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'Cause of action' sought in Religious Freedom Act additions

WASHINGTON - The price of passage for the American Indian Religious Freedom Act was to strike a "cause of action" clause that would have provided teeth for the legal enforcement of the act when Native sacred places come under siege.

Twenty-five years later, devotees of traditional Native religious practices are finding the price high indeed as development projects press for advantage across the land.

Suzan Shown Harjo, president of Morning Star Institute in Washington, said the lack of a legally enforceable cause of action in the 1978 law makes it virtually impossible to defend against the transgression of Native sacred places in court. In America, she added, only Native religion lacks "doors to the courthouse" when it comes to protecting churches, sacred ground and religious practices.

Harjo and a cohort of others testified before the Senate Committee on Indian Affairs in June.

"For the most part, the attitude of agencies and developers has been 'So sue me,' knowing full well that we lack the legal tools to do that."

A leading case in point is Bear Butte, Paha Mahto in most Lakota tribal dialects, Noah vose' in Cheyenne (and perhaps better translated into English as Bear Hill or Bear Mountain - it is certainly no butte in the flat-topped, vertical-sided sense; the popular appellation may have been due to a mistranslation). A landmark to all travelers from time immemorial, the volcanic rock formation is considered by Native peoples to resemble a bear at rest on its side, neck angled northeast.

Steve Brady Sr., a religious traditionalist on the Northern Cheyenne Cultural Commission board, called Bear Butte (Noah vose' to him) the "holiest of holy shrines."

In many cultural traditions, the holiest places are set off from other sacred ground. Bear Butte is no exception, set off from the sacred He Sapa or Black Hills in South Dakota by eight miles of prairie.

But roughly the same distance on the other side of Bear Butte, a shooting range is going up. The shots will be heard on Bear Butte as a rubber band snapping every three seconds, according to Charmaine White Face, coordinator of the Defenders of the Black Hills organization in Rapid City, S.D. - clearly disruptive in a place of prayer and quietude, White Face noted, as if tourists and hikers weren't enough.

The tribes that know Bear Butte as sacred weren't consulted about the shooting range. Gene Preston, chairman of the Pit River Tribe in California, said that approval processes must include consultation with tribes likely to be affected from the first lease on. "Without this, the process doesn't work for the tribes." Pit River is trying to protect Medicine Lake Highlands from energy developers.

Harjo, a tried and true hand in the development of Native-specific legislation on Capitol Hill, said a bill that would "honor the statements of the American Indian Religious Freedom Act" is being drafted in tandem with the Senate Committee on Indian Affairs. It has a long way and lots of "looks" still to go, she added.

But at the core of the bill, informing any final version will be a list of essential elements that must be included in some form, and another list of objectionable elements that must be excluded, Harjo said.

The essential elements:

* Cause of action on sacred places.

*"Zero tolerance for desecration, damage or destruction of sacred places."

*" ... sacred places are to be defined only as places that are sacred to practitioners of Native traditional religions ? sacred places include land (surface and subsurface), water and air, burial grounds, massacre sites and battlefields; and spiritual commemoration, ceremonial, gathering and worship access."

*"Early, meaningful consultation with traditional religious leaders and tribal leaders."

*"Recognition and reliance on traditional religious leaders."

*"Respect for traditional religious tenets and tribal law regarding non-disclosure of confidential and private information about sacred places."

*"Notice of proof, with burdens of proof on the developers, for proposed development within the aboriginal territory of Native nations, in accordance with mapping to be developed by Native nations."

*"Application to undertakings and actions on federal land, water and airspace and to all other land, water and airspace with a federal nexus."

*"Provisions for protecting the integrity of sacred places through agreements for management or co-management of or access to sacred places."

*"Severe federal penalties for violations of sacred places."

*"Recognition and application of tribal laws regarding arrests, penalties and imprisonment for violations of sacred places."

*Funding for the acquisition of sacred places and the maintenance of their integrity.

Objectionable elements:

* Any definition of "sacred" as it applies to Native religious practices, a measure not ordinarily enjoined on other religious practices.

*"Prioritizing of sacred places."

*"Centrality or degree of significance requirements."

*"Discrimination against non-federally recognized tribes with traditional sacred places to protect."

*"So-called 'mitigation' of impacts to sacred places."

*"Reliance on previously published or recorded coerced or incomplete information regarding sacred places."

*"Discrete delineation requirements."

The National Congress of American Indians has adopted a resolution to support or oppose legislation on Native sacred places and practices according to this breakdown of essential and objectionable elements.

Rep. Nick Rahall, D-W.Va., has already introduced the Native American Sacred Lands Act in the House of Representatives. The bill, which is considered doubtful of passage in the current 108th Congress because of Republican opposition, would make federal law of President Clinton's 1997 Executive Order promoting consultation with tribes on endangered sites. It would also permit tribes to petition the federal government to prevent damage to sacred lands from federal or federally assisted actions.

Rahall has long been a leading voice for government retention of federal lands, often for purposes of historical preservation. As a senior representative on the House Transportation and Infrastructure Committee, he has also taken a role in energy development; but he explicitly opposes the Bush administration's perceived willingness to pursue development potential onto sacred ground.

Rahall's colleague in the House, Rep. Frank Pallone, D-N.J., has also emerged as a friend of federal protection for Native sacred sites. He has spoken in behalf of the Rahall bill. In a guest column in Indian Country Today, Pallone also called for "additional sacred lands legislation to be developed in consultation with Indian country. Congress must enact the establishment of a government-wide, effective and comprehensive procedure that safeguards against the loss of additional American Indian and Alaska Native sacred lands."