[Senate Hearing 107-519]
[From the U.S. Government Printing Office]
S. Hrg. 107-519, Pt. 1
NATIVE AMERICAN SACRED PLACES
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
THE PROTECTION OF NATIVE AMERICAN SACRED PLACES AS THEY ARE AFFECTED BY
DEPARTMENT OF DEFENSE UNDERTAKINGS
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JUNE 4, 2002
WASHINGTON, DC
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PART 1
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
Statements:
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.............. 47
Aluli, Noa Emmett, Kaunakakai, HI............................ 44
Arterberry, Jimmy, Tribal and Historic Preservation Officer,
Comanche Nation, Medicine Park, OK......................... 31
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 2
Dunlop, George, Deputy Assistant Secretary (Policy and
Legislation) Office of the Assistant Secretary of the Army,
Washington, DC............................................. 6
Franco, Mark, Winnemem Wintu Tribe, Redding, CA.............. 39
Grone, Philip W., Principal Assistant Deputy Under Secretary
of Defense (Installations and Environment), Washington, DC. 3
Hall, Tex, chairman, Three Affiliated Tribes Business
Council, New Town, ND, and president, National Congress of
American Indians, Washington, DC........................... 17
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
Committee on Indian Affairs................................ 1
Jones, Scott, Cultural Resources Officer, Lower Brule Sioux
Tribal Council, Lower Brule, SD............................ 29
Joseph, Rachel A., chairperson, Lone Pine Paiute-Shoshone
Tribe, Lone Pine, CA....................................... 20
Machado, Colette Y., chairperson, Kaho'olawe Island Reserve
Commission, Wailuku, HI.................................... 41
Naseyowma, Gilbert, Village of Lower Moencopi, Tuba City, AZ. 49
Selestewa, Elliott........................................... 35
Selestewa, Leonard A., Village of Lower Moencopi, Tuba City,
AZ......................................................... 35
Sisk-Franco, Caleen, Winnemem Wintu Tribe, Redding, CA....... 32
Smith, Charles R., Assistant for the Environment, Tribal and
Regulatory Affairs......................................... 6
Yellow-Bird, Pemina D., NAGPRA Representative and Cultural
Resources Consultant, Mandan, Hidatsa, Arikara Nation,
Belcourt, ND............................................... 27
Appendix
Prepared statements:
Aluli, Noa Emmett (with attachments)......................... 240
Arterberry, Jimmy (with attachments)......................... 87
Dunlop, George............................................... 69
Grone, Philip W.............................................. 56
Hall, Tex.................................................... 51
Jones, Scott................................................. 53
Joseph, Rachel A............................................. 54
Machado, Colette Y. (with attachment)........................ 218
Peabody Energy, St. Louis, MO (with attachments)............. 389
Selestewa, Leonard A. (with attachments)..................... 245
Sisk-Franco, Caleen.......................................... 225
Yellow-Bird, Pemina D. (with attachment)..................... 80
Note: Other material submitted for the record retained in
committee files.
NATIVE AMERICAN SACRED PLACES
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TUESDAY, JUNE 4, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10:02 a.m. in
room SR 485, Russell Senate Building, Hon. Daniel K. Inouye
(chairman of the committee) presiding.
Present: Senators Inouye, Campbell, and Akaka.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The committee meets this morning for the
first in a series of hearings that will be held on the
protection of Native American sacred places as they are
affected by the undertakings and activities of various Federal
agencies. This morning we will receive testimony on how the
activities of the military services of the Department of
Defense [DOD] are affecting Native American sacred places.
There are several Federal laws which address some aspect of
Native American sacred places, but, even taken together, as we
will hear today, they fail to provide adequate protection for
places that are sacred to Native people. These laws include The
American Indian Religious Freedom Act, the National Historic
Preservation Act, and the Native American Graves Protection and
Repatriation Act. In addition, in the previous Administration
President Clinton issued an Executive Order addressing Native
American sacred sites.
We begin this series of hearings with the Department of
Defense agencies, in part because the Department has
implemented a number of initiatives which are commendable in
their own right but which, unfortunately, have not been
replicated by other Federal agencies. The Department of Defense
has adopted a guidance and issued a publication in pursuit of
the government-to-government consultation policy objectives
established during President Clinton's administration.
In addition, the Department has developed a curriculum to
provide the commanders of military installations across the
country, as well as those who serve under them, with a thorough
background on the history of Federal Indian relations and
Federal Indian law and policy.
The Department has also contracted to develop a mapping of
those geographic areas of the country that are the subject of
treaties between Indian nations and the United States so that
the Department and its services may know with whom they should
consult when a proposed undertaking might affect tribal lands.
The Department is certainly to be commended for its
leadership in these areas; yet, as we will hear today, there
are issues and areas that have not been addressed very well.
Often, we have found that the best way to assure that negative
patterns are not repeated is to identify the problem area so
that we may better focus our attention on improvement.
I wish to thank all of the witnesses who will appear before
the committee today and to extend the committee's appreciation
to the Sacred Lands Protection Coalition, the National Congress
of American Indians, and the Morningstar Institute and the
Institute's director, Suzan Shown Harjo for all that they have
contributed to today's hearing.
Before proceeding, may I call upon the vice chairman of the
committee?
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Thank you, Mr. Chairman.
First, I think we are both aware that protecting cultural,
religious, and ceremonial resources is not only a concern for
Native Americans, but is or certainly should be a concern for
all Americans. In fact, the week before our Memorial Day
recess, the House Resources Committee favorably reported a bill
to transfer ownership of 900 acres known as Martin's Coves to
the Church of Mormon. This was land, Mr. Chairman, in which 150
people perished in a blizzard, and the land has enormous
historical and religious value to the members of the Mormon
Church.
I would also say that protecting sacred places, that deeply
held conviction is not limited to Americans, alone. People
around the world are clamoring to preserve and protect
religious and cultural sites in Turkey, Italy, Greece, the Holy
Land, South America, Afghanistan, and many other places. There
is something uniquely human about protecting the sacred and
keeping the sacred and the mundane separate and apart, and
that's what this is all about.
In addition to the sites we will hear about today, there
are places Native peoples hold very dear, such as the
Huckleberry Patch in Oregon, Mt. Graham in Arizona, Sand Creek
site in Colorado, and hundreds of other places that are being
threatened as we speak. Just as Native people continue to
protect their ceremonial lands, it is evident to me that the
legal protections now in place for cultural and religious sites
in America are lacking in many respects.
Let me add, from the Antiquities Act of 1906 to the
American Indian Religious Freedom Act of 1978 to the American
Native Graves Protection and Repatriation Act of 1990, each of
these key laws have proven very valuable and yet unable to
fully protect the Native sites.
I am very well aware of your efforts in this regard, Mr.
Chairman. I look forward to our hearing. With that I'll put the
rest of my opening statement in the record.
The Chairman. Without objection, so ordered.
Our first panel consists of the deputy assistant secretary
of policy and legislation from the Office of the Assistant
Secretary of the Army. He will be accompanied by Charles R.
Smith, assistant for environment, tribal and regulatory
affairs, Office of the Assistant Secretary of the Army; and
Philip W. Grone, Principal Assistant Deputy Under Secretary of
Defense for Installations and Environment.
Gentlemen, I welcome you. Secretary Dunlop.
Mr. Dunlop. Thank you very much, Mr. Chairman. I might say
that those of us at the Department of Defense are quite
conscious about rank and things, and I think that Mr. Grone
representing the Secretary of Defense would be a little bit
higher in rank than the Secretary of the Army, so I wonder if I
might defer to ask Mr. Grone to proceed first.
The Chairman. Mr. Secretary.
STATEMENT OF PHILIP W. GRONE, PRINCIPAL ASSISTANT DEPUTY UNDER
SECRETARY OF DEFENSE [INSTALLATIONS AND ENVIRONMENT],
WASHINGTON, DC
Mr. Grone. Thank you, Mr. Dunlop. Thank you, Mr. Chairman.
Chairman Inouye, Senator Campbell, and members of the
Committee on Indian Affairs, I am honored to appear before you
this morning on behalf of the Department of Defense to address
the policies and procedures of the Department and its
components with regard to the protection of sacred lands and
sites that are vitally important to Native Americans.
Mr. Chairman, with the permission of the committee I have
prepared a written statement that was submitted earlier. I will
briefly summarize that statement, and I request, with the
permission of the committee, to have my written statement
included as a part of the record.
The Chairman. So ordered.
Mr. Grone. Thank you, Mr. Chairman.
The Department of Defense and its components have a
longstanding relationship with Native Americans. We recognize
and honor the deep commitment of Native Americans to the
defense of the United States. That commitment, reflected by
those who currently serve in uniform, as well as the nearly
190,000 Native American military veterans who came before them,
has yielded substantial contributions to the Nation's security,
including the Indian code talkers, most notably the Navajo, who
exercised a decisive role during the Second World War, along
with other code talkers, including the Choctaw, Comanche,
Oneida, Chippewa, Sac, Fox, and Hopi.
In his proclamation on Native American Heritage Month in
November of last year, the President stated that:
The strength of our Nation comes from its people. As the
early inhabitants of this great land, the Native peoples of
North America played a unique role in the shaping of our
Nation's history and culture. We will work with the American
Indians and Alaska Natives to preserve their freedoms as they
practice their religion and culture.
We believe that the Department is working every day within
the spirit of the President's remarks. The primary mission of
the Department of Defense is to prepare the armed forces to
defend the Nation, to deter aggression, and, when necessary, to
fight and to win the Nation's wars. Within that primary
mission, DOD respects the importance tribes place on the
protection of sacred sites on lands entrusted to us and under
the administrative control of the military departments.
Currently there are 45 military installations and ranges
that contain known sacred sites within their boundaries.
Consultation continues with a number of tribes concerning
suspected sites on 15 additional installations. At these
installations, installation commanders and the tribes work
together almost daily to ensure that mission-related training
can occur consistent with the protection of sacred sites.
Moreover, as I indicated in my prepared statement, the
military components administer 25 million acres of land,
including 16 million acres of withdrawn public lands. There are
157 military installations located within 50 miles of at least
one Federally-recognized tribe, and 208 federally-recognized
tribes live within 50 miles of a given military installation.
To address the relationship appropriately, the Department
of Defense and its components are working cooperatively with
tribes on many levels to address a number of important issues,
including the protection of sacred sites. In 1998, after 20
months of extensive consultation with tribal organizations and
tribal governments, the Department promulgated its American
Indian and Alaska Native policy. Through this policy, building
upon existing law and treaty, regulation, executive order, and
Department of Defense directive, we sought to provide a
comprehensive framework within which the components could
approach issues of concern to the tribes. The implementation of
this policy has resulted in significant improvements in the way
we interact with tribal governments. The policy includes four
guiding principles: trust responsibility, government-to-
government relations, consultation, and natural and cultural
resources protection.
Many of our installation commanders have formed
partnerships and undertaken formal agreements with tribes as
part of an overall plan to protect the cultural resources
located on the installation. These partnerships and agreements
cover issues including, but not limited to, the access to and
protection of sacred sites.
With the policy as a backdrop, DOD has undertaken several
initiatives that are key to the protection of sacred sites at
our installations. One of these involves the development of
integrated cultural resource management plans, or ICRMPs.
ICRMPs are an important tool utilized by installation
commanders in the management of cultural resources. Typical
ICRMP requirements include surveys; consultation with affected
parties, including Native Americans; and activities to mitigate
the effects on cultural resources. Although not required by
law, ICRMPs are required by DOD policy for all installations.
At the conclusion of fiscal year 2001, 212, or 53 percent of
the 398 ICRMPs identified for planning purposes, were
completed. We continue to track the completion of ICRMPs as a
performance measurement within the Office of the Deputy Under
Secretary of Defense for Installations and Environment.
Another important step DOD has recently taken is a Defense-
wide training effort on the implementation of our policy. Our
office has sponsored a series of DOD-wide training courses
since June 1999, with our most recent course taking place just
last month at Ellsworth Air Force Base, South Dakota.
Through this program we have trained nearly 500 DOD and
component staff, as well as 150 commanders and senior leaders
on American Indian law, history, consultation, cultural
communications, and cultural resource issues, including the
protection of sacred sites. The courses are designed to be
comprehensive and incorporate participation by tribal elders,
local tribal historians, and cultural resource specialists.
The military departments, for their part, have also
embarked upon training courses. For example, the Civil Engineer
Corps of the Navy has conducted training in this area for the
last four years. The Army National Guard is also significantly
involved in training and outreach activities and will conduct
two consultation workshops later this year in Springfield,
Missouri, and in Providence, Rhode Island.
In recognition of the importance of ICRMPs and as a part of
the continuing emphasis on training, my office last month
issued to the components a publication entitled, ``Commander's
Guide to Stewardship of Cultural Resources.'' Developed in
cooperation with the National Trust for Historic Preservation,
the guide provides installation commanders with fundamental
information concerning the development and implementation of
all facets of an integrated cultural resource management plan.
In summary, through the implementation of current law and
treaty, regulation, executive order, and DOD directive and
policy, we believe the Department of Defense and the components
are effective in providing access to and protection of sacred
sites.
Recognizing that we can continue to deepen our
understanding of the nature of sacred lands and to improve our
programs, we will continue to work cooperatively with the
Congress, tribal governments and organizations, and other
interested parties in addressing this issue.
As I conclude my remarks, Mr. Chairman, I want to
acknowledge the contribution of those key members of the OSD
staff who work in this policy area. Len Richeson and Stacey
Halfmoon serve in the Office of Environmental Quality on the
Deputy Under Secretary of Defense (Installations and
Environment) staff, and Jim Van Ness serves in the Office of
the Deputy General Counsel for Environment and Installations.
Each of these individuals have made significant contributions
to our policies and procedures. While we believe we have a
solid record of accomplishment, we continue to look for ways to
improve our efforts. In that regard, Mr. Chairman, we look
forward to a continuing dialogue with this committee on matters
of mutual concern.
Thank you for your time this morning. I am prepared to
address any questions the committee may have.
The Chairman. Thank you, Mr. Secretary. We will be calling
upon you in a few minutes.
[Prepared statement of Mr. Grone appears in appendix.]
The Chairman. Secretary Dunlop.
STATEMENT OF GEORGE S. DUNLOP, DEPUTY ASSISTANT SECRETARY
[POLICY AND LEGISLATION], OFFICE OF THE ASSISTANT SECRETARY OF
THE ARMY, WASHINGTON, DC, ACCOMPANIED BY CHARLES R. SMITH,
ASSISTANT FOR ENVIRONMENT, TRIBAL AND REGULATORY AFFAIRS
Mr. Dunlop. Thank you very much, Mr. Chairman.
Indeed, I am the deputy assistant secretary of the Army for
policy and legislation in the Office of the Assistant Secretary
of the Army for Civil Works, so the thrust of my testimony
today will focus on that aspect of the Army that deals with
civil works matters. I'm accompanied by Chip Smith, who is also
in our office, and he is our assistant for environment, tribal,
and regulatory affairs.
In addition to these brief summary remarks, I wonder if I
also might be permitted to submit for the record our formal
statement?
The Chairman. Absolutely.
Mr. Dunlop. Thank you, sir.
Also, in addition to that, I believe that we provided to
the committee some documents I'm going to reference in just a
moment that we hope will kind of outline some of the things
that we found to be successful. It might serve as a road map,
perhaps, as you suggested, to other agencies and people who
would be interested in coming up with the kinds of procedures
and practices that would follow Congressional intent, as you
have described it.
Also, I would like to reiterate what Secretary Grone said
in regards to President Bush's formal proclamation, which did
acknowledge the sovereignty of tribal governments and affirmed
our responsibility in the Executive Branch to work with tribes
and with Indian people to address concerns they have about
sacred sites and lands, particularly as we interpret that as
would be impacted by Army civil works activities.
As you all might know from other work that you do here in
the Senate, the Army civil works program is virtually all over
the Nation. We have 38 different Districts divided in eight
divisions with some 35,000 people engaged in our business.
There's three ways that the Army's civil works programs
might have an impact on sacred sites and lands. First of all,
it comes from the operation and maintenance of the projects in
which we have engaged. The Army has more than 1,000 projects
that have been built over the past 100-some years. This
includes more than 600 dams and their attendant lakes and river
systems, comprising in Army ownership now some 12 million acres
of land and water resources. About 25 percent of these Army-
controlled lands could potentially affect the treaty and trust
resources of about 90 tribes, and just in the lower 48 States,
and, of course, many, many people up in Alaska. We have
identified what we believe is in excess of 60,000 known
archeological and sacred sites, so we have quite a big task.
The second way that we can impact is through the
implementation of additional water resources projects that are
underway. We do that in concert with non-Federal sponsors,
which means oftentimes we obtain lands and other operating
activities with local people, including tribes, that end up
operating these projects.
And then the third way is through our Corps of Engineers
regulatory program. Most famous is the section 404 permitting,
but we also have other regulatory authorities, as well.
The current Army civil works Indian affairs activities
really began in the current cycle in about 1994, when the Army
established its Native American Inter-Governmental Task Force.
The Corps of Engineers since then has now engaged into about 19
different workshops we had carried out between about 1994 and
1995 or 1996 involving more than 550 tribal representatives
from 186 federally-recognized tribes. One of the outputs of
that was one of the documents I referenced earlier, this two-
volume document entitled, ``The Assessment of Corps and Tribal
Inter-Governmental Relations.''
In 1998 the chief of engineers issued policy guidance
letter number 57 that began to incorporate the things that we
learned into the actual operations of the day-to-day activities
of these Corps offices and Districts that I described earlier,
including a set of what we call ``Army Civil Works Tribal
Principles,'' and those are detailed in my formal testimony,
but the bottom line is that we affirm that the tribes retain
their inherent rights to self-government and that we have an
obligation to consult prior to any final decision-making with
people who are possessed of these rights and privileges.
Then, in 1998, the chief issued policy guidance letter
number 58, which specifically intended to address the executive
order that the chairman mentioned.
