American Indian Religious Freedom Act : oversight hearing before the Subcommittee on Native American Affairs of the Committee on Natural Resources, House of Representatives, One Hundred Third Congress, first session, on effectiveness of P.L. 95-346--the A

138 Pages·1993·4.1 MB·English

by  United States. Congress. House. Committee on Natural Resources. Subcommittee on Native American Affairs

AMERICAN INDIAN RELIGIOUS
FREEDOM ACT—PART
I
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON NATR^ AMERICAN AFFAIRS
OF THE
COMMITTEE ON
NATURAL RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
EFFECTIVENESS OF P.L. 95-346—THE AMERICAN INDIAN RELIGIOUS
FREEDOM ACT OF 1978 (AIRFA)
HEARING HELD IN WASHINGTON, DC
FEBRUARY 23, 1993
Serial No. 103-7, Part I
Printed for the use of the Committee on Natural Resources
JUL
30
U.S. GOVERNMENT PRINTING OFFICE '•''•"''Cf)^.,'*»»»?'
68-194 WASHINGTON 1993
:

AMERICAN INDIAN RELIGIOUS
FREEDOM ACT—PART
I
103-7-/PT.
1
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS
OF THE
COMMITTEE ON
NATURAL RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
EFFECTIVENESS OF P.L. 95-346—THE AMERICAN INDIAN RELIGIOUS
FREEDOM ACT OF 1978 (AIRFA)
HEARING HELD IN WASHINGTON, DC
FEBRUARY
23. 1993
Serial No. 103-7, Part I
Printed for the use of the Committee on Natural Resources
Oii/i^--
Ms
1993
U.S. GOVERNMENT PRINTING OFFICE
68-194 WASHINGTON 1993
:
COMMITTEE ON NATURAL RESOURCES
House of Representatives
GEORGE MILLER, California, Chairman
PHILIP R. SHARP, Indiana DON YOUNG, Alaska,
EDWARD J. MARKEY, Massachusetts Ranking Republican Member
AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah
NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada
BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California
PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon
RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming
SAM GEJDENSON, Connecticut JOHN J. DUNCAN, Jr., Tennessee
RICHARD H. LEHMAN, CaUfomia JOEL HEFLEY, Colorado
BILL RICHARDSON, New Mexico JOHN T. DOOLITTLE, California
PETER A. DeFAZIO, Oregon WAYNE ALLARD, Colorado
ENI F.H. FALEOMAVAEGA, RICHARD H. BAKER, Louisiana
American Samoa KEN CALVERT, CaUfomia
TIM JOHNSON, South Dakota SCOTT McINNIS, Colorado
LARRY LaROCCO, Idaho RICHARD W. POMBO, California
NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas
CALVIN M. DOOLEY, California
CARLOS ROMERO-BARCELO, Puerto Rico
KARAN ENGLISH, Arizona
KAREN SHEPHERD, Utah
NATHAN DEAL, Georgia
MAURICE D. HINCHEY, New York
ROBERT A UNDERWOOD, Guam
HOWARD BERMAN, California
LANE EVANS,
Illinois
PATSY T. MINK, Hawaii
THOMAS J. BARLOW III, Kentucky
THOMAS M. BARRETT, Wisconsin
Daniel P. Beard, StaffDirector
Richard Meltzer, General Counsel
Daniel Val Kish, Republican StaffDirector
Subcommittee on Native American Affairs
BILL RICHARDSON, New Mexico, Chairman
PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming
SAM GEJDENSON, Connecticut Ranking Republican Member
ENI F.H. FALEOMAVAEGA, American DON YOUNG, Alaska
Samoa RICHARD H. BAKER, Louisiana
TIM JOHNSON, South Dakota KEN CALVERT, California
NEIL ABERCROMBIE, Hawaii
KARAN ENGLISH, Arizona
Tadd Johnson, StaffDirector
Steven J.W. Heeley, Counsel
Marie Howard, Professional StaffMember
Barbara Robles, Clerk
Richard H. Houghton III, Republican Counsel on Native American Affairs
(II)
CONTENTS
Page
Hearing held: February 23, 1993 1
Background information 5
Member statements:
Bill Richardson 1
Craig Thomas
1
Pat Williams 2
Ken Calvert 3
Tim Johnson 3
Neil Abercrombie 4
Witness statements:
Panel consisting of:
Jerry Flute, field director. Association on American Indian Affairs 7
Hon. James S. Hena, chairman, All Indian Pueblo Council, Albuquer-
NM
que, 16
NM
Hon. Cedric Chavez, governor, Pueblo ofCochiti, 24
Hon. J. GibeNrtMSanchez, 1st It. governor, Pueblo of San Ildefonso,
Santa Fe, 29
Panel consisting of:
Hon. Francis B. Brown, president. Medicine Wheel Coalition for Sa-
WY
cred Sites ofNorth America, Riverton, 50
Hon. John Sun Child, Sr., chairman, business committee, Chippewa
Cree Tribe ofthe Rocky Boy's Reservation, Box Elder, MT 55
Al Scott Johnnie, director, Lummi Cultural Resource Protection Of-
WA
fice, BeUingham, 65
Christopher H. Peters, executive director. Seventh Generation Fund,
McKinleyville, CA 80
Panel consisting of:
Nora Garcia, president. Inter Tribal Council ofArizona 91
Hon. Marshall Plummer, vice-president, Navajo Nation, Window
Rock, AZ 97
Hon. Kina'u Boyd Kamali'i, trustee. Office ofHawaiian Affairs, Hono-
lulu, HI 106
APPENDIX
February 23, 1993
Additional material submitted for the record from:
Santa Clara Indian Pueblo, Espanola, NM: Letter to Chairman Richard-
son from Hon. Walter Dasheno, Governor, dated March 9, 1993 119
Native American Church of Navaholand, Inc., AZ: Prepared statements
of Lorenzo Meix, Board ofDirectors, and Mike Kiyaani, spiritual leader 126
(III)

