S 6456 CONGRESSIONAL RECORD — SENATE May 25, 1993 reported one reason that certain com­ I am pleased to join my colleagues cedures, and work with Native tradi­ panies were lagging behind was an from Massachusetts, Senators KERRY tional and tribal leaders to assure overreliance on automation. The arti­ and KENNEDY in introducing this legis­ minimal interference with the reli­ cle reported on the experience of a Fed­ lation. We have already been working gious practices of native people. In Au- eral-Mogul plant in Lancaster, PA, with the chairman of the Senate Com­ gust 1979, the Federal Agencies Task that was revamped in 1987 with state- merce Committee and the Departments Force charged with this responsibility of-the-art automation. But costs did of Commerce and Labor to have this submitted its report to Congress. not go down and the automation re­ legislation included in S. 4. For much The report concluded that due to ig­ duced the plant's flexibility. To im­ as it will take cooperation between norance and attitudes, Federal policies prove performance, the plant was re- workers and management to improve a and practices were directly or indi­ vamped again and most robots and pro­ firm's competitiveness—it will take rectly hostile toward native traditional duction-line computers were removed. the cooperation of the various branches religions or simply indifferent to their Of course not every firm has experi­ of Government to make sure that Fed­ religious values. The report cited 522 enced such problems. But the point is eral efforts directed to improve our Na­ specific examples of Government in­ that high-technology does not alone tion's international competitiveness fringement upon the free exercise of are effective.• traditional native American religious hold the answer for our Nation's future practices. commercial competitiveness. I saw By Mr. INOUYE (for himself, Mr. firsthand, as Pennsylvania's secretary The report documented the wide- BAUCUS, Mr. CAMPBELL, Mr. spread practice of denying native of labor and industry, the problems FEINGOLD, Mr. HATFIELD, Mr. American people access to sacred sites that were created by failing to take PELL, and Mr. WELLSTONE): on Federal land for the purpose of wor­ workers and the work organization S. 1021. A bill to assure religious free­ ship, and in cases where they did gain into account in efforts toward improve­ dom to native Americans; to the Com­ access, they were often disturbed dur­ ment. mittee on Indian Affairs. ing their worship by Federal officials As we consider legislation to imple­ NATIVE AMERICAN FREE EXERCISE OF RELIGION and the public. In addition, some sa­ ment the President's vision, we cannot ACT OF 1993 cred sites were needlessly put to other forget the human element of the manu­ Mr. INOUYE. Mr. President, I rise uses which have desecrated them. facturing process. Firms need to be en­ today to introduce legislation that is Native Americans have been denied couraged to improve their work place fundamental to the sovereignty of the the opportunity to gather natural sub- practices—not just add machines. Indians nations and which is in fur­ stances which have a sacred or reli­ We must make sure that any legisla­ therance of the policy established in gious significance, and have been dis­ tion: First, enables the Federal Gov­ the Joint Resolution American Indian turbed in their use of these natural ernment to help gather and promote Religious Freedom enacted by Congress substances. Finally, native American the best practices in the use of tech­ in 1978. For, Mr. President, what can be beliefs involving care and treatment nologies and associated work organiza­ more fundamental to sovereignty than for the dead have not been respected by tions; second, causes Government tech­ the free exercise of one's religion, one's public officials and restrictions have nology and training assistance to be culture, and one's traditions? been imposed by public institutions, diffused to firms in a coordinated man­ This measure is intended to address such as schools and prisons, on the ner; and, third, measures the success of in a comprehensive way, the rights of rights of native Americans to practice Federal technology policies in human native Americans to practice their tra­ their religious beliefs. terms, including job creation and ditional religions—a right that most The report made 5 legislative propos­ worker productivity. Americans take for granted—a right als and 11 recommendations to the The legislation I am introducing that has been denied to this Nation's Congress for proposed uniform adminis­ today, along with my colleagues. Sen­ first Americans. trative procedures to correct and re- ators KERRY and KENNEDY, would do Religious freedom is fundamental to move the identified barriers to Indian just that. We are introducing two our way of life. It served as the genesis religious freedom. With the exception pieces of legislation to make sure that for the founding of our Nation. Reli­ of one recommendation, which was par­ workers and work organization are gious freedom is critical and integral tially addressed in the Native Amer­ taken into account in Federal efforts to our concept of individual liberty. ican Graves Protection and Repatri­ to improve the international competi­ Sadly however, there has been a long ation Act regarding the theft and tiveness of American manufacturers. history in this country, of Government interstate transport of sacred objects, The workplace innovation amend­ suppression of traditional religions none of the proposals or recommenda­ ments, would amend the National Com­ practices by native Americans that is tions have been acted upon. petitiveness Act of 1993, to help firms unlike the manner in which any other Since the passage of the American and workers, in a coordinated fashion, religion in our Nation has been treated. Indian Religious Freedom Act in 1978, to take full advantage of advanced Mr. President, in 1978, Congress en- there have been a number of court rul­ manufacturing technology, to improve acted the