My testimony details additional further steps that we have
taken that the bottomline of which is to make sure that
representatives of all of the functional groups of the Corps of
Engineers are involved in carrying out our responsibilities
under these various laws and acts. We have more than 70 Corps
employees designated as Native American specialists, and they
operate and liaison with the Corps of Engineers at their
headquarters here in Washington.
In January 2002 the Corps' Institute of Water Resources
published this document, ``The Tribal Partnership program,''
that identified issues relevant to working with Native
Americans and Alaska Natives, and this has been provided to the
committee.
I think, in conclusion, Mr. Chairman, the point is we could
go through a lengthy list of threads from the fabric of
specific things that we have taken to make sure that there is
adequate consultation and involvement, and I can say that my
inquiries to all of the people that report to us in the
Department of the Army--are there any fundamental policy
issues? Is there anything where there's disagreement where, you
know, we just feel we can't carry out some of the things we've
been told to do because we haven't reached agreement on policy?
And the answer I get is none. To the degree that what we might
be doing in the Army is not satisfactory is a degree to which
we have got to learn to perform in particular matters in site-
and situation-specific circumstances and inform ourselves
better about how to carryout the intentions of Congress. I
don't sense or know about--perhaps you could correct me--any
fundamental policy differences about these matters.
We have focused on six elements of effort that we think can
guide our activity and the activity of other agencies or
bureaus of the Government, perhaps, if they were so inclined.
No. 1, to have effective protection of sacred lands and
sites. We believe these can be facilitated by, number one,
leadership that seeks to achieve a consistency in Federal
policies and practices and the Federal approach toward the
tribal nations and these concerns that they have.
No. 2, that we can develop effective government-to-
government relationships--that is, not only the Federal
agencies, but to the subordinate agencies of government in our
Constitutional framework.
And the third element is there has to be real consultation
and real partnerships prior to our reaching final decisions
about matters of particular interest.
And then we believe in leveraging resources to the greatest
extent we can, and also that we have a planning process that
people can participate in in a formal and consultative way as
we develop our policies, programs, and activities. And then, of
course, finally, the ultimate issue I guess is a policy issue,
and that's the allocation of resources of people and money.
Mr. Chairman, that concludes my informal remarks. Of
course, myself and Mr. Smith are available to respond to any
questions you all might have. Thank you so much for this
opportunity.
The Chairman. I thank you very much, Mr. Dunlop.
[Prepared statement of Mr. Dunlop appendix.]
The Chairman. Now, if I may begin asking questions, one of
the words used most often when we describe Federal Indian
policy is the word ``consultation.'' All too often,
consultation has been looked upon by our Government agencies as
notification after the fait accompli. I'd like to ask Mr. Grone
how are tribal consultation policies implemented? Is that the
way we do it?
Mr. Grone. Mr. Chairman, that is not the policy of the
Department of Defense and that is not how we do it. With regard
to consultation, a consultation is, in many ways, the most
important piece of the four pillars of our overall policy.
Within the framework of consultation and the emphasis we place
within our training is to recognize that consultation is an
ongoing process and must retain a high level of flexibility to
meet the unique circumstances which any installation commander
may come upon in working in a collaborative relationship with a
tribe or tribes.
So what we try to do with regard to the consultation
process is set up a number of different types of procedures
which may be used in that process. Consultation can be
formalized through different types of agreements. We use
programmatic agreements, we use cooperative agreements, we use
memorandums of understanding or memorandums of agreement, but
we do try to proactively work with tribes in areas of mutual
concern and try to emphasize to our installation commanders
that this is an ongoing part of their installation management
practice to ensure that they are in regular consultation with
the tribes.
When we discover, or when an installation commander
discovers, an area that may be of potential concern to a tribe
under our policy and under existing law, activities will cease
and we will undertake the appropriate level of consultation.
The Chairman. How do you assess and monitor compliance with
Executive Order 13007?
Mr. Dunlop. We monitor at a very general level within OSD
compliance with the Executive order. The military departments
execute the executive order. We are working on an ongoing basis
to currently deepen our consultative mechanisms within the
Department of Defense. We are currently in the process of
development which is not yet finalized. We are currently in the
development of an integrated product team that will involve all
of the components, including the Corps of Engineers, in a
process whereby we can regularly and routinely consult with
each other and monitor progress on the implementation of our
policy. That policy document--that IPT charter is currently in
development and, once finalized, we will be happy to provide it
to the committee for your information.
The Chairman. Secretary Grone, if I may, I'd like to touch
upon specific issues. Based on the input we have received in
preparation of this hearing, there appears to be a systematic
failure in the Corps' compliance with the National Historic
Preservation Act and the Native American Graves Protection Act
in relation to its Missouri River mainstream dam operations.
Tribal leaders and historic preservation professionals have
informed us of a widespread lack of understanding and
implementation of government-to-government consultation for
tribes in regard to cultural resource management.
So my question is: Will you please assess the Missouri
River cultural resource program and its compliance with
historic preservation laws? Are you satisfied?
Mr. Grone. Mr. Chairman, as I indicated in my prepared
statement, we believe across all of the components we can do
better in terms of our consultation processes, and we are
striving to do so. With regard to the specific issue you raise,
I will ask Mr. Dunlop to speak to specific questions of
execution, but I want to lay out a further framework.
When we developed our initial policy in 1998, the Corps of
Engineers was a participating agency in the development of that
policy. They were a member of the policy development team, and
the Corps, as Mr. Dunlop indicated, has undertaken several
initiatives that are consistent with that policy, although I
understand that there is some criticism of the Corps' execution
of the policy.
With regard to specific issues in regard to Missouri River,
I have the honor and privilege of sitting for the Secretary of
Defense in his capacity as a voting member of the Advisory
Council on Historic Preservation. Next week the Council will
undertake an informational hearing in Pierre, SD, specifically
on the question of Missouri River. I will attend that hearing
to hear first-hand from both the Corps, in terms of the
implementation of its activities, as well as concerned tribal
organizations, tribal governments, as well as elders, their
views and perspectives on the Missouri River issue. I view that
hearing as important not just to the activities of the Advisory
Council, but important for the Department of Defense and the
Corps of Engineers to better understand and adjust policy where
necessary and practice where necessary to accommodate the
concerns of affected parties.
The Chairman. Are you satisfied that the Missouri River
personnel have been provided with adequate Indian law and
policy training?
Mr. Grone. Mr. Chairman, to be quite frank, I've not looked
at it at that level. I will do so and provide a response to you
and to Senator Campbell. We are training, through our own
training programs, Corps personnel. The Corps of Engineers is
also engaged in a series of training activities for their
personnel. I have not yet been in a position to judge or assess
the adequacy of those various training programs that the Corps,
itself, has undertaken, but they are extensive. Many of the
issues involved here may well be in terms of not just the
training but the execution, as Mr. Dunlop indicated, but I
would have to yield to him to explain in more detail how the
Corps intends to execute in this area.
[Information follows:]
Adequate Indian Law and Policy Training
The Omaha District Corps of Engineers cultural resources
personnel have an extensive list of training requirements to
complete before working in this important area. This training
is outlined in the Omaha District Cultural Resources Program
Management Plan [CR PgMP]. The training focuses on skills
needed to complete Civil Works Planning, Programming and Policy
functions. For cultural resources, the plan specifies both
formal and informal training requirements. The formal training
includes National Historic Preservation Act [NHPA] Section 106,
Native American Graves Protection and Repatriation Act
[NAGPRA], and Archaeological Resources Protection Act [ARPA]
courses as well as training on more than 20 applicable laws and
regulations. On an informal level, it includes working directly
with the tribes on a regular basis to help apply and understand
another cultures' perspective on these laws. This continues to
be a valuable and necessary component to the training program.
The U.S. Army Corps of Engineers takes advantage of
training that will give us a Native American perspective on the
same laws mentioned above. Recently the Corps sent two people
from their office to a training class sponsored, in part, by
the Three Affiliated Tribes of North Dakota. At this training,
a University of Montana professor spent 3 days teaching NHPA,
NAGPRA, ARPA, National Environmental Policy Act [NEPA] and
other laws from a tribal perspective. This type of training is
helpful as the Department continue to try to understand how
others may interpret the laws and regulations that apply to
cultural resource sites on Federal lands.
The Chairman. Do you believe that the Department should
more systematically and programmatically involve Native
Americans in your planning on cultural and natural resource
management?
Mr. Grone. We do as a matter of our practice through the
ICRMP process. That consultation is quite extensive. We believe
that we have built up and the military components have built up
a record of success of consultation on those 45 military
installations where we have known and identified sacred sites,
as well as the consultation which continues for the 15 military
installations where we suspect there may be sites of concern to
Native peoples. We are working that consultation aspect very
hard. We aggressively include Native Americans in the
consultation process. While I readily admit that we could
continue to refine our policies, programs, and procedures, I am
confident, with regard to most of the programs of military
components which I am personally familiar, that that level of
consultation is quite good, quite systematic, and adequately
addresses a number of the statutory requirements that we have
to afford protection to cultural resources aboard those
installations.
The Chairman. We have been advised that the Corps of
Engineers is considering establishing an Indian desk at the
headquarters level. Can you give us a status report on that?
Mr. Dunlop. Mr. Chairman, why don't we take that particular
question? Of course, as I indicated to you earlier, Mr. Smith
actually operates in the Office of the Assistant Secretary as
our assistant for environmental, regulatory, and tribal
affairs, but, as regards to your question about the Corps of
Engineers, headquarters Corps of Engineers, Chip, could you
inform the committee of that?
Mr. Smith. Mr. Chairman, an Indian desk has been a subject
of discussion for some time. Recently, we have received six
letters from tribes or tribal organizations bringing up the
subject. We've had discussions with our office and the director
of civil works at the Corps headquarters, and the director has
assured us that they will consider the matter and try to
determine how to incorporate that function in their business
process.
The Chairman. We have found it rather strange because other
Federal agencies have Indian desks and the Corps of Engineers,
an agency that does a lot of business with Indian nations, is
just considering it.
Mr. Dunlop. Well, one of the things, Mr. Chairman, that I
think we're kind of proud of is that we have really made an
extraordinary effort, I believe, to incorporate throughout the
entire fabric of our system this level of consciousness that
you have expressed an interest in. Our directives, the two that
I mentioned plus one I didn't, which is the tribal nations
strategy which we've now finalized, at least as updated as of
August 2001, is a very comprehensive approach so that
throughout the entire Corps system this level of consciousness
is something that our people are held accountable for. But I
will, indeed, take back your concern to the chief, to the
director of civil works, and, as we put together the manning
and budgeting elements of the way they organize that agency, I
will carry that message to you and we will give it highest
consideration at our level.
The Chairman. I have many other questions, but may I call
upon the vice chairman.
Senator Campbell. Thank you, Mr. Chairman. This hearing is
turning out to be tremendously interesting for me. I might
commend the people here from the Defense Department and, in
fact, all the different parts of the military. I think they
have come a long way in 50 years, very frankly, to providing
equal opportunity, equal pay, equal rank, things of that
nature, that could be a model for many other agencies in the
Federal Government and certainly many places in the private
sector, too. It wasn't always that way. I come from an ancestry
that the military was not particular fond of years ago, and
Senator Inouye comes from one that certainly felt its
discrimination up until World War II, so they have come a long
way, and I just wanted to say that for the record.
Mr. Grone, you might know that just this morning we are
honoring the Navajo Code Talkers. We did that once before about
1 year ago when President Bush awarded them the Gold Medal of
Freedom. They are back here today for the movie that's being
released tonight, ``Wind Talkers.'' They are here. That's an
honor that is 50 years late for them, as you probably know, and
I'm just delighted with the military's support of the bill that
was introduced to do that by Senator Bingaman.
When we talk about protection of sacred sites, there are
obviously some real problems with Indian people because, first
of all, they weren't recorded. They didn't have a written
language and they were reluctant to talk about them, and often
sacred sites, unlike many places when we think of some
religious connotation, there's no big building there. There's
no edifice there. There might be just a field of grass. But for
Native peoples, it is anywhere where their ancestors or their
spirits lay. That's a sacred site for them.
There might not be imposing physical characteristics, but
also many times I think that elders who know where the sites
are were reluctant to talk about them, reluctant to share any
information about them because it wasn't so long ago that they
suffered a terrific problem with grave robbing, as you know,
and still do--artifact stealing off of the public lands, as you
know, too. There are many laws now in place to try to take care
of it, but I think it is one of the reasons that Native peoples
have really clammed up and don't speak about it.
So maybe let me pose the first question to Mr. Grone. When
you are trying to identify geographical sites, have you
encountered a reluctance on the part of any Indian people you
deal with to open up about them for perhaps fear of further
damage to that site?
Mr. Grone. Senator Campbell, the military components have
encountered from time to time some reluctance to identify
sacred sites for precisely the reasons you enumerated. We work
very hard. The chairman has indicated the efforts we've put
into mapping, the efforts we've put into other forms of
aggressive consultation with the tribes to try to determine
precisely where sacred sites may be so that we can accommodate
the military mission without disruption to Native American
sacred sites.
We continue to work that very hard. I believe in nearly all
cases we have been able to accommodate, once identified, access
to and protection of sacred sites with the military mission and
there is, as far as I am aware, no significant encroachment
consideration or mission impact consideration with regard to
the protection of those sites, but the key for the military
departments, of course, and the components is the
identification of the site, and so we continue our outreach
activities, we continue our training activities, cultural
communication, cultural sensitivity to be able to try to
identify as many of those sites as we possibly can to
adequately include them in our integrated cultural resource
management plans and to adjust training schedules, training
environments, and other activities in a way that it does afford
the appropriate level of protection.
Senator Campbell. Yes; let me maybe ask a question about my
own State. You're certainly familiar with Pinon Canyon, Fort
Carson.
Mr. Grone. Very familiar, sir.
Senator Campbell. It's a huge area where they train these
M1A1s and a lot of pretty sophisticated weaponry out there.
Indian people historically have moved, and many of the people
in that area were nomadic. That area of Colorado at one time
was pretty much controlled--well, it was controlled by whoever
was strong enough to control it, I guess, but in that case it
was Cheyennes and, I think, Southern Arapaho, some other groups
that were in that area. Fort Carson has been there long before
we took a real interest in trying to protect the things that
are on that site.
I have been out there a number of times. In fact, they have
a full-time archeologist there to try to make sure that those
areas that have petroglyphs and different cultural or
potentially religious places are protected.
I was wondering, when you deal with a mobile group--the
only two land-based tribes in Colorado now are the Utes--who do
you deal with when you're trying to protect these sites,
because all sites are not sacred to all Indian people, as you
probably know.
Mr. Grone. Yes.
Senator Campbell. Some are tribe-specific, but that tribe
may not be there any more. It may have moved somewhere else or
been moved by force by the Federal Government, so how do you
know who you're supposed to deal with?
Mr. Grone. That is a significant challenge for the
components. As again with the mapping exercise and with trying
to identify our treaty obligations from past treaty activity,
that, in coordinate consultation with the ongoing consultation
that we have, we do try to identify. We put a great deal of
effort into lineal descendants. We've tried to ascertain where
folks may have moved, where tribes may have moved, individuals
may have moved over time. But everything, again, comes back to
consultation and comes back to the ability of our staff and the
component staffs, working through the archeological record,
working through the cultural record, to try to identify.
Senator Campbell. Do you do that for the people who were
originally there?
Mr. Grone. Yes; and in the case of Fort Carson, that
activity has been underway, as you know, since 1983.
Senator Campbell. Yes.
Mr. Grone. And in the context certainly of the broader DOD
program, but certainly in the case of the Army, Fort Carson has
one of the most respected natural and cultural resource
programs within the Department of Defense, led by a very able
team of cultural and natural resource specialists, so they have
been very active in trying to identify both permanent and
migratory----
Senator Campbell. Last time I was out there, I want to tell
you that they gave me a very fine tour of the things that were
being protected.
Mr. Grone. Yes.
Senator Campbell. But it did make me kind of wonder, from a
nationwide standpoint, how much had already been lost before we
knew it was there. I think generally we are doing a pretty good
job and need to do a better job.
Mr. Grone. Yes.
Senator Campbell. But there must have been an awful lot of
sites that are under concrete now that we may never know about.
Mr. Grone. Certainly, sir, I believe that to be the case.
Senator Campbell. Now, one other question. A couple of
years ago, you know we went through the base closings and a lot
of Federal surplus property was given back to different areas.
How does the Department work with that? Has the Department ever
turned over a former military base to an Indian tribe for
cultural or religious purposes?
Mr. Grone. Senator Campbell, I'm not aware that we have
ever turned over an entire base to a tribe for that purpose.
Usually, as you know, the base reuse process works through the
local redevelopment authority mechanism, which is a recognized
agent of the State, in terms of trying to put that property
into effective reuse.
Senator Campbell. When you do that, for instance, the
Federal Government returned Fitzsimmons Hospital----
Mr. Grone. Yes, sir.
Senator Campbell [continuing]. To the State of Colorado.
Are there restrictions that go with it, that is, if you have
something in place to protect a site that is within the
authority of your Department and you turn that over to a State,
do those restrictions go with it so that the State must also
comply with them?
Mr. Grone. In general. I would have to, in part, take the
question back, but my understanding of how we have proceeded is
that existing restrictions with regard to the protection of
historic and cultural assets as property transitions, the
appropriate covenants and protections would pass through the
title, so it would not be susceptible to disruption at that
point.
[Information follows:]
Restrictions on Transferring Historic and Cultural Assets
Whenever the military departments propose to dispose of
real property they no longer require, whether as a result of a
base closure or realignment decision or other process, the
disposal must satisfy the requirements of the National Historic
Preservation Act [NHPA]. In most cases, the most effective way
to address these requirements and to ensure that historic
properties, including sacred sites and other traditional
cultural properties, will remain protected following transfer
of the property is to record a preservation covenant as part of
the transaction. These preservation covenants thereafter ``run
with the land'' and operate to protect these historic
properties indefinitely despite the fact that the NHPA may no
longer be applicable directly [because the NHPA applies only to
undertakings by the Federal agencies].
