International Affairs, of the Office of Policy Management and Budget of the Department of the Interior, Christopher

Kearney.

STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT

SECRETARY, POLICY AND INTERNATIONAL AFFAIRS, OFFICE

OF POLICY, MANAGEMENT AND BUDGET, DEPARTMENT OF

THE INTERIOR, ACCOMPANIED BY PATRICIA PARKER,

CHIEF, AMERICAN INDIAN LIAISON OFFICE; STEPHEN PARSONS, HYDROLOGIST, OFFICE OF SURFACE MINING;

MARILYN NICKELS, GROUP MANAGER, CULTURAL AND FOSSIL RESOURCES, BUREAU OF LAND MANAGEMENT; AND

JOHN ROBBINS, ASSISTANT DIRECTOR, CULTURAL RESOURCES, STEWARDSHIP, PARTNERSHIPS, NATIONAL PARK

SERVICE

Mr. KEARNEY. Good morning, Mr. Chairman and Mr. Cochairman. Thank you for inviting me to testify. We have some witnesses

joining us who will be able to answer a number of technical questions for you should we be getting into that, and with your indulgence I will begin my statement.

The CHAIRMAN. Will you identify your staff, sir?

Mr. KEARNEY. Yes; I will, sir.

As I said, my name is Chris Kearney. I am the deputy assistant

secretary for Policy and International Affairs in the Office of the

Assistant Secretary of Policy, Management, and Budget. I am accompanied today by Stephen Parsons, a hydrologist with the Office

of Surface Mining; Marilyn Nickels, the group manager, Cultural

and Fossil Resources, Bureau of Land Management; and also John

Robbins, the assistant director, Cultural Resources, Stewardship,

Partnerships, the National Park Service; and Patricia Parker, chief

of the American Indian Liaison Office.

Executive Order 13007 regarding Indian sacred sites was issued

in 1996. That order requires Federal land management agencies, to

the extent practical permitted by law and not clearly inconsistent

with essential agency functions to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners

and avoid adversely affecting the physical integrity of such sacred

sites.

Where practical and appropriate, it implements procedures to ensure reasonable notice is provided of proposed actions or policies

that may restrict future access to or ceremonial use of or adversely

affect the physical integrity of these sites.

The 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.
7

Each relevant Cabinet agency was required to send an implementation report to the President within 1 year of the order’s

issuance.

Coordination of the Department of the Interior’s implementation

was assigned to the Office of American Indian Trust, OAIT. OAIT

is responsible for ensuring Departmentwide compliance and overall

consistency of the sacred sites executive order.

To assist that office to communicate with various bureaus in the

Department, an inter-agency working group on implementation of

the sacred sites executive order was created, comprising representatives of each departmental bureau, appropriate offices, and the Office of the Solicitor.

The working group has actively sought input from tribal representatives on all aspects of the implementation process. The Department asked for tribal input on the structure, location, and content for consultations, and hosted three formal discussion meetings

between tribal and Federal representatives focusing on implementation from both a procedural and substantive perspective. Those

meetings were held in Portland, Oregon; Denver, Colorado; and

Reston, Virginia in March and early April 1997.

Topics at the meeting included how to conduct meaningful consultation, how and when the processes are triggered, how to protect

the physical integrity of the sites, how to protect the confidentiality

of culturally sensitive information, accommodating access and use,

as well as dispute resolution.

In October 2001 the Department attended a Sacred Lands Forum

in Boulder, CO, and through considerable internal review and dialogue with interested participants of the forum it became clear that

we needed to move forward on establishing policies and procedures

for protecting sacred lands and the executive order.

At the Overcoming the Challenges Symposium that was held in

March of 2002, held as part of the Washington, DC Sacred Lands

Forum, we announced our intent to reconvene the Department’s

Sacred Sites Working Group.

In June of this year, each of the Department of the Interior offices and bureaus involved with sacred sites were notified of plans

to reconvene the working group, and they were asked to assign a

representative to it. Our objective is to renew the momentum within the bureaus for establishing the necessary procedures to carryout our obligations understood in the policy we created and ensure

that we fully take into account all tribal concerns.

It is also our intent, working with the tribes, to finalize and then

publish these policies and procedures and provide them to the

tribes and other interested parties and to ensure that implementation occurs in a timely manner.

The Office of American Indian Trust is responsible for the coordination, logistics, and staff assistance within the Department.

The first working group meeting occurred just this past July 2

in the Office of the Assistant Secretary for Indian Affairs. We are

in the process of now identifying the current status of sacred site

management across the bureaus, and that will be followed by future meetings with developing management changes and tools to

ensure full compliance with the order.
8

In addition, and as a result of the sacred lands forum, on August

14 the Department and the Advisory Council on Historic Preservation are sponsoring an inter-agency meeting on sacred lands and

cultural resources under the auspices of the Inter–Agency Working

Group on Environmental Justice. These meetings are meant to

help bring awareness and enhance coordination of sacred sites, not

just within the Department but governmentwide.

This concludes my statement. I would be pleased to answer any

questions you might have, and any technical questions these folks

would be happy to answer for you, as well.

The CHAIRMAN. I thank you very much, Mr. Kearney.

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

The CHAIRMAN. The committee has been advised that last February an employee of the National Park Service segregated and destroyed several boxes of NAGPRA—that’s the Native American

Grave Protection and Repatriation Act—and archeology and ethnographic program documents. Did this ever happen? And what did

they destroy, if they did?

Mr. KEARNEY. Mr. Chairman, my understanding is that some answers and some questions related to that have been provided to

you already. Is that correct, or have you received other information?

The CHAIRMAN. Staff tells me it is not correct.

Mr. KEARNEY. Okay. My understanding of the information was

that this was as part of offices in the National Capital Region Office that they were moving to another office, that they were consolidating space, that they were going through old files and records,

reducing what they had, and that there were no NAGPRA original

records or materials that were destroyed. In fact, all of the material, as I understand it, was retrieved from the trash where it had

been sent, and that the material was reviewed and examined, and

that it was a range of magazines, of outdated forms, Governmentrelated papers and so forth, miscellaneous materials.

To the extent there was anything that was NAGPRA related, it

was duplicative forms and information. There were no sensitive

records or information destroyed is the information that I have. In

fact, all of those boxes were retrieved, and it was simply a process

associated with essentially throwing out outdated materials and

records—not records, but outdated materials and forms and so

forth.

The CHAIRMAN. Is there an ongoing investigation or are you satisfied with your findings?

Mr. KEARNEY. My understanding is that there was a thorough

review and independent evaluation at that time, and that we are

satisfied with that conclusion.

The CHAIRMAN. So nothing relevant or important was destroyed?

Mr. KEARNEY. That’s correct.

The CHAIRMAN. Some have suggested that the NAGPRA program

office should be moved to the Office of the Secretary. What are your

thoughts on that?

Mr. KEARNEY. The Department’s position is that, based on a review of that program last year and with a number of changes and

actions that the Park Service has taken, we are satisfied that the

program can remain within the Park Service and will remain in
9

the Park Service; however, we are open to any suggestions and

ideas by way of improving the management and the process and

giving additional levels of comfort that the committee may need to

ensure that that’s the case, but we are satisfied that steps have

been taken to ensure that the program can operate appropriately.

In the Park Service, for example, staffing has been improved.

There have been changes in individuals who oversee the program.

And there is a redirection and a refocus of the program.

The CHAIRMAN. So at the present time this move is not under serious consideration?

Mr. KEARNEY. That’s correct. That’s right. The decision has been

made to retain it at the Park Service.

The CHAIRMAN. Was the explanation or description provided by

Senator Boxer on the gold mine accurate from your standpoint?

Mr. KEARNEY. I would defer to the technical folks on some of the

specific aspects with respect to that in terms of whatever question

you might want to ask about it.

Ms. NICKELS. Could you give me specifically what part of the testimony you were—— The CHAIRMAN. Well, you were here when Senator Boxer testified.

Ms. NICKELS. Right.

The CHAIRMAN. And she said, first, there was no consultation

with members, appropriate members of the Indian nation. Second,

it is a very sacred site listed as one of the 10 most important by

the Government of the United States, and it was once declared to

be sacred and therefore inviolate, but then this Administration suddenly changed positions, without hearings or consultation. Are

those statements correct?

Ms. NICKELS. It is my understanding that the Solicitor’s opinion

in the last Administration was reviewed. The Solicitor’s opinion,

which underlay the decision by the Secretary in the past Administration to deny the mining plan of operation was reviewed by Solicitor Meyers in this Administration, and that he advised the Secretary that, based upon his review, that that Solicitor’s opinion

should be overturned, and advised her to rescind that decision of

denial.

Pursuant to that decision by the Secretary, the Bureau of Land

Management has proceeded forward with a review now of the mining plan of operation. It is to be preceded by validity examinations

which are required before we approve the mining plan of operation

or go forward with review of the mining plan of operation.

The CHAIRMAN. Did you consult with the leaders of the nation?

Ms. NICKELS. I believe that the Bureau of Land Management

was not involved directly at the decision at the Secretarial level,

and so I would defer to the Secretary’s office to answer questions

about consultation with tribes on that decision.

Mr. KEARNEY. We would be happy to respond to that in writing

to be sure that we get the facts for you correctly.

The CHAIRMAN. Was the Secretary’s office or the appropriate offices aware that this site was considered one of the ten most sacred

sites in the United States?

Mr. KEARNEY. Again, I would be happy to get you an answer.

The proceedings and the steps through which that unfolded is in-
10

formation we want to make sure that we have for you correctly, exactly what the full context and the story was.

The CHAIRMAN. Well, I have a document here that says this is

one of the top 10—in fact, the most sacred of all sites—but the Interior Department wasn’t aware of that?