American Indian Religious ings involving the rights of native productivity and quality, and to adopt Freedom Act (P.L. 95-341), in an effort Americans to engage in traditional re­ high-performance work organizations. to establish a policy that would reverse ligious practices. Two recent Supreme In addition, the amendments would this deplorable treatment. With the Court decisions have severely under- help create quality job opportunities passage of the act in 1978, it became mined the intent of the act and have by promoting research in, and dissemi­ the policy of the United States to pro­ denied protection under the first nation of, innovative workplace prac­ tect and preserve the right of American amendment for the unique and impor­ tices and promote labor-management Indian, Eskimo, Aleut, and native Ha­ tant religious beliefs of native Ameri­ cooperation. waiian people to believe, express, and cans. The Workers Technology Skill Devel­ exercise their traditional religions. In 1988, in a case known as Lyng ver­ opment Act would assist workers to be- While it was the intention of the Con­ sus Northwest Indian Cemetery Asso­ come full partners in the planning and gress to have these traditional reli­ ciation, the Supreme Court denied pro­ implementation of advanced workplace gious practices protected, this desired tection of a religious site on public technologies and advanced workplace result has not been accomplished. land. In so doing, the Court also re­ practices. It would authorize the De­ Pursuant to the provisions of the act jected the traditional first amendment partment of Labor to make grants to passed in 1978, in their actions, Federal test that the Government had to have improve the ability to workers, their agencies are required, by law, to re­ a compelling interest to infringe upon representatives and employers in these spect the customs, ceremonies, and tra­ the free exercise of religion. areas, and authorize the Department to ditions of native American religions. In 1990, the Supreme Court in Em­ identify, collect, and disseminate infor­ The act provided that within 1 year of ployment Division versus Smith denied mation on best workplace practices the law's enactment. Federal agencies protection of a native American church and workplace assessment tools. would examine their policies and pro- practitioner fired from his job for using May 25, 1993 CONGRESSIONAL RECORD — SENATE S 6457 peyote during a native American reli­ should first address the issue of spir­ American religious site, use and possession gious ceremony. The Supreme Court's ituality and tradition—the very soul of of sacred objects, and the freedom to worship rulings in Lyng and Smith have signifi­ most native American communities. It through ceremonials and traditional rites. cantly diminished constitutional and is essential for native American people SEC. 3. DEFINITIONS. statutory protection of native Amer­ across this country to be free to prac­ For the purposes of this Act, the following ican religious practices. Both of these definitions shall apply: tice their religious ceremonies and to (1) AGGRIEVED PARTY.—The term "ag­ decisions demonstrate that while the preserve their values and traditions for grieved party" means any Native American 1978 act is a sound statement of policy, future generations. practitioner, Native American traditional it requires enforcement authority. Mr. President, it is clear that there leader, Indian tribe, or Native Hawaiian or­ That authority is addressed in the must be a rebalancing of governmental ganization as defined by this Act. measure that I am introducing today. interests to assure the protection of (2) FEDERAL AGENCY.—The term "Federal Mr. President, the legislation reflects the free exercise of native American re­ agency" means any department, agency, or input from native Americans and af­ instrumentality of the Federal Government. ligions. The legislation I am introduc­ (3) FEDERAL OR FEDERALLY ASSISTED UN- firmatively addresses specific religious ing today would create this new bal­ DERTAKING.—The term "Federal or federally concerns and beliefs central to their ance. The religious rights of native assisted undertaking" means any regulation lives. The bill addresses native Amer­ Americans have not been adequately relating to or any project, activity, or pro- ican religious freedom in four areas: protected or respected, and as the gram pertaining to the management, use, or First, the legislation provides protec­ trustee of the native peoples of this preservation of land (including continuing tion of native American sacred sites and new projects, activities, or programs) land, I believe that it is incumbent which is funded in whole or in part by, or and puts into place a mechanism for re- upon the United States to correct this under the direct or indirect jurisdiction of, a solving disputes. Second, the legisla­ deficiency. I look forward to congres­ Federal agency, including— tion extends first amendment protec­ sional attention to this important is- (A) those carried out by or on behalf of the tion to native Americans for the sac­ sues in the 103d Congress. I ask unani­ agency; ramental use of peyote. Third, the leg­ mous consent that the full text of the (B) those carried out with Federal finan­ islation protects the rights of native bill be printed in the RECORD following cial assistance; prisoners to the same extent as pris­ my remarks. (C) those requiring a Federal permit, li­ oners of other religious faiths. Finally, There being no objection, the bill was cense or approval; and the legislation facilitates native Amer­ (D) those subject to State regulation ad- ordered to be printed in the RECORD, as ministered pursuant to a delegation or ap­ ican access to and use of eagle feathers follows: and plants for religious purposes. proval by a Federal agency. Native Americans believe that cer­ S. 1021 The term "Federal or federally assisted un­ Be it enacted by the Senate and House of Rep­ dertakings" does not include regulations, tain locations are most sacred and be­ resentatives of the Untied States of America in projects, activities, or programs operated, lieve that these sites should be pro­ Congress assemble. approved, or sponsored by Indian tribes, in­ tected. There are currently 44 sacred SECTION 1. SHORT TITLE; TABLEOFCONTENTS . cluding, but not limited to, those projects, sites that are threatened by tourism, (a) SHORT TITLE.