The NHPA requires Federal agencies simply to (1)
``consult'' with the Advisory Council on Historic Preservation,
State Historic Preservation Office, or Tribal Historic
Preservation office before proceeding with an undertaking that
may affect listed or Register-eligible properties; and (2)
affirmatively take into consideration such potential effects as
part of the decisionmaking process. In this respect, the NHPA--
like NEPA--is merely a procedural statute requiring agencies to
``look before they leap.'' Consequently, the imposition of a
preservation covenant is not, strictly speaking, legally
required. Nonetheless, in most cases when listed or Register-
eligible properties are being transferred out of Federal hands,
the only way the transferring agency can ensure that these
properties remain protected--and work through the section 106
process without provoking an adverse comment from the Council
that must be responded to in writing by the Secretary--is to
impose a preservation covenant.
Senator Campbell. Okay. Can I ask Secretary Dunlop a
couple, Mr. Chairman?
The Chairman. Yes.
Senator Campbell. Secretary Dunlop, in the light of what's
happened since 9/11 there's certainly a heightened state of
preparedness nationwide. Does the authority that you now have
put you in any more difficult position when you're negotiating
or altering projects under the new--you know, we're living in a
different world now since 9/11 with homeland defense and
increased security and so on. Has that affected your ability?
Mr. Dunlop. Do you mean specifically in regard to these
sacred sites?
Senator Campbell. Yes.
Mr. Dunlop. Well, sir, I think not. I think that my
information is that, with the enactment of the Water Resources
Development Act of 2000 there were two sections added, sections
203 and section 208, and both of those new authorities that
Congress gave to the Army, to the Corps of Engineers, enabled
us to more aggressively work with people who would be
interested in these sacred lands, even to the extent,
addressing the former question that you asked Mr. Grone about
transferring lands.
Senator Campbell. Yes.
Mr. Dunlop. We can take lands that are in the Federal
estate now and----
Senator Campbell. So your decisionmaking process has not
been measurably altered by 9/11 then?
Mr. Dunlop. No, sir; well, I think that the principal way
that every agency of the Government works, including ours,
including every program and activity we engage in is allocation
of resources. There is less money for those----
Senator Campbell. Along the line of allocation of
resources, I know that sometimes with other agencies like Park
Service, BLM, and so on, we are told here in Congress that we
are not providing enough resources for not only management, but
enforcement. Have you found that true, too? For instance, if
you have to arrest or detain someone found looting, which is
still not uncommon, do you have the manpower to be able to do
that effectively?
Mr. Dunlop. Well, my information is that we've not had any
significant, but Mr. Smith would be a more day-to-day person
who could respond to that.
Senator Campbell. You can answer that, Mr. Smith.
Mr. Smith. Senator Campbell, enforcement really is a very
important issue for the Corps of Engineers, all of our
projects. As you know, most enforcement activities that the
Corps does are by rangers, and rangers are essentially--well,
they're trained in some aspects of enforcement. They are
unarmed, and mostly they are trained as interpreters or
educators, traffic control, and that sort of thing,
recreational safety. What they need to do is develop agreements
with local jurisdictions--which could include tribes, and does
in some cases--so that when vandalism occurs and a ranger spots
it they know who to contact that has the proper authority to
arrest somebody, hold property, and take the appropriate
action.
So yes, it is challenging, but we do what we can to develop
cooperative agreements with local law enforcement
jurisdictions.
Senator Campbell. And the last question: Do you have an
active Indian recruitment policy, for instance, for these
rangers?
Mr. Smith. In Indian Country primarily most of our district
engineers who go through commander's training before they take
command are informed of Indian Affairs issues and our need to
reach out to Indian people. I know of six Native American
coordinators that work for the Corps of Engineers now that are
Indian, and they annually go to job fairs and try to help
Indian supply for jobs and come on board as engineers,
scientists, social scientists, or other disciplines.
Senator Campbell. Yes.
Mr. Smith. I mean, we could do more, but we are reaching
out and doing what we can.
Senator Campbell. Well, I would encourage you to do that. I
just happened to be on the road a couple nights ago, Senator,
and stopped at a truck stop by Winslow, AZ, and there were
about 60 or 80 young Navajo men in there that are members of
what they call ``Hot Shots.'' They battle fires out west. Some
of our Federal agencies have done a terrific job of recruiting
Indian people for jobs that they desperately need on
reservations, so I would think this would also be an
opportunity for recruitment.
Thank you. And thank you, Mr. Chairman.
The Chairman. Thank you very much.
The committee wishes to commend the Air Force for working
with the Acoma Pueblo in minimizing the disturbance that
training flights have had on tribal ceremonial use and on
sacred sites. Do you have any systematic way or any policy on
how to work with tribes to minimize this type of intrusion--
noise and visual?
Mr. Grone. Senator, we work with the tribes as we do with
all affected parties with regard to noise control for purposes
of the training and readiness of the force. There are specific
certainly unique aspects in the context of protection of sacred
sites. The Air Force I'm aware has a very sort of aggressive
internally and works through their consultation process. Again,
everything that we do in the Department precedes from the basic
four pillars of the 1998 policy, which is why, again, we stress
the flexibility of the consultative process. There is no one-
size-fits-all, although we very clearly try to take lessons
learned from particular cases and try to apply them in others,
but recognizing that there are unique circumstances either
dictated by the military mission or dictated by particular
cultural issues. Commanders have flexibility within that
consultative process to address the concerns of Indian people
with regard to a training activity or an overflight issue, and
there are multiple issues of that ongoing on a daily basis,
weekly basis, monthly basis where we are trying to adequately
address those concerns, and the Air Force in most cases, in
nearly all cases, is able to effectively work a process through
consultation that addresses these concerns.
The Chairman. Recently the president of the Fort Belknap
Indian Community briefed the committee on the proposed Air
National Guard bombing range in Montana, and I wish to commend
the Air National Guard for its level of cooperation and
partnership with the tribe because it is an impressive thing,
and the current committee strongly recommends and encourages
this type of collaboration.
I just cited this to assure you that this is not a hearing
to pick on the Department of Defense. There is good and bad.
And if I may most respectfully suggest, if time permits, that
you stay around, because the witnesses that follow have a few
complaints, primarily about the Corps of Engineers. That seems
to me, from what we have gathered from our hearings and
investigation, to be the weak link, so if you could stay around
I would appreciate it.
Mr. Grone. Senator, I would be pleased to attend the rest
of the hearing and to hear the concerns of the following
witnesses.
The Chairman. Thank you very much.
Do you have anything?
Senator Campbell. No further questions. Thank you, Mr.
Chairman.
The Chairman. Secretary Grone and Secretary Dunlop, Mr.
Smith, thank you very much.
Mr. Grone. Thank you, sir.
Mr. Dunlop. Thank you.
Mr. Smith. Thank you.
The Chairman. Our next panel is the chairman of Three
Affiliated Tribes Business Council and also the president of
the National Congress of American Indians, Tex Hall; and the
chairperson of the Lone Pine Paiute-Shoshone Tribe of
California, Rachel A. Joseph.
President Hall, [Native word], sir.
Mr. Hall. [Native words.]
STATEMENT OF TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES
BUSINESS COUNCIL, NEW TOWN, ND, AND PRESIDENT, NATIONAL
CONGRESS OF AMERICAN INDIANS, WASHINGTON, DC
Mr. Hall. Good morning, Chairman Inouye, Vice Chairman
Campbell, members of the committee. It gives me a great honor
and privilege to be able to testify today on a very important
committee hearing on protection of sacred lands throughout
Indian Country.
NCAI, National Congress of American Indians, has been
working closely with a number of tribes and Morningstar
Institute. We have also been working with the National Trust
for Historic Preservation, USET--the United South and Eastern
Tribes, NARF--the Native American Rights Fund, and, again, many
other tribes in forming a coalition to really look at this
issue, Mr. Chairman, members of the committee. This is an issue
that is so important for Indian tribes and Indian Country.
I have submitted my testimony and I will be talking about
five points, but, just briefly, Mr. Chairman, on the
background, it seems that, in listening to the previous
testimony by the officials of the Army Corps of Engineers--and
I'm sure they're trying to do a good job and I'm sure they
really feel that they are doing what is necessary to consult
with tribes, but I think that's one of our biggest problems is
that we have a difference of opinion. Indian Country feels
there's a lack of consultation, it's not up to what it should
be, and there's a lack of the compliance with Executive Order
13007 that was mentioned. There needs to be some sort of a
mechanism to mandate full and meaningful consultation at the
onset, let alone whenever there is legislation that is proposed
or enacted on transfers of Federal lands to State entities--for
example, to a State. Then clearly the consultation process
simply is not there. It may be a name, but it's simply not
there.
There's no mechanism for tribes to really look to safeguard
those sites, so consultation really is one of my five points,
and that's clearly something that I would strongly--and, of
course, our coalition will provide some recommendations--that
we think is a big weakness that we really have to look at.
Again, even if a transfer does take place, what Federal
protections are in place for those sites that have been
transferred on that former Federal property? There really is no
mechanism. Tribes are still asking for that, and especially in
the area of the Missouri River that you mentioned. Of course
that's my neck of the woods, Mr. Chairman. That's where I come
from. We feel that we're losing ground, so to speak, on the
river. The Missouri River, as people know, people that are in
the know know that it is an endangered river.
I want to commend you, though, Mr. Chairman and Vice
Chairman Campbell about having this hearing. This is a very
important hearing, and it is not only for Native American
people, it is for people of all color that are concerned about
protection of sacred sites and the protection of the river, and
so this is a very important hearing for all of us as we look to
have better protections.
Again, consultation is something that clearly needs to be
strengthened before an action takes place and once an action
does take place through legislative means.
A second point is on existing Federal law. As I mentioned,
NAGPRA and national historic preservation apply, but once the
transfer takes place, if it is silent in the legislation, then
what? What does a tribe do when it is trying to protect its
sites? What if there is a commercial project on a known Native
American site? And even if the Federal Government knows about
this site, if the legislation is silent in terms of the Federal
protections, then where does the tribe go? What is the Army
Corps of Engineers' trust responsibility at that time? If it is
silent, that's what tribes are concerned about. Then the tribes
don't have a means to protect those sites.
Tribes really have the wherewithal in terms of their tribal
historic preservation offices, as well. We have some of the
greatest experts. I appreciate, Senator Campbell, your comments
about possible hirings. There is, as we know, a number of
unemployed Native Americans that are very capable in this area
that could be a tremendous asset, but, for whatever reason, not
being actively recruited, not being actively utilized, and I
think there needs to be something set in place that really
looks to actively recruit and hire.
In our neck of the woods, alone, we had to work long and
hard to get a member of our tribe hired. We appreciate that,
that the Army Corps of Engineers has hired one of our members,
but that's one of a very few. I mean, it's less than--of all
the total number of employees in the Army Corps of Engineers, I
would venture to guess Native Americans are less than one-half
of 1 percent.
If you look at the total number of Indian lands, we're a
lot higher than one-half of 1 percent. We're probably closer to
over 10 percent. So one-half of 1 percent, in my opinion, is
not acceptable. And the expertise and the capability is there,
so we don't know what the problem is as to why we can't move
forward and get more Native Americans hired that have the
knowledge.
If so, I think we would close that gap a lot sooner in
terms of doing archaeological surveys, doing adequate and
meaningful consultation, and helping with that government-to-
government relationship that at times we're seeing the gap
widening.
Existing Federal law, the Executive Order 13007, we need to
strongly look at how we go about strengthening that. We're very
pleased to hear, as the Secretary mentioned, that there will be
a meeting in Pierre, South Dakota, on June 12 on the Missouri
River. I want to commend them for doing that. That is a
tremendous issue. I want to commend the committee for having
the leadership for this. We're all looking forward to that in
the tribes in attending that hearing, and we just are very
concerned that our issues are going to be heard and there's
going to be meaningful consultation.
As the committee probably knows, the Lewis & Clark
bicentennial will be coming very soon, 2003 to 2006, and we're
very concerned about it. We've talked about protection
enforcement of law enforcement. We feel there's a lack of it.
With the possibility of millions of visitors along the trail,
if we can't protect what we have currently, we surely are not
going to be able to protect with the future of Lewis & Clark.
The agreements sound good, but there is just a lack of
them. There is a lack of agreements that have been facilitated
between the Army Corps and tribes, and I would strongly
encourage Army Corps and tribal agreements, because tribes are
the best suited to enforce because more chances are not it's on
their land. Their land is within the reservation. And so in my
neck of the woods we have the river and we have Indian land,
reservation land, on both sides of the river, and so does our
sister tribe down south of us, Standing Rock, as well.
But up and down the river, from St. Louis to Portland, we
feel there's going to be a huge advent of visitors, and right
now if we don't have adequate agreements, if we don't have
adequate funding, and if we don't have adequate mechanisms in
place, we're surely not going to be able to safeguard our
sacred sites.
There are many examples, Mr. Chairman, that I could get
into of tribes that have called and have talked about looting
that's going on right now as we speak, and that's not even
taking into consideration--they say the Missouri River is
losing between 30 and 40 feet per year, and that is exposing
more sites, and when the water levels drop--and we know about
the Master Manual and the efforts that the Army Corps of
Engineers is doing to get that passed, and then the litigation
for South Dakota and North Dakota and Montana about stopping
the flow of water down south, but, nevertheless, with the dry
conditions that are out in the west, that river has dropped.
With that droppage and with that loss of 30 to 40 feet there
are more sites being exposed and the Corps can't keep up. The
Corps cannot keep up with its limited resources to adequately
protect those lands and those sites.
Members of our coalition say it is going to take $9 million
a year at a minimum to protect our sacred sites along the river
at the Missouri River, but I didn't hear what the Corps said
was in their budget, but I bet you it is less than $1 million.
I bet you it's less than $500,000. That would be about 5
percent of what they need. With 5 percent of what they need,
clearly they don't have the resources, and I don't know if
they're asking for it. I don't know if the Army Corps is asking
for it in their budget, but clearly that has to be one of the
trust responsibilities that the Army Corps of Engineers has.
That is a big issue with us.
Tribes are trained. We went through the Department of
Justice cops fast grants. Many tribes have committed to
training our own local tribal members to become law enforcement
officials. Tribes have game and fish departments. We have the
knowledge, we have the expertise, we have training, but still
not being utilized.
Those agreements are taking far too long and they're just
not completed. Again, we don't know what the issue is. We have
cultural preservation officers. We have law enforcement
officers. We are just not getting to the agreement side and
getting things signed off.
And then, of course, the funding. I just mentioned that
funding, but, Mr. Chairman, I could go on and on about further
examples, but I know there will be other tribal people
testifying, and we just again, in closing, want to say we look
forward to the continued dialog with the committee, and the
coalition stands ready, as well as NCAI, in assisting and
helping in what comes out of these hearings as to the next step
forward, so thank you for your time, for giving me this
afternoon.
The Chairman. Thank you very much, President Hall.
[Prepared statement of Mr. Hall appears in appendix.]
The Chairman. Now may I recognize Chairperson Joseph.
STATEMENT OF RACHEL A. JOSEPH, CHAIRPERSON, LONE PINE PAIUTE-
SHOSHONE TRIBE, LONE PINE, CA
Ms. Joseph. Good morning, Mr. Chairman, Vice Chairman
Campbell. I am Rachel Joseph, chairwoman of the Lone Pine
Paiute-Shoshone Tribe in the Owens Valley located on the
eastern side of the Sierras in central California.
I am very honored to be here this morning to testify on
behalf of my tribe and the Shoshone-Paiute, including my
parents, who have prayed, worshipped, and healed themselves at
the Coso Hot Springs.
The Coso Hot Springs have been used by my people from time
immemorial, and the healing power of the warm Coso water and
mud is no longer the same. In 1947, the Department of Navy
acquired the Coso Hot Springs through condemnation, and,
because the area was believed to be rich in geothermal energy,
plans were moved forward to tap this energy resource in the
late 1970's with the Navy contracting with a private agency to
develop the geothermal plant near the Coso Hot Springs. In
January 1978 the Coso Hot Springs were placed on the National
Register of Historic Places.
Tribal members and the State historic preservation officer
at the time expressed concern that geothermal production around
the hot springs would have an adverse effect, and, indeed, it
has. Over the years the temperature of the hot springs and mud
have grown so intensely hot that we can no longer bathe there.
We have asked the Navy to address the conditions of this
springs, without success. Over 10 years ago the Navy, using its
own resources and staff, reported that there was no connection
between the conditions of the spring and the geothermal
development next to the springs.
We have been without the resources, and consequently not
able to do our own independent, unbiased evaluation of the hot
springs to determine the cause of the destruction and
desecration. We do, however, have common sense observation that
the temperature continues to rise and there's a difference in
even the way the mud appears. It no longer is the pure, off-
white mud, but now a multi-color-streaked mud that exists
there.
Our need to continue to protect the hot springs continues
today. The Navy has currently moved forward with further
testing, deep wells, north of the springs to determine whether
geothermal production and development should be expanded.
My tribe, as well as every tribe in the Owens Valley,
objected to the test well. The Navy received our comments, as
required, but has done nothing with them. The test well has
gone forward, and we are left waiting for the next step, which
we believe is to expand the development and production near the
springs.
I would like to summarize the rest of my testimony by
stating my heart-felt observation and feelings about what
continues to happen there. We have been engaged with meaningful
tribal consultation with the leadership at Nellis Air Force
Base for a number of years, and this consultation includes the
employment of tribally-sanctioned monitors to be involved in
activities at sacred areas or at significant sites. Because of
that model program, the contrast of how the Navy has been
dealing with us is more apparent, to the point that it appears
like blatant disregard for addressing the issues that are
important to us.
For the record--and I have submitted a recent letter from
our tribal attorney dated April 9 regarding to our efforts to
have monitors on site at this test drilling--the mitigation
measures require that the Navy facilitate the use of tribal
monitors, which they have insisted they have no money to pay
for, and it is important that the tribes have monitors, so we
identified, submitted the names ahead of time as required.