Mr. KEARNEY. Senator, I was not directly involved in the activities and the decisions, and rather than—I do not want to

mischaracterize or characterize steps and actions, level of information that was aware. I’m certain that there was a full set of facts

and information that went into these decisions. I simply want to

make sure we have it accurate for the committee.

The CHAIRMAN. Are you aware of the National Trust for Historic

Preservation?

Mr. KEARNEY. Yes, sir.

The CHAIRMAN. Is that a worthy and meritorious organization?

Mr. KEARNEY. Yes, sir; certainly they are.

The CHAIRMAN. And they have set forth America’s 11 most endangered historic sites. Have you seen this document?

Mr. KEARNEY. I’m not immediately familiar with it. No, Senator.

The CHAIRMAN. This appeared in the ‘‘Atlantic Monthly,’’ August

2002, so it is most recent. The first site described is the one that

we are speaking of in Imperial County, California, Quechan Sacred

Site.

Ms. NICKELS. Senator, we are aware of the list of the National

Trust for Historic Preservation that lists Indian Pass as one of the

most endangered, yes.

The CHAIRMAN. But, notwithstanding that, you did not consult

with the leaders of the nation?

Ms. NICKELS. As I mentioned before, at the Bureau level we

must defer to the Department to characterize the discussions that

went on and the decision to rescind the past denial.

The CHAIRMAN. Well, if they break down St. Peter’s Cathedral I

hope we consult with them.

What is a culturally unidentifiable human remain?

Mr. KEARNEY. Under NAGPRA, culturally unidentifiable——

The CHAIRMAN. Yes, yes.

Mr. KEARNEY [continuing]. Human remains are human remains

that cannot be culturally affiliated with a federally recognized

tribe.

The CHAIRMAN. And I have been told that you have a rulemaking

regarding disposition. What is the rule that you are suggesting?

Mr. KEARNEY. Under the original act one of the sections that further regulations were to be developed for was the disposition of culturally unidentifiable human remains, and the development of that

rule is underway now.

The CHAIRMAN. You are supposed to have a list of these remains;

is that correct?

Mr. KEARNEY. Yes; one of the first tasks regarding culturally unidentifiable human remains is the development of a list that——

The CHAIRMAN. Have you completed this list?

Mr. KEARNEY. No; that list is not complete, but it is underway.

The CHAIRMAN. When that list is completed, will it be shared

with us?
11

Mr. KEARNEY. That list will be available to the public and we’ll

make sure that the committee has a copy of that list.

The CHAIRMAN. Is there any government-to-government consultation that is taking place with Native Americans on this proposed

rule?

Mr. KEARNEY. The way that the—the terms of the rule, the draft

was developed from recommendations that were developed by the

Native American Graves Protection and Repatriation Review Committee, which is the citizens advisory committee under NAGPRA,

and the recommendations of the committee were developed in several public meetings, the Review Committee’s public meetings.

The rule then has been drafted based on the committee’s recommendations, and then again this is a draft rule which would

then be available for public comment.

The CHAIRMAN. It will be open to the leaders of Indian Country?

Mr. KEARNEY. Yes.

The CHAIRMAN. I have several more questions, but I’ll call on our

cochairman.

Senator CAMPBELL. Thank you, Mr. Chairman. We got our first

call to vote, and we’ll get a second one in 1 minute, so we’re going

to have to run. I assume you’re going to take a break for a couple

of minutes.

The CHAIRMAN. Yes.

Senator CAMPBELL. Just in the couple of minutes I have, I don’t

want to reduce it just to asking a bunch of sanitized technical questions dealing with rules and times and dates. I’d just point out not

too long ago I was on a CODEL and we stopped at Normandy,

where I visited Omaha, Juno, and Sword, the beaches where so

many Americans died. I know that my chairman understands the

feeling of being a decorated military hero, himself. When you visit

a place where your brothers fell, I guess I would only ask you— and you don’t have to answer it out loud, but consider in your own

heart how would you feel if your grandfather died there or your father and you found out a mine was going to be built on Omaha

Beach.

I think we get bogged down here in Congress so much with doing

it by the book and doing it by rules that we don’t do enough by

the heart, and I want you to think about that while we’re voting.

Thank you, Mr. Chairman.

The CHAIRMAN. We will stand in recess for 5 minutes.

[Recess.]

The CHAIRMAN. Any more questions?

Senator CAMPBELL. I have one or two, Mr. Chairman. Thank you

for letting me continue with questions, since I didn’t really get to

ask one a while ago that I wanted an answer for.

Mr. Kearney, I happen to be a westerner. I’m certainly sympathetic with the importance and the need to develop natural resources and at the same time to protect the environment. We really

get caught in a cross-fire out west, as you might imagine, sometimes people calling it the War Between the Old West and the New

West.

I think the Secretary shares that view, too, coming from Colorado, and a person that has been involved in public policy so many

years.
12

Let me ask you about the Department. As I understand it, it has

been engaged now for six years with tribes on sacred place protection. What is the end goal? And do we need more legislation or do

we need a change in policy? We’re certainly missing somewhere

with the tribes.

Mr. KEARNEY. Well, Senator, let me try to answer it this way and

perhaps give you a further follow-up answer. We certainly find it

to be critically important to take into account all matters related

to sacred sites, and we are trying, as part of this working group,

to give some guidance to the executive order. There are a number

of issues that the working group will be looking at, and it may well

be in that context that that can be examined. We’re really trying

to develop guidance that gives Federal land managers on the

ground ways to address and deal in advance with issues like those

that have been raised by GLAMIS and others so that we have some

sense of what we’re dealing with before we go into situations to try

to minimize controversy and to take into consideration the concerns

of the tribes and others. So that is our commitment and that’s what

we are focused on.

Senator CAMPBELL. But tribes really don’t have a veto. That

means if you go out and meet with them and you listen to their

concerns, whoever wants to develop the mining area, if they’ve got

enough clout it tends to get done, in my view, because, as I understand it, tribes may complain, they may register their views on it,

but bottom line is it can be run over the top of. Is that correct or

not? Unless they go to court, and maybe the courts might uphold

their claim.

Mr. KEARNEY. Well, I think, Senator, that there is a commitment

to do everything possible to maximize and take into consideration

the concerns and the impacts and the effects on tribes and taking

steps necessary to mitigate those to every extent that we possibly

can. That is in every regard. We always will try to do that.

Senator CAMPBELL. Can you give the committee a couple of instances in which tribal complaints have stopped a big development,

say a mine development?

Mr. KEARNEY. In my direct experience, nothing immediately

comes to mind, but I would be happy to try to check for you and

see if anything falls into that category.

Senator CAMPBELL. I’d appreciate it if you would, because it is

my information that they have never been able to stop one. I mean,

there might be some consultation, but the bottom line is it gets

done.

Thank you, Mr. Chairman.

The CHAIRMAN. I thank you very much.

If I may for a moment go back to the destruction of documents,

according to my files here the committee was advised that several

solicitors conducted an inventory and reviewed the documents in

the boxes, and that, contrary to your understanding, the boxes contained NAGPRA records, personnel records, financial records, and

travel records. Can you provide the committee with a clarification

of this in writing?

Mr. KEARNEY. Certainly.

The CHAIRMAN. I am certain you are aware that a very famous

dance shirt, the ghost dance shirt of Crazy Horse, was sold by
13

Sothebys, and the Department did not pursue this matter because

it did not have a final rule in place. Is there such a rule now that

can stop the sale?

Mr. KEARNEY. I apologize, Senator. I was taking a note on your

previous request. Could you repeat that question, please?

The CHAIRMAN. It is the committee’s understanding that one of

the items of cultural patrimony, the ghost dance shirt of Crazy

Horse—in minds of Native Americans, that’s a very important

shirt——

Mr. KEARNEY. Yes, sir.

The CHAIRMAN [continuing]. Was sold by Sothebys and the Department did not pursue the matter because the Department did

not have a final rule in place. Do you have a final rule in place?

Mr. KEARNEY. I believe so, but I’d defer to——

The CHAIRMAN. On civil penalty regulations?

Mr. KEARNEY. I believe so.

Mr. ROBBINS. Currently the rule in place is an interim rule on

civil penalties, and the final rule continues to be in development.

The CHAIRMAN. So if we have another valuable shirt of this nature, you can’t do anything to stop its sale?

Mr. ROBBINS. The decision to pursue civil penalties or not is a

decision taken in consultation with the Solicitor’s Office, and I have

not been part of any of those decisions. But on the matter of interim and final rule, currently an interim rule is in effect and the

final rule is in preparation.

The CHAIRMAN. So with this interim rule, would the Government

have been able to save Crazy Horse’s shirt?

Mr. ROBBINS. I would have to respond to that. I would request

that I would be able to respond to that in writing.

The CHAIRMAN. Please do.

I would like to know in your response also what is the status of

the civil penalty rule. It is an interim rule. How long will it be interim?

Mr. ROBBINS. We will include that in the response.

The CHAIRMAN. Do you have any idea how long it will be?

Mr. ROBBINS. The final rule is in preparation now, and I would

want to give you an accurate status report on where that is in the

process towards final rulemaking.

Mr. KEARNEY. We’ll be sure to get that to you, Senator, as soon

as we can.

The CHAIRMAN. Going back to the GLAMIS gold mine, the former

Secretary of the Interior based his findings that the open pit cyanide heat leach gold mine would cause undue impairment to cultural and natural resources; however, the present Secretary rescinded the earlier denial of the mine permit on the grounds that

the Department did not have regulations that defined undue impairment, and that lack of such definition thus prohibited the Department from denying the mine, despite the fact that the statutory standard has been in place for 20 years in the California

desert conservation area.

If that is the case, what information did the Department rely on

to make its rescission of the denial of the proposed mine project ?
14

Mr. KEARNEY. Senator, I would be happy to respond to you in

writing. I was not directly involved in that and do not have the information to provide to you at this time with respect to that.

The CHAIRMAN. Anyone here involved in it?