—This Act may be cited as activities, or programs which are funded in development, and resource exploi­ the "Native American Free Exercise of Reli­ whole or in part by Federal funds pursuant tation. The sacramental use of peyote, gion Act of 1993". to contract, grant or agreement, or which re- which is central to the ceremonies of (b) TABLEOFCONTENTS.— quire Federal permits, licenses or approvals. the Native American Church, is a Sec. 1. Short title; table of contents. (4) GOVERNMENTAL AGENCY.—The term crime punishable by law despite Drug Sec. 2. Policy. "governmental agency" means any agency, Sec. 3. Definitions. department, or instrumentality of— Enforcement Agency exemptions for (A) the United States; or Native American Church members. TITLE I—PROTECTION OF SACRED SITES (B) a State, in the case of a Federal or fed­ Many native American prisoners are Sec. 101. Findings. erally assisted undertaking described in denied access to spiritual leaders, and Sec. 102. Federal land management; use and paragraph (3)(D). denied the opportunity to practice preservation. Sec. 103. Notice. The term "governmental agency" does not their religion, despite the fact that Sec. 104. Consultation. include an agency, department, or instru­ other prisoners are consistently pro­ Sec. 105. Burden of proof. mentality of an Indian tribe. vided access to priests, ministers, rab­ Sec. 106. Tribal authority over Native Amer­ (5) INDIAN.—The term "Indian" means— bis, and other religious leaders. There ican religious sites on Indian (A) an individual of aboriginal ancestry are also prison requirements that con­ lands. who is a member of an Indian tribe. Sec. 107. Application of other laws. (B) an individual who is an Alaska Native, flict with native American religious or customs. While eagle feathers and Sec. 108. Confidentiality. (C) in the case of California Indians, an in­ parts of other sacred plants and ani­ Sec. 109. Criminal sanctions. dividual who meets the definition in section mals are sometimes used in religious TITLE II—TRADITIONAL USE OF PEYOTE 809(b) of the Indian Health Care Improve­ ceremonies, native Americans face Sec. 201. Findings. ment Act (25 U.S.C. 1679(b)), except that an criminal prosecution if they are in pos­ Sec. 202. Traditional use of peyote. Indian community need not be served by a session of eagle parts or feathers due to TITLE III—PRISONERS' RIGHTS local program of the Indian Health Service the Bald Eagle and Golden Eagle Pro­ Sec. 301. Rights. in order to qualify as an Indian community tection Act. The legislation would per­ for purposes of this definition. TITLE IV—RELIGIOUS USE OF EAGLES (6) INDIAN LANDS.—The term "Indian mit use of lawfully obtained eagle AND OTHER ANIMALS AND PLANTS lands" means all lands within the limits of feathers. Sec. 401. Religions use of eagles. any Indian reservation; public domain Indian The bill will also provide clear, le­ Sec. 402. Other animals and plants. allotments; all other lands title to which is gally enforceable authority for the pro­ TITLE V—JURISDICTION AND REMEDIES either held in trust by the United States for tection of the free exercise of native the benefit of any Indian tribe or individual Sec. 501. Jurisdiction and remedies. or held by any Indian tribe or individual sub­ American religions. TITLE VI—MISCELLANEOUS ject to restriction by the United States I am pleased to note that the re­ Sec. 601. Savings clause. against alienation; all dependent Indian sponse of native peoples to this legisla­ Sec. 602. Severability. communities; and all fee lands owned by an tion has been very favorable. The com­ Sec. 603. Authorization of appropriations. Indian tribe. mittee has held six field hearings and Sec. 604. Effective date. (7) INDIAN TRIBE.—The term "Indian tribe" the bill reflects many of the rec­ SEC.2.POLICY. means— ommendations received at the hearings It is the policy of the United States, in fur­ (A) any tribe, band, nation, pueblo, or as well as other communications re­ therance of the policy established in the other organized group or community of Indi­ ceived by the committee from Indian joint resolution entitled "Joint Resolution ans, including any Alaska Native village (as tribes and native American organiza­ American Indian Religions Freedom", ap­ defined in, or established pursuant to, the proved August 11, 1978 (42 U.S.C. 1996), to pro­ Alaska Native Claims Settlement Act (43 tions. tect and preserve the inherent right of any U.S.C. 1601 et seq.)), which is recognized as In addressing the many problems Native American to believe, express, and ex­ eligible for the special programs and services that face native American commu­ ercise his or her traditional religion, includ­ provided by the United States to Indians be- nities today, it imperative that we ing, but not limited to, access to any Native cause of their status as Indians. S 6458 CONGRESSIONAL RECORD — SENATE May 25, 1993 (B) any Indian group that has been for­ scendant of the aboriginal Polynesian people ates a chilling and discriminatory effect on mally recognized as an Indian tribe by a who, prior to 1778, occupied and exercised the tree exercise of Native American reli­ State legislature or by a State commission sovereignty and self-determination in the gions; or similar organization legislatively vested area that now comprises the State of Hawaii. (10) the Supreme Court of the United with State tribal recognition authority, (15) NATIVE HAWAIIAN ORGANIZATION.