The day that they showed up at the mandatory training, they
had to wait almost an hour, and then the name tags that were
provided had just on them ``Indian.'' There was no name on
their name tags, even though names had been provided weeks
ahead of time.
In addition, after publication of the FONSI--Fact of No
Significant Finding--they notified us on Friday that the
testing would begin the following Monday. Our monitors showed
up. They were advised that they were to stay on site for 10
hours 7 days a week and to be there for almost 3 weeks without
leaving the facility. This, in fact, does not facilitate the
kind of monitoring that needs to happen in sacred areas and at
significant sites. We were also advised that the monitors could
not go within 50 feet of the equipment that was doing the
drilling, which, for those of us that have an understanding of
the work of monitors know they need to be close enough to
observe, as the earth is being moved and there's activity, to
see if, in fact, they are uncovering or moving artifacts or
religious objects in the area.
We thank you for the opportunity to testify today and hope
that we can receive assistance to ensure that the area is
restored so that our people can use the area as they formerly
used it, which includes immersing themselves in the water and
the mud that was so necessary to the healing and the practice
that we have engaged in for decades there.
We believe that the Navy needs to be more responsive and
considerate and sensitive to the fact that this is sacred area,
and not to treat us as a deterrent to them moving forward with
whatever their goals may be.
Thank you again for the opportunity. We certainly would
support any effort to introduce legislation that would we
think, refocus some of these Federal agencies on the area that
they need to address.
Thank you for your time.
The Chairman. Thank you very much, Chairwoman Joseph.
[Prepared statement of Ms. Joseph appears in appendix.]
The Chairman. Before I proceed with questions, I think it
should be noted, and I do so as chairman of the Defense
Appropriations Subcommittee, that our major concern in the
military consists of recruiting and retaining personnel. As
some of you are aware, all of the men and women who serve are
volunteers. There is no draft. It just happens that since World
War II, on a per capita basis, more Indians have volunteered to
serve in our military than any other ethnic group, and so I
would hope that the Department of Defense will take note of
that in their recruiting programs.
President Hall, we have received reports on the Missouri
River problem suggesting that, as the waters recede, graves
have been opened and bodies have been floating. These are
bodies that should have been relocated before the dams were
authorized; is that correct?
Mr. Hall. That's correct, Mr. Chairman. Just last year we
had a couple of bodies floating out, so it happens every year.
You have a number of remains that end up in the river, and, of
course, our tribal historic preservation office is called
immediately, but, again, these are all sites that should have
been taken care of before the flooding with the Federal dams.
The Chairman. Did the agency advise you that the agreement
had been complied with and all bodies were relocated before the
project began?
Mr. Hall. Our elders sure have told us that, Mr. Chairman,
that that was the one thing that our elders, approximately 50
or 60 years ago, were adamant about, but, of course, we
continue to see that it didn't take place. And even some of the
cemeteries--of course, we know that in our traditional and
cultural way, the way that our bodies are laid is in line with
the coming of the sun to the easterly direction, so even those
that our elders consulted the Army Corps 50 or 60 years ago,
they were placed the wrong way, as well, so even those that
were buried and removed, they were placed in cemeteries in the
wrong direction.
The Chairman. Do you have any suggestions as to how we can
improve this consultation process?
Mr. Hall. I would think that there should be some mandates
and 13007 should be further strengthened that, at the onset,
they are to meet in a government-to-government with tribes, and
particularly the affected tribe, so that way things can get
worked out before any proposed legislation would or any
administrative action would take place until that tribe is
satisfied, because I think too many times Federal agencies
think that, ``Well, if we talk to the tribe we're going to
write it down as consultation, so we consulted with that
tribe,'' and they take it as they fulfilled the requirements
under an executive order, where the tribe is saying, ``Well, we
just talked to you once, and we disagreed with you, but you
went ahead.'' And so there clearly is some difference of
opinion on consultation, so that needs to be laid out where
there's full and meaningful consultation throughout the process
until that affected tribe is satisfied that their interests are
protected, and then the consultation on that particular issue
is complete. Right now it doesn't say that.
The Chairman. Has the NCAI involved itself in this process?
Mr. Hall. We have with the Department of the Interior, our
Bureau of Indian Affairs consultation, so we have NCAI, in
working with consulting the tribes, has done a very good job, I
think, on that particular consultation process with DOI, but we
really haven't with the Army Corps.
The Chairman. Chairwoman Joseph, you've just given us a
report on the Coso Hot Springs problem. I gather that you have
requested a meeting with the Navy. Have they responded to you?
Ms. Joseph. Yes; we requested a meeting of the Navy to come
to the valley and meet with the tribe councils of five tribes,
and they responded saying that the commander is new and he
couldn't work it into his schedule and gave us less than 2
weeks for us to go there. Certainly, we think there is a
purpose to receiving a VIP tour and a lunch, but we wanted to
sit down and talk government-to-government about our issues
related to the test drilling. So we've invited him to the area.
He, in turn, responded for us to come there. It just made
sense, rather than have 25 officials travel south for the
commander and his staff to come to the area. So yes, we've
followed up in an April letter requesting additional meetings.
The Chairman. I think the commander will be coming to your
place.
Ms. Joseph. I would hope so.
The Chairman. I just noticed the Secretary was jotting down
notes.
Do you have recommendations, President Hall, as to how we
deal with consultation other than strengthening 13007?
Mr. Hall. Mr. Chairman, like the Department of the
Interior, that consultation piece, I would recommend the same
process that NCAI could assist in that. I believe the Army
Corps of Engineers is working on a consultation policy. We have
discussed it, at least in the Omaha District, previously. I
don't know where that process is at in terms of their mark-up
or their write-up of the consultation policy. Whenever that
process is done, I think we need to put timelines. I mean,
clearly this should have been done a long time ago. We should
put timelines and we should get that draft and we should start
providing consultation through Indian Country within the
timeline, and it could be similar to the DOI process, but it
has just been out there too long.
And then, with the advent of the Lewis & Clark and all of
the droppage of the river with the shoreline, this is an issue
that is not going to go away. It's going to get worse and
worse.
I would think we could get this process done, Mr. Chairman
and Senator Campbell, and this could probably get done in 6
months to 1 year. It's not going to take that long, you know,
because this is something, when you talk and put notice out to
tribes about a proposed consultation policy, everybody is going
to pick that up, especially on this issue with the Army Corps.
I mean, all the tribes are going to put their comments in and
are going to want to weigh in on this.
But, as I said, this is something that has already been
done as a successful model with the latest one at DOI, but it
has to have an enforcement mechanism of any consultation
policy.
What if a Federal agency does not comply with its executive
order? Then what? That's something I think we really need to
think about is what if there is a lack of compliance of that
consultation and what mechanisms are there for the tribe.
That's, I think, one of the biggest things that we left out
there.
The Chairman. You are exercising one of the mechanisms. You
are here.
Mr. Hall. Yes.
The Chairman. Mr. Vice Chairman.
Senator Campbell. Yes: thank you, Mr. Chairman. I think you
are absolutely right. Too often when tribes deal with any
agents of the Federal Government we don't know it here in the
committee, and some of them are very sensitive and helpful and
some of them are less sensitive and less helpful.
Rachel, I've known you for 25 years. I've never known you
to be a shrinking violet about saying your beliefs or what you
need as an Indian person or for your tribe, too.
Senator Inouye and I are chairman and vice chairman. We
also are senior members of the Appropriations Committee.
Sometimes we can get their attention--not always, but certainly
we can help, so you need to do that. Tell us where we can help
and I know I will be and I'm sure Senator Inouye will be, too.
It's really surprising to me that when Federal agencies are
trying to implement something that deals with the Endangered
Species Act, for instance, consultation is pretty in-depth and
they take into consideration every bug and every snake and
every spider and kangaroo rats and jumping mice and a fish
whose name I hate, the squawfish, and everything else when
we're talking about making some movement. It's rather
surprising to hear that there are bodies still floating up out
of the ground in an area that was never carefully looked at or
consultation was not done before the dams were being built.
Consultation clearly is not the same as informing. Too
often, Indian tribes are informed, and I think that you may be
right, Tex, that sometimes the agencies think that meant
consultation, but that's not the way Indian people work. I
mean, consultation, that begins a dialogue that has to filter
out through literally everybody within the tribal group and
come back before there is some type of consensus on what needs
to be done.
I also note with interest that other agencies like the IHS
and the BIA have done, really authorizing it over the years,
more and more contracting with tribes. I was wondering if you
think the tribes would be interested in contracting with the
DOD for those areas that we're talking about that they could
deal with. I don't know if the agencies need authorizing
language, but I certainly would be interested in helping from
that forum.
Tex, what do you think?
Mr. Hall. I think that's a tremendous idea, Senator
Campbell. That ability to contract some of the functions that
the Army Corps is doing, I think the tribes that are there have
the expertise and capability. Law enforcement is one of them.
You know, protection of those sacred sites is clearly an
example that we could do right away.
Doing the archeological surveys is another example of
contracting with a tribal government that has that expertise
that lives and resides in that aboriginal homeland. It's
clearly an example of how a tribe has the knowledge and is
right there and can move that process much faster and for less
money as well, I would say.
Senator Campbell. There is a bill Congressman Young
apparently has introduced on the House side that deals with
something along this line for Alaska, but we'll certainly look
into seeing if we can frame something up to allow agencies to
do that if they don't have the ability to do that now.
Also, as I understand in your testimony, Tex, you state
that Indian people have a different view of what is called
``sacred'' and who constitutes a practitioner of a religious
activity. You point out that a young Indian boy going to an
ancient vision quest or proving area might not fit within the
range of existing Federal protections. That has always been a
problem, of course, about who constitutes a practitioner, as
we've seen with the Native American Church, where actually some
non-Indian people in some areas belong to the Native American
Church and some of the things get cross-ways with other laws
that are already on the books.
But would you elaborate just a little bit about how do we--
tell us a little bit more about the problem, how it presents
itself and how do we address it.
Mr. Hall. Many of our tribes, Senator Campbell, as you
know, only that particular tribe has knowledge of that site or
of that area of worship. For example, it could even be a clan.
It could be a clan within that tribe. In our neck of the woods
we have a butte. It's called Table Butte. It is from the Locap
Clan. The Locap Clan originated from the Table Butte, and so
part of that butte is on private land and part of that butte is
on U.S. Forest Service Land, national grasslands. And so when
our members want to go up and fast as they get ready for the
sun dances--as you know, that's all happening in the next week
or so from now until the first part of August in our part of
the country.
Senator Campbell. Yes.
Mr. Hall. And so they're fasting in preparation for the sun
dance. There are so many times that we continue to hear today
that they don't have access. The private landowner kicks them
down or they're having a problem getting approval through the
national grasslands through the United States Forest Service.
Surely, the private landowner does not have any knowledge
of how that sacred----
Senator Campbell. And, in fact, even some other tribal
members might not if----
Mr. Hall. If they're not from that clan.
Senator Campbell [continuing]. They're not from that clan.
Mr. Hall. Exactly.
Senator Campbell. We face that in all tribes, in fact.
Mr. Hall. If they're not from that clan. And so the elders
are saying that this is a Locap Clan origination and this is a
sacred site, so they're helping educate. As a matter of fact,
one of the elders who is not a member of that fan is fasting
and has done and has been kicked down from that site many
times, but he has to continually--we, as a tribe, have to
continually determine that that is a sacred site because it is
a birthplace of a clan and it must be safeguarded.
Unfortunately, we have no control of that site, and so access
is a continued problem for that sacred site.
Senator Campbell. Yes.
Mr. Hall. And so I think the responsibility of determining
that sacredness has to come from that tribe. In our case, Three
Affiliated Tribes has to help educate, you know, not only our
own tribe, but we have to educate the Forest Service, we have
to educate the Federal Government, and then the private
landowner as to the meanings of that site and what it means to
us.
But, in general terms, you know, we all know that the Black
Hills, for example, are sacred. They are the birthplace. That's
an ongoing problem for the Lakota as they go out to worship in
that sacred area.
However, there are other areas that may be an area. Maybe
as you mentioned it could be a grassland. There could have been
a battle that happened long ago and not too many people maybe
know about that battle, but the tribe does, and some people may
question, you know, that could be used for farming or that
could be used for agricultural purposes. How can you tell us
that's a sacred site? And only that affected tribe or that
affected clan may determine its sacredness.
Again, I think that's where that government-to-government
consultation really needs to be complied with, and that
consultation policy is critical to that affected Indian tribe
in coming up with what that significance of that site holds to
that particular tribe.
Senator Campbell. Well, I think particularly tribe-
specific or clan-specific is even more important because we've
seen other laws already in place sometimes used to stop
development just for the point of stopping development. The
Endangered Species Act, in my view, is one of the most misused
laws on the books now. I know that there's a possibility--you
know, if it wasn't tribe-specific or clan-specific that this
could also be misused to stop some kind of a building process.
Rachel, I understand from your testimony that you had a
very good working relationship with Nellis Air Force Base. I'm
very happy to hear that, since that's where I spent the last
1\1/2\ years of my enlistment at Nellis and enjoyed it very
much.
Let me ask you this. At least one agency, the Department of
the Interior, provides funds and works to protect historic or
environmentally sensitive properties through the use of
conservation easements. In fact, they provide money to do that.
Do you think it would be wise or useful to authorize the
Federal agencies to issue cultural protection easements so that
certain Federal properties could be restricted in their use to
accommodate Native concerns?
Ms. Joseph. Yes, Senator; I think it would be not only
wise, but I think an option that needs to be there for the
tribes to ensure that we have, you know, those opportunities. I
do thank you for your previous comment about not being shy and
retiring, but I did tell the staff yesterday that there have
been instances in my life where I felt helpless to deal with
the situation, and this happened to be one of those. I think
part of that seems to be the disregard. It's almost like a test
of wills, like who is going to come to whose home for a visit.
If there's an unwillingness to come and meet with us, how do
you even really begin the meaningful dialogue and consultation.
Senator Campbell. Clearly, you can't take the site to them.
Ms. Joseph. Right.
Senator Campbell. They've got to come to the site.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Chairwoman Joseph and
President Hall.
Ms. Joseph. Thank you.
Mr. Hall. [Native words.]
The Chairman. Our next panel consists of the following: The
NAGPRA representative and cultural resources consultant of the
Mandan, Hidatsa, Arikara Nation of North Dakota, Pemina Yellow
Bird; the cultural resources officer, Lower Brule Sioux Tribal
Council of South Dakota, Scott Jones; the tribal and historic
preservation officer of the Comanche Nation of Oklahoma, Jimmy
Arterberry; a member of the Winnemem Wintu Tribe of California,
Caleen Sisk-Franco, accompanied by Mark Franco; and a member of
the Village of Lower Moencopi of Arizona, Leonard Selestewa.
May I first call upon Ms. Yellow Bird.
STATEMENT OF PEMINA D. YELLOW BIRD, NAGPRA REPRESENTATIVE AND
CULTURAL RESOURCES CONSULTANT, MANDAN, HIDATSA, ARIKARA NATION,
BELCOURT, ND
Ms. Yellow Bird. DaSKAshas. Mabeedzagidz. Nawah. In a
respectful way, I extend my greetings to Mr. Chairman, Mr. Vice
Chairman, the rest of the committee members, and the staff. And
Agu Wa'Guxdish, I greet you in a respectful way like a relative
and say thank you to you for holding today's important hearing
to gather information on the preservation and protection of our
people's holy places.
As you know, my name is Pemina Yellow Bird. I am an
enrolled member of the Mandan, Hidatsa, Arikara Nation from the
Upper Missouri River. As you also know, our ancestors lived on
the Missouri River for many, many, many thousands of years,
both banks, from its headwaters to the Gulf of Mexico, and our
ancestors left behind thousands and thousands of earth lodge
village sites, burials, prayer sites--places whose sacredness
was revealed to us by the creator.
Since the 1940's, since the creation of the dam system on
Adiba Waduxte--in our language we say mysterious or holy
grandfather--the Missouri River, his life has suffered, as has
ours. The creation of the dams and the reservoirs on the
Missouri River has caused the hastening of erosion and
destruction of places that are holy to us that are
irreplaceable, and that's why we're here today.
For many, many years, as Chairman Hall stated earlier, our
nation and other Missouri River tribes have worked very hard to
work with the Army Corps to protect and preserve places that
can't be replaced for us. They are holy and we need them for
our ceremoneys. We need them for our people to continue. But,
unfortunately, with the Army Corps of Engineers our sacred and
cultural places are not an agency priority. This lack of
importance to them is reflected in the kinds of resources that
are dedicated to the preservation and protection of our holy
places.
Since 1978, a grand total of $1,933,000 has been spent to
stabilize the shoreline at 19 sacred sites--19 out of more than
3,000 known sites.
Our tribes have been consistent in asking for new surveys
of Army Corps lands on the Missouri River, because we're told
by contemporary archaeologists with experience on the Missouri
River that, if new surveys were to be done, that number, 3,000
sites, we would find four to five times more sites that we
could identify, we could map them, we could nominate them for
inclusion into the National Register and get them protected,
but we have not been able to secure new surveys on all Corps-
managed lands along the Missouri River.
Nothing less than a paradigm shift needs to take place in
the way that the Missouri River is managed by the Army Corps.
Indigenous nations require pre-decisional, meaningful
consultation with the government agency whose Federal trust
responsibility has the fate of our sites in their hands.
We need Congress to appropriate necessary moneys to
stabilize the shoreline. The Omaha District of the Army Corps
has a wish list, $77 million worth of stabilization projects
that would protect thousands of sites that are integral and
critical to the survival of our peoples.
Agu Wa'Guxdish, our beloved grandfather, no longer flows
within the reservation boundaries where my people live. We have
to leave our reservation to find the free-flowing water. The
vast majority of ancient, sacred places within our boundaries
now lie under his waters, forever reversed and stilled. This
makes the relatively few places still in existence, where our
ancestors once lived and loved, even more precious to us
because they are all that we have left. Our need for the life
given to us by our Grandfather and our Holy Places is so great
that it is not an exaggeration to say that our nation's
revitalization and survival depend on their survival. Those
sacred places are all that stand between us as a living,
flourishing nation and the disappearance of our people's long
and ancient history alongside the moving, living waters of our
precious Grandfather. Flooding us out of our homelands broke
our hearts but it did not break our spirits, and the people of
the Mandan, Hidatsa, and Arikara Nation stand ready to take
whatever action we must take to preserve a place to pray for
the generations who are coming, because the living and Holy
Being who brought our nations through thousands of years of
life is dying, Agu Wa'Gux Dish, and he and our people just want
to live.
