Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 7, 1 July 1989 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alcxander Washington, D.C. Counsel for OHA

Sacred lands cause flurry of bills in Congress

Native American Religious Freedom is the subject of an unusual number of bills introduced in the present 101st Congress. Now, there is only one federal law to protect traditional religious practices of Native Americans. The American Indian Religious Freedom Act (AIRFA, 1978) includes Native Hawaiian"s but applies only to federal activities. A1RFA says, ". . ."it is the policy of the United States to protect and preserve for American Indians their inherent right and freedom to believe, express and exercise the traditional religions of the Amenean Indian, Eskimo, Aleut and Native Hawaiian including, but not limited to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." AIRFA caused modifications in federal agency regulations, policies and practices. The flurry of new bills was caused partially by a 1988 Supreme Court decision in Lyng vs. Northwest lndian Cemetery Protective Association. In the Lyng decision the court, in effect, approved logging road construction through a national forest area against the strenuous objections of American Indians. The road cut through an area sacred and integral to the traditional religious practices of Yurok, Karok and Tolowa Indians. In its decision the Supreme Court noted that AIRFA makes no provision for enforcement and that AIRFA is apolicy statement without teeth. What happened in the Lyng case: When the forest service proposed building the so-called G O Road through the nahonal forest, a required environmental impact assessment disclosed the road would go through an area used for traditional Indian religious rituals. The rituals require privacy, silence and an undisturbed natural setting. The forest service impact study conc!uded the road would "irreparably damage" the sacred area and recommended against the road. Despite the finding, the forest service decided to build the G-0 Road with some modifications to reduce its impact on religious practice. The Indians opposed the road and sued the forest service in federal district court.

Many Indian elders and religious leaders testified about the area and its relation to their religious practices in order to help the court understand native American religious practice where the relationship to the earth and its elements is distinctly different from Judeo-Christian practice. The lower court held for the Indians, applying a difficult "two pronged test" developed in other native American sacred land cases. The two-pronged test The two pronged test says that (in sacred land cases) the area has to be shown to be central and indispensable to the prac.tice of the traditional religion and even then, the federal government may proceed only if it ean show a compelling federal interest. The Lyng case demonstrated to the federal district court's satisfaction that the area was central and indispensable and no comp>elling federal interest was demonstrated. Lyng met the two pronged test. The decision to halt the G-0 Road was upheld on appeal. When the case went to the Supreme Court, the Indians urged the court to use the two pronged test and uphold the findings of the lower courts. The Native American Rights Fund urged the court to adopt a more liberal test for sacred land cases. The Supreme Court rejected both arguments (6-3) and used a first amendment analysis developed in Judeo-Christian cases whieh had no sacred lands component. The court said the federal government had no obligation to do anything affirmative (for example not to build a road.) Under the first amendment the federal government cannot coerce or force people to violate their religious beliefs. Incidental effects whieh may just interfere with beliefs or practices do not require the government to show a compelling interest before it starts a project. Because the forest service modified the G-0 Road plans to take the traditional Indian religious practices into account, the court said the road met AIRFA provisions. The court noted that AIRFA "Does not create any enforceable legal right" to obtain a district cou'rt injunction to stop the G-0 Road. Just before the decision was announced, a bill was introduced by Senator Inouye and two other senators to put teeth in the AIRFA bill and require the two pronged test but the session ended without its being passed. In the House of Representatives Recently, Congressman Udall (D-Ariz) introduced House Bill 1546 whieh contains a modified two pronged test. It requires federal lands must be historically part of, used by, or necessary to, a traditional Native American religion. A proposed federal action must be shown to be a realistic and substantial threat to undermine and frustrate the religious practice. The government then must show a compelling need to proceed and even then must do so in the least intrusive manner possible. Hearings on the bill are scheduled for July 18, 1989. In the U.S. Senate Senate Bill 1 124, introduced by Senator McCain (D-Ariz) would say that on federal lands that are sacred and indispensable to traditional Indian religious practice, such lands must be managed so that religion and its practice is not undermined or frustrated. Three exceptions are provided for the govemment: carrying out legal responsibilities; protecting a compelling govemment interest; protecting a vested property right. Even then, the federal govemment must move in the way least intrusive to Native American religion and practice. Action by some Indian groups A coalition of some Indian groups recommended an omnibus Indian religious freedom and eultural rights bill to the Senate Select Committee on

Indian Affairs. Senator Daniel K. Inouye is committee chairman. The section relating to AIRFA, not yet in final form, provides for an administrative process and enforceable court review. Also, federal agencies would be required to consult and eooperate on a formal basis with tribes and religious leaders. Sacred remains and grave items Congress will also consider cultural rights of Native Americans to the bones of their ancestors. Hearings were held about museum collections of Native American skeletal remains and sacred grave site items, particularly by the Smithsonian Institution in Washington D.C. House Bill 1124 Congressman Dorgan, (D-ND) would require the Smithsonian to inventory skeletal remains (from 1500 A.D. on) in its eolleehon, determine origins if possible, and return them after receiving written requests from an Indian tribe or Native Hawaiian organization. Under terms of the bill a "Native Hawaiian organization" would be one recognized by the governor of the state as one of that primarily serves and represents the interests of Native Hawaiians. Protection from excavation of Native American burial sites would be provided in House Bill 1381 (Bennett, D-Fla.) unless state law allowed excavation. A $10,000 fine would be assessed for eaeh violation. Protection would extend to Hawaiian sites. Sale and other uses of Native American remains would be forbidden under House Bill 1646 (Udall D-Ariz) unless consent was obtained from actual heirs or from the tribe of origin. The bill, if passed, would protect grave goods and sacred ceremonial objects. It would require return (by museums whieh get federal funds and the Smithsonian) of all objects now held by the museums to the tribe of origin. The exceptions would be items obtained with tribāl consent or items indispensable for scientific study of major benefit. Native Hawaiians are included in the Udall proposal but it is not clear what would constitute a "tribe" of Native Hawaiians but the bill does say a "tribe" ean be an organization recognized as eligible for specific programs and services provided by the United States. Omnibus religious freedom act Bring drafted now, the Omnibus Religious Freedom Act would also contain amendments to federal laws. It has a sacred remains section and sections dealing with historic preservation, Native Amenean languages, persons who misrepresent themselves as Native Americans and participation by American Indian groups in Quincentenary (1492-1992) activities.

Paul Alexander is legislatiue counsel to the Office of Hawaiian Affairs in Washington, D.C. He is a partner in a law firm specializing in natiueAmeriean rights. Alexander and Karshmer of the District of Columbia and Colifornia. He isformerstaff director of the Senate Se1ect Committee on Indian Affairs. He is author of "The Nature of the Fed-eral-Natiue Hawaiian Relationship" whieh was used by congress for the Natiue Hawaiian Education Amendments and the Natiue Hawaiian Healih Care Act.