—The States, in the case of Employment Division (C) any Indian tribe whose federally recog­ term "Native Hawaiian organization" means v. Smith, 494 U.S. 872 (1990) extended the nized status has been terminated, and any organization which is composed pri­ Lyng doctrine to all "valid and neutral laws (D) any non-federally recognized tribe that marily of Native Hawaiians, serves and rep­ of general applicability" not intended to spe­ has— resents the interests of Native Hawaiians cifically infringe upon religious practice and (iii) filed a petition for acknowledgement and whose members— held that the First Amendment does not ex­ with the Branch of Federal Acknowledge­ (A) practice a Native American religion or empt practitioners who use peyote in Native ment of the Bureau of Indian Affairs of the conduct traditional ceremonial rituals, or American religious ceremonies from comply­ Department of the Interior or is the subject (B) utilize, preserve and protect Native ing with "neutral" State laws prohibiting of pending legislation in the Congress seek­ American religious sites. peyote use, notwithstanding the chilling ef­ ing federally recognized status, and (16) STATE.—The term "State" means any fect of such laws upon their right to freely (ii) is recognized as an Indian tribe by State of the United States and any and all practice their religion; other Indian tribes, communities or groups. political subdivisions thereof. (11) Native Hawaiians have distinct rights The definition contained in subparagraph (D) TITLE I—PROTECTION OF SACRED SITES under Federal law as beneficiaries of the Ha­ shall not apply if the Department of the In­ SEC. 101. FINDINGS. waiian Homes Commission Act, 1920 (42 Stat. terior has acted to deny such tribe's petition 108) and the Act entitled "An Act to provide for acknowledgement and all appeals of the The Congress finds that— for the admission of the State of Hawaii into Department's determination have been ex­ (1) throughout American history, the free the Union", approved March 18, 1959 (73 Stat. hausted and have been decided in support of exercise of traditional Native American reli­ 4); the Department's determination. gions has been intruded upon, interfered with, and, in some instances, banned by the (12) the United States trust responsibility (8) LAND.—The terms "land", "lands", or Federal Government and the devastating im­ for lands set aside for the benefit of Native "public lands" mean surface and subsurface pact of these governmental actions contin­ Hawaiians has never been extinguished; land within the jurisdiction of the United ues to the present day; (13) the Federal policy of self-determina­ States or the respective States, including tion and self-governance is recognized to ex- (2) the religious practices of Native Ameri­ tend to all Native Americans; submerged land of any kind or interest cans are integral parts of their cultures, tra­ therein and all water and waterways occupy­ (14) Congress has enacted numerous laws ditions and heritages and greatly enhance which regulate and restrict the discretion of ing, adjacent to, or running through the the vitality of Native American commu­ land. Federal agencies for the sake of environ­ nities and tribes and the well-being of Native mental, historical, economic, and cultural (9) NATIVE AMERICAN.—The term "Native Americans in general; American" means any Indian or Native Ha­ concerns, but has never enacted a judicially (3) as part of its historic trust responsibil­ enforceable law comparably restricting agen­ waiian. ity, the Federal Government has the obliga­ (10) NATIVE AMERICAN PRACTITIONER.—The cy discretion for the sake of the site-specific tion to enact enforceable Federal policies requirements associated with the free exer­ term "Native American practitioner" which will protect Native American commu­ means— cise of Native American religions; nity and tribal vitality and cultural integ­ (15) the lack of a judicially enforceable (A) any Native American who practices a rity, and which will not inhibit or interfere Native American religion, or Federal law and of a coherent Federal policy with the free exercise of Native American re­ to accommodate the uniqueness of Native (B) any Native Hawaiian with an obliga­ ligions; tion to protect a Native Hawaiian religious American religions imposes unique and un­ site, or any Native Hawaiian who practices a (4) just as other religions consider certain equal disadvantages on Native American re­ Native Hawaiian religion or engages in a Na­ sites in other parts of the world to be sacred, ligions, gravely restricting the free exercise tive Hawaiian ceremonial or ritual under- many Native American religions hold cer­ of Native American religions and impairing taking. tain lands or natural formations in the Unit­ the vitality of Native American commu­ (11) NATIVE AMERICAN RELIGION.—The term ed States to be sacred, and, in order for those nities and Indian tribes; and "Native American religion" means any sites to be in a condition appropriate for reli­ (16) Congress has the authority to enact religion— gious use, the physical environment, water, such a law pursuant to section 8, Article I, of (A) which is practiced by Native Ameri­ plants and animals associated with those the Constitution and the First and Four­ cans, and sites must be protected; teenth Amendments. (B) the origin and interpretation of which (5) such Native American religious sites SEC. 102. FEDERAL LAND MANAGEMENT; USE is from within a traditional Native American are an integral and vital part of, and inex­ AND PRESERVATION. culture or community. tricably intertwined with, many Native (a) IN GENERAL.—Notwithstanding any (12) NATIVE AMERICAN RELIGIOUS SITE.—The American religions and the religious prac­ other provision of law each Federal agency term "Native American religious site" tices associated with such religions, includ­ shall manage any lands under its jurisdiction means any place or area, including, but not ing the ceremonial use and gathering, har­ in a manner that complies with the provi­ limited to, any geophysical or geographical vesting, or maintaining of natural sub- sions of this Act. area or feature— stances or natural products for those pur­ (b) PLANNING PROCESS.