Mr. KEARNEY. No; Senator.

The CHAIRMAN. Do you know what undue impairment is?

Mr. KEARNEY. Not familiar with the term specifically as it relates

that it was the basis for that.

The CHAIRMAN. Does the BLM consider sites of religious and cultural significance to Native Americans to be one of the resources

to be protected under the existing authority, including the Federal

Land Policy and Management Act?

Ms. NICKELS. Yes, Senator; we do include that category of property in all of our considerations under the Federal Land Policy and

Management Act, the American Indian Religious Freedom Act, the

executive order on sacred sites, and the National Historic Preservation Act requirement, so a suite of laws govern our decisionmaking

process and the process that we go through before we reach these

decisions.

The CHAIRMAN. That being your view, I presume you will define

‘‘undue impairment,’’ won’t you?

Ms. NICKELS. Again, I would have to defer to the Department

and to the Solicitor’s Office for that in answering that question.

The CHAIRMAN. Don’t you think it is important?

Ms. NICKELS. Yes, Senator; it is important.

The CHAIRMAN. Because if that is not promulgated, BLM may

not be able to implement the Congressional mandate in the California desert conservation area and protect that area; isn’t that correct? It will be just two words, ‘‘undue impairment.’’ In 2000 the Bureau of Land Management withdrew the Indian

Pass area from new mining claims to protect the Indian cultural

and religious values found there. Is the Bureau of Land Management considering any action to rescind the withdrawal of the area

from mineral entry?

Ms. NICKELS. To my knowledge we are not.

The CHAIRMAN. Can we get an official response from the BLM on

that?

Ms. NICKELS. We would be happy to followup with answer in

writing.

The CHAIRMAN. Thank you very much.

Ms. NICKELS. I am advised, Senator, it is a standard 20-year

withdraw, the action that was taken originally.

The CHAIRMAN. Could you find out for this committee, because

it is our understanding that the Bureau of Land Management did

not consult with the Quechan Nation and other affected tribes before it rescinded the denial of the mine permit. And you said you

have no idea?

Ms. NICKELS. I’d like to clarify my response. The decisions with

regard to the rescission of the denial that was provided to her by

the Solicitor—I asked about extent to which tribes were consulted

in that decision which the Secretary made.

The CHAIRMAN. I think it would be important to the committee

to know whether there was or there was not consultation with the

Nation.
15

Does the Office of Surface Mining have a tribal consultation policy?

Mr. KEARNEY. Yes; my understand is yes, sir, they do. Yes, sir,

my understanding is that they do, and they can speak to more detail.

Mr. PARSONS. Yes; we have a directive, a Bureau directive, on

consultation with Indian tribes regarding the permitting and other

activities associated with coal mining and BLM activities and that

sort of thing.

The CHAIRMAN. In the Peabody Mine activities, with whom did

the Office of Surface Mining consult regarding activities affecting

the Hopi community, or did you consult pursuant to the policy?

Mr. PARSONS. Yes; from the time that the permanent program

application for Surface Mining Control and Reclamation Act permit

came in in 1985, I believe, the Hopi Tribe and the Navajo Nation,

as well, were involved, consulted, involved in review. They were

provided with the same materials that we receive, and——

The CHAIRMAN. So you did consult with the national leaders of

the Hopi Nation?

Mr. PARSONS. Yes.

The CHAIRMAN. I have several other rather technical questions.

May I submit them to you?

Mr. KEARNEY. Yes, Senator; we would be happy to do that.

Senator CAMPBELL. Mr. Chairman, I will also submit some further questions.

I would like to just say a sentence or two since you brought up

the question of Crazy Horse’s shirt and dealt with rules in your

questions, too.

Years ago you and I worked very hard on a bill to authorize the

building of the Museum of the American Indians with the Smithsonian, as you remember. That is being built now and is going to be

open in a few years to the enjoyment of millions of people throughout the world to be able to visit that. But when we authorized that

bill we put a section in there that required the Smithsonian to return skeletal remains and funerary objects, many that were taken

by force or stolen. And, by the way, that’s still going on in some

places, as you probably know. There are museums all over the

country if not all of the world, things that were taken from burial

sites of Indian people. You can put yourself in that same feeling,

if you would, you know, just recognize how you would feel if something was taken out of your grandmother’s grave and you saw it

in a museum later. It is an extremely touchy issue.

But the rules, when they are promulgated, when we passed that

bill we found there was a glitch, and that was that some of those

things are not returned because they don’t have a clear chain of

possession from the time it disappeared from the tribe to the time

they suddenly have it in their glass case in the Smithsonian. I

think I can apply that logic to all the rules with all the agencies.

If they don’t have that very clear-cut progression in writing somewhere, then they assume that they can’t give it back, which I think

is wrong. Cheyennes have been trying to get a pipe back for 15

years and can’t do it because there is a hole in from the time it

disappeared until the time it showed up in the Smithsonian collection.
16

I don’t want to malign the Smithsonian because I am a big supporter of it, but I think that shows you the intent of Congress

sometimes really is foiled by the rules. By the time they get done

with the rules, that’s not what we meant when we wanted to do

something good for people. I would just like this committee to keep

that in mind.

Thank you, Mr. Chairman.

The CHAIRMAN. I just want to note that I am also involved in

DOD matters, and I always find that, in discussing sacred sites

with the highest officials of DOD, they are always prepared to respond as to policy matters. I hope when we have the next meeting

on sacred sites the Department will be able to give us some response on policy matters.

Mr. KEARNEY. Yes, sir.

The CHAIRMAN. With that, I thank you very much, sir. Thank

you very much.

Now may I call upon the third panel: Michael Jackson, Senior,

president of the Quechan Indian Nation; accompanied by Lorey

Cachora, Housing Director, consultant to the Culture Committee,

Quechan Indian Nation, Fort Yuma Indian Reservation in Arizona;

Malcolm Bowekaty, Governor of the Pueblo of Zuni of New Mexico.

The CHAIRMAN. President Jackson, welcome, sir.

STATEMENT OF MICHAEL JACKSON, SR., PRESIDENT,

QUECHAN INDIAN TRIBE, ACCOMPANIED BY LOREY

CACHORA, HOUSING DIRECTOR, CONSULTANT TO THE CULTURE COMMITTEE, QUECHAN INDIAN TRIBE, FORT YUMA INDIAN RESERVATION, YUMA, AZ AND COURTNEY ANN COYLE,

COUNSEL, QUECHAN INDIAN TRIBE

Mr. JACKSON. Good morning. Again, it is an honor, Senator

Inouye and Senator Campbell, to be among you.

Our nation is located in Fort Yuma, California, Imperial County.

My shava and tribal member, Mr. Cachora, is seated next to me.

We have come a long way to bring from our tribe, from our most

elders, and also from our most precious resource, our younger generation of our tribe.

Our religion, our culture, our tradition has been handed down

from time immemorial through our elders for generations, so we

will not let our beliefs die.

Our most sacred site, Indian Pass, is under attack to be destroyed by a mining company, which we all know. We have spoken

about it this morning. It plans to operate an open pit cyanide leach

operation.

Years ago we followed the correct legislative process, which the

United States requested us to follow, which we did. We followed

the permit process, environmental process, numerous hearings,

consultation process between our government and the Federal Government. We had tremendous support throughout the country. Finally, Secretary Babbitt, under the Clinton administration, denied

the mine, which was a great victory for the Quechan Nation to save

our history.

Immediately under the new Bush administration the decision

was reversed. Gale Norton made the decision against the Quechan

people without consulting with our nation, without sitting down at
17

the table and talking to us, looking into our eyes, hearing from our

hearts why this was a most sacred site to our people for our past

and our future. She did not follow the correct legislative process,

and still today she refuses to sit down and talk to us.

As you asked the questions this morning, no, there was no consultation period with us. I would know. I am the president of our

tribe. The process follows that they’ll call me saying that we want

to talk to you about this very important matter that affects you.

I’ll contact my council, the president of our Culture Committee, Mr.

Cachora, will set a time and date. I’m still young. My mind is still

sharp. I did not forget, so this never happened.

When this happened, when the reverse decision was made, this

is something that our younger generation in our tribe just doesn’t

understand. We thought we won the victory, then it was taken

away before we had a chance to celebrate. Our elders just shake

their heads, knowing this has happened too many times in the

past.

Since that time, our sacred sites have been placed on the most

endangered historic places, which was said this morning. The

Quechan Nation is watching and waiting for the Federal Government to make the only right decision—that is, to make a final decision to deny the gold mine once again.

Our ancestors left Indian Pass for a reason—to pass on to the

generations to come—that is us today and our youngsters. Mother

Earth is in our bodies, our blood. The river water runs through us.

It is very sacred to us. Native Americans across the country, as you

know, are the ones who saved Mother Earth. They cherish Mother

Earth, and they will do anything to save what we walk on.

I bring the very hearts of our people to you today to help save

our history, our past, to preserve it through the ages. We only talk

the truth. Hopefully, somebody will listen to us, what we are trying

to say. Without Indian Pass, we can’t carry on our culture, our tradition, our religious beliefs. They will be gone forever should this

land mine be permitted to proceed.

In closing, I would like to make a final statement. Senator

Inouye, you posed a question to the group here earlier, and it really

strikes me that they didn’t answer the questions completely. When

they make a decision against somebody, there should be a reason

why a decision is made. Hopefully like you said, in the future you’ll

come up and let us know why such a decision was made without

walking the ground, looking at the site. Gale Norton should be on

the site with us to know what we are fighting for. If she would

come tomorrow, we’ll take her to the site. I know for a fact that

she mostly will likely change her mind about helping us save our

site and not go against us. You cannot make a decision against the

people until you know what decision you’re making and what

they’re fighting for.

I would just really like to state to you that we would like a meeting with her in the future. She has to know from our hearts what

we are trying to say.