EFFECTIVENESS OF PUBLIC LAW 95-346—THE
AMERICAN INDIAN RELIGIOUS FREEDOM
ACT OF 1978 (AIRFA)
TUESDAY, FEBRUARY 23, 1993
House of Representatives,
Committee on Natural Resources,
Washington, DC.
The committee met at 9:45 a.m. in room 1324 of the Longworth
House Office Building, the Hon. Bill Richardson presiding.
STATEMENT OF HON. BILL RICHARDSON
Mr. Richardson. Good morning. The Subcommittee will come to
order.
Today we're conducting an oversight hearing on the Effectiveness
of the American Indian Religious Freedom Act of 1978.
In 1978, Congress enacted the American Indian Religious Free-
dom Act in an effort to address the problems many Native Ameri-
cans face in exercising their right to practice their religion.
During the debate. Chairman Udall expressed his concern that
the Act lacked teeth, and to the chagrin of many Native American
religious leaders and practitioners, that quote has been repeated
consistently in reference to the Act.
Fourteen years of implementation of this legislation and two Su-
preme Court cases have brought us to this day. In 1988, the Su-
preme Court in the Lyng case held that this legislation did not con-
fer a cause of action to Indians for the protection of religious sites
for Federal land management decisions and, therefore, could not be
used by Indians to challenge such decisions.
In 1990, the Supreme Court further frustrated Native Americans
in the case of Smith when it, in essence, threw out the longstand-
ing practice of courts that, in order for the government to restrict
an individual's right to religious practice, the government had to
show it had an overriding "compelling interest" to do so.
This is the first of two hearings the Subcommittee will hold on
the effectiveness of this legislation. This morning we will hear from
several tribal and religious leaders on their experiences and views
of how to better protect Native Americans in their right to fi-eely
exercise their religious practices.
And it's a great pleasure for me to recognize the ranking minor-
ity member, Mr. Thomas.
STATEMENT OF HON. CRAIG THOMAS
Mr. Thomas. Thank you, Mr. Chairman.
(1)
Just briefly, you, I think, have outlined well the purpose and the
background for this hearing. Certainly, the American Indian Reli-
gious Freedom Act was designed to recognize the importance and
the cultural aspects of Native American religions and it was obvi-
ously a strong step to do that. Clearly, it has not resulted in the
kinds of things that some might have hoped that it would.
So I think it's appropriate that we do have hearings, have a com-
prehensive review of these laws and the problems £ind then do
something to deal with it. So, Mr. Chairman, I look forward to the
hearings.
Thank you.
Mr. Richardson. The Chair recognizes the gentleman from Mon-
tana.
STATEMENT OF HON. PAT WILLIAMS
Mr. Williams. Thank you, Mr. Chairman.
As you know, this is a matter of significance and importance to
America's native people. It is critical, as this issue is discussed here
and legislation drafted, that we retain the constitutional projec-
tions against church/state entanglement. The intervention of gov-
ernment in the affairs of religion is disadvantageous to both.
Our Nation's chief architect, Thomas Jefferson, stated this. "All
persons shall have full and free liberty of religious opinion. None
shall be compelled to frequent or maintain any religious institu-
tion." Thomas Jefferson wanted, not only for himself but for all his
fellow citizens, not freedom from religion but rather freedom to
pursue religion.
The corollary to the Declaration of Independence is Jefferson's
Bill for Religious Freedom. And it contains in the Preamble the
rage of Thomas Jefferson against the hypocrisy and self-righteous-
ness that he associated with what had been the historic alliance be-
tween church and state.
Jefferson believed that of all personal convictions those of reli-
gion should be the least subject to authority or compulsion. The
thoughts of Jefferson and Madison on this matter were not easily
accepted then and are not easily accepted now and have been very
difficult for this Nation to retain.
So I personally believe that it is critical that as ^ve work hard
and as best we can to ensure American Indian religious freedom,
we take every step necessary to preserve the separation of church
and state. Let me elaborate on that for a moment.
I'm an advocate of religious freedom for all people, including our
Native Americans. I am unconvinced that Native American people
now enjoy that religious freedom. Having said that, I'm also torn
about legislation which has been introduced in the past because I
believe it has bumped up against entanglement of the Federal Gov-
ernment with religion, with certain institutions or churches.
For example, can't a Federal Government which delineates reli-
gious practices are acceptable also be the Federal Government that