—Each Federal (A) which is sacred to a Native American poses; agency involved in Federal or federally as­ religion; (6) many of these Native American reli­ sisted undertakings, including, but not lim­ (B) where Native American practitioners gious sites are found on lands which were ited to, activities pursuant to the National are required by their religion to gather, har­ part of the aboriginal territory of the Indi­ Forest Management Act (16 U.S.C. 1600 et vest, or maintain natural substances or nat­ ans but which now are held by the Federal seq.), and the Federal Land Policy and Man­ ural products for use in Native American re­ Government, or are the subject of Federal or agement Act (43 U.S.C. 1701 et seq.), shall as ligious ceremonies or rituals or for spiritual federally assisted undertakings; part of its planning process— purposes, including all places or areas where (7) lack of sensitivity to, or understanding (1) consult with Indian tribes and Native such natural substances or products are lo­ of, Native American religions on the part of Hawaiian organizations identified pursuant cated; or Federal agencies has resulted in the absence to section 103, as well as Native American (C) which is utilized by Native American of a coherent policy for the protection of Na­ traditional leaders who can be identified by religious practitioners for ceremonies, rit­ tive American religious sites and the failure the agency to have an interest in the land in uals, or other spiritual practices. by Federal agencies to consider the impacts question; (13) NATIVE AMERICAN TRADITIONAL LEAD- of Federal and federally assisted undertak­ (2) provide for notice of all Federal or fed­ ER.—The term "Native American traditional ings upon Native American religious sites; erally assisted undertakings with the poten­ leader" means any Native American who— (8) the Supreme Court of the United tial to have an impact on certain specified (A) is recognized by an Indian tribe, Native States, in the case of Lyng v. Northwest In­ lands to an Indian tribe, Native Hawaiian or­ Hawaiian organization, or Native American dian Cemetery Association, 485 U.S. 439 (1988) ganization, or Native American traditional traditional organization as being responsible ruled that the free exercise clause of the leader if such tribe, organization, or leader for performing cultural duties relating to the First Amendment does not restrict the Gov­ places the agency on notice, in writing, that ceremonial or religious traditions of the ernment's management of its lands, even if it is interested in receiving notice of all such tribe or traditional organization, or certain governmental actions would infringe undertakings; (B) exercises a leadership role in an Indian upon or destroy the ability to practice reli­ (3) ensure that its land management plans tribe, Native Hawaiian organization or Na­ gion, so long as the Government's action are consistent with the provisions and poli­ tive American traditional organization based does not compel individuals to act in a man­ cies of this Act; and upon its cultural, ceremonial, or religious ner which is contrary to their religious be­ (4) maintain the confidentiality of specific practices. liefs; details of a Native American religion or the (14) NATIVE HAWAIIAN.—The term "Native (9) the holding in the case of Lyng v. significance of a Native American religious Hawaiian" means any individual who is a de­ Northwest Indian Cemetery Association cre- site to that religion in accordance with the May 25, 1993 CONGRESSIONAL RECORD — SENATE S 6459 procedures specifiedinsections 107 and 108 of (c) each Native American traditional lead- tice, except as provided in paragraph (2), the this Act. er known by the agency who may have an in­ governmental agency engaged in the Federal (C) ACCESS.— terest in the land affected by the proposed or federally assisted undertaking shall im­ (1) IN GENERAL.—Unless the President de­ undertaking. mediately discontinue such undertaking termines that national security concerns are (2) LANDS IN HAWAII.—Before a govern- until the agency performs the duties de- directly affected, in which case the provi­ mental agency proceeds on lands in the scribed in paragraphs (3) and (4). sions of section 106 shall apply. Native Amer­ State of Hawaii with any Federal or feder­ (2) INADVERTENT DISCOVERY.—If in the proc­ ican practitioners shall be permitted access ally assisted undertaking that may have an ess of a Federal or federally assisted under- to Native American religious sites located on impact on the exercise of a Native American taking, a Native American religious site is Federal lands at all times, including the religion, the agency shall publish a geo­ inadvertently discovered, the governmental right to gather, harvest, or maintain natural graphical description of the lands affected by agency engaged in the undertaking shall im­ substances or natural products for Native the undertaking (including information on mediately discontinue such undertaking American religious purposes. metes and bounds of lands in question, where until the agency performs the duties set (2) PROHIBITION AGAINST VEHICLES.—Para­ available) and a description of the undertak­ forth in paragraphs (3) and (4). graph (1) does not authorize the use of mo­ ing in a newspaper of general circulation for (3) CONSULTATION.—The governmental torized vehicles or other forms of mecha­ a period of 2 weeks. agency shall consult with any interested nized transport in roadless areas where such (3) DOCUMENTATION.—-The governmental party, including Native American practition­ use is prohibited by law, nor affect the appli­ agency shall fully document the efforts made ers with a direct interest in the Native cation of the Endangered Species Act, except to provide the information to Indian tribes, American religious site in question, concern­ as provided for by section 501(b) of this Act. Native Hawaiian organizations and Native ing the nature of the adverse impact and al­ (3) TEMPORARY CLOSING.