And that word ‘‘undue impairment,’’ that was a play of words on

the decision that was reversed. Hopefully the officials that sat up

here earlier will understand what the word means and how it affects our tribe.
18

Thank you.

The CHAIRMAN. I thank you very much, Mr. President.

Does Mr. Cachora want to testify?

Mr. Cachora, you are recognized.

LOREY CACHORA, HOUSING DIRECTOR, CONSULTANT TO THE

CULTURE COMMITTEE, QUECHAN INDIAN TRIBE, FORT

YUMA INDIAN RESERVATION, YUMA, AZ

Mr. CACHORA. Thank you, Mr. Chairman and members of the

committee. Normally when I give presentation I’m on my feet, but

in this case it’s kind of awkward for me to sit behind a table. In

either case, I am Lorey Cachora. I’m here today in my role as a

Quechan Tribal Cultural Committee consultant.

I am pleased to be here today to testify on the matter of the important legal subject related to the cultural preservation law. As

you well know, I am accompanied by Mr. Jackson and Courtney

Coyle, attorney.

The Quechan Tribal Council and the Cultural Committee and the

Quechan community has addressed concerns about prehistoric cultural sites, lands that have been affected or could be affected.

The lectures, presentations to the community, county, State, national level have been consistent with the commitment of non–Indians and the Indians of the Nation to help preserve freedom to practice the Quechan religion and culture.

The Quechan people have acknowledged the unique relations

with the U.S. Government—that as sovereign nation they retain

their inherent rights to self-government. They have expressed what

others have expressed long ago. This is the lack of enforcement of

provisions in existing preservation laws that should protect sacred

sites.

This generation recognizes the problem again today. Someone in

the Federal Government is failing to recognize American Indian

traditional cultural values.

The Department of Interior follows its own regulations and other

controlling laws, but they do not adhere to the requirements of the

due process; therefore, they cannot reach their final resolution.

This causes the agency to make up rules and regulations as they

see fit.

Now the history of the Quechan Tribe along the lower Colorado

River—share an ideology and cosmology that encompasses the entire region. Although there are some linguistic differences among

the river tribes, they are closely related linguistically and culturally. The Quechan Tribe, also known as the Yumas, includes

people of all the Colorado River and other groups with the Lower

Colorado River and Gila River as a focus of their lifeway, share a

history and belief system, and common ancestry.

All of the river people have since been incorporated into a decisionmaking regarding the cultural landscapes of the region. Topographic features along the Lower Colorado River and Gila River

are major focal points in the cosmology of the river people. This

area includes the Indian Pass area and others along the river system. Important events occurred at these locations, and the

Quechan of the area have a very, very strong belief that geographic
19

locations in the performance of ritual, which is vital to their effectiveness.

A synthesis of extremely complex creation story—difficult to accomplish because the tale takes four days to tell. However, it encompasses not only the creation of the world and its inhabitants,

but the teaching of how to live in the world with proper respect for

one’s surroundings and other inhabitants of those surroundings, as

well as the proper way to treat the resources that have been provided by the spiritual beings.

The Quechan Tribes were in existent in this region and they are

imbued with spiritual power. A web of continuity of power spiritually connects these locations with other features in the land as

sort of a nervous system.

If there is a break in the web, it affects the entire cosmo. Although peaks are most important in the valley, between peaks and

the desert pavement floor are the pathways for the web that flows

through from one peak to the other.

This is a brief statement which entails the Quechan practice, beliefs, lifeway, existence. Unfortunately, comments, statements, public education, and national government statements have fallen on

deaf ears.

I ask that someone in Washington, DC enforce the responsibility

of the Federal Government. If the mining or other industry is permitted on any sacred sites, this will destroy the lifeway of the

American Indian.

Today we are here to stay for an indefinite future as Americans.

If we say it is sacred, we ask that you impose the maximum degree

of protection.

These words that I have expressed here come from the community, Cultural Committee, and Council members. Thank you for listening today.

The CHAIRMAN. Thank you very much, Mr. Cachora.

Now may I call upon Governor Malcolm Bowekaty.

STATEMENT OF MALCOLM BOWEKATY, GOVERNOR, PUEBLO

OF ZUNI, ZUNI, NM

Mr. BOWEKATY. Thank you, Chairman Inouye and Vice Chairman Campbell.

Before I get started, on behalf of my Zuni people I want to have

the privilege of introducing a delegation with me that accompanied

me for this as well as tomorrow’s session. We have Lieutenant Governor Barton Martza in the audience, as well as our special assistant to the Council, Pablo Padilla. We also have some people that

have been working with us on this particular issue—Jaime Chavez

from the Water Network.

I’m going to be talking a little bit about the Zuni Salt Lake as

a specific example of how the Department of the Interior has not

protected the sacred sites under any stretch of the imagination,

whether it be regulatory acts or whether it be through executive orders. The Zuni Salt Lake is a very sacred place. Most of our tribes

in the southwest have had some linkages prior to the United States

becoming a nation. We have certain protocols and diplomatic ties

that were established long before that was even contemplated by

our U.S. Government.
20

The southwest tribes in all the areas of New Mexico, Arizona,

and Colorado made pilgrimages to the Salt Lake to harvest salt. Although some of the tribes were actually at war during those historic and pre-historic times, as well as the collective memories of

our respective tribes in the southwest, they basically agreed to set

aside a sanctuary district that is at least 12 miles from the center

of the Salt Lake, a circle surrounding that radius, where they considered it a neutral zone, where warring parties actually came in

and encountered in that area would actually not fight each other.

Hostilities ceased. I think that really underscores the sanctity of

the area.

The Salt Lake is a very unique geological feature. It is actually

a salt marsh within a volcano within a volcano. It is what they call

a ‘‘volcanic marr.’’ There are two cinder cones that are in a bigger

caldera. The surrounding area has always been protected, has a lot

of shrines for all the Pueblos, as well as the Navajo Nation, as well

as the Apache Nations, the White Mountain Apache Nation, the

Mescalero, as well as the Jicarilla Apache Nation.

The domestic uses for the salt have been for pilgrimages where

tribes went there for treks to pray, ask for spiritual guidance and

protection, and also for the basic utilitarian support of basically

using the salt for preservative for their meats and for a lot of their

produce.

The Zuni Salt Lake is in real danger of disappearing. In the late

1980’s the Salt River Project, an Arizona-based power company,

began purchasing land and applying for coal leases from the Bureau of Land Management, as well as purchasing private land and

ranches to consolidate a logical mine unit. These specific Salt River

Project proposes an 18,000-acre coal strip mine. It is roughly 25

sections. You look at 25 sections, each section is considered a mileby-mile width.

The Salt River Project proposes to strip mine the coal, haul it on

a 45-mile railroad corridor to their Arizona Coronado Generating

Station. We have, as a tribe, collectively, with prior governors and

tribal councils, have fought since the early 1980’s to stop this coal

mine from occurring. We have played by the rules and played the

games as far as the regulations are concerned.

The National Environmental Protection Agency, as well as the

act, the National Historic Preservation Act, as well as the Executive orders have consistently failed to provide due process for our

tribe’s behalf and on behalf of all the tribes in the southwest.

We have gone to the extreme of actually trying to be reasonable

neighbors with our counterparts, both at the Salt River Project,

with the State of New Mexico, and with the Federal Bureau of Indian Affairs, as well as Department of the Interior. We have gone

into private settlement negotiations. All those broke down. We are

here to beseech and implore this committee to strengthen the National Environmental Protection Acts as they relate to sacred sites

to make sure that the due process and due diligence by those Federal officials are ultimately the sole objective.

We also beseech this committee to look at the National Historic

Preservation Act, not to retrofit it to historic architecture, but,

more importantly, to create a new section that looks at tribes’ perspectives.
21

Everybody uses mitigation. Mitigation is not in our vocabulary.

Mitigation assumes that when a project is created and conceived

that it will go and bulldoze its way through, no matter what the

obstacles, to have a mine open. That is not the intent and perspective for a lot of our Indian nations.

I would like to point out some of those irregularities in the National Environmental Protection Act as it relates specifically to

Zuni experiences in those processes.

The Zuni Tribe has been trying to regulate the regulators. We

have had to exploit and explore the environmental protection processes, to look at the environmental impact statements. We have

had to use our tribe’s resources to disprove and to highlight the

questions that I know will become evident in your mind as you

hear the rest of the testimony.

I also at this point in time wanted to ask the honorable chairman

to ask the same questions of the Secretary and the Assistant Secretary in your further hearings about the questions that may arise

from our testimony here.

One of the things we had to do was look at the water resources.

We are only looking at two issues relative to the mine. The issues

are the water as well as the archeological sites and the traditional

cultural properties that are within the Zuni Salt Lake area, as well

as the logical mine area of the proposed coal mine.

The water issue—the Bureau of Land Management, the Office of

State Engineer for New Mexico, the Coal Surface Mining Commission of New Mexico, the Bureau of Land Management all in their

environmental assessments stated that there is going to be no

hydrological connections between the Zuni Salt Lake and the proposed mining unit, which is 12 miles away. It took 4 years for our

tribe to find this way and prove enough scientific merit to raise the

questions.

Just this past July the New Mexico State Mining and Minerals

Division issued a revised cumulative hydrological impact assessment that stipulated that there is a hydrological connection.

We are raising the same kind of issues relative to archeological

sites. It is ironic that you have individuals in responsible, decisionmaking positions—and I’ll give you two examples. The former State

Historic Preservation Officer for the State of New Mexico considered the sanctuary district as ineligible for inclusion in the National Register of Historic Places. We have had to make two trips

here to meet with the keeper of the Treasury as well as the National Advisory Council on Historic Preservation. They deemed the

tribe’s input as very meritorious, and they actually declared the

site as an eligible site.