Something needs to be done, and it needs to be done now, or
else it won't be anything for our generations. There won't be
anything for them.
I say thank you to you for listening. I want to close my
remarks by saying We DuT Dunst Stut. In our language that
means, ``That's the way things always were, that's the way they
are today, and that's the way they will always be.''
The Chairman. I thank you very much, Ms. Yellow Bird.
[Prepared statement of Ms. Yellow Bird appears in
appendix.]
The Chairman. May I now recognize Mr. Scott Jones.
STATEMENT OF SCOTT JONES, CULTURAL RESOURCES OFFICER, LOWER
BRULE SIOUX TRIBAL COUNCIL, LOWER BRULE, SD
Mr. Jones. [Native words.] Good morning, everyone. Mr.
Chairman, committee members, guests, and honored tribal
leaders, my name is Scott Jones. I am an enrolled member of the
Lower Brule Sioux Tribe, and I have been a liaison with the
Corps of Engineers since 1988 on behalf of the tribe.
There are so many issues and problems it is difficult in
only 5 minutes to know where to begin, so I shall begin with
what is most important, the resource, in this case, the
Missouri River.
Since the glaciers pulled back some 12,000 years ago, the
Missouri River Basin has been continuously occupied by
indigenous Indian cultures. It is sacred to my people because
the river gave us life and the ability to sustain life. The
river gave us food and enabled vast trade routes to be
established. In recent history, the river enabled the expansion
and colonization of this country by the EuroAmerican, and the
river, as we know it today, has become very important to many
interests, providing trade, energy, flood control, recreation,
and irrigation, just to mention a few. The river is still
sacred to my people today.
The EuroAmerican expansion and continuous growth gave way
to treaties and laws. The law of the land set forth
compensations for the aboriginal peoples whose lands have been
taken, oftentimes illegally. These treaties and laws
established trust responsibilities to ensure government
agencies treated aboriginal nations fairly and equally. Many of
these treaties and laws set forth protections for our sacred
areas and lands that sustained our culture, and some of these
laws specifically addressed the trust rights and management of
the Missouri River and the lands that make up her basin.
Please remember that these dams and the lakes they created
are not historic. They were created and built in my lifetime.
The fulfilling of these trust responsibilities did not
offer Native people, particularly those who lived on the river,
a role in the creation of this Federal monster, that is, the
system of Missouri River mainstem dams, but rather entire
Native populations were removed from the safety of their
reservation homes, had their farms and gathering areas flooded,
our burial grounds flooded or exposed, and our traditional life
ways thrown into turmoil in my lifetime.
The agency responsible for the operation and maintenance of
this Federal monster, the Army Corps of Engineers, under the
Department of the Army, has, for the last 50 years, appeared to
conduct business with the left hand not caring or knowing what
the right hand is doing. They have been evasive and non-
committal in their dealings.
More recent tribally friendly executive orders, Federal
law, and amendments to existing Federal law have enabled tribes
to force the Army Corps of Engineers to confront specific
issues and badger them into creating solutions, then only too
often having to watch these solutions disappear into the dark
hole of a Federal file cabinet, never to be acted upon, never
to be implemented or considered in any other Federal action.
We are in a new century now. Tribes understand the demands
for energy. Tribes understand that we are at war with
terrorism. Tribes, and particularly those who live along the
river and specifically my tribe, the Lower Brule Sioux, have
consistently asked for participatory rights in decisionmaking
on those issues which directly impact and affect us. At this
point we are asking that existing rights under existing law be
followed, as they should be, as well as asking that
consideration of any future legislation be inclusive of actual
on-the-ground tribal need.
Some actions I would recommend include the following:
Develop partnerships which create co-management; ensure tribal
participation--real, meaningful participation; provide
oversight from both Congress and senior Department of Army
personnel on the activities of the Corps of Engineers and to
ensure that they are truly fulfilling their trust
responsibility; require that the Corps of Engineers set a small
percentage of each project aside to assist in paying for tribal
consultation; address the river holistically as the river basin
that it is, not as a series of segments; and crisis management
through the development of memoranda of agreement with each
affected tribe so that management is inclusive and
responsibilities can be shared; encourage contracting with
tribes, not outside firms.
Tribes are major stakeholders on this river because of our
aboriginal rights, our unique legal and political status, and
because our continued survival depends on the health and well-
being of this sacred river. It is imperative that you
understand that these Native resources--every plant, every
rock, every tree, our rivers, and our springs--are potentially
a required part of a medicine or used in a traditional worship
activity. The very fabric of our culture is built with natural
material that evolves back into Mother Earth.
Aboriginal cultures were founded in the natural resource.
EuroAmerican culture was based upon man-made, materialistic
resources. The laws that we live under today do not recognize
nor are they reflective of this fundamental difference.
As I have said before, we all recognize the demands of
development, of recreation, of flood control, and of energy.
There is no reason for us to always be at odds. The demands of
this century can be met by working together. Working together,
we can protect this resource, we can create solutions, we can
create jobs on reservations, and we can create ways to manage
energy needs and development in a responsible way that will
carry us into the future, and perhaps we can even save our
sacred, dying river, the [Native word], the Missouri River.
Creating organizations such as the Sacred Lands Protection
Coalition which acknowledge and accept the tribal lead will
foster understanding, while ensuring tribes have an adequate
voice to protect our freedom of religion through the
preservation of and access to sacred sites, gathering areas,
and necessary natural resources for the continued vitality of
our threatened traditional worship practices and life ways.
Mr. Chairman, I was very interested this morning to hear
how the Federal agency is dealing with these issues, and I
heard, I believe, the first individual that spoke refer to
agreements, MOAs, I believe I heard him refer to. Sir, we have
an MOA we submitted to the Corps of Engineers February 12,
2001. We haven't even received a letter responding to that MOA
from the chairman of the tribe. It was sent to Colonel
Tillitson, who was the Omaha District engineer at the time. Not
even a letter acknowledging receipt of this document, sir.
It is very troubling to me to hear that the agency says
that this is how they deal with us when I know and my tribe
knows first-hand they haven't even responded to an MOA that we
wrote in draft form for them to comment on and get back to us.
In closing, sir, thank you very much for this opportunity.
If you have any questions on the information I have presented,
I would be glad to answer them.
Thank you.
The Chairman. I thank you very much, Mr. Jones.
[Prepared statement of Mr. Jones appears in appendix.]
The Chairman. May I now recognize Mr. Arterberry.
STATEMENT OF JIMMY ARTERBERRY, TRIBAL AND HISTORIC PRESERVATION
OFFICER, COMANCHE NATION, MEDICINE PARK, OK
Mr. Arterberry. Mr. Chairman, Mr. Vice Chairman, [Native
words.]. Greetings, and thank you for an opportunity to address
the committee on the issues of protecting our sacred places.
I will keep my comments short, because you have my prepared
testimony before you, which I'd like to be entered into the
record.
The Chairman. I can assure all of you that your prepared
statements will be made part of the record.
Mr. Arterberry. Thank you.
I'm going to address specifically the Corps of Engineers in
a project that occurred in the State of Texas within the
Galveston District. We received consultation letters after the
fact. Our ancestors were removed from a cemetery that had been
identified by Corps officials in 1982. In 2001, four of our
ancestors were removed. In an agreement with the Advisory
Council and the State historic preservation officer and upon
the insistence upon the historic commission, 80 more
individuals were removed before we were contacted. This site is
on private property, DuPont Corporation, and DuPont Corporation
took the initiative to insist that tribal consultation occur.
When we received the letter in October 2001, a meeting was
arranged that would take place in February 2002. When we met
there in Victoria County, Victoria, Texas, at the DuPont
facility, the Corps of Engineers had already had a draft
proposal of the analyses that they wished to perform on our
ancestors. We had no input in the entire process at that point.
We should have been involved and we should have been notified
from the very moment that they made the decision to disrupt our
burial sites.
I speak of this from a personal nature. My grandfather's
grave was removed in 1958 when over 800 burials from this
cemetery were moved to over six locations. All of our burials
are sacred. We deserve the same right to rest in peace as all
of mankind, so we maintain that the Corps has a responsibility
to all of our peoples to consult prior to any activities that
involve the desecration and looting and studies that are
performed.
When a profession such as archeology has an authority over
a particular race of people, then we have a problem. In this
case, it is a Federal policy, so therefore it becomes a racist
Federal policy. Archaeologists should be used in a technical
capacity, not as an authority over our people, but as a service
to the people. I propose that archaeologists be held in that
capacity and we should not be subordinate to any State office
because our relationship is government-to-government. We are
nations within a nation. Based on that sovereignty, we have the
right to protect our dead and buried as well as our living.
That is why I am here today--to bring you the words of the
Comanche people and to ask that you assist us in honoring the
rights of our ancestors and aiding us in protecting all of our
sacred places.
Again, thank you for the opportunity to speak.
The Chairman. I thank you very much, Mr. Arterberry.
[Prepared statement of Mr. Arterberry appears in appendix.]
The Chairman. Now may I call upon Ms. Sisk-Franco.
STATEMENT OF CALEEN SISK-FRANCO, WINNEMEM WINTU TRIBE, REDDING,
CA, ACCOMPANIED BY MARK FRANCO, WINNEMEM WINTU TRIBE, REDDING,
CA
Ms. Sisk-Franco. Thank you, Mr. Chairman, Vice Chairman.
[Native words] Sisk-Franco. I am here representing my people.
My grandmother has testified before the committee before,
Florence Jones. She's the leader of our tribe, and I am second
in command.
We are a historic tribe from California, northern
California around Lake Shasta, Mount Shasta. Our river runs
from Mount Shasta through the lake at this point in time.
We were 14,000 in number at the turn of the century when
California became a State. In the 1900's there was less than
400 Winnemem Wintu left, my grandma and her mother being those
who made it through; yet, our ceremoneys and our teachings
continued.
At that time, our leader sent a letter to Washington asking
for relief of the situation in California in 1889. [Native
words] sent the first petition asking for justice for the
Wintu, wondering what happened to our treaty that had been
signed in 1851.
The BIA sent out special agents and allocated allotment
lands to our people, which then in 1941 they removed our burial
sites from the river because of the dam that was coming in and
bought a piece of land in Central Valley and put it into trust
to remove our burials to. Our people went out and helped them
to identify the burial sites, to remove their family members to
this new site that is held in trust today, and we still utilize
this site today to bury our people.
At that time, we thought that we were a tribe in the view
of the United States Government. Our allotment lands went under
the lake. Our sacred sites went under the lake. We have 23
miles of river left, and of that 23 miles we have been taught
where the sacred sites are. We still utilize those. We have the
traditional practices there that we're teaching to our children
at this very time. These are traditional cultural properties on
the river.
But we're wondering about the historic tribes of California
and these consultations that you talk about and this Native
Graves Protection Act and the Historic Preservation Act. How do
they apply to us, since we've fallen in a clerical glitch with
the BIA, who can't seem to find that they hold land in trust
for our people? And we are not consulted with. The U.S.
Forestry is probably the only one who does consult with us. We
have permits for our sacred sites that are ceremonial grounds
that are given by the U.S. Forestry. We hold eagle permits from
U.S. Fish and Game to practice our traditions. Yet, when it
comes to the building and construction of dams, roads, bridges,
that we are not consulted with. We are the last to know.
At this present time there is a bridge being constructed on
the McLoud River to replace an old bridge, and it is said that
that bridge has no cultural impact within 300 feet of the new
construction, but the design for that new construction has not
even been set. But it has already been signed off, and that
bridge will run through a burial site that we have proof of
that burial site. It has been studied by Forestry. And it will
also endanger one of our traditional areas that we use right
now for our children's training.
We wonder what rights we do have. We're not informed, as
many of the other tribes. We don't have a historic preservation
office. We have no funding. We are a traditional group of
people who only believe in our own tradition. We have no
churches, other outside of our traditions. We don't belong to
any Methodist, Presbyterians, or any other church-based faiths.
We are only Winnemem and we believe in the Winnemem way.
The proposed raising of Lake Shasta, at this time we don't
know what the process is, how far they have gone, what studies
they have made; however, we are aware that the lake is going to
be raised or is intended to be raised. This is a little more
information than we knew the first time that they put the lake
on top of our people and moved us out and only gave us a burial
site--didn't even give us land to live on. But we were
appreciative of the land that we were given for our burials,
and we continue to use those, but they can't do it again. It
will cover at least three or four more miles of our river that
we use now, that our sacred sites are the heart of our people.
We used to be salmon people. No more salmon run up our river.
We try to take the salmon below the dam and we get in trouble.
But all of those things purify the water. Our relationship to
those things help the land survive.
When the Forestry comes in and says we cannot clear the
pine trees out of our oak grove because that's a natural
succession, we have to say, ``If it were a natural succession,
we would still be living here and the pine trees would not be
encroaching because we are part of the forest.''
My Grams says there was no wilderness. This was our home.
This is not a wild river. This is our home, unless we are wild
Indians still.
I leave that to you to help us fix that. The Army Corps of
Engineers is going to be coming in, if they are not already in,
making plans without consulting. You know, the consulting, I
have to say also, is that on the bridges that we have told the
Forestry about our medicine plants, like the grape vine that we
use for medicine, that were, you know, probably eight to ten
inches in diameter, have been growing for a long, long time,
they came in and cut all of them to put a new bridge in, and
they are going to give us the sprouts. And where do we want
them planted? These ones are this big now. Where do we want
them planted? They've grown them from the seeds of the grape
vine that was there.
These are the disheartening things that we are dealing
with. It hurts my people. It hurts my Grams and it takes away
our teachings to our children. They don't seem to listen. The
Native American specialists that even the BLM and the U.S.
Forestry have, they don't have any power. They seem to
understand, they seem to want to listen, but a lot of times the
U.S. Forestry subcontracts out, and when they subcontract out
to either loggers or bridge builders or whoever they are, they
must not read the reports very well. The logging industry cut
four of our sugar pine grove in a very sacred site, and they
were sorry, but they didn't know, they're just the contractors.
So I encourage that this looks at subcontractors and what are
their parameters of subcontractors, what are they held
accountable for.
It is the same as with the bridge. We have tar dripping
into our stream. The water trucks drive in and they dump diesel
into the stream bed. All of the bugs that help purify the water
below that bridge are dead. They no longer do the job. That
water runs into Lake Shasta. Lake Shasta provides the water all
down in southern California, all the way down the valley. This
continues. Not only us are affected. The people of California
are going to be affected, as well, in due time.
My Grams couldn't be here. She's 95 years old. She probably
won't be able to travel out any more, but one of the things I
have to say is that the U.S. Forestry do come to her house and
meet and talk with her about, you know, the problems of the
sites that are up there, because that is where we live. That is
our land. Even though now it is owned by many other people, we
still travel there.
I would like to close in saying that for California the
historic tribes, I'm sure that we're not the only one in
California with this situation, and I'm wondering how these
acts of Congress to protect the tribal people is going to
include us. How are we going to have our rights protected?
Aren't we deserving of rights?
Since 1889 our leaders have asked: Is there any justice for
the Wintu? We're still asking that today. We're asking that of
the Bureau. Is there any justice? And if there isn't, let us
know. Let us know.
Thank you.
The Chairman. I thank you very much, Ms. Sisk-Franco.
[Prepared statement of Ms. Sisk-Franco appears in
appendix.]
The Chairman. May I now call upon Mr. Selestewa.
STATEMENT OF LEONARD A. SELESTEWA, VILLAGE OF LOWER MOENCOPI,
TUBA CITY, AZ, ACCOMPANIED BY ELLIOTT SELESTEWA AND GILBERT
NASEYOWMA
Mr. Leonard Selestewa. Good afternoon. My name is Leonard
Selestewa. I'm a Hopi farmer from the village of Moencopi on
the Hopi Reservation on northern Arizona. I will try to make an
attempt to take you there through large photos, if I may.
I want to thank the committee--well, members of the
committee. I'm beginning to think you're the only committee.
I'm hoping that our words can be heard by all. I thank you for
giving us the opportunity to appear in front of this committee.
We are deeply appreciative, because the matter that we have
come here to address is so important for us, and that in this
case is water.
I appear here today with my father, Elliott Selestewa, and
my uncle, Gilbert Naseyowma, on behalf of agricultural allotees
of Moencopi, in particular, whose livelihood and way of life
has revolved around water for hundreds of years.
I will try to address four subjects in my brief remarks:
The meaning of water; the trust responsibility of the Federal
Government to protect the Hopi people; and the failure of
government agencies--in particular the Office of Surface Mining
and the Army Corps of Engineers--and the loss that we, the Hopi
farmers, have felt for 3 decades.
Before you are materials that I have submitted. My remarks
will be on the surface water issue, although there are other
materials there in groundwater which may or will be heard in
July when the Interior is up before this committee.
It is no accident that the Hopi people came to settle and
live on the Black Mesa in the high desert country of northern
Arizona. Upon their emergence to this new fourth world, the
Hopi were directed by their deity, Masaw, to live on Black
Mesa, which is shaped like a hand pointed downward from
northeast to southwest. Black Mesa, itself, is thus sacred to
the Hopi people.
If you can see the outline of a hand, that is where we
lived, Senator. Masaw gave us three things to live a simple yet
sustainable life, and a very responsible one, at that. It was a
bag of seeds, corn seeds; a planting stick; and a gourd of
water. Thus, the Hopi culture and the religion is one of
stewardship, a responsibility to take care of Mother Earth and
her life's blood, water.