—Upon the request American traditional leaders as required by ternatives that would minimize or prevent of an Indian tribe, Native Hawaiian organiza­ this section or any applicable regulations, an adverse impact, including any alter- tion, or Native American traditional leader, guidelines, or policies. natives identified by an Indian tribe, Native the Secretary of the department whose land (c) NOTICE BY TRIBE.— Hawaiian organization, or Native American is involved may from time to time tempo­ (1) IN GENERAL.—Within 90 days of receiv­ traditional leader that has filed a written ob­ rarily close to general public use one or more ing the notice provided under subsection (b), jection under this subsection. specific portions of Federal land in order to or within the time limit of any comment pe­ (4) EVALUATION OF COMMENTS.—The govern- protect the privacy of religions cultural ac­ riod permitted or required by any Federal mental agency shall prepare and make avail- tivities in such areas by Native Americans. law applicable to the Federal or federally as­ able to the tribe, organization or traditional Any such closure shall be made so as to af­ sisted undertaking, whichever is later, an In­ leader, as well as Native American practi­ fect the smallest practicable area for the dian tribe, Native Hawaiian organization, or tioners who have been involved in the con­ minimum period necessary for such pur­ Native American traditional leader invoking sultation process, a document evaluating poses. the protection of this title may provide no­ and responding to the comments received. (d) REGULATIONS.—The Secretary of the In­ tice to the governmental agency whether the -The document shall include an analysis of terior, in consultation with Indian tribes and proposed Federal or federally assisted under- adverse impacts upon the site and the use Native Hawaiian organizations, shall pro­ taking may result in changes in the char­ thereof and an analysis of alternatives to the mulgate uniform regulations relating to— acter or use of one or more Native American proposed action, including any alternative (1) Federal planning processes pertaining religious sites which are located on lands offered by an Indian tribe, Native Hawaiian to the management, use or preservation of with which the Indian tribe or Native Hawai­ organization, or Native American traditional land; and ian organization has aboriginal, historic, or leader submitting a written objection under (2) notice to and consultation with Indian religious ties. paragraph (1) and a no action alternative. tribes, Native Hawaiian organizations, Na­ (2) NO DUTY TO RESPOND.—Paragraph (1) (5) ADDITIONAL INFORMATION.—In any case tive American traditional leaders and Native does not impose a duty upon any Indian where the governmental agency is also re­ American practitioners as required by sec­ tribe, Native Hawaiian organization, or Na­ quired to prepare a document analyzing the tions 103 and 104 of this Act. tive American traditional leader to respond impact of its undertaking or decision pursu­ The regulations shall be sufficiently flexible to any notice under this section. ant to the National Environmental Policy (3) ADDITIONAL INFORMATION.—The Indian Act (43 U.S.C. 4321 et seq.), the National His­ to enable consultation to meet the unique tribe, Native Hawaiian organization, or Na­ needs of Indian tribes, Native Hawaiian orga­ toric Preservation Act (16 U.S.C. 470 et seq.) tive American traditional leader acting pur­ or any other applicable law, such agency nizations, Native American traditional lead­ suant to paragraph (1) may also provide the ers and Native American practitioners. shall incorporate the analysis required by agency with information as to any Native this section into the contents of the docu­ SEC. 103. NOTICE. American traditional leaders or practition­ ment. (a) IDENTIFICATION OF LANDS BY SEC­ ers who should be included in the notice and (b) CASES WHERE SECRECY IS REQUIRED.— RETARY.— consultation requirements of this section (1) IN GENERAL.—In the case of those Indian (1) IN GENERAL—For the purpose of assur­ and section 104. tribes whose traditional religious tenets pro­ ing that a governmental agency properly de­ (d) 90-DAY PROHIBITION AGAINST ACTIVITY hibit disclosure of Information concerning termines whether a proposed undertaking FOLLOWING NOTICE TO TRIBES.—NO action to their Native American religious sites or reli­ will have an impact on the exercise of a Na­ approve, commence, or complete a Federal gious beliefs or practices, and mandate se­ tive American religion and which affected or federally assisted undertaking that is sub­ crecy and internal sanctions to enforce those parties should be provided notice of a pro- ject to this section shall be taken by a gov­ prohibitions, and where the tribal govern­ posed undertaking, the Secretary of the Inte­ ernmental agency for a period of 90 days fol­ ment of the affected Indian tribe so certifies rior, in conjunction with tribal governments, lowing the date on which notice is provided and invokes this subsection— shall identify land areas with which an In­ under subsection (b) to Indian tribes and Na­ (A) the tribal government shall not be re­ dian tribe has aboriginal, historic, or reli­ tive Hawaiian organizations unless or until— quired to reveal the location of the Native gious ties. (1) the matter is resolved pursuant to the American religious site or in what manner (2) ONGOING IDENTIFICATION.—Paragraph (1) procedures of this Act; the undertaking would have an impact on does not preclude a tribal government from (2) the period of consultation required the site or any information concerning their continuing to conduct an ongoing identifica­ under section 104 has been completed; or religious beliefs or practices; tion process, which may supplement the (3) all parties entitled to such notice con- (B) the tribal government shall not be re­ process required by this subsection. sent to a shorter time period. quired to explain in what manner any pro- (b) DUTY OF AGENCIES.— SEC. 104. CONSULTATION. posed alternative is or is not less intrusive (1) TRIBAL LANDS.—Before a governmental (a) IN GENERAL.