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."