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About Smoke signals. (Grand Ronde, Or.) 19??-current | View Entire Issue (Jan. 1, 1990)
Smoke Signals January 1990 Page 13 REUGOUS FREEDOM(coot) coerced into violating their religious practices. Further more, "Whatever rights the Indians may have to the use of the area...do not divest the Governments of its right to use what is, after all, its land." Congress may step in to modify federal government operations on public lands in order to accommodate the religious needs and concerns of Indian tribes and traditional practitioners. In seeking to balance compet ing interests in the use of public lands, Congress may consider the uniquely site-sensitive needs of Indian religions. In making this kind of "balancing" judgment, the government would be protecting Indian peoples' right to the "free exercise" of religion by refraining, in so far as. possible, from interfering in Native religious ceremonies. One proposal to strengthen the "American Indian Religious Freedom Act" is S. 1124, introduced by Sen. McCain AZ. Under S. 1124, sites that have "historically been considered sacred and indispensable" and "neces sary" to an Indian religious tradition could not be managed in a manner that will "undermine or frustrate" that tradition. Although this provision is laudable, S. 1124 goes on to provide exemptions for federal land management decisions which are deemed necessary to "(A) carry out the legal responsibilities of the Federal Government, (B) protect a compelling governmental interest, or (C) protect a vested property right." The bill would also require that an agency "attempt to accom modate" competing interests and choose the course of action least intrusive on Indian religious practices " to the greatest extent feasible." While not prohibiting a governmental action, this language would at least afford tribes the opportunity to challenge an action in which the least intrusive course has not been chosen. At the September 28 hearing on S. 1124 before the Senate Select Committee on Indian Affairs, a 180 degree spectrum of opinion was presented. Tribal witnesses expressed support for the aim of the bill, but were concerned that the exemptions would give such broad discretion to federal agencies that the intent would be lost. They also questioned the broad nature of the exemptions. Presumably, any agency action is carried out legally, would this language, for example, mean that all actions are therefore acceptable, even though they might interfere with Indian religion? By contrast, the National Park Service and Forest Service expressed opposition.to S. 1124 on the grounds that it fs unnecessary. Agency spokespersons testified that existing laws, including AIRFA, are adequate, and that the services are already meeting the intent of AIRFA by consulting with Native Americans, allowing tribes to comment on agency plans, and considering alternatives when conflicts about an area arise. The law on this subject is undergoing fundamental change as Congress and the courts attempt to identify and balance disparate interests, within the delicate context of church-state separation. Concepts of prop erty ownership tangle with timeless spiritual traditions in a contest that will have profound consequences for advocates of each perspective. -Courtesy of the FREINDS COMMITTEE ON NA TIONAL LEGISLATION N. far I BURIAL PROTECTION AND REBURIAL BILLS PENDING IN CONGRESS In recent years, as continuing mistreatment of Indian dead has become a national embarassment, Congress has begun to address the problem. Presently, six important bills on this issue are pending in the 101st Congress. A brief summary on these bills follows. H.R. 2668 AND S. 978, The National American Indian Museum Act: On the House side, this bill was intro duced by Congressman Ben Nighthorse Campbell with many co-sponsors on June 14, 1989. The bill does two things: 1) it creates a new national museum of the American Indian and 2) it addresses the issue of the 19,000 dead Native bodies held by the Smithsonian Institution. As originally proposed, the bill merely required the Smithsonian Institution to inventory its "collection" in three years and report back to Congress any recommendations. However, at a July 20 congres sional hearing, the national Indian community, Native American Rights Fund, National Congress of American Indians, Association of American Indian Affairs, Inc., and the National Indian Education Association made it clear that actual repatriation of these remains and burial objects would be necessary. Following that hearing, negotiations took place between the Smithsonian Institution's Secretary Robert Adams, national Indian Community representatives, and Congressman Campbell. NARF represented the Pawnee Tribe of Oklahoma and the Larsen Bay Tribal Council of Kodiak Island, Alaska in these negotiations. These negotiations resulted in an historic, widely reported repatriation agreement which has now been incorporated as an amendment which has now been incorporated as an amendment, H.R. 2668. Under that . agreement, H.R. 2668 now requires the Smithsonian