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I would also like to say this morning that on my way here I was reading a paper, an article which appeared in Arizona Republic, which I think depicts graphically how Indian religions are being eroded and destroyed by people who deal in the theft and sale of religious objects, and I would like to also enter that for the record because it is a graphic depiction of what can happen to a culture. So thank you very much for giving me this opportunity, and the Hopi Tribe stands ready to assist you in any way they can. Thank you very much.

[The prepared statement of Chairman Masayesva follows:]

CHAIRMAN VERNON MASAYESVA, THE HOPI TRIBE

Good morning, Mr. Chairman, Members of the Subcommittee. I am Vernon Masayesva, Chairman of the Hopi Tribe.

On behalf of the Hopi Tribe, I would like to thank the Subcommittee for inviting me to present testimony on the American Indian Religious Freedom Act (AIRFA), and the statute's effectiveness in protecting our rights to continue the practice of our traditional religion.

At the outset, I must inform the Subcommittee that my remarks relative to the Hopi religion must be general in nature. Some things should only be discussed in certain settings and only by religious authorities. However, I recognize the need to bring certain matters to your attention in order for you to understand the Hopi people's concern and interest in protecting our religious freedom.

I would like to emphasize that religious freedom concerns the belief that people have an inherent right to practice their particular religion. This right includes the places and/or sacred objects involved in the practice of the religion. This United States government was founded, in part, by people who came to this country to escape religious persecution in their own countries. The fathers of the United States Constitution recognized the need for protecting the religious freedom of the individual from governmental interference and adopted the freedom of religion clause in the First Amendment to the United States Constitution.

In addition to the First Amendment, the Congress sought to protect and preserve the rights of Indian and Native American people through the enactment of AIRFA. However, the Act failed to specifically provide a judicially enforceable right. This failure became apparent with the recent Supreme Court's decision in Lyng v. North West Indian Cemetery Association.

The Supreme Court held that, in spite of the freedom of religion clause of the First Amendment and the American Indian Religious Freedom Act, did not provide Native Americans with any legal cause of action. The practical result of the Court's decision was that Native Americans had no enforceable right to have their religious, ceremonial and sacred sites, located on federal land, protected from governmental action that threatens the site.

This ruling has the potential of allowing the incidental destruction or desecration of sacred sites and sacred objects thereon, without giving the Native American people any recourse. Therefore, the Hopi Tribe would support legislation to amend the American Indian Religious Freedom Act, to provide the Native American people

a mechanism to protect sacred sites and ceremonial objects on public and private lands.

Let me emphasize that sacred sites and ceremonial objects are inseparable when discussing the issue of American Indian religious freedom protections. In fact, ceremonial objects are the first aspect of care and concern in carrying out religious rituals and practices. Today, our religious leaders and elders are saddened by the lack of concern non-Hopi people have for our ceremonial and sacred sites and objects. We are continually faced with the destruction and desecration of many of our ceremonial and sacred sites, and sacred objects.

One of the most important customs of the Hopi Tribe is the use of eagles and eagle feathers in the practice of our religion. The eagle and eagle feathers are fundamental to our religious beliefs. Hence, the gathering of eagles for religious practice is an indispensable part of our religion. The Hopis have been practicing eagle gathering since time immemorial. So important are eagles to our religion and our traditional land base that in 1936 the Hopis included eagle territories and the right to gather eagles in their Hopi Constitution and By-Laws (Article IV). The U.S. Government acknowledged the importance of eagles to Hopi religion by exempting the Hopi Tribe from "all rules and regulations that may be incompatible with any of the provisions of said Constitution and ByLaws." (Hopi Constitution and By-Laws. Art. IV).

Hopi gathering of eagles of sacred religious purposes is also acknowledged in many legal, anthropological and other sources. See for example Healing v. Jones. 210 F. Supp. at 160 N. 45; Wilson v. Block. 708 F 2d 735, 740 (D.C. Cir. 1983) and "Inside the Sacred Hopi Homeland." 162 National Geographic 607, 609, 626-629 (November 1982). Recently, even the U.S. Supreme Court took note of Hopi gathering in upholding federal regulation of eagle taking by Indians for commercial purposes. United States v. Dion. 106 S. Ct. 2216.2221. (1986).

The right of Hopis to take eagles for religious purposes is further secured by the First Amendment of the U.S. Constitution, the Treaty of Guadalupe Hidalgo, the Act of June 14, 1934 (PL 73352), the Settlement Act of 1974 and 1980 Amendments, and 25 U.S.C. S1802(1).

Today, the Hopis hold a Federal Fish and Wildlife Permit (16 U.S.C. 668a. PRT-707073) to gather eagles within the Hopi Traditional Land base, which includes both Navajo and Hopi Reservations, as well as private and public lands within Coconino, Navajo and Apache Counties. The Lyng decision clearly threatens our ability to gather eagles and eagle feathers on public lands.

We need a legislative vehicle that provides a legal course of action enforcing religious rights when Native Americans are denied access to sacred sites and/or are disturbed during the practice of their religious ceremonies and rites and/or access to sacred objects. At the very least, such a proposal should require that Native Americans be consulted whenever their religious beliefs or sites are af fected or could be affected by federally-funded or assisted action.

Further, we are deeply concerned that ceremonial objects so critical to Hopi religion are being lost to thieves and collectors. Hundreds of Hopi religious and ceremonial objects held by public muse

ums and private collectors must be returned to the proper societies and authorities at Hopi. Sadly, missing are some of the more significant, irreplaceable objects. Theft alone has been the sole reason for discontinuing some important religious rituals and practices.