Water is a sacred part of this covenant, of the stewardship
the Hopi people made with the deity Masaw. Yes, water is, of
course, a necessity, especially in the desert, but, just as
important, it is sacred. It gives life to Mother corn. Corn is
not only a staple. Corn is the first thing that touches a
baby's lips and the last thing upon which a man or a woman is
laid to rest when they die.
I know that as members of the Committee on Indian Affairs
you are well aware of the trust responsibility the Federal
Government undertook years ago to protect the welfare of Indian
people, so I will not belabor the point. In this instance, the
Government's responsibilities translates to an obligation to
minimize the impact of coal mining on Black Mesa and the flow
of water to the Moencopi farmers.
We are here today, Senators, to say to you that there has
been a failure of Government agencies charged with the
responsibility to protect the scarce surface waters of Black
Mesa--the Office of Surface Mining, the Reclamation
Enforcement, and the United States Army Corps of Engineers and
the United States EPA, as well. Over 3 decades that the Peabody
Coal Company has been mining coal on Black Mesa, literally
hundreds of water impoundments and dams have been built. These
impoundments hold back millions of gallons of water that would
have flowed down the Moencopi wash from the higher elevations
of the Black Mesa to the farmer of Moencopi.
I would just like to point out that this is not literally
entirely a farming issue. Much of this water has been wasted by
being allowed to evaporate into the dry desert air with these
permanent impoundments. The Hopi farmers at Moencopi have been
denied this precious and sacred source.
In testimony before the Office of Surface Mining a few
years ago, one of the agent's hydrologists, Steve Parsons,
stated unequivocally that impoundments have significantly
impacted the water flow. We would request, as I pointed out
earlier, that this is part of the binded packet that we have
submitted for the record. Nevertheless, the Office of Surface
Mining issued a mine permit without studying the mine's impact
on surface water flows to downstream users, including the
farmers of Moencopi.
To this day, the Office of Surface Mining has taken no
action to ensure that coal mining activities on Black Mesa are
conducted in a way that minimizes its impacts of surface flows.
Instead, gentlemen, Office of Surface informed us that the
management of impoundments as they impact surface water flow
outside the mine lease area is the responsibility of the U.S.
Army Corps of Engineers.
Of course, water does not stop flowing at these boundaries.
The farmers of Moencopi live outside the boundary of Peabody's
mining lease, but they have lost the water that used to flow
through the Moencopi wash--water so precious and scarce in our
homeland.
When we spoke with representatives of the U.S. Army Corps
of Engineers, we were told that the management of the
impoundments built in connection with mining activities was the
responsibility of Office of the Surface Mining. When we got to
this point in our search for environmental justice, you have
two agencies pointing the finger at each other.
The Army Corps allowed Peabody to build water impoundments
and to operate under what I term a ``generic, nationwide permit
number 21,'' rather than an individual permit designed to
address the unique circumstances of surface water flow in the
high desert of Black Mesa. Included in your packet is also
reference to the nationwide permit.
The Hopi Tribal Council expressed its concern about the
issuance of a nationwide permit on at least two occasions. They
are also in your packet. But even the generic, nationwide
permit requires Peabody to take all practical steps to minimize
impacts of mining activities of pre-construction flows and the
aquatic system that depends on it. These are mentioned in
paragraphs 21 and 22. But for decades Peabody has been allowed
to maintain hundreds of impoundments, holding millions of
gallons of water, without ever releasing it after treating it,
which is an option, as the Army Corps permit and the EPA 401
certification letter requires.
In other words, the nationwide permit has been continuously
violated and has never been enforced. I believe, gentlemen,
that enforcement and consultation go hand in hand. Thus, the
matter of the Office of Surface Mining nor the Army Corps, nor
the EPA, for that matter, has accepted responsibility for the
impacts of the water impoundments on the farmers of Moencopi.
The failure of any agency to accept responsibility to protect
water flows has, of course, been of great concern to the Hopi
farmers who hold agricultural allotments. I think they also
refer to private property, private landowners.
The impacts of Black Mesa mine on the flow of surface water
has also been a serious concern for the U.S. Fish and Wildlife
Service. In 1993, the U.S. Fish and Wildlife Service submitted
a letter to the U.S. Army Corps expressing its concerns. We
submit that copy along with the binded material for the record.
As far as we know, the concerns expressed by the U.S. Fish
and Wildlife Service, as well as the concerns of the Hopi
people, have been left unaddressed.
I show you now for the record the headwaters of Black Mesa,
the wash, itself. This was taken in the early 1970's when the
mining first began, and obviously this is a far-off shot of our
water. I refer to this not as a river. As you all know, around
here we're talking about big rivers, but it is a perennial
stream and it means a lot to us. Back then it flowed. This is
an aerial photo of the wash, itself, roughly 10 to 15 feet wide
of flow. I didn't notice it then when we enlarged this photo,
but here are ruins of our ancestors along this perennial
stream.
This is a photo taken before the mining began. You know,
this perennial stream flowed like this all the time, year
round.
In closing, I would like to submit a photo I took of my
son, 5, maybe a few days ago. This is all that's left in there.
But what you see in this photo prior to leaving our homeland to
come this far, this water is now gone. It will not return until
late October or November. But we are in our peak season of our
sacred farming of our sacred corn with this water.
I was hoping that maybe we could hear from my father as an
elder in respect to you, yourself, Mr. Inouye, but maybe we can
ask them--you may ask them a question of what they remember of
the water before in their youth.
So I leave this committee with a question. Why? Why has
there been a failure of responsibility and enforcement? Why has
the Government failed to protect the Hopi people's most
precious and sacred resource, water? Why has the Government
allowed scarce trust resources to be wasted? Why has there not
even been a study of the impacts of the impoundments on the
Hopi people?
We ask this committee for help in finding out the answer to
this question why, and I invite each member of the committee to
visit Moencopi to see for yourself.
Again, I thank you for the opportunity to speak before this
panel, the committee. [Native word.]
The Chairman. I thank you very much, Mr. Selestewa.
[Prepared statement of Mr. Selestewa appears in appendix.]
The Chairman. Your father, having traveled a long distance
to be here with us, if you wish to address the committee,
please come forward.
Mr. Elliott Selestewa. Good morning, Mr. Chairman and Vice
Chairman and the committee. Well, I live in a village of
Moencopi for all my life, and I used to seeing the water flow
year long, you know. I never dries up. For some reason, it went
away, you know, and I was wondering why it did that. I guess I
want to say that it is because of the Peabody that's building
dams up there, so many that it is taking all of our water, you
know.
I thought for me I thought it would never dry up, you know.
During my boyhood, we used to swim in it, and there was always
plenty of water. Now I'm a farmer, myself, and a rancher, and I
still go through my old traditional way of raising corn, and we
need that water, you know.
I want to ask you to help in some way that we can tell
Peabody to release those water dams up there so we can have a
natural flow of water again. But, of course, it is going to
have to be cleaned and released.
This time of the year especially in June and July we really
need that water for our plants, you know, because, like I'm
going to say, we living in the desert and it is very hard to
get water.
I just want to say that we need help from the committee if
there is any way that we can get the water back to running
again.
Thank you.
The Chairman. Thank you very much.
Ms. Yellow Bird, Mr. Jones, Mr. Arterberry, Ms. Sisk-
Franco, and Mr. Selestewa, as chairman of the Senate Committee
on Indian Affairs, as chairman of the Senate Subcommittee on
Defense Appropriations, I pledge to you that your words and
messages will be transmitted to the appropriate agencies, and
in my capacity I will most respectfully request that they
respond to them. You can be assured that I will receive a
response. Upon receipt of such response, we will act thereupon.
With that assurance, I thank you all very much for your
contributions this morning. Thank you.
Mr. Franco. Can I ask a question, please, Mr. Inouye?
The Chairman. Sure.
Mr. Franco. I was told that I was also going to be able to
speak to the raising of Shasta Dam. Is it because we are
unrecognized people that my statement is not included in this?
I respect you very much, sir. I've met with you----
The Chairman. If you wish to, you may speak right now,
because I recognized you when I called upon the panel but no
one asked--all it says here was ``accompanied by.''
Mr. Franco. Well, if that's the way that you understood it,
I don't wish to impose.
The Chairman. Please sit down. I sit here for hours. I am
willing to sit here for hours, so please sit and testify.
Mr. Franco. Thank you very much.
The Chairman. Never let it be said that I have denied any
Native American from testifying before this committee, because
I take my work very, very seriously.
Mr. Franco. Sir, that was not my intent.
The Chairman. Yes, sir; please proceed.
STATEMENT OF MARK FRANCO, WINNEMEM WINTU TRIBE, REDDING, CA
Mr. Franco. My name is [Native word.] In the Winnemem
language that means I am the one who talks back. I am here
because my wife is the spiritual leader now of our people. In
each of our communities in the Winnemem bands there is the
spiritual and there is the enforcement side, for lack of better
words. My duty with the tribe is to speak as the enforcement
person.
We came here today to speak about Shasta Dam. We were
invited as unrecognized people to speak before these committees
at this one only. We understand that you are going to be
hearing other issues that affect us, but we were asked to only
speak at this one, and so I wish to talk about Shasta Dam.
We've met with the Department of Defense people, the people
from the Army Corps of Engineers, and at the time that we met
with them we didn't know that they had anything to do with the
Shasta Dam raising because, as unrecognized people and as
people who are kept out of the loop of communication between
Indian tribes and the Government, we didn't know that the
Shasta Dam issue was even going to be something that was going
to impact us at such a great level until we went up there to do
a site visit on a bridge. At the time we went up there to talk
to the bridge the United States Forest Service told us that
they didn't know who the lead agency was on directing the
raising of this bridge. I told them, ``Why would you need to
raise this bridge?'' They told me it was unsafe, that they
needed to change the contour of the road to facilitate logging
trucks.
I said, ``Oh, well, I can understand that. Logging is a
pretty good industry. I've cut trees.'' I said, ``How are you
going to raise this bridge?'' And they said, ``We're going to
raise it so it will be at least ten feet above the level of the
bottom of this bridge.''
I'm not a very smart person, but I realize that if you
raise a bridge ten feet there must be some reason for that. I
asked them, ``Why are you raising this bridge so high?'' The
engineer on site told me, ``Well, it has to be at least four
feet above the high water mark of the lake.'' I told them,
``This is a river here.'' Again, I'm not a very smart man, but
when you're raising water that is now probably 40 feet above
the level of the water that is there, that indicates that
somebody is going to be stopping water up somewhere downstream.
So we asked. We contacted the Federal Highways
Administration. We contacted the Department of Defense, Army
Corps of Engineers. Nobody would tell us anything. Was that
because we are unrecognized? Was that because they don't
consider our issues as important? So we asked as private
citizens, and we still received no answer.
Shortly after that the College of the Siskus, their geology
department contacted me and said that they had some remains
that they needed to return but they didn't want to go through
the NAGPRA process. I said, ``Well, that's good because we're
not covered through NAGPRA anyway. What do you have?'' They
said, ``Well, we're not sure because we've never opened it.'' I
asked for the blessings of our leaders and I went up there to
look at what was in this NAGPRA return and it was a skull and
it was some artifacts. There was an original site record, an
archeological site record in the box with them that indicated
that they were taken from the McLoud River approximately 100
feet from the existing bridge.
I asked the Forest Service, ``Did you know about this,''
and they denied it. So at that point we started talking.
``Well, there's a problem here. You can't put this bridge in.''
And then it became, ``Well, they're going to do a dam, and the
dam is going to raise the water, and we really do need to move
this.''
In checking on it, the 106 process had already been
completed and we had never been consulted on it, and the 106
process that was signed off by the SHPO Office--the State
Historic Preservation Office--indicated that there was nothing
within 300 feet of the dam, and it had signed off, and Federal
Highways and everybody and their uncle started working on the
plans to raise this dam.
Shasta Dam cannot be raised to the level that the
Government wants to raise it. Yes, it is fine and dandy.
Everybody needs water. Learn how to conserve. There's enough
water there if you conserve. You don't have to spend all your
water on golf courses and swimming pools in central California
and southern California.
Shasta Dam does not need to be raised at the expense of the
Winnemem, because that's who it comes down to. Our culture has
been destroyed because of the original raising of the dam.
Allotment lands, as my wife spoke to, were issued in 1917,
although in 1913 the Government knew that they were going to
put a dam in on the McLoud and Pitt River where they join, but
they gave us allotment lands in that area that was going to be
inundated, anyway.
Burial sites were removed, and, just as they were talking
about, yes, we told them where the burial sites were that would
be impacted by the original dam. Well, we don't tell the
Government everything, because if you tell the Government where
everything is it will be destroyed. Now we're faced in a
situation where they deny that there are even any of these
burials there, and now they deny that we are even Indian people
to deal with those burials.
So I am here to ask you, because this committee--and I am
actually just speaking with you, Senator--we've talked with you
before and you have been very, very understanding, and my
apologies to you for coming here and sounding like I was a
spoiled child. But I am asking you, I am begging you to help
us.
My daughter and my son are here. My daughter can't see the
sites that are already being destroyed and are in danger of
being destroyed until she hits at least 16. That dam will be
here before that. We have asked for help with our recognition.
We've asked for help from the National Historic Preservation
Office. We've asked for help from all of these different
agencies, and we can't get the help as Indian people because we
are not recognized as Indian people. We don't fall into the
categories of being able to access the funding to do the
projects that these agencies talk about, to get people to come
in and help you preserve your area. We're not the recognized
people.
So I ask for your assistance and I ask the Army Corps,
because they have been really good with us. I mean, some people
have relationships with them and some people don't, but the
Army Corps has been really good with us since they know who we
are. It really means a lot to us, because we travel here on our
own pocket, and to come in and have the people from the Army
Corps come up and say, ``It's good to see you again. We liked
what you said the last time. We took to heart what you talked
about,'' it's good to see that, and we wish that the rest of
the agencies from the Department of Interior, Bureau of Indian
Affairs, on down could do like these folks from the Department
of Defense. At least they looked at us. At least they
recognized us.
Again, sir, my apologies to you. I meant no disrespect. I
carry this eagle fan to let you know that my words are true,
and I carry this eagle fan in respect for the elders who sent
me here, and I respect you. [Native word.]
The Chairman. Thank you very much, Mr. Franco. I carry this
because my words are good, too.
The next panel consists of the chairperson of the
Kaho'olawa Island Reserve Commission of Hawaii, Colette
Machado; and from Kaunakakai, Molochai, HI, Dr. Noa Emmett
Aluli.
It has been a long day, but welcome. Aloha.
STATEMENT OF COLETTE Y. MACHADO, CHAIRPERSON, KAHO'OLAWE ISLAND
RESERVE COMMISSION, WAILUKU, HI
Ms. Machado. Aloha, Senator. I want to thank the committee
and yourself for the invitation to participate in this very
important discussion on sacred sites.
I have been very moved by the presenters that have preceded
Dr. Aluli and I, and I come to you with a heavy heart. The
Hawaiian word for burden is kaumaha. As a Native Hawaiian and
someone that has been active in protecting archeological sites
and also an elected official as a member of the Office of
Hawaiian Affairs, I come and I listen after decades of
articulation, decades of change, knowing who we are as a
people, I come today and I am wondering where we are going to
be in the next generation, which is about 20 years from now.
Like many indigenous, sacred places, Kaho'olawe is impacted
by the policies and actions of the Department of Defense. We
support the Sacred Lands Protection Coalition and encourage the
continued oversight hearings by this committee.
Kaho'olawe is the smallest of eight major Hawaiian islands,
located just seven miles off the coast of Maui. The island has
a rich mythology and a long history of cultural use and
religious practices. This is reflected in the profound
discovery of 500 archeological sites and 2,000 features.
Kaho'olawe, whose ancient name is Kanaloa, is the only island
name for a major god. It was a place well known among our
people for continuous religious practices from 900 A.D. through
1890. The island was taken by U.S. military in 1941 for use as
a bombing range during World War II. In 1953, President
Eisenhower signed Executive Order 10436 transferring the island
to the U.S. Navy.
I would like to say Aloha to Senator Akaka. I am honored
that you have taken the time to hear Emmett and I this morning.
A second part that I am very burdened about is this issue
of recognition. I believe, through the movements and the
continued efforts of Kaho'olawe and the military's misuse of
the island and our efforts under cleanup, that we have
continued to try to restore a sacred island and to give rebirth
to it, to its people. But as I listened to my brother from
California and his cries out to being unrecognized, I begin to
wonder what would happen to our Native Hawaiians if we are
unsuccessful in getting that recognition from Congress during
this session.
For the past 50 years Kaho'olawe was used as a target range
for ship-to-shore shelling, aerial bombardment, torpedo
launching, and artillery maneuvers by the United States and its
allies. Nearly every type of conventional, non-nuclear
munitions in the U.S. arsenal was fired at Kanaloa. In 1965,
the Navy simulated an atomic detonation that was seen and felt
by its closest neighbor located seven miles away on Maui. This
detonation blasted through the island substrate such that the
resulting crater is filled with seawater. While the island's
ancient significance was known or respected by many of our
Native people, military training has resulted in the
destruction of sites and degradation of the cultural landscape.
Since 1976, Native Hawaiians have begun protesting, and it
was Dr. Aluli who filed a civil suit against the military
protesting First Amendment rights of freedom of religion and
access, and therefore to protect Kaho'olawe Ohana, led by many
of us, and the general public protested to end the desecration
of Kaho'olawe.
The Federal Court sanctioned a consent decree in 1980 that
required the Navy to meet the requirements of existing
environmental and historic preservation law and to provide
monthly access to the access to the island by the Native
plaintiffs. The PKO's role as [Native words] or steward of the
island was acknowledged in the court order consent decree.
These were the early stages.
In 1990, the President of the United States issued a
directive for the cessation of the bombing. In 1992, Congress
received the final report of the Congressional Appointment
Kaho'olawe Island Conveyance Commission. The report confirmed
the rich cultural history and sacred nature of the island and
recommended its return to the State of Hawaii.
In 1993, as part of the Defense Appropriation Act, in
recognition of the State/Federal relationship and the historic
cultural significance of Kaho'olawe, Congress directed the Navy
to return the island to the State of Hawaii and to undertake a
10-year program of environmental restoration and remediation in
coordination with the State.