Given that, we have actually had to work with the same exact

executive director for the State Historic Preservation Office of New

Mexico to look at the archeological sites and to deem those within

the classification system of archeological sites under criteria A, B,

C, and D. Most of those archeological sites are classified as D,

where it specifically states that it is of informational value. In no

place did they even consider criteria A or B, which means—and I

quote at this point in time—‘‘Criteria A, places important to events

in history, critical to a culture’s history.’’ I will show—and I beg the

committee’s permission to submit this map of the logical mine area
22

that has depicted the 5-year mining plan and the areas of disturbance for the proposed coal mine. It has here a lot of numbers and

a lot of dots. Each of those number and each of those dots are a

proposed surface visible archeological site.

It is very critical, and these were obtained under the Freedom of

Information Act, so these are public information. The significance

behind this map is indicated and predicate on our tribe’s Zuni Cultural Resource Enterprises. We have an archeological clearance

company that has been in business for 20 years doing business

with New Mexico State, the Federal Government, the Navajo Nation, the Hopi Nation, and our own tribe. They have 20 years of

experience where they have gone out in the whole Four Corners

area, excavated archeological sites.

Their experiences indicate that, depending on the archeological

classification of a site—and I remind you, there are a lot of numbers and a lot of dots—each of these are sites within the logical

mine unit. Some of these numbers indicate that is identified as a

site related to a particular time period. You’re talking at the ‘‘paleolithic’’ Indian period, the archaic period, the pit structure of

early Pueblo and later Pueblo. If you look at these archeological

sites and look at the classification system that is promulgated by

the State of New Mexico, some of these sites are classified as ‘‘paleolithic’’ Indian, which means that there is a low probability that

you’re going to find 5 to 10 human remains when you excavate that

particular site with that classification.

Contrast that with the probability—and there are a lot of sites.

There are over 600 sites identified in this mine area. Five hundred

of those are probably within the late Pueblo or early Pueblo periods. There is a very high probability, based on our experiences—

on-the-ground, 20-year experience where we have done excavation—there is a very high probability that you will find 800 to

500 human remains in one of those sites.

Given that, this area would probably harbor, if these were excavated and strip mined, thousands of human remains. That is an

abomination to our tribe, on behalf of all the southwest tribes.

The driving force behind that is New Mexico’s own publication

for the Mining and Minerals Division. This is a copy of a map of

all the coal fields in the area. This is the San Juan Basin. The Zuni

Salt Lake is one of those fields. That’s the driving force for a lot

of these activities.

As I stated before, some of the areas that we’re talking about are

the sacred pilgrimages by different tribes. We have documented the

Hopi Nation, the Zuni Nation, and the Acoma Nation’s Salt Lake

pilgrimage trails. Those will be bisected by the proposed railroad

corridor. I don’t believe that there has been any mitigation that has

been promulgated within this process.

To that extent, we again re-emphasize to this committee that the

process and the rules and the name of the game have been played

by this tribe, yet we have not managed to stop the mine, simply

because mitigation is the end-all under any of these three acts that

I have cited.

We need to move to a different category where you have absolutely no adverse effects, no impacts should tribes deem that.
23

I’m glad that the vice chairman asked the question of the previous panel, ‘‘Is there ever an incident where a decision by the Secretary to oppose and stop a mine?’’ There has never been any. We

assume and we hope that we will see that in the near future.

It is especially critical because traditional cultural properties for

a lot of our tribes is the understanding that it is our collective history, it is the oral history of a lot of tribes. We consider every one

of those archeological sites as a traditional cultural property for our

tribe. Why? Because it is our recordation, it is our documented history of the wanderings and the origins of our Zuni people. Our origin stories talk about when we emerged from the Grand Canyon

area, where we broke into four different bands. One group went

south toward Land of the Everlasting Sun through South America,

Central America. We have never seen those brothers come back.

The other three have circled the Mesa Verde area, the Monument

Valley area, and have come back to present day Zuni. The two remaining ones went as far as the Great Plains and have come back.

And the current one, the third one, is the one that we identify with.

Those are our history. Those archeological sites are our history

book, so to speak, and to that end I beg this committee to make

sure that we up and remodify the National Environmental Protection Act so that it is more sensitive to sacred sites. We need to beef

that up.

We must also create a new section of the National Historic Preservation Act so it is not a retrofitting of protecting historic architecture. We need to create a subsection that actually looks at archeological sites as deemed by the necessary American Indian tribes,

hopefully with the consultations that our previous panel have been

talking about as being promulgated right now.

We must also look at the executive orders. Those are good, but

they are absolutely toothless paper tigers. It depends on the President who is in there who believes here and here and consolidates

those to make it meaningful. I think we need to put more teeth behind that.

On that note, I would like to beg the committee’s indulgence by

submitting these three pieces of paper that I can assure you are

free of any antlers—the map with all the archeological sites, this

map of the State of New Mexico and Arizona where the proposed

coal mine areas are, and a copy of all the religious pilgrimage

trails.

On my Zuni people’s behalf, I thank you very much.

The CHAIRMAN. Without objection, your documents will be received by the committee and made part of the file.

Mr. BOWEKATY. Thank you.

The CHAIRMAN. I thank you very much, Governor. May I assure

you that the purpose of this hearing is to determine whether we

need new rules, new regulations, and new legislation.

Mr. BOWEKATY. Thank you.

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

The CHAIRMAN. I thank you both very much, and we will have

the next panel coming up.

The next panel consists of the president of Morning Star Institute, Suzan Harjo; the executive director of the Black Mesa Trust
24

of Arizona, Vernon Masayesva; and the Inter-Tribal Sacred Land

Trust of Tulsa, Robert W. Trepp.

I’m sorry. Governor and President, we’d like to ask a few questions if we may.

Senator CAMPBELL. Just one or two. If you have some first, go

ahead, Mr. Chairman.

The CHAIRMAN. No.

Senator CAMPBELL. You don’t have to all come back to the table.

You can just sit close by there.

The CHAIRMAN. I just want the record to show once again, President Jackson, no one ever consulted with you?

Mr. JACKSON. No, Mr. Senator; we were not consulted with at all.

We went through the process, like I said, the legislative process,

the correct legislative process that we requested. We went through

all that, years and years of it. In the end, like I said, a decision

came down in support of us, but when the new Administration

came on we got word from Gale Norton—I think it was a four-line

letter to our attorney—that she rescinded that decision and reversed it.

The CHAIRMAN. It was a letter from the Department?

Mr. JACKSON. Gale Norton to our attorney.

The CHAIRMAN. It was——

Mr. JACKSON. The record of decision, the four-line letter changing

the decision, denying it—rescinding it. But before that, you would

think that she would have consulted with us, but no consultation

ever took place with our tribe and our people.

The CHAIRMAN. But it was not sent to you?

Mr. JACKSON. No; it wasn’t. It wasn’t sent directly to our tribe,

our people that was impacted by the decision. No. We got it

through our attorney. It wasn’t sent to her. It wasn’t formally provided, she instructs me. She just happened to get it off the Internet, I guess.

The CHAIRMAN. Governor, may I call upon you and your staff to

sit down with my staff to work out legislation if such be necessary?

Mr. JACKSON. We would be privileged.

The CHAIRMAN. Mr. Vice Chairman.

Senator CAMPBELL. Thank you, Mr. Chairman.

The Interior appropriations bill has already gone through committee, but we may be able to introduce something on the floor in

conference to at least hold this up for a while until we can involve

you.

Mr. Jackson, Secretary Norton approved the mining permits in

late 2001. What actions, legal or otherwise, has the tribe undertaken? Have you filed suit or have you met with Neal McCaleb

about this matter?

Mr. JACKSON. We have met with Neal McCaleb and members of

his staff. We talked to them of the importance of us meeting with

his boss, Gale Norton, to discuss the decision she made. We told

him it is imperative that our people meet with her, our council, but

at this time we are still trying to get a meeting with her, but to

no avail at this time.

Senator CAMPBELL. Okay.
25

Mr. JACKSON. It is very disturbing, like I said earlier, when

somebody makes a drastic decision against your people, your history, without even talking to you.

Senator CAMPBELL. What would your view be if—the Secretary

has to make a lot of difficult decisions and balance a lot of interests. She has the trust responsibility to protect the Indian resources, too. What would your view be if there was a coal project

proposed by neighboring tribes, proposed by another tribe but the

first tribe objected under whatever grounds? Perhaps that was a

sacred site to them in past history or something of that nature? In

other words, it really pits one tribe against another when one

wants to develop the resources and another one might say that

that was a sacred area, even though it is not within their reservation. Do you have a view on that?

Mr. JACKSON. Well, we, as our brothers and sisters across the

country, if another tribe for some reason wanted to do it, it’s not

our tribal stance to get in the way of any other tribe, what they

want to do with their land, their sacred sites, if you say it’s sacred

sites. But if there is a reason for them to do it, it has to be a very

strong reason that they’re completely without resources to feed

their people or education, for health and welfare, for housing.

That’s why some tribes will do it. But our tribe will never do that.

Our Quechan Nation will not set one dollar, one nickel, one penny

for that coal mine that they want to operate there.

Senator CAMPBELL. Good.

Mr. Bowekaty, I didn’t want this hearing to paint all mining as

all bad, because in fact in many cases it has helped Indian tribes.

They have sort of a mixed review, you might say, in American history of some who believe mining is to spoil the environment and

others believe that almost all new wealth that has made this Nation strong came from mining in one form or another. And even Indians, themselves, have been mining for a thousand years. If you

go to Pipestone, Minnesota, they still mine, but it is not done for

profit, it is done for ceremony—although I guess now perhaps it is

done for profit. They make some souvenirs out of that pipestone.

But Indians, themselves, are not exactly new to mining.

I wanted to ask you about that map. You pointed out maybe 600

points on that map you showed us. Are all of those off Zuni Reservation?

Mr. BOWEKATY. A large percentage of those are off Zuni Reservation; however, the upper northwest quadrant of that map that I

showed you are Federal lands. The rest are a combination of State

lands, as well as private lands. But our Zuni Salt Lake Reservation

is 12 miles from that area.