Institution to repatriate native human remains to a tribe upon request, where the preponderance of the evidence indicates that the remain is culturally affiliated with the requesting tribe. Funerary offerings are also subject to repatriation under the same standard where they are associated with a specific remain or grave site. An anti-Indian archeology group called the Society for American Archaeology has lobbied vigorously to undercut the Smithsonian agreement. Nonetheless, H.R. 2668 advanced through various subcommittee and committee markups in September and October. Be cause of the wide support this bill has engendered for the proposed National Museum of the American Indian, it is expected to move quickly through the House. The Senate companian to H.R. 2668 is S.978, which was introduced earlier in the year by Senate Select Committee on Indian Affairs. This bill also incorporates the Smithsonian Institution agreement and passed the Senate with unanimous consent in October. NARF is in full support of the H.R. 268 and S.978. H.R. 1124, Indian Remains Reburial Act: This bill, which has now been superseded by H.R. 2668 for all practical purposes, was introduced by Congress man Dorgan on February 27, 1989, and referred to the Administration Committee. This bill would have required the Smithsonian Institution to repatriate Indian and Native Hawaiian human remains that are more recent than 1500 A.D. H.R. 1381, Native American Burial Sites Preservation Act of 1989: This bill was introduced by Congressman Bennett on March 14, 1989, and referred to the Committee on Interior and Insular Affairs. This bill, which is well intentioned but needs some improvements, prohibits persons from exhuming Native burials. Exceptions are granted where state law permits such activity, and the contents of Native graves unlawfully removed are declared "property" of the United States. No hearings have been scheduled for this bill. More work on this bill is needed before it can be supported by NARF. H.R. 1646 and S. 1021, Native American Grave and Burial Protection Act: On the House side, this bill was introduced by Con gressman Udall on March 23, 1989, and referred to the Committee on Interior and Insular Affairs. This bill makes it illegal to sell native skeletal remains, use them for profit, or to transfer them across state lines without proper tribal or native consent. Further, Natives would be given control, over the disposition of remains and - burial offerings found on public or tribal lands. And, federal museums and agencies in possesion of these objects would have to inventory and repatriate them unless they were shown to be acquired with tribal or Native consent or "indispensable" to a pending, impor tant scientific study. No hearings have been scheduled on this important bill. On the Senate side, the companian to H.R. 1646 is S. 1021 which was introduced by Senator McCain for discussions purposes on May 17, 1989, and referred to the Select Committee on Indian Affairs. This bill is similar to H.R. 1646, but extends most of the protective measures to include grave goods and ceremonial objects. NARF is in general support of H.R. 1646 and S. 1021 and will offer suggested minor amendments to these important bills at the appropriate time. For further information concerning any of the above bills and NARFs position, please contact staff attorneys Walter Echo-Hawk, Henry Sockbeson or Steve Moore. - Courtesy of the Native American Rights Fund ETHICS(Cont) Mankiller, principal chief of the Cherokee Nation of Oklahoma. "Because of the things happening with the Navajo and Crow tribes, we should all be concerned about prevent ing them from happening in our own tribes," she told members of the National Congress of American Indians who gathered in Oklahoma City recently. "We need to articulate our traditional values, and create a legal framework to set the proper atmosphere for good government," Mankiller said. "But we can't begin to solve problems until we acknowledge that they exist." Truman Carter, treasurer of the Sac and Fox Tribal Council, said ethics laws are a powerful tool to help stabilize tribal governments, and can help protect tribal leaders from the enormous pressures placed on them by various political factions. , "When you become a tribal leader, you lose your individual identity, and you lose much of your privacy," Carter said. "You become a public official. And the more aggressive tribal leaders are, the more scrutiny they are under." Panel members said crucial areas that need to be addressed in good-government laws include conflicts of interest, misconduct by retaliation, exercising improper influence, misuse of tribal funds, using confidential information for private profit, and discrimination in hiring or providing services. "It's easy to say, 'the world is corrupt,' and use that as an excuse for unethical behavior,' said Harold Tarbcll, head Chief of the St. Regis Mohawk Nation. "But ethics is part of the foundation of our culture," and along with our efforts to protect our sovereignty and our culture, strong ethics must be a critical goal for tribes."