Many ceremonial objects are known to be held by certain collectors. Others are missing, but there whereabouts are unknown. They are believed to be held by collectors throughout the United States and the world. The Native American Graves protection and Repatriation Act (NAGPRA) provides establishes a system by which sacred objects are returned to the Tribe of origin. The Act has enforcement provisions. Thus, in protecting basic religious rights, the American Indian Religious Freedom Act should be coordinated with NAGPRA provisions.

We must warn the Subcommittee, however, while supporting the concept of a legislative solution, I am concerned that it must be carefully crafted to not affect the complicated state of affairs in Northern Arizona relating to the historic Hopi-Navajo land dispute. Arguably, there are Hopi religious sites on Navajo and vice-versa. Certain of these sites are already the subject matter of important litigation pending in Arizona and having a direct impact on the relocation process. It strikes me, with all respect, that it would be inappropriate for Congress to inadvertently affect the disposition of such cases already proceeding before the federal courts.

In closing, let me express my appreciation to present testimony on this important issue. As the Chairman of a Tribe whose people believe protection of religious customs lies at the very core of our continued existence, I applaud this undertaking. The Hopi Tribe is prepared to work with the Committee to develop a proposal that addresses the problems created by the Lyng decision and ensures the protection of our religious freedom.

I sincerely thank the Subcommittee for providing this opportunity to testify on this very important topic.

[EDITOR'S NOTE.-News article, "Curse of the Taalawtuma," may be found in its entirety in the hearing file.]

[Introductory paragraphs of the newspaper article follow:]

[blocks in formation]

T

he thoughtless act of two Arizona pothunters 15 years ago devastated an entire generation of young Hopis, and nearly destroyed their centuries-old religion.

It happened when two Safford men, looking for Indian artifacts, stumbled upon a cave in which four large wooden idols were "asleep" on a bed of feathers. The objects were the taalawtumsi, (pronounced tah-LAO-toom-see) the Hopis' most sacred and secret deities, whose presence is required for Hopis to be initiated into manhood.

With visions of making thousands of dollars on the Indian arts black market, the pothunters grabbed the taalawtumsi and ran. (A portion of the idol Dawn Woman is seen at right.) Tragically, the collector who bought the idols, fearing arrest, says he chopped them up and burned them. Under U.S. law, it was theft. To the Hopis, it was kidnapping and murder.

Tragedy and misfortune, even death. have followed those who

How the thieves mistreated the tualawtumsi — a

of time stole the

Hopis' religion

curse, some of them believe.

Arizona Republic reporters Richard Robertson and Paul Brinkley-Rogers spent four months investigating the 15year mystery of the taalawtumsi, piecing together for the first time the story of the deities' journey.

The reporters picked up the trail in Shungopavi, the Hopi village that suffered the loss, and began the difficult task of tracking down and confronting people who were often unknown even to one another.

The Hopis, who for centuries had refused to even acknowledge the existence of the taalawtumsi, agreed to talk about how the disappearance affected their whole society. Some of them believe the taalawtumsi were not destroyed. They say they hear

the taalawtumsi's cries in the wind, asking to come home. This fascinating tale of crimes against society and the clash of cultures starts on

[graphic]

Page A16.

Mr. RICHARDSON. I understand that, Mr. Powless, you are representing the Oneida Tribe.

STATEMENT OF MARK A. POWLESS

Mr. POWLESS. Yes, sir. Mr. Chairman, I would like to thank you for this opportunity to be here today, and I would like to extend greetings to you on behalf of the Oneida Tribe of Indians of Wisconsin. I am here on behalf of our Chairman Richard Hill.

Today, I want to talk to you about the eagle and how it relates to us Indian people. We as Native American people have understood that we are related to the animals. As far back as we could remember, we have always held the animal world with the highest regard as the animals are our helpers and our relatives. It is within this regard that we have come here today to speak on behalf of our right to exercise our religious beliefs.

We have been given original instructions on how we are to live while here on Mother Earth. These instructions come from our Creator and have been handed down from generation to generation. We have always worshiped our Creator with the utmost respect and sincerity. Additionally, the animal world has always been part of our spiritual way of life. We hope and pray that this way of worship may continue for generations to come.

Mr. Chairman, in our way of life, we believe that we must represent future generations. I am here today, and I am representing seven generations of my tribe that are yet to come, and it is with those thoughts and those feelings that I come here today and want to speak to you about the eagle.

To the Indian people, the eagle is the most sacred animal on our Mother Earth, and the eagle itself is the one that is the closest to the Creator. In our teachings in our traditional way of life, the eagle sits on our tree of peace and watches over our people and warns us of any harm or any danger that might come to our people.

To us, the eagle is very sacred. It is very sacred in that it has a spiritual strength and power for us. The eagle can do many things for us and is a helper to us. We have a ceremony in our tribe that when a person passes away and dies, there is a lot of grief that goes with that, from the loss of a loved one, and we have a bald eagle feather that we use to wipe away the tears from the eyes of the individual, to wipe away the hearing, that they could hear again.

When you are in grief and you are in mourning for the death of a person, it is kind of hard for you to talk; you have a lump in your throat, and you can't really talk, or you really can't see, or you really can't hear. Well, this eagle feather is used to help the individual in a spiritual sense to once again put together their mind, body, and spirit. The eagle is a part in a way of our life and our spirituality.

Mr. Chairman, I would like to relate a story to you, and I will deviate from my testimony for a minute. I think it is important. I come from Wisconsin, and in northern Wisconsin we have got about as much snow as you guys got here, and I was reminded of a friend of mine. He is a traditional man, and he was raised in our traditional Indian way. He uses Indian tobacco to pray to the Creator,

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