— upon the adversely affected Native American agency proceeds on lands identified pursuant (1) EFFECT OF NOTICE BY TRIBE.—If an In­ religious practice or religions sites which to subsection (a) with any Federal or feder­ dian tribe, Native Hawaiian organization, or may be adversely affected than the original ally assisted undertaking that may have an Native American traditional leader indicates proposed Federal or federally assisted under- impact on the exercise of a Native American in writing within 90 days of receiving notice taking; and religion, the agency shall provide a geo­ under section 102, or within the time limit of (C) in engaging in consultation and prepar­ graphical description of the lands affected by any comment period permitted or required ing any document required by this Act, the the undertaking (including information on by any Federal law applicable to the Federal governmental agency shall not include an metes and bounds of the lands in question, or federally assisted undertaking, whichever analysis of adverse impacts upon the site or where available) and a description of the un­ is later, that a Federal or federally assisted the use thereof or the Indian tribe's religious dertaking to— undertaking will or may alter or disturb the beliefs and practices. (A) the Secretary of the Interior; integrity of Native American religious sites (2) AFTER CONSULTATION.—If after (B) each Indian tribe which has aboriginal, or the sanctity thereof, or interfere with the consultation— historic, or religious ties to the land affected access thereto, or adversely impact upon the (A) the governmental agency agrees to pur­ by a proposed Federal or federally assisted exercise of a Native American religion or the sue a less intrusive alternative proposed by undertaking; and conduct of a Native American religious prac- the Indian tribe or some other alternative S 6460 CONGRESSIONAL RECORD — SENATE May 25, 1993 which the Indian tribe agrees would be less Federal agency or State shall have the bur- tribe of a Federal or federally assisted under- intrusive; or den of proving that— taking on Indian lands which may result in (B) if no alternative is identified which the (1) it has a compelling interest in pursuing changes in the character or use of a Native Indian tribe agrees is less intrusive; the Federal or federally assisted undertaking American religious site. the governmental agency shall be deemed to or the State action as originally proposed; SEC. 107. APPLICATION OF OTHER LAWS. have met its obligation to consider and pur­ (2) it is essential that the Federal agency's (a) IN GENERAL.—Nothing in this title shall sue the least intrusive alternative under this or State's compelling interest be furthered be construed to deprive any person or entity Act in regard to the objection raised to the as originally proposed; and of any other rights which might be provided Federal or federally assisted undertaking by (3) none of the less intrusive alternatives under the laws, regulations, guidelines, or the Indian tribe invoking this subsection. (if any) identified in the consultation proc­ policies of the Federal, State, and tribal gov­ ess, or by the Indian tribe, will adequately ernments, including but not limited to the (c) RULE OF CONSTRUCTION.—Where the pro- advance that compelling governmental in­ visions of subsection (b) have been invoked, National Historic Preservation Act (16 U.S.C. terest. 470 et seq.), to receive notice of, comment those requirements shall control in all cir­ The Federal agency or State shall retain this cumstances and shall supersede any conflict­ upon, or otherwise participate in the deci­ burden of proof at all stages of any proceed­ sionmaking process regarding a Federal or ing provisions in this Act or any other provi­ ing or decisionmaking process involving an federally assisted undertaking. sion of law. Indian tribe described in section 104(b) as to (d) DISCLOSURE REQUIRED.—within 30 days (b) EXISTING PROCEDURES.—TO the maxi- objections raised by that Indian tribe. mum extent possible, the procedures re­ of receipt of any written objection under (c) FAILURE OF AGENCY TO MEET BURDEN.— quired by this Act shall be incorporated into subsection (a), the governmental agency pro- If a Federal agency or State does not meet existing procedures applicable to the man­ posing the Federal or federally assisted un­ its burden of proof under this section, it agement of Federal lands and decisionmak­ dertaking which gave rise to that notice shall not proceed with the proposed under- ing processes of Federal agencies engaged in shall disclose to and shall make available to taking. For purposes of this section and sec­ Federal or federally assisted undertakings. the objecting party, all plats, maps, plans, tion 501, the phrase "burden of proof means SEC. 108. CONFIDENTIALITY. specifications, socioeconomic, environ­ the burden of production and the burden of mental, scientific archaeological or histori­ persuasion. (a) IN GENERAL.—Notwithstanding any cal studies, and comments and information other provision of law, whenever information (d) ESTABLISHMENT OF ADMINISTRATIVE has been obtained as a result of or in connec­ in that agency's possession bearing on said PROCEDURE.— undertaking. tion with a proceeding pursuant to section (1) IN GENERAL.—A Federal agency may, by 105 or 501 or consultation pursuant to sec­ (e) SPECIAL RULE FOR PUEBLOS REGARDING regulation, establish an administrative pro­ tions 102 and 104, all references pertaining STANDING.—In the case of a proposed Federal cedure to implement the requirements of to— or federally assisted undertaking affecting this section. (1) specific details of a Native American re­ the management, use, or preservation of pub­ (2) EXHAUSTION REQUIREMENT.