Also, to expound on what you just mentioned, our tribe has never

deemed extracted mining as a total ban. Our tribe looks at the impacts to sacred areas. That is the only reason why the Salt Lake

is such a vital and dear project for us, because it directly impacts

our sacred site. Otherwise, we would have no objections.

Senator CAMPBELL. Thank you. Last question—in your written

testimony, is the legend of Salt Lake and Salt Mother in your written testimony so they can be part of the record?

Mr. BOWEKATY. No.
26

Senator CAMPBELL. Thank you. No further questions, Mr. Chairman.

The CHAIRMAN. Thank you very much.

And now may I call upon the president of Morning Star Institute,

Suzan Harjo.

STATEMENT OF SUZAN HARJO, PRESIDENT, MORNING STAR

INSTITUTE, WASHINGTON, DC

Ms. HARJO. Thank you, Mr. Chairman and my Cheyenne brother

and chief, Mr. Vice Chairman.

I’m Cheyenne and Hodulgee Muscogee and I’m here because the

white people didn’t kill all my ancestors and we have sacred places

because the white people did not destroy all our sacred places. We

have a rich legacy from our people and we have an obligation to

our ancestors and to our coming generations to protect those places

where our people historically and traditionally have gone and continue to go for solace, for healing, for commemoration, for vision

questing, for emergence, for burials, for mourning, for all of these

purposes.

We have been controlled for more than 1 century as Native Peoples by regulations, first by the civilization regulations that drove

so many of our Native nations’ traditional religions underground

and nearly two-thirds to the point of extinction.

The most endangered species in the United States of America are

traditional Native Peoples, and it is so distressing to hear the ignorance and the arrogance, however kindly spoken and however wellmeant, from the Administration witnesses earlier. The notion that

our sacred places just need to be taken into account and that they

lack guidance about sacred place protection is startling. The Lyng

Decision of the Supreme Court which said that the American Indian Religious Freedom Act and the First Amendment do not provide a cause of action for us to get into court to protect our sacred

places or defend them against desecration or destruction also says

something very important in the way of guidance. It says that

there shall be no impact or no impairment audiolly, aurallys, visually, or physically. That covers a lot of territory—literally a lot of

territory. Everything that you have heard today involves an impact

or an impairment that affects the site or sound or smell or

physicality of tangible places involving living cultures, living traditional religions. So it is stunning to hear that there is guidance

that needs to be gotten.

I think that the Interior witnesses must have read the Lyng Decision only to the point where it said ‘‘no cause of action’’ and did

not read what they need to do and how they need to take into account the American Indian Religious Freedom Act and the First

Amendment when it comes to protection of our sacred lands.

Be that as it may, we need a cause of action. We need something

to protect our sacred places, because we see that the Department

of the Interior and most Federal agencies are not going to do it on

their own. We need legislation that provides a way for us to defend

ourselves and to get in the courtroom door. That’s very important.

We need legislation that is a Native American statute to protect

even the information about these sacred places. We need further

guidance on the existing law, Native American Graves Protection
27

and Repatriation Act, for example, because the people who are implementing it have gotten horribly off track.

There was a statement made earlier today that the culturally unidentifiable human remains are those remains that cannot be identified with a federally recognized tribe. That is such an ignorant

reading of the act. We’re not dealing with federally recognized

tribes, we are dealing with the people who are the relatives of the

dead Native people who are in the possessions of these Federal

agencies and museums and educational institutions—Native Hawaiians, Native Alaskans, non-federally recognized tribes, federally

recognized tribes. The ignorance in that statement, alone, is stunning to me.

The guidance is in the law. The guidance is in specific laws. For

NAGPRA, where we have to look is to the dozen years of implementation since its enactment. We can get a lot of information

about how the Department of the Interior might implement future

legislation on sacred lands and how we have to tie down everything

so it is not left up to regulatory fiat or just to customary practice,

because if it is left up to customary practice more and more of our

people are going to be under attack as we have been for more than

a century, and more and more of our sacred places are going to be

destroyed, and fewer and fewer of our dead relatives are going to

be protected.

We understand that the Department of the Interior, the National

Park Service, is permitting and perhaps funding studies on the culturally unaffiliated human remains. I heard the response earlier.

We have taken some steps as a working group on culturally unidentified human remains to find the facts of this matter. And, our

legal counsel, Walter Echo-Hawk of the Native American Rights

Fund, has written on our behalf on July 11 to the Department of

the Interior asking for any studies that are underway to stop, asking for any information about those studies to be given over to us

under the Freedom of Information Act, asking for the regulations

on culturally unidentifiable human remains that are in the works

be halted until certain steps are taken, like the Park Service completing a task it hasn’t completed since 1995 in listing who has

what culturally unidentified human remains.

These are not remains that cannot be identified. They could be

identified for the most part, we believe, to living Native Peoples if

we knew who submitted them, who has them, where they are,

under what circumstances did they acquire them, how are they

keeping them. If we only had that information, which the Park

Service is already required to prepare and to make public, we could

help with that process of changing them from the category of unidentifiable or unidentified to culturally affiliated.

We have heard various estimates from six months to two years

that it will take the Park Service to finish that task. Until such

time as they finish that task, they should not issue these regulations, because the regulations turn on that information being in

place. They don’t even know what is in that category that they’re

issuing the regulations about.

Having delayed by so many years to this point, a little more

delay to satisfy the Native interest should not hurt.
28

Also, these regulations flip NAGPRA on its head by saying that

the scientists are in control of the Native human remains, and the

repositories where they are now, the Federal agencies and museums, can make the discretionary decision as to whether or not to

return or keep the human remains. NAGPRA is so clearly a Native

American statute—and I really appreciate the chairman’s clarification of that earlier today. That probably comes as news to some of

the Interior witnesses, and I hope they take it to heart, because

they have actually said, some of them, with straight faces, that

NAGPRA is not a Native American statute.

We beg you to help stop these studies that are going on on our

ancestors and our relatives and to stop the destruction of documents that is taking place, to instruct Interior that NAGPRA documents are trust documents, that NAGPRA does involve trust assets. It involves people and material who are Native Peoples, and

the Department of the Interior has a trust relationship there and

an obligation, and they have to live up to that.

Thank you for working with us on laws that you have already

implemented to make sure they get back on track, and then working with us to develop new legislation that will try to do the right

thing by protection of sacred lands.

Thank you so much, Mr. Vice Chairman and Mr. Chairman.

The CHAIRMAN. Thank you very much, Ms. Harjo.

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

The CHAIRMAN. Now may I recognize Mr. Masayesva.

STATEMENT OF VERNON MASAYESVA, EXECUTIVE DIRECTOR,

BLACK MESA TRUST, KYKOTSMOVI, AZ

Mr. MASAYESVA. Thank you, Mr. Chairman and Mr. Vice Chairman. I am from Hopi. I am the director of a new environmental organization called Black Mesa Trust, and I was the former chairman

of the Hopi Tribe.

Before I go into my testimony, I would like to support what my

brother from the Zuni told you. His recommendations are excellent.

I completely support what he says, and I am thankful to my brother, and for that I will compose you a song, my brother.

I am a descendent of [Native word], the ancient people that came

and finally settled in what is now called Northern Arizona. My ancestors, like your ancestors who came to American in search of a

new life, also came to the fingertips of Black Mesa in search of a

new beginning. I am here to address the failure of the surface mining, reclamation, and enforcement to fulfill their trust responsibility to the Hopis and to our neighbors and brothers and sisters, the

Navajo people.

For more than 10 years OSM has allowed the world’s largest

mining company, Peabody, to take billions of gallons of pristine

groundwater and billions of gallons more of surface water from

Black Mesa without conducting a complete and objective assessment of the environmental and cultural impacts of such a loss.

OSM’s failure is all the more inexcusable because water is so sacred and scarce in the high desert countries of northern Arizona

and all the more harmful because water is so sacred to us.

OSM’s irresponsibility has left our way of life seriously threatened. A discussion of how OSM has responded to our recent con-
29

cerns about the loss of water, particularly, or, more accurately put,

how OSM has failed to respond to those concerns should begin with

some understanding of how much water means to my people. Only

with this understanding can one begin to appreciate the depth of

the wounds OSM’s actions and inactions have inflicted.

For centuries, the land and waters of Black Mesa have been central to our culture, religion, and likelihood. In the Hopi view of life,

all plants, animals, birds, fishes, insects, human beings, exist in a

delicate natural and spiritual balance. Hopi people believe that

earth, itself, is alive; that water is the earth’s life blood; and that

life on Earth comes from and returns to water.

When my ancestors settled on Black Mesa, they were given three

things by which to live by a deity we call Ma’saw, who is the

guardian of Mother Earth. We were given an ear of corn, a planting stick, and a gourd of water. With these simple tools, the Hopi

entered into a covenant with Ma’saw to live a simple life of reverence and respect for the land. They agreed to help steward the

land. Thus, the Hopi people not only drink and bathe in the pristine waters of the Navajo Aquifer, it is also sacred to us. It is used

to worship and to water crops.

Corn, for example, has such spiritual meaning that it is the first

thing that touches a baby’s lips and it is the bed on which the bodies of those who have died are laid for their journey back to the

water world from which all life on earth has sprung.

As important as the water is, it is by no means the only cultural

and environmental concern we have about the operation of the

Black Mesa Mine. The Hopi and Navajo have a number of concerns

that were set forth in detail in a comment submitted to OSM by

Black Mesa Trust on April 29th of this year. Copies of those comments have been provided to members of this committee.

Among those concerned is the withholding of 250 million gallons

of surface water impounded by Peabody. The loss of surface water

was addressed by my friend and president of Black Mesa Trust,

Leonard Selestewa, during a hearing held before this committee on

June 4.

