Northwest Indian Cemetery Associations, 484 U.S. 439 (1988), and in Employment Division of Oregon v. Smith, 494, U.S. 872 (1990) that in its present form, federal legislation which addresses Native American religion, fails entirely to provide protection for Native American sacred sites or protection for traditional Native American religious activity. Because the survival of Native American ways of life are founded in the spiritual, threats to Native American spiritual foundations must necessarily be understood as threats to the very existence of Native Americans. Sacred sites have since time immemorial been an integral part of Native American religious activities. Protection of such sites from federal and state government activities unquestionably essential. is The proposed amendments which require notice consultation and development of written alternatives documents to tribal governments as well as to traditional leaders, and no commencement of action or decision making when federal action may result in changing the character or use of religious sites is admirable. However, one wonders, considering the checkered history of the Environmental Impact Statement experience, under the Environmental Protection Act, and the reluctance and ignorance of federal agencies to be supportive of Native American claims, and agency institutional bias for development, whether this approach simply forces Native Americans to seek court action for relief. A court remedy is hardly comforting these days to Native Americans, considering the cost and with the prospect of a judge uneducated in Native American religious practice determining whether or not a federal action is posing or will pose both a substantial and a realistic threat to a Native American religion or religious practice. Nevertheless, reinstating the compelling interest test for government action, previously available but taken away by the Supreme Court, affords protection. The Navajo Nation supports that approach for protection of sacred sites located off Indian lands. The Navajo Nation supports wholeheartedly the recognition in the proposed amendments that tribal governments and their law or customs preempt federal law pursuant to the inherent retained sovereignty of tribal governments. It should be made clear that the tribal law or custom to be followed is that of the tribal government whose land base is directly affected. Statements supporting tribal sovereignty are critical to this legislation because such federal policy statement recognizes tribal governmental authority over land and people. In furtherance of this recognition, it is respectfully suggested that the matter of what is confidential and subject to deletion from the record should be determined in some manner by Tribes and by Native American traditional practitioners and not by the federal agency or court which has the material. determination of the need for confidentiality should be established by knowledgeable persons. Such determination may be helpful to the The federal agents responsible for handling requests for information, particularly in light of the heavy criminal sanctions imposed for "knowing" release. The defense suggested is "I didn't know" or "I'm not knowledgeable about Native American religion", which defense would be less likely where prior determination is made by proper persons. Another area where tribal sovereignty can be greatly enhanced by the proposed amendments to the American Indian Religious Freedom Act is the issue of Eagle feathers, animal parts or plants. While studying the matter and developing a plan for prompt disbursal and sufficient allocation may eventually result in simplifying the process for individuals, the approach taken seems to depart rather sharply from the strong approach favoring tribal sovereignty found in the sections related to sacred sites. Rather than rely on creating additional federal institutions such as another "Advisory Council" for disbursal and allocation, it would be more in keeping with recognition of tribal sovereignty for the law to provide that tribal government entities may be recognized as repositories and disbursing agents. This matter is clearly one of regulatory properly governments. control and should rest with tribal The proposed amendments ao suggest that tribal governments "may" distribute where the objects are discovered on Indian lands and the Tribe has established or establishes by law or custom a permit and distribution system. This discretionary language should be strengthened to assure that the Department of the Interior Fish and Wildlife Service is mandated to recognize tribal government regulatory authority in this matter. The Secretary of Interior presently has regulatory authority to give permits. The regulations related to Indian religious purposes should be redrafted to make special provision for tribal governments. This would require removing the regulatory restriction that applications be accepted only from individuals. As provided for under the present law the Secretary's authority to enter into cooperative agreements with State agencies and the delegation of authority attendant to said agreements should be extended to tribal governments. Far flung regional depositories delay disbursement to Native American practioners. Disbursement by tribal government entities through agreements and delegated authority would result in a more effective and efficient process, while at the same time recognizing and enhancing tribal sovereignty. Many sacred sites are no longer situated on Indian land. The Navajo Nation supports access by Native American practitioners to religious sites located on Federal lands at all times and believes that National security and motorized vehicle access exceptions are reasonable. The rights of individual Native Americans to practice their religion must be protected. Thousands of Navajo people practice the centuries old Native American peyote religion. While some states exempt peyote use for religious purposes from criminal and drug enforcement laws and federal regulations transportion and distribution of peyote for Native allow American religious ceremonies, these protections are limited. After the Supreme Court ruling in Oregon v. Smith, supra, first amendment rights of all Native American traditional religious practioners are endangered. Reinstating the "compelling State interest" test for determining whether or not there is government infringement on religious practices and not just beliefs is important to all religions. The Congress can lead the way to stronger protections for all Americans who practice religious which have minority status by protecting the first Americans rights to practice their traditional beliefs. There is no evidence that the sacramental use of peyote in religious ceremonies is harmful or habit forming. In fact there is substantial evidence that the religions practices and beliefs of the peyote religion are an effective means of combatting alcohol abuse, an unquestionably devastating disease in Indian country. Those sections of the proposed amendments which address the rights of individual Native Americans in prison to have the same privileges and access to practice their religion as any other prisoners are supported by the Navajo Nation. Since 1980, the Navajo Nation Council has funded the Navajo Nation Correction Project, an effort which has resulted in successful negotiated agreements with states to permit, American Indian Religious 68-366-93 - 5 |