In 1993, the State of Hawaii Legislature enacted H.R.S. 16,
which established the Kaho'olawe Island Reserve and the
Kaho'olawe Island Reserve Commission to manage it. The reserve
encompasses the entire island and 90 square miles of ocean
surrounding it. In recognition of the cultural importance of
Kaho'olawe, State law prohibits any commercial use of the
reserve but provides for the protection and perpetuation of
Native Hawaiian practices relating to cultural religious and
subsistence purposes. Other allowed uses under State law
include ecological restoration, historic site preservation, and
education. The law contains a unique provision which allows for
the transfer of the entire island upon recognition of a Native
Hawaiian sovereign entity by Congress and the State of Hawaii.
I think my time is up, but I'm going to try to summarize
very quickly. In process of the cleanup we have done several
agreements and without your help, Senator, I believe we would
not have been able to achieve half of what we have successfully
met.
In the authorization in 1993, the Navy was required to
provide what we call a ``cultural protocol'' to respect and
protect the sites on the island. In addition, the Navy was
required to hire numerous archaeologists to provide adequate
assessment and recordation of all sites to be impacted by the
cleanup operations.
As I listened in the back I realized that MOUs are here
today without enforcement. There's the issue of adequate
consultation. There's a continued legal review of whether or
not the MOU's standards are being met. These are just
consistently areas that the State has undertaken with the
Protect Kaho'olawe Ohana. You really need to have that type of
status. If not--excuse me, Senator--you can get jerked around.
In this area, we have been able to be successful.
In conclusion, I want to outline some quick successes. We
have been able to return to local control and the initiative of
environmental and cultural restoration--and that's a success--
recognition of our cultural protocol, both with the informal
agreements between the State and Navy and in actual contract
provisions with Government vendors, required cultural
orientation to all of the contract hires--enthusiastic,
positive response by the workers.
We have found that 110 percent of these individuals that
participated in the State's mandatory cultural orientation
enjoyed it. They became totally aware and immediately
sensitized.
We had one incident during the cleanup where the contractor
even offered a reward to gather more information on this one
particular activity.
There are still problems and challenges that we will
continue to meet. We expect--even with the expected shortfall
of the cleanup from the standards agreement with the State and
the Navy in 1994, we are concerned that these things--we tried
to address it as best we could, and I believe we got a good
product. It's because we were recognized by the State
Legislature, we were created under the State of Hawaii as a
Commission. We created these boundary areas that protected the
reserve. In that legislation, this island, like its people, who
has suffered generations after generations, is now looking to
be sovereign or looking to have that identity, and this entire
island and the reserve would become part of that legacy.
Before I close I just want to end by just simply saying a
short vision the Commission worked at. I just want to review
it. The vision statement that was prepared by our consultants
and members of our Commission speaks as:
The body of Kaho'olawe is restored. Forest and shrub lands
of native plants and Ka po'e o Hawai'i clothes its slopes and
valleys. Pristine ocean waters and healthy reef ecosystems are
the foundation that supports and surrounds the island. Kanaka
Maoli, the people of Hawaii, care for the land in a manner
which recognizes the island and ocean of Kaho'olawe as the
living spiritual entity. Kaho'olawe is a pu'u honua where
Native Hawaiian cultural practices can flourish. The people of
Kaho'olawe is in a crossroads of the past and future
generations from which the Native Hawaiian lifestyle spreads
throughout the islands.
Thank you very much.
You know, Senator, I'm not a cry-baby. I have been
described as someone as tough as nails, but I was very, very
moved in the similarities with the other Native groups
throughout this great Nation, and more so with our brother from
California, as we continue to raise our voices, Native
Hawaiians, to be acknowledged as a race of people.
Thank you very much.
The Chairman. I thank you very much, Colette Machado.
[Prepared statement of Ms. Machado appears in appendix.]
The Chairman. In order to complete your statement, it
should be noted that the Government of the United States
appropriated $400 million for the restoration of this island,
so we did not just pass the law.
Dr. Aluli.
STATEMENT OF NOA EMMETT ALULI, KAUNAKAKAI, HI
Mr. Aluli. [Native words] Chairperson Inouye and members of
the Senate Indian Affairs Committee and Senator Akaka. For the
record, my name is Noa Emmett Aluli. I'm a physician in primary
care on the Hawaiian Island of Molokai. I'm also the medical
executive director of our only hospital, Molokai General
Hospital. I am one of the founding leaders of the Protect
Kaho'olawe Ohana and fund. I am the past vice chair of the
Kaho'olawe Island Conveyance Commission, and also past chair of
the Kaho'olawe Island Reserve Commission.
Thank you for the opportunity to testify this morning on
behalf of protection of wahi pana, or Hawaiian sacred places. I
would like to share the thoughts of Hilo historian Edward
Kanaheli, the late husband of Master Pumahula, Poalani
Kanakaoli on wahi pana, or Hawaiian sacred places, to more
fully describe the significance and meaning of such places to
Native Hawaiians, and I will paraphrase his thoughts.
Sacred places of Hawaii were treated with great reverence
and respect. These are places believed to have manao or
spiritual power for Native Hawaiians. Place tells us who we are
and who is our extended family. Place gives us our history and
the history of our ancestors. Place gives us a sense of well-
being.
A wahi pana is a place which links Hawaiians to our past
and our future. Our ancestors honored the earth and life as
divine gifts of the gods, and fishing and farming wahi pana
were respected. Their activities never encouraged or allowed
over-use of the resources. To do so would dishonor the gods.
``The Earth must not be desecrated'' is a Native Hawaiian
value.
The inventory of sacred places in Hawaii include the
dwelling places of the gods, the dwelling places of legendary
kahuna, temples, shrines, as well as selected observation
points, cliffs, mounds, mountains, weather phenomena, forests,
volcanoes, lava tubes, [Native words] or places of refuge, and,
of course, our burial sites. All wahi pana need our protection
and our respect, not only for the historical significance but
also for their human significance.
As Colette has articulated quite emotionally and well,
today the Hawaiian island of Kaho'olawe is helping our present
generation understand the importance of respecting and ordering
our traditional wahi pana. As you know, for 18 years, beginning
in 1976, the Protect Kaho'olawe Ohana led the Hawaiian and
general public protest to end the desecration and bombing of
Kaho'olawe. Ohana members persevered to oversee the island's
cultural and natural resources, despite personal and collective
sacrifices.
In 1980, the role of the Protect Kaho'olawe Ohana as the
[Native words] or steward of the island was acknowledged in the
court ordered consent decree with the Navy. The island was then
listed. The entire island was listed as a historic property on
the National Register of Historic Places. We were allowed
access to the island for religious, cultural, educational, and
scientific activities. Since then, the Ohana has taken over
14,000 visitors to Kaho'olawe.
Our treasured kapuna, elders, and [Native word] children
from every island joined in the rediscovery of our sacred
island. We rededicate our ancestors' shrines and temples and
places to conduct religious ceremonies, we clear access routes
to these places, and we care for and protect burial sites.
The Ohana conducts the annual celebration of [Native word]
or harvest ceremonies to God Loono, god of agriculture, across
the island every November and January. Through the course of
this spiritual journey, an entirely new image of Kaho'olawe as
a sacred island has emerged. According to Native Hawaiian
kapuna the island was originally named Kanaloa, the name of the
Hawaiian god of the ocean. Hawaiian ancestors respected the
island as a physical manifestation of Kanaloa. It is the only
island in the Pacific named for the major god.
It is also named [Native words] that can be translated as
``The Shining Birth Kanal of Kanaloa,'' or ``The Refuge of
Kanaloa,'' or as ``The Southern Beacon of Kanaloa.'' Both names
link to the island's role as a traditional center for training
of celestial navigation between Tahiti and Hawaii.
Finally, in October George Bush directed then-Secretary of
the Navy [sic] Richard Cheney to discontinue use of the island
for bombing and target practice, and I think that's important
to mention because, Senators, you have been quite good in
making this a very strong, bipartisan kind of endeavor.
Finally, in November 1993, Congress passed and President
Bill Clinton signed an act which recognized Kaho'olawe as a
national culture treasure and permanently stopped the use of
Kaho'olawe as a military training.
As Colette had mentioned, in 1994 the U.S. Navy formally
returned the island to the State of Hawaii.
I mention all this again because this experience with
Kaho'olawe has led us to understand the importance of expanding
the assessment of wahi pana to include our activities as Native
Hawaiians to provide stewardship over and practice our religion
in connection with these places honored by our ancestors as
sacred to our deities. Thus, cultural and environmental impact
assessments and studies must include but not be limited to
ancestral relationships of Native Hawaiians; to wahi pana; two,
necessity of access to wahi pana in order the fulfill
responsibilities of stewardship; three, the importance of
sustaining the integrity of natural resources as part of the
integrity of a sacred site; four, the importance of sustaining
the quality of experience, including view planes and quiet in
and around the wahi pani; five, whether proposed uses would
generate a change in the condition, the integrity, the use, the
function, the alignments, the ownership, the boundaries, and
access to or change in the quality of the experience.
In the course of conducting a cultural impact assessment
and study, it is necessary to conduct interviews with families
and practitioners who have a relationship with and take the
responsibility for the wahi pana or sacred place. These
families and practitioners must also be parties to any joint
use agreements or memoranda of understanding that may guide the
future use of a particular sacred place. Such agreements must
allow the families and cultural practitioners to have access to
the wahi pana in order to care for, monitor, protect, and
sustain a relationship with the sacred place.
I am hopeful that these suggestions can be considered in
strengthening the protection of sacred places in Federal law.
Finally, these hearings are timely in that the Smithsonian
Asian Pacific American Program is presenting, starting
tomorrow, June 5, through September 2, the exhibit
``Kaho'olawe: Rebirth of a Sacred Hawaiian Island'' at the Arts
and Industries Building at the National Mall. This
comprehensive exhibit tells Kaho'olawe's unique story from its
legendary beginning to the current efforts of protection and
revitalization, and we invite all of you to attend and visit
our exhibit.
Finally, after the 18-year struggle to reclaim sacred
Hawaiian land, Kaho'olawe has been recognized as an important
national treasure for restoration and cultural reserve, and we
thank both of you for this opportunity to fulfill the kapuna
and their kapuna and their kapuna visions and work on sacred
places, wahi pana.
Mahalo.
The Chairman. I thank you very much, Mr. Aluli.
[Prepared statement of Mr. Aluli appears in appendix.]
The Chairman. Next year title and control of this island
will be transferred to the State of Hawaii and, more
specifically, to the Ohana. Are you prepared to take over?
Mr. Aluli. We're prepared. Mahalo.
The Chairman. Then the agreements that you speak of on
rights to prayer and sacred grounds will be in your hands now.
Mr. Aluli. This is true, and we're ready, but, you know,
the reason for mentioning all this is, as Colette was saying,
we are not formally recognized as a government, so, in lieu of
all that, all the other areas where we have our sacred places
should include those families as memorandums, those accesses,
so that we can continue that work until such time.
The Chairman. Well, once the title has been conveyed to the
State of Hawaii, it will be up to the State of Hawaii as to
whether it will grant you full recognition. It is not up to us.
Mr. Aluli. I'm sorry, Senator. I was referring to the other
areas, not just Kaho'olawe--other areas where military and Army
Corps and eventually the other agencies that would come to
hearings--National Parks--that have sacred sites.
The Chairman. We're working on those, as you know.
Mr. Aluli. Correct.
The Chairman. So we are not ignoring that.
Mr. Aluli. So I would really like to kind of leave the
program here for anybody, including some of us here who would
like to just see the work of 18 years that have come to
fruition in reestablishing the sacred place and the kinds of
opportunities for us to continue those practices.
The Chairman. And we congratulate you, sir.
Mr. Aluli. Mahalo.
The Chairman. Senator Akaka.
STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM HAWAII
Senator Akaka. Thank you very much, Mr. Chairman. I want to
commend you and our committee for holding this hearing to
examine the protection of Native American sacred places as they
are affected by Federal agencies. In particular, this hearing,
as we all know, is focused on activities of the Department of
Defense.
I also want to add my welcome to all the witnesses that are
here and those from Hawaii that are here at this hearing. I
want to recognize the efforts of Chairman Inouye to protect
sacred sites of indigenous peoples throughout our country,
particularly in this case in the cleanup and restoration of
Kaho'olawe.
I thank Dr. Aluli and Trustee Machado and the rest of the
witnesses again. Particularly I want to say mahalo to Chair
Machado for the work you have been doing on Kaho'olawe. I also
want to mention that Dr. Aluli has been one of the forerunners
of getting Kaho'olawe back by your protests years ago with
others in Hawaii. This all came together and is still coming
together as we talk today. So mahalo and [Native words].
Mr. Chairman, may I proceed with questions?
The Chairman. Yes.
Senator Akaka. Thank you.
Chair Machado, it is my understanding that the KIRC has
been asked to reassess its priorities, given the Navy's
determination that it will not be able to make the goals of the
1994 MOU, memorandum of understanding. What impact does this
have on the uses and cultural activities planned for the island
of Kaho'olawe?
Ms. Machado. You know, that's a really good question, and
at one of our KIRC meetings we had gone round and round with
the Navy on this issue, but because of the timeframe and
because of the need to identify these key areas, we agreed to
reduce the area of the cleanup by the areas as identified as
tier one and tier two, so we've gotten more of a surface rather
than subsurface. In our evaluation, it was okay with us. I
think that Senator rates the real issue as, after the return it
becomes the State's obligation and we will be pounding on the
doors of our own State legislators and beginning to do lobbying
to assure that certain work that was not completed will be then
resolved in that capacity with that type of funding. If it was
not for the funding from Congress, the largest ever
appropriation to clean up a range, for our little island and
for the people of Hawaii, if it was not for that appropriation
we would not have been able to move so forward.
Perhaps in our zealous effort on the on-site or in the
early stages we may have been over-demanding, if you want to
call it that, in what we felt would be appropriate. So, in
spite of us reducing the areas and our cultural access areas,
we are confident that, even without the Navy and the cleanup,
we will be able to still continue at that level without any
reduced services in doing restoration, site stabilization,
cultural education that we continue to provide jointly with the
Protect Kaho'olawe Ohana, and with our volunteer program under
the Kaho'olawe Island Reserve Commission.
Senator Akaka. Thank you very much.
Ms. Machado. It's okay, and we've got to work harder at our
State level to assure that we can continue to upkeep that
obligation.
Senator Akaka. Dr. Aluli, you testified about the necessity
of incorporating additional factors into the Department's
assessment of the significance and the use of Native Hawaiian
sacred sites. What types of actions could be taken by the
Department of Defense to incorporate an assessment of
responsible stewardship by indigenous peoples of sacred sites?
Mr. Aluli. Senator, it was within the context of us
learning that in order to be even consulted you had to have on
the table a suit against the Navy, and you know how expensive
that is, so it would behoove the military or the Federal
agencies to kind of, like, look around to see who are the
families or who are those practitioners who have this training,
this obligation to kind of continue the so-called ``practices''
at these areas, and so that is a whole other level that they be
considered also the experts, not just the anthropologists, the
archaeologists, the historians, but there are people in the
community who live and continue that responsibility for those
sacred sites, and they should be major players and consultants
with whatever kinds of plans are being projected or whatever
kind of use is being ongoing at these areas. That's one of the
recommendations. So that develops a whole new level of
expertise or necessary consultations that need to exist.
Ms. Machado. Senator?
Senator Akaka. Ms. Machado.
Ms. Machado. Just for the record, the Navy would have put
on reserve $65 million to accommodate potentially additional
that might be discovered or somehow made itself available from
the original appropriation. By the end of the return of
Kaho'olawe to the State of Hawaii under the appropriation
funding, the Kaho'olawe Island Reserve Commission would have in
our State coffers $21 million to continue the work, in addition
to what we might be seeking from the legislature to provide
ongoing cultural site stabilization and historical protection.
Mr. Aluli. Senator, if I might add, one of the more
important burning questions for us in the Ohana--and I say us
in the Ohana--is when will the Navy stop cleaning? Will it be
on the 11th of November or will they start deploying out this
year? That makes a major difference on how much more they can
clean and how much closer to the MOU agreement that we've
signed with them. There is that whole year of time that they
start--either they're committed to end and start deploying off
on November 11, 2003, or do they start deploying off now so
that November 2003, they're off the island? To me in the Ohana
that's one of the burning questions that we need, and for me
that's a whole year more work that we need to consider.
Senator Akaka. Thank you for that question. We have been in
touch with the Navy on that question and we'd like the Navy to
work until the very end, but we'll be back with you on what
else there may be to that.
The Chairman. Maybe I can help you. Under the agreement,
the Navy will have to be out of the island by the deadline;
therefore, they cannot do their work up until the 11th hour and
leave on the 12th hour. However, the Navy will work as long as
moneys last. After all, there's a limit of $400 million. But I
am certain that the Navy will do everything possible before it
leaves. But I think the work will stop possibly 1 month before
the final day. It will take about 1 month to vacate the island.
Senator Akaka. [Native words] for you. Thank you very much
for your [Native word], your thoughts, and for your testimony.
Thank you very much.
Mr. Leonard Selestewa. Excuse me, Mr. Chairman. May I
approach the microphone while I'm already here? I brought my
elder uncle a long way, and before we----
The Chairman. Before you do that, may I thank Ms. Machado
and Dr. Aluli for their testimony this afternoon.
Ms. Machado. We are very grateful that the timing provided
our presence here because of our exhibit.
The Chairman. And I can assure you that we will do
everything possible to see that this project is carried out in
the manner that it was intended.
Ms. Machado. Thank you.
The Chairman. Yes, sir?
Mr. Leonard Selestewa. Before the remarks, your remarks
were redirected at the panel, the hope was to have my uncle
also be heard. I'd like 2 minutes of the panel's time for his
testimony to be put into the record, please.
The Chairman. If he will come up and identify himself.