OSM has never been short of words in proclaiming a commitment to protect the interests of Indian people. In a directive issued

on March 28, 1996, OSM describes in great detail its trust responsibility to Indian people. OSM’s director recognized that the United

States ‘‘has charged itself with moral obligations of the highest responsibility and trust. At a minimum’’ OSM goes on to say ‘‘it has

to protect tribal lands, assets, resources, and treaty rights, as well

as a duty to carry out the mandates of Federal law with respect

to American Indians and Alaska Native tribes.’’

As the regulatory authority for surface coal mining and reclamation operations located on Indian lands, and as a Federal agency

of the Department of the Interior, OSM acknowledges its trust responsibility to ‘‘ensure that the lands and trust resources of Federally recognized tribes and their family members are identified, conserved, and protected.’’ I repeat that—‘‘identified, conserved, and

protected,’’ not just mitigated.

Unfortunately, OSM’s actions have not lived up to its rhetoric. At

no time in more than ten years has OSM conducted a full and fair

assessment of the cultural and environmental impacts of Black
30

Mesa Mine. To begin with, OSM has not approached an impact assessment using the values and cultural perspectives of the people

it claims to protect, but rather from the utilitarian perspective of

the company it is supposed to regulate.

For example, OSM does not view groundwater and surface water

as part of the integrated whole of the living Earth. It sees water

contained in a separate inanimate compartment. OSM does not

view water drawn from the Navajo Aquifer as sacred, but as a commodity whose value lies in its utility. Consequently, OSM does not

see the that draw-down of an aquifer has profound religious and

cultural impacts. Similarly, OSM does not look at how the mine’s

200 water impoundment affects the flow of surface water to the

Moenkopi farmers at the foot of Black Mesa.

OSM’s analysis of environmental and cultural impacts is seriously flawed on a more technical level, as well. OSM now concedes

that the USGS groundwater model it has used for years is inaccurate and has now been rejected. The USGS model provides no

basis to rationally assess the impacts of pumping a billion gallons

of water each year from the Navajo Aquifer.

Even in the face of this shortcoming, OSM disregarded our view,

our science, the way we looked at the aquifers. We say that people

are connected to the land and water. Hopi practitioners of Hopi

science see sacred springs as passageways to the world from which

we came and eventually return. The springs are breathing holes.

When they stop breathing, the water stops flowing. For years, Hopi

farmers and ranchers who walk the land have been saying what

hard data now shows. Large-scale withdrawals have seriously damaged the Navajo Aquifer.

OSM’s criteria known as ‘‘cumulative hydrologic impact assessments,’’ criteria for CHIA show serious damage to the aquifer.

Springs now produce far less water. Some have completely dried

up. Monitoring wells show significant lower water table. Moenkopi

Wash that used to run all year long is now completely dry, completely dry.

Despite evidence of serious damage as shown by OSM’s own criteria, the Agency has taken no action towards restoring the health

of the Navajo Aquifer. OSM’s regulations require a mine applicant

to submit a reclamation plan, yet OSM has never—and I repeat,

never—required Peabody to submit a reclamation plan for the aquifer as part of its mine application. The agency has offered no explanation for its failure to take any action to protect and restore our

water.

Just as troubling is the agency’s failure to include us in a meaningful discussion. In an application submitted by the Peabody

Mine, it describes the location of the mine with terms such as

‘‘township, range, and sections,’’ which are meaningless to most

Hopi and Navajo people. The application, itself, contains more than

1,000 pages, much of it in highly technical jargon. The application

was deposited at just two locations on Black Mesa, two hours or

more by care from some of the villages, assuming every person living on Black Mason would have access to an automobile.

The application has never been summarized or translated into

Hopi and Navajo languages, despite an executive order requiring

agencies to take steps to ensure that persons with limited English
31

proficiency can meaningfully access the Agency’s programs and activities.

OSM did not deny its obligation to try to reach out to Indian

communities. Instead, the reason it offered for not translating public notices and other vital documents relating to Peabody’s mine application is not, in their view—I’m sorry, they denied this saying

that in their view ‘‘Hopi is not yet a written language.’’ This response is astonishing, given the fact that Hopi has been written

since the 1850s and a number of books have been written in Hopi,

including a major Hopi/English dictionary that took a Hopi scholar

15 years to complete.

The comment period also started during the month of February,

which is the month of [Native word] or purification, which is the

last of the three major religious ceremonies held on Hopi every

year. During February, all political meetings are suspended, including tribal meetings, so therefore if we had commented we

would have been in violation of our traditional laws.

More recently, on June 19, 2002, OSM wrote to me saying that

the Agency has decided to call all public hearings on Peabody’s

mine application to mine additional 189 million tons of coal and to

increase pumping by 37 percent.

Weeks ago, OSM had agreed the hold five such hearings later

this summer. The reason OSM gave for calling off the hearing was

that on May 14th Peabody had submitted a letter claiming to have

‘‘identified’’ an alternative source of water for the coal slurry and

requests that the public hearing be put off.

No information is provided showing that such an alternative

source is even feasible and is going to be feasible and cost effective.

In fact, an application submitted to the California Public Utility

Commission by Southern California Edison, which operates a

power plant using coal from Black Mesa, states that, ‘‘The feasibility and cost of the alternative is still being investigated.’’ Nevertheless, OSM decided to renege on its commitment to hold public hearing without consulting the people of Black Mesa.

Black Mesa Trust responded to OSM on July 6. We have demanded that the public hearings move forth. To date, we have received no response.

As things stand now, the people most affected by Black Mesa

mines have been shut out of the public participation process. As a

result, the depletion—and, in my personal opinion, an illegal depletion—of Federal trust assets, coal and water, continues.

In conclusion I leave with you the same question my friend Leonard Selestewa left you with on June 4. Why? Why? Why? Why has

there been such a failure by all agencies of the Federal Government who have trust responsibilities failed to correct the problem?

Why in more than ten years has there not been a comprehensive

and fair assessment of the cultural and environmental impacts of

the Black Mesa Mine? Why has OSM been more responsive to a

company that it is supposed to be regulating than to the people

who it is obligated to protect?

I ask of Secretary Norton: Why are you continuing to ignore a

provision in the Hopi/Peabody contract which states that if the waters of Black Mesa are endangered, the Secretary has discretionary

powers to direct the mining company, if they want to continue the
32

mining operations using slurry operations, to find an alternative

water source at its own expense, not at the taxpayers’ expense?

Senator CAMPBELL. Mr. Masayesva, we will have to conclude the

hearing. I’m sorry. Senator Inouye had a conflict that he already

had to leave to and I’m already overdue, too, but your complete

written testimony that you didn’t finish will be included in the

record.

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

Senator CAMPBELL. I have no questions, but I am gratified to see

that at least one person from the Administration stayed to hear

your testimony. Too often people from agencies come and make

their statement and they leave and they don’t hear from the opposing view. Hopefully, the message that you put forth in your testimony will be taken back.

Mr. Trepp, I’m sorry to say that you won’t be able to testify, but

if you will give us your written testimony we’ll study it copiously.

Mr. TREPP. Thank you, sir.

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

Senator CAMPBELL. I think, in my own view, the big difference

between everybody else in this country and American Indians is

that everybody else came here from somewhere else. They had

nothing to lose and everything to gain by coming here. It was

called ‘‘upward mobility’’ in sociology terms. Only the American Indian had everything to lose and nothing to gain, and they have lost

almost everything, with a little bit of land base left, and the thing

that they hang on to the most is their religious beliefs and the

memories of their ancestors. It just seems terrible to me that we

would take those away through some bureaucratic method because

of opportunity for profits. I know Senator Inouye agrees with me

that that’s just plain wrong, and we’ve got to take another look at

these issues or get the Administration to take another look at

them.

So I commit that to you and appreciate your testimony.

The hearing record will stay open for 2 weeks. If anybody in the

audience wants to add something in written form, please submit

that and we’ll include that for 2 weeks.

Thank you very much for being here today. With that, the committee is adjourned.

[Whereupon, at 12:20 p.m., the committee was adjourned, to reconvene at the call of the Chair.]
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APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF MALCOLM B. BOWEKATY, GOVERNOR OF THE ZUNI TRIBE

On behalf of the Zuni Tribe, I want to thank Chairman Inouye and Vice Chairman Campbell for convening this Oversight Hearing regarding the U.S. Department

of the Interior and the protection of sacred places. This is an important subject to

American Indians and Alaskan Natives, and one that has not been given the National attention it deserves.

The Zuni Salt Lake is a sacred place. Located southeast of our Reservation in

west central New Mexico, this saline lake is a unique geological feature and home

to our Ma’lokyattsik’i, Salt Mother. For centuries, indigenous tribes from the Southwest have made pilgrimages to the Zuni Salt Lake to request spiritual guidance and

rain, make offerings, and collect salt for ceremonial, ritual and domestic use. The

surrounding land has always been respected as a sanctuary zone, where waiting

tribes put weapons down and shared in the sanctity of the Salt Mother. just this

past weekend, our brothers and sisters from the Hopi, Yaqui, Pueblo, Xicano, Navajo and others joined us in a 260 mile run from Hopi and Phoenix to Zuni to pay

homage to her, as well as to spiritually prepare us for this testimony today.

The Zuni Salt Lake is in real danger of disappearing. In the late 1980’s, the Salt

River Project [SRP], an Arizona-based power company, began purchasing land and

applying for coal leases from the Bureau of Land Management. SRP proposes to develop an 18,000-acre coal strip mine 10 miles from the Lake. SRP also plans to use

up to 85 gallons a minute of water a year for 40 years for mining purposes. Finally,

SRP proposes a 44-mile railroad corridor from the proposed mine to the Coronado

Generating Station, which would dissect pilgrimage trails used by tribes for centuries. Last month, to the dismay of the Zuni people, the Department of the Interior

approved the Life of Mine Plan, which gives Federal Government approval for this

project.