will demon—strate which are not acceptable? If that's true^and I be-
lieve it is then we have to be very, very cautious with this legisla-
tion or all people, most notably, the first people, will rue the day
that the Federal Government ever set foot on this quicksand.
I want to welcome, Mr. Chairman, all of the witnesses but espe-
cially the Honorable John Sun Child, Chairman of the Chippewa
Cree Tribe of the Rocky Boy Reservation in our State of Montana.
Chairman Sun Child and I have been friends for many years and
I'm pleased to see him here today. And I appreciate your inviting
him to be one of our witnesses.
Thanks very much, Mr. Chairman.
Mr. Richardson. Thank you.
The Chair recognizes the gentleman from California.
STATEMENT OF HON. KEN CALVERT
Mr. Calvert. Thank you, Mr. Chairman.
I'm also very interested in the American Indian Religious Act. I
also believe in the rights to pursue religion with few constraints
and look forward to your testimony.
Thank you very much.
Mr. Richardson. The Chair recognizes the gentleman from
South Dakota.
STATEMENT OF HON. TIM JOHNSON
Mr. Johnson. Thank you, Mr. Chairman.
I commend you for holding this critically important hearing on
an issue that is of great controversy and great importance.
I want to welcome all the members of the three panels, all of
whom I think will make very valuable contributions. But I'd like
to extend a special welcome to Jerry Flute, who is not only the
Field Director for the Association of American Indian and a very
well known leader of Native American issues nationwide, but also
a member of the Sisseton-Wahpeton Tribe in my home State of
South Dakota. We're proud of Jerry Flute's contributions.
I'm looking forward to the testimony on this issue. Much of the
religious controversy centers around access and use and preserva-
tion of sacred sites. Inasmuch as some of the sacred sites involve
literally thousands of squaire miles of public lands, there will al-
ways be some tension in the management of these areas relative
to general access to the general public, multiple use and what in
fact can be done in some of these huge areas that benefit the gen-
eral public, but yet at the same time, preserve the sacredness of
the region.
And I'm looking forward to the insights fi-om all the panelists on
what we can do to assure the preservation, as much as possible,
of sacred sites and access and preservation of Indian religion.
I regret that I have another hearing going on in only a few min-
utes involving land management in my home state. And I'm going
to have to excuse myself to attend that hearing. So I'm not going
to be able to be here personally throughout this hearing, Mr. Chair-
man.
But I think it's very valuable and I'm studying the testimony
my
that's been submitted in writing. I'm going to be working with
staff and working with you as we strive, throughout the course of
this Congress, to come to some better resolution than we have to
now over this Native American religious issue.
Thank you.
Mr. Richardson. I thank the gentleman.
The Chair recognizes the gentleman from Hawaii.
STATEMENT OF HON. NEIL ABERCROMBIE
Mr. ABERCROMBIE. Thank you very much, Mr. Chairman.
I'm dehghted to be able to this morning have as part of our hear-
ing record, I think the last testimony in our array here, that of one
of my dearest and oldest friends, the Hon. Kina'u Boyd Kamali'i
from Hawaii.
I served in the legislature with Kina'u and she's now a Trustee
of the Office of Hawaiian Affairs. I think this is a recognition, Mr.
Chairman, of the people in Hawaii, of our Hawaiian brothers and
sisters, in this Committee's jurisdiction, thanks in great measure
to your insight and that of Chairm—an Miller, as well as your per-
sistence. I want to recognize today inasmuch as this is the first
time that someone from Hawaii has had a chance to testify—that
we now recognize formally in the jurisdiction of this subcommittee
literally the existence of Native Hawaiians.
Let me just add then that, with respect to the subject under dis-
cussion today, religious freedom, there are particular elements as-
sociated with contemporary Hawaiian life that are intimately con-
nected to the subject matter before us today. And Kina'u will ex-
plain that to us in detail.
So, suffice to say then, that this is a great opportunity for us to
recognize your leadership and actually the beginnings of this Com-
mittee. I'm sure it's going to prove an invaluable resource to the
Committee on Natural Resources.
Mr. Richardson. I thank the gentleman.
I ask that the background be made part of the record.
Let me also state, before we get started, that as of this moment
the Subcommittee has not drafted any legislation. So we have no
preconceived decisions on any amendments and we're willing to
We
look at all proposals. do intend to draft a piece of legislation.
[Background information follows:]