STATEMENT OF GILBERT NASEYOWMA, VILLAGE OF LOWER MOENCOPI, TUBA
CITY, AZ
Mr. Naseyowma. Thank you. My name is Gilbert Naseyowma and
I'm from Moencopi, AZ. I'm here on behalf of Black Mesa. I was
born and raised in Moencopi and I am 68 years old now and I
remember when we were young. I was a sheep herder, and we would
have sheep corrals up along the Moencopi wash, maybe between 15
to 10 miles both ways, and I remember how water used to flow
when we were young. We would be watering our animals, domestic
animals, and other wild animals were drinking from there, and I
remember, too, that when we were young we had these birds that
would like to nest through the wetlands, and that's what I
missed. I missed some of these birds that have been raised
there when I was young, born there when I was young, and these
migratory birds that were coming and they would rest there
during their periods of migrating. Now these are just by our
religion, too, that our wild birds, animals are addressed in
our religion.
I would like to see this water come back. I have missed a
lot of things that have changed, and I would like this water to
come back and would like to see what had happened. I have been
telling my grandkids what there was before, and I would like to
see it come back so they would see it again. It is something
that I have missed.
I mentioned that it's in our religion that we pray that we
would be seeing all this wildlife. In our religion we pray that
all these wildlife is still be the same and same way with our
council. Our council is connected with farming and went on to
wildlife, so all this life has been changed for us and that
water has a lot to do with it and I would like to see it come
back again.
Thank you for your time. Thank you very much.
The Chairman. Thank you very much. Your testimony will
appear in the record.]
Thank you. And with that, the hearing is adjourned.
[Whereupon, at 1:07 p.m, the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Tex G. Hall, President of the National Congress
of American Indians
Good morning Chairman Inouye, Vice Chairman Campbell, and
distinguished committee members. My name is Tex G. Hall, chairman of
the Mandan, Hidatsa, and Arikara Nation and current president of the
National Congress of American Indians [NCAI], the oldest and largest
organization of tribes in the United States. On behalf of the National
Congress of American Indians [NCAI] and its more than 200 member tribal
nations, I am pleased to have the opportunity to present testimony on
sacred lands protection. Thank you for affording me the opportunity to
represent our member-nations and their concerns on this issue.
NCAI has always been deeply concerned with the respectful treatment
and protection of sacred lands. Historically subjected to the
devastating, systemic destruction of their religious practices and
sacred places, tribes continue today to suffer the heartbreaking loss
and destruction of their precious few remaining sacred areas. These
sacred places are critical to the revitalization and continuity of
hundreds of living cultures, and represent an integral part of our
religious practice and lifeways.
Every year, sacred sites that are integral to the practice of
Indian religions are being destroyed. On my own reservation, Ft.
Berthold, we are losing 30 to 40 feet of land along the Missouri River
each year. This translates to 30 to 40 feet of burial sites and
invaluable traditional cultural properties left unprotected per year,
with exposure increasing with each passing year.
We believe this is happening in part because there is no
comprehensive, effective policy to preserve and protect sacred lands
and resources. Legal remedies such as the American Indian Religious
Freedom Act, Executive Order 13007 on Sacred Sites Protection, and the
National Historic Preservation Act [NHPA] lack meaningful enforcement
mechanisms, are often ineffectively implemented, and provide limited
legal redress to aggrieved traditional religious practitioners and
tribes.
Sacred Lands Protection Coalition
Individuals and organizations that have been active in the movement
to protect sacred lands are as diverse as the sites and the communities
who tend them. As a result of the inadequate solutions available to
tribes and traditional practitioners for the protection of sacred lands
or places, the Sacred Lands Protection Coalition was formed with the
goal of strengthening legal protections for sacred lands and to secure
administrative accommodations for the use of sacred places by Indian
religious practitioners. NCAI has participated actively in that
coalition.
Through coalition meetings it has become apparent that sacred
places continue to be endangered throughout the Nation and that
comprehensive legislation is needed to protect all Native American
sacred places. Assembled tribal leaders have reached consensus in
various meetings over the last few years to begin an organized effort
to halt private and governmentally sponsored development that will
threaten or destroy sacred places.
Protection for our precious remaining sacred places is necessary
for the survival of traditional religions and tribal cultures, and is
key to preserving our cultural identity and our survival as nations. To
date, the Coalition has identified several goals that, if achieved, may
begin to address the concerns of traditional practitioners in a
comprehensive manner. These goals may serve to inform you as you
determine how best to move forward to address this critical and
extraordinarily sensitive issue, and we hope to work with you as we
further explore and develop the best options for approaching this
important effort.
Goals of the Sacred Lands Protection Coalition
1. Strengthen Administrative Policies
Strengthening the administrative policies and regulations of
Federal agencies which deal with historical preservation and
administration of Federal lands to better protect sacred sites and
accommodate the ceremonial use of such sites is a priority for tribes
and traditional practitioners. Presently, agencies are encouraged to
provide accommodations for the use of sacred places by ``Native
American religious practitioners.'' For most tribes this would limit
protections and access to only those locations used or approved by a
tribe's recognized religious leader. But other locations significant to
the practice of traditional sacred activities that do not involve the
recognized religious leaders--who are male for the most part--also need
protection. These locations include women's places, young adult
'proving grounds', and healing locations used by all tribal people. The
users of such sacred places may not have the status of
``practitioners'' and so would not be represented by the limited
existing protections.
2. Tribal Consultation
NCAI is deeply concerned with the Federal Government's failure to
ensure adequate government-to-government consultation with tribes
regarding sacred places. The input of tribes must be sought and
considered when approaching the extremely sensitive process of 3
protecting sacred places. Adequate consultation must be provided when
material changes in use of any Federal lands are contemplated and
whenever policies of Federal agencies change which materially affect
Tribal interests. The United States must adhere to the trust
responsibility it has to tribal governments and Indian people to
protect and preserve Native culture and tradition. Consultation on a
national level is, as always, key to ensuring that the mistakes of the
past are not repeated.
3. Compliance and Enforcement of Existing Federal Law
NCAI has recognized a critical lack of enforcement of the
provisions in existing laws that protect sacred places. Our sacred
places are not held in high regard by the Federal Government, an
attitude evidenced by the blatant lack of compliance demonstrated by
several of the Federal agencies who most directly deal with sacred
lands. Some of the panel members here today will discuss further the
violation of rules and regulations designed to protect our sacred
properties. Compliance with and enforcement of existing cultural
resources protection laws is an integral element of treaty rights
protection. We believe that a more consistent outreach and consultation
approach, including Federal Indian policy implementation plans with
established protocols for working with tribes, would provide more
reliable cultural resources protection compliance and enforcement.
NCAI asks your help in requesting an inventory of the existing
Federal agency sacred lands protection policies, including consultation
policies, and an assessment of how the policies and regulations are
currently applied. NCAI also requests that funds be made available for
the inventory of policies and practices of Federal agencies. NCAI, as a
member of the Sacred Lands Protection Coalition, recommends
implementation of one sacred lands protection policy for all Federal
agencies to follow and is willing to help develop this policy.
Once this review is completed, we would like the opportunity to
provide recommendations to this Committee regarding legislative changes
we believe may be necessary to more consistently protect our sacred
lands.
4. Increased Protection
Increased protections for all sacred places are essential to
traditional practitioners and the generations to come. We need the help
of this committee to aid us in educating your colleagues about the
importance of protecting these sacred places-areas that are limited in
scope but absolutely of essence to the religious freedom of Native
people throughout this nation. The Coalition intends to pursue
comprehensive and well thought-out legislation to increase protection
after all of the issues surrounding sacred places have been thoroughly
explored.
5. Funding
Tribes need financial assistance to protect and possibly purchase
sacred places. When Federal agencies do not fulfill their obligations
to protect sacred places, tribes are left to depend on tribal resources
that are in many cases extremely limited. Tribes need the opportunity
to protect sacred lands when Federal agencies do not provide
protection, and we ask your help in ensuring that tribes in need of
assistance have avenues of recourse. Additionally, tribes need funds to
support meaningful consultation with Federal agencies to ensure better
communication and compliance with existing policies for those sacred
places that remain on public lands.
There are many sacred places on lands owned by private entities.
Access to sacred places located on private lands can prove to be
difficult, and funding for the purpose of securing protection and
access to sacred places from willing private owners should be made
available to tribes. In seeking Federal aid to purchase or otherwise 5
protect sacred places, I want to be very clear that we are not asking
for a hand out--simply a very limited means to undo a small part of the
destruction that Federal policies of the past have done to remove
sacred lands from the control of the tribes of whose lifeways they are
an integral part. It seems a very small thing to ask the Federal
Government to step forward and do what is right to protect what is left
of our remaining sacred places in light of the shared history of which
we are all familiar.
Conclusion
As a Coalition, we recognize these goals will not be easy to
achieve. But we have been fighting to save our sacred places for a long
time now, and we are prepared to continue to fight for these places
which are of absolutely paramount importance to our survival as tribal
nations. NCAI commends the Senate Committee on Indian Affairs for
providing the opportunity for tribes to convey their concerns,
suggestions, and recommendations aimed at protecting the traditions,
cultures, and sacred places of native peoples. I would like to thank
each of you for taking the time to recognize the importance of this
often forgotten aspect of this nation's serious commitment to the
protection of religious freedoms, and for standing beside us as we seek
to protect our lifeways.
______
Prepared Statement of Scott Jones, Public Relations and Cultural
Resources Officer of the Lower Brule Sioux Tribe
Mr. Chairman, Committee Members and Guests, good morning. My name
is Scott Jones. I am an enrolled member of the Lower Brule Sioux Tribe.
I am the Public Information Director and Cultural Resources Officer of
that Tribe in Lower Brule, South Dakota.
There are so many issues and problems it is difficult in only 6
minutes to know where to begin. So, I shall begin with what is most
important--the Resource. Whether it's the Missouri River, or gathering
areas on open prairie, or Yellowstone National Park or our sacred
Medicine Butte. To Native people--not just those from ancient time or
those in history books--the natural resource, it's various uses, it's
various roles, it's health, remain crucial to the continued survival of
our traditional Indian culture.
I would like to address today one specific resource--the Missouri
River. Since the glaciers pulled back some 12,000 years ago, the
Missouri River Basin has been continuously occupied by Indigenous
Indian cultures. It is sacred to my people because the river gave us
life and the ability to sustain life; the river gave us food; the river
enabled vast trade routes to be established; the river in recent
history enabled the expansion and colonization of this country by the
EuroAmerican; and the River as we know it today has become very
important to many interests providing trade, energy, flood control,
recreation, and irrigation just to mention a few. The River is sacred
to my people today.
The EuroAmerican expansion and continuous growth gave way to
treaties and laws. This ``Law of the Land'' set forth compensations for
the aboriginal peoples whose land had been taken--often times
illegally. These treaties and laws established trust responsibilities
to ensure government agencies treated aboriginal Nations fairly and
equally. Many of these treaties and laws set forth protections for our
sacred areas and lands that sustained our culture, and some of these
laws specifically addressed the rights and management of the Missouri
River and the lands that make up her Basin. Please remember that these
dams and the lakes they created are not historic--they were created and
built in my lifetime. The fulfilling of these trust responsibilities
did not offer Native people--particularly those who lived on the
River--a role in the creation of this Federal monster. But rather,
entire Native populations were removed from the safety of their
64reservation'' homes, had their farms and gathering areas flooded,
their burial grounds flooded or exposed, and their traditional lifeways
thrown into turmoil.
The agency responsible for the Operation and Maintenance of this
Federal monster--the Army Corps of Engineers, under the Department of
the Army--has for the last 50 years appeared to conduct business with
the left hand not caring what the right hand is doing. They have been
evasive and non-committal in their dealings. More recent Tribally
friendly Executive Orders, Federal law and amendments to existing
Federal law have enabled Tribes to force the Army Corps of Engineers to
confront specific issues and badger them into creating solutions. Then,
only to often having to watch those solutions disappear into the dark
hole of a Federal file cabinet, never to be acted upon, implemented or
considered in any other action.
We are in a new century now. Tribes understand the demands for
energy, tribes understand that we are at war with terrorism. Tribes--
particularly those who live along the river and specifically my Tribe,
The Lower Brule Sioux have consistently asked for participatory rights
in decisionmaking on those issues which directly impact and affect us.
At this point, we are asking that existing rights under existing law be
followed as they should be, as well as asking that consideration of
future legislation be inclusive of actual on the ground tribal need.
Some actions I would recommend include the following:
Develop partnerships which create co-management in areas where both
the Corps and Tribes can mutually benefit and save time and money,
while at the same time providing greater understanding of the resource.
Ensure participation--real meaningful participation--in meetings on
specific issues (EIS, PA's, EA's, etc.) with results that actually
become working documents and not find their way into the proverbial
Federal file cabinet.
Provide oversight from both Congress and senior Department of Army
personnel to make sure the Corps is fulfilling their trust
responsibilities and doing their job properly.
Require the Corps to set aside a small percentage of each project
to assist in paying for tribal consultation--the same way they pay for
engineers and architects and other consultants.
Address the River holistically as the river basin that it is--not
as a series of segments, so that planning all of the myriad of actions
is more consistent. This would facilitate planning on the river, and
allow existing documents to be used in more than one action, thus
preventing a reinvention of the wheel with every action.
End crisis management through the development of memoranda of
agreement with each affected tribe so that management is inclusive and
responsibilities can be shared.
Encourage contracting with tribes, not outside firms, in areas such
as cultural resource work, enforcement and wildlife habitat renewal,
water treatment, et cetera
Tribes are major stakeholders on the River because of their
aboriginal rights, their unique legal and political status, and because
their continued survival depends on the health and well being of this
sacred River.
It is imperative that you understand that these native resources--
every plant, every rock, every tree, our rivers and springs are
potentially a required part of a medicine or used in a traditional
worship activity. The very fabric of our culture is built with natural
material that evolves back into mother earth.
Aboriginal cultures were founded in the natural resource, Euro-
American cultures were based upon man made materialistic resources, the
laws that we live under today do not recognize nor are they reflective
of this fundamental difference.
As I said before, we all recognize the demands of development, of
recreation, of flood control, of energy needs. There is no reason to
always be at odds. The demands of this century can be met by working
together. Working together, we can protect this resource, we can create
solutions, we can create jobs on reservations, and we can create ways
to manage energy needs and development in a responsible way that will
carry us into the future.
Creating organizations such as the Sacred Sites Coalition which
acknowledge and accept the Tribal lead, will foster understanding while
insuring tribes have an adequate voice to protect American Indian
freedom of religion through the preservation of and access to sacred
sites, gathering areas and necessary natural resources for the
continued vitality of our threatened traditional worship practices and
lifeways.
Thank you for the opportunity of coming before you to address these
issues.
I would be happy to answer any questions you may have on what I
have said. I will submit a more comprehensive written statement for the
record later this week.
Thank you.
______
Prepared Statement of Rachel Joseph, Tribal Chairwoman, Lone Pine
Paiute-Shoshone Tribe
Good morning, Mr. Chairman and distinguished members of the Senate
Committee on Indian Affairs, I am Rachel A. Joseph, chairwoman of the
Lone Pine Paiute--Shoshone Tribe located on the Eastern side of the
Sierra in Central California in the Owens Valley.
It is an honor and privilege to testify here today on behalf of my
tribe. I speak today not just on behalf of my tribe but for Paiute and
Shoshone, including my parents, who have prayed, worshiped and healed
themselves at Coso Hot Springs. Coso Hot Springs are located on the
China Lake Naval Air Weapons Station in southeast California. The Coso
Hot Springs have been visited and used by our people and other local
Native Americans for time immoral. Our elders tell us of the healing
power of the warm Coso water and mud and how that healing power is no
longer the same.
In 1947, the Department of the Navy acquired Coso Hot Springs
through condemnation. Coso Hot Springs and the immediate area were
believed to be rich in geothermal energy and plans to tap this energy
were initiated in the late 1970's with the Navy contracting with a
private energy company to construct a geothermal plant near the Hot
Springs. In January 1978, Coso Hot Springs was placed on the National
Register of Historic Places as a historic and cultural property.
Tribal members and the State Historic Preservation Office (SHPO)
were concerned that geothermal production in and around the Coso Hot
Springs could have an adverse effect on the Coso Hot Springs and indeed
it has. Over the years the temperature of the hot springs water and mud
have grown so intensely hot that tribal members cannot bathe there. Our
tribal people have long requested that the Navy address the conditions
of the springs without success. The Navy did conduct a study over 10
years ago using its own geothermal staff and reported that there was no
connection between the conditions at the springs and the geothermal
development occurring next to the springs. Without tribal resources we
have been helpless to conduct our own independent, unbiased evaluation
of the Hot Springs and determine the true cause of their destruction
and desecration.
Our need to protect Coso Hot Springs continues as the Navy
currently is conducting deep test well drilling to the north of the
springs to determine whether geothermal production and development
should be expanded. My tribe, as well as every tribe in the Owens
Valley, objected to the test well project. The Navy received our
comments, as mandated but Federal law, but did nothing with them. The
test well project has gone forward and we are now left with waiting for
the next step from the Navy, which we believe will be to expand
development and production near the springs.
Tribal members have seen heightened security at Coso Hot Springs in
light of the events of September 11, and are routinely told of the
Navy's need for greater energy development, but my people can not allow
our Coso Hot Springs to be a sacrificed for these objectives. Every
Federal agency must aggressively protect Native American sacred sights
and share that responsibility with native people. Far to often, Federal
projects will threaten a sacred sight and we are asked to comment as
part of the Federal agency's ``consultation'' process. Our comments are
submitted and seldom responded to. The Federal agency responsible for
the project proceeds thinking that it has complied with its
consultation requirements, when in fact they never really heard what
the Tribe had to say or adequately addressed the Tribe's concerns. All
Federal agencies and departments need to take a renewed look at their
consultation process with Tribes and truly listen to what Native people
are trying to tell them. The Native American Sacred Lands bill will
hopefully refocus the Federal Government and bring greater protection
for sacred land thus ensuring the opportunity to continue traditional
activities.
Thank you, for the opportunity to present this testimony.
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