Protection of the Zuni Salt Lake and Sanctuary Zone has always rested with the

Zuni. In 1976, Senator Domenici from New Mexico testified to the U.S. House Committee on Interior and Insular Affairs and fought hard to have this land given back

to the Zuni Tribe: This bill [S. 877] will permit the Zuni Indian people to acquire

a shrine that has been theirs for literally centuries. Government intervention and

the inequities of history have prevented this great salt shrine from being included

in the boundaries of their reservation. This is very important to their way of life,

and is presently used by them as part of their religious culture.

Twenty-five years later today, the Zuni Tribe feels that the U.S. Department of

the Interior has failed us in its obligations under existing law and trust responsibility to continue to protect this sacred lake and associated cultural resources from destruction.

In 1990, the Bureau of Land Management issued an Environmental Impact Statement (EIS) for the proposed coal mine. This report was flawed scientifically with

regard to hydrology and failed to capture the cultural importance of the Zuni Salt

Lake. After repeated demands from the Zuni Tribe to then Secretary of Interior

Bruce Babbit and others, a supplemental EIS was conducted in 1996. Since its
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issuance of this SEIS, at least four major hydrological reports have been produced

which invalidate or contradict information contained in the SEIS. Yet after several

attempts by the past and current Zuni tribal councils, we received a letter recently

from the Office of Surface Mining stating that DOI will base its decision on the 1996

SEIS and feels it not necessary to amend the environmental impact analysis.

That the National Environmental Policy Act (NEPA) is oriented toward process

rather than outcome is a fact that the Zuni Tribe is well aware of. We are thankful

that the recently approved Federal Life of Mine Plan contains provisions that somewhat protect the aquifers that feed the Lake. However, it is unfortunate to realize

that our tribe had to go through such great lengths and expend resources it does

not have to prove to the regulators that the original hydrological studies were

flawed and biased toward the coal company. We believe that is not the intent of

NEPA nor of the Department of the Interior’s implementing regulations. American

Indians and Alaskan Natives protecting their sacred places should not have to carry

the burden of proof with regard to environmental impact analysis for projects sponsored by Federal agencies. The Federal Government must be more objective in its

decisions and not bend toward industry.

As we understand it, the National Historic Preservation Act of 1966 was originally created to protect architecture, not sacred places. There are subsequent problems with retrofitting this law when applying it to the protection of sacred places.

For example, with regard to the protection of archaeological sites and traditional

cultural properties around the Lake, mitigation has meant digging, recording, and

report writing. The Zuni Tribe feels that protecting the information of a site and

then destroying it is not same as protecting the site itself In other words, cultural

resources are sacred not for the information they contain, but because they have

been placed their by our ancestors for a purpose and should not be disturbed nor

destroyed. This concept is very difficult to convey to Federal agencies charged with

compliance under the National Historic Preservation Act using standard western

methodologies. A quick glance at eligibility requirements for inclusion in the National Register of Historic Places (36 CFR 60.4) will reveal that most sites are eligible under criteria D, information value.

This situation is exacerbated when applying scientific inquiry to burials and associated funerary objects. Needless to say, the Zuni Tribe finds it impossible to rationalize the displacement of our ancestor’s burials for the sake of making money.

Therefore the Zuni Tribe and other culturally affiliated tribes are extremely concerned with the desecration that will occur, given the density of Puebloan archaeological sites recorded in the mining site and the nature of strip mining. Coupled

with the fact that the implementation of the Native American Grave Protection Repatriation Act (NAGPRA) has had limited success with regard to actually protecting

buries from desecration, we are struggling to come to a resolve on the issue with

the Federal Government and the coal company.

While it is true that section 106 of the National Historic Preservation Act and the

National Park Service Bulletin 38 outline methods of consultation with American

Indians and Alaskan Natives to protect cultural resources, the Zuni Tribe feels that

the process does not work effectively. Navigating through the consultation process

for this undertaking, the Zuni Tribe found itself in a bind when it comes to the release of esoteric information. While the Federal agencies were very sensitive to our

need to protect esoteric information, it was still difficult for us to convey the importance of specific cultural resources without giving away information that was esoteric. Also, a genuine sense of trust from the Federal Government is missing from

the consultation process, as we attempt to explain that a plant is sacred to us without stating why it is sacred to us.

The Zuni Tribe understands the difficulty the Federal Government has in dealing

with competing interests. One of the major obstacles the Department of the Interior

has in protecting sacred sites like our Salt Lake sterns from its organizational structure. The Office of Surface Mining has a mission to regulate mining; the Bureau

of Land Management has a mission of leasing Federal resources; and the Bureau

of Indian Affairs has a mission to protect resources held in trust for American Indians by the United States Government. Since these three offices are housed under

one Department charged with making a decision either way on a particular issue,

it stands to reason that one mission will override the other. This is evident in the

number of disagreements and failed negotiations that took place within the DOI

concerning whether to approve or disapprove the Life of Mine Plan.

Engage tribes meaningfully in NEPA, NHPA and other processes early on. This

sentiment was echoed in the recommendations by the National Research Council on

Hardrock, Mining on Federal Lands, commissioned by the U.S. Congress in 1999

(National Academy Press, Washington DC, 1999, pg. 70).
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Create legislation similar to what Congressman Rahall is proposing in his draft

Native American Sacred Lands Act. Legislation is needed due to the fact that the

existing Executive Orders on the subject do not have the weight of law, existing

laws are not working, and sacred sites are being destroyed at an alarming rate

without the tools American Indian and Alaska Native governments need to engage

industry and governments.

Reorganize the decisionmaking process within the Department of the Interior to

better facilitate American Indian and Alaskan Native concerns over sacred places.

Thank you very much for the opportunity to speak with you today on this most

important topic. The Zuni Tribe is willing to work with your Committee and others

in any way we can. E’lah:kwa.

PREPARED STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY,

POLICY AND INTERNATIONAL AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, it is my pleasure to be here today

to discuss the Department’s role in protecting Native American Sacred Places. My

name is Chris Kearney and I am the Deputy Assistant Secretary for Policy and

International Affairs in the Office of the Assistant Secretary for Policy, Management

and Budget. I am accompanied today by Stephen Parsons, Hydrologist, Office of

Surface Mining; Patricia L. Parker, Chief, American Indian Liaison Office, and John

Robbins, Assistant Director, Cultural Resources, Stewardship and Partnerships, National Park Service; and Marilyn Nickels, Group Manager, Cultural and Fossil Resources, Bureau of Land Management.

Executive Order No. 13007, 61 Fed. Reg. 26,771, Indian sacred sites, was issued

in 1996. The Order requires Federal land management agencies to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, accommodate access to and ceremonial use of Indian sacred sites by Indian

religious practitioners and avoid adversely affecting the physical integrity of such

sacred sites. Where practicable and appropriate, implement procedures to ensure

reasonable notice is provided of proposed actions or policies that may restrict future

access to or ceremonial use of, or adversely affect the physical integrity of these

sites. The 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. Each relevant Cabinet agency was required to send an implementation report to the President within 1 year of the Order’s issuance.

Coordination of the Department of the Interior’s implementation was assigned to

the Office of American Indian Trust (OAIT). The OAIT is responsible for ensuring

department-wide compliance and overall consistency of the Sacred Sites Executive

Order. To assist that Office to communicate with the various bureaus in the Department, an interagency Working Group on the Implementation of the Sacred Sites Executive Order was created, comprising representatives of each departmental bureau,

appropriate departmental offices and the Office of the Solicitor.

The Working Group has actively sought input from Tribal representatives on all

aspects of the Department’s implementation process. The Department asked for

Tribal input on the structure, location and content for consultations and hosted

three formal discussion meetings between tribal and Federal representatives focusing on implementation from both a procedural and substantive perspective. The

meetings were held in Portland, Oregon; Denver, Colorado; and Reston, Virginia in

March and early April 1997. Topics at the meetings included: how to conduct meaningful consultation; how and when consultation processes are triggered; how to protect the physical integrity of sacred sites; how to protect the confidentiality of culturally sensitive information; how to accommodate access and use; and dispute resolution.

In October 2001, the Department attended the Sacred Lands Forum in Boulder,

Colorado. Through considerable internal review and the dialog with interested participants at the forum, it became clear that we needed to move forward on establishing policies and procedures for protecting sacred lands. At the ‘‘Overcoming the

Challenges’’ symposium held on March 20, 2002, which was held as part of the DC

Sacred Lands Forum, we announced our intent to reconvene the Department’s Sacred Sites Working Group.

In June 2002, each of the Department of the Interior offices and bureaus involved

with sacred sites was notified of the plans to reconvene the Working Group and they

were asked to assign a representative to the Working Group. Our objective is to

renew the momentum within the bureaus for establishing the necessary procedures

to carry out our obligations understood in the policy we created and to ensure that
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we fully take into account Tribal concerns. It is also our intent, working with the

Tribes, to finalize and then to publish these policies and procedures and provide

them to Tribes and other interested parties, and then to ensure that implementation

occurs in a timely manner. The Office of American Indian Trust is responsible for

coordination, logistics and staff assistance within the Department.

The first Working Group meeting occurred on July 2, 2002, in the office of the

Assistant Secretary for Indian Affairs. We are in the process of identifying the current status of sacred site management across the bureaus. That will be followed at

future meetings with developing management changes and tools to ensure full compliance with the Executive Order. In addition, and as a result of the DC Sacred

Lands Forum, on August 14 the Department of the Interior and the Advisory Counsel on Historic Preservation are sponsoring an interagency meeting on sacred lands

and cultural resources, under the auspices of the Interagency Working Group on Environmental Justice. These meetings are meant to help bring awareness and enhance coordination of sacred site issues, not just within the Department of the Interior, but government-wide.

This concludes my statement. I would be pleased to answer any questions the

committee might have.
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