Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 4, 1 April 1993 — April 7 Congressional hearing planned on American lndian Religious Freedom Act [ARTICLE]

April 7 Congressional hearing planned on American lndian Religious Freedom Act

by Jeff Clark On April 7 the Senate Committee on Indian Affairs will hold a hearing at the University of Hawai'i on a draft bill to amend the American Indian Religious Freedom Act. Hawai'i Sen. Daniel Inouye, who chairs the committee, welcomes eomments and suggestions on the draft measure. Some amendments have been proposed and more proposals are expected. The bill's proposed amendments were drafted in large part by the American Indian Religious Freedom Coalition, but they incorporate native Hawaiian proposals offered during working sessions held last year.

The bill states, "It shall be the policy of the United States to protect and preserve the inherent right of any Native American to believe, express and exercise his or her traditional religion, including, but not limited to, access to any Native American religious site, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." Hawaiians are covered by the term "Native American." The draft bill has lengthy sections that would protect the right of Native Americans to have access to religious sites, to use peyote, and to possess eagles or eagle parts when they become available because of natural or accidental death. Also, it decrees that Native American prisoners have the same rights to worship as do inmates of other religions. It also sets criminal penalties for damaging or defacing Native American religious sites.

Amendments that would give the Act "teeth" authorize legal action in federal district court for the violation of rights protected under the Act. A significant section of the draft bill amends it to require federal agencies to notify and eonsult with tribes, Indian leaders or native Hawaiian organizations when proposed projects will have an impact on religiously signifi-

cant lands or otherwise affect Native American religious practice. It sets up a process (whieh includes the option of halting projects) by whieh the impacts ean be alleviated or prevented, and protects the confidentiality of religious practice when details become known through interactions with the government.

Central to the Hawaiian proposals is the definition of "Native Hawaiian organization." Amendments proposed early in the drafting process defined such an organization as one whieh "serves and represents the interests of native Hawaiians, has as a primary and stated purpose the provision of services to Native Hawaiians, and has expertise in Native Hawaiian affairs, and shall include the Office of Hawaiian Affairs and Hui Mālama I Nā Kūpuna o Hawai'i Nei." The language defining "Native Hawaiian organization" had originally been lifted out of the Native American Graves Protection and Repatriation Act and the National Historic Preservation Act. Some of the participants in two working meetings held last year by the Select Committee objected that a group needed no Hawaiian members to fit that definition and that OHA and Hui Mālama were the only Hawaiian groups specifically named. The proposed amendment reads, " 'Native Hawaiian organization' means any organization whieh is composed primarily of native Hawaiians, serves and represents the interest of native Hawaiians and whose members practice a Native American religion or conduct traditional ceremonial rituals, or utilize, preserve and protect Native American religious sites."

In February, OHA trustee Kina'u Boyd Kamali'i testified at an oversight hearing on the AIRFA amendments held by the U.S. House of Representatives Committee on Natural Resources. Kamali'i suggested that in the section defining "Native Hawaiian organization," the Act could follow the lead of the draft Native Hawaiian Recognition, Restoration and Claims Act and refer to the eventual re-establish-ment of a native Hawaiian government. She proposed that the Act refer to "... the native Hawaiian government, or ... the Office of Hawaiian Affairs until such entity is established." The Act's definition of "Native Hawaiian," unlike that in the Hawaiian Homes Commission

Act, does not use a blood quantum; it instead includes anyone who is a descendant of the aboriginal people who occupied and exercised sovereignty in Hawai'i prior to 1778, that is, anyone with any amount of Hawaiian blood. The American Indian Religious Freedom Act, or AIRFA, was enacted to ensure that First Amendment protections are extended to Native American religious practitioners. It states that "throughout American history, traditional Native American religious ceremonies have been intruded upon, interfered with, and, in some instances, banned by the federal government and the devastating impact of these governmental actions continues to the present day."

OHA land officer Linda Delaney said amendments are needed to the Act because of recent court decisions that were deemed to violate Native Americans' constitutional right to free religious expression. The First Amendment eame under attack by decisions handed down in the last few years by federal courts. Various judges ruled that peyote (a sacrament and healing tool to some Indians) was not a religious tool but an abused substance, and that because eagles are endangered species it is illegal to possess eagle feathers for religious purposes. In one case a logging road was allowed to be built regardless of the fact that it ran through a sacred forest, Delaney said.

Delaney said there should be a balance between religious freedom and public interest, and that "Congress is trying to undo devastating rulings by the courts, because the courts did not respect that halanee. The First Amendment should have been sufficient but it wasn't. OHA supports the concept and the need for this because of the court rulings, but we are also looking at how best to keep the balance."

Kamali'i expressed to the representatives eoneem over what constitutes a "Native American religion," noting that "very distinct native Hawaiian evolutions of Christian churches ... developed during missionary times. These institutions are distinctly native Hawaiian, yet it is not clear whether the Act would intend to include them within its coverage." She also recommended the definition of federal lands covered by the Act be modified to include all ceded lands, and that OHA - instead of the Department of

Interior, whieh she said "has not been a responsive agency to native Hawaiian concerns" - be the go-between when Hawaiian groups feel federal projects would harm or restrict access to sacred sites. She said AIRFA "has been an important symbolic act for native Hawaiians ... because AIRFA recognizes native Hawaiians as indigenous people of this country - Native Americans with unique rights and a poliheal relationship to the federal govemment." Although the use of peyote and the taking of eagle feathers are not traditional Hawaiian practices, Kamali'i said OHA supports "our Native American sisters and brothers on these provisions, as well as the more famil-

iar prisoners' rights provisions." Delaney thinks the Act needs more work. "I believe that the issues of access and practice are so important and at the same time so complex that we need more deliberation on this," she said. Delaney said the First Amendment to the U.S. Constitution was designed in part to protect religious freedom, noting that the colonists eame to America to escape religious oppression, but recognized that they themselves could in turn become oppressors. The Bill of Rights is effective

because it is simple and unspecifie, and when specific practices are enumerated in legislation, there is a danger that practices not described in the law ean be considered unprotected. For instance, because eagle feathers are specifically addressed, possession of bear claws could possibly be judged illegal because they are not mentioned in the Act. OHA culture officer Pīkake Pelekai said the act is being amended because it is currently unenforceable, and applauded the proposed amendments. "It ean only help the Hawaiian cause," she said. "It will extend the same rights and privileges to native Hawaiians that are extended to everyone else."

"The First Amendment should have been sufficient but it wasn't. OHA supports the concept and the need for this because of the court rulings, but we are also looking at how best to keep the balance." — Linda Delaney, OHA land officer

Hearing Notice A hearing on the draft biil to amend the heid April 7 at 5 p.m. in Classroom 2 of the Wiiliam S, Richardson School of Law at the University of Hawai'i, 2515 Dole St. To sign up to testify or for more information, contact Noelle Kahanu, counsel to the Sertate Committee on Indian Affairs, at 541-2542. — _ — _