—An ag­ ligion or the significance of a Native Amer­ lic land involving potential adverse religious grieved party must use a procedure estab­ lished under paragraph (1) before filing an ican religious site to that religion; or impacts on any of the Indian pueblos of New (2) the location of that religious site; Mexico or any of their religious sites, the action in a Federal court pursuant to section 501(a). shall be deleted from the record of a Federal only party with standing to file an objection agency or court before the record is released or participate in consultation under this sec­ (3) NEW FACTUAL FINDINGS.—If an action is to any party or the general public pursuant tion, or to file an action under section 105 or filed in Federal court after exhaustion of ad­ to the Freedom of Information Act (5 U.S.C. 501, shall be the governor of the affected ministrative remedies, the court shall not 552) or any other applicable law. pueblo or the governor's designee. defer to the factual findings of the Federal agency, but shall make its own factual find­ (b) SUPPLEMENTATION OF RECORD.—The SEC. 105. BURDEN OF PROOF. ings based upon the record compiled by the agency or court shall supplement the record (a) IN GENERAL.— Federal agency as well as other evidence described in subsection (a) to include the (1) BURDEN ON AGGRIEVED PARTY.—Except that may be permitted by the court under general results and conclusions of the admin­ as provided in subsection (b), in any action Federal law. istrative or judicial review to the extent nec­ brought under section 501(a), the aggrieved SEC. 106. TRIBAL AUTHORITY OVER NATIVE essary to provide other interested parties party shall have the burden of proving that AMERICAN RELIGIOUS SITES ON IN­ with sufficient information to understand the Federal or federally assisted undertaking DIAN LANDS. the nature of, and basis for, a decision by the or the State action having an impact upon (a) RIGHT OF TRIBE.—All Federal or feder­ Federal agency or court. the management, use, or preservation of pub­ ally assisted undertakings on Indian lands (c) EXCEPTIONS.—This section shall not lic land, is posing or will pose a substantial which may result in changes in the character apply— threat of undermining or frustrating a Na­ or use of a Native American religious site or (1) where all parties to a proceeding (ex­ tive American religion or a Native American which may have an impact on access to a Na­ cluding the Federal Government) waive its religious practice. tive American religious site shall, unless re- application, and (2) BURDEN ON AGENCY.—If the aggrieved quested otherwise by the Indian tribe on (2) in case of a Native Hawaiian religious party meets its burden of proof under para- whose lands the undertakings will take site, where the information is sought by a graph (1), the Federal agency or State shall place, be conducted in conformance with the Native Hawaiian organization for the pur­ have the burden of proving that the govern- laws or customs of the tribe. pose of protecting such site. mental interest in the Federal or federally (b) AGREEMENTS.—Any governmental agen­ (d) OTHER LAW.—Indian tribes, Native Ha­ assisted undertaking or the State action is cy proposing a Federal or federally assisted waiian organizations, Native American tra­ compelling. undertaking on Indian lands which may re­ ditional leaders, and Native American prac­ (3) LEAST INTRUSIVE COURSE OF ACTION.—If sult in changes in the character or use of a titioners seeking to maintain the confiden­ the aggrieved party fails to meet its burden Native American religious site or which may tiality of information relating to Native of proof under paragraph (1), but establishes have an impact upon access to a Native American religious sites may also seek re- that the Federal or federally assisted under- American religious site, may enter into an dress through existing laws requiring that taking or the State action will alter or dis­ agreement with the Indian tribe on whose certain information be withheld from the turb the integrity of a Native American reli­ lands the undertaking will take place for public, including, but not limited to the Na­ gious site or the sanctity thereof, or will purposes of assuring conformance with the tional Historic Preservation Act (16 U.S.C. have an adverse impact upon the exercise of laws or customs of the tribe. 47Ow-3) and the Archaeological Resources a Native American religion or the conduct of (c) PROTECTION BY TRIBES.—Indian tribes Protection Act (16 U.S.C. huh). a Native American religious practice, or if may regulate and protect Native American SEC.109.CRIMINALSANCTIONS. the Federal agency or State meets its burden religious sites located on Indian lands. (a) DAMAGING RELIGIOUS SITES.— of proof in paragraph (2), the Federal agency (d) OTHER AUTHORITIES.— (1) INITIAL VIOLATION.—Any person who or State shall have the burden of proving (1) SOVEREIGN AUTHORITY OF TRIBES.—The knowingly damages or defaces a known Na­ that it has selected the course of action least provisions of this section are in addition to tive American religious site located on Fed- intrusive on the Native American religious and not in lieu of the inherent sovereign au- eral land, except as part of an approved Fed- site or the Native American religion or reli- thority of Indian tribes to regulate and pro- eral or federally assisted undertaking or an gious practice. tect Native American religious sites located action authorized by a governmental agency (b) CASES WHERE SECRECY IS REQUIRED.—In on Indian lands. with the authority to approve such activity, the case of any proceeding involving a Na- (2) NATIONAL SECURITY.—The provisions of shall, upon conviction, be fined not more tive American religious site or associated re- this section shall not apply if the President than $10,000, or imprisoned not more than 1 ligious practices of an Indian tribe described determines that national security concerns year, or both. in section 104(b), if the Indian tribe objects are directly affected by a Federal or feder- (2) SUBSEQUENT VIOLATIONS.—In the case of to the Federal or federally assisted under- ally assisted undertaking. a second or subsequent violation, a person taking or State action based upon any of the (3) DUTY TO NOTIFY.—This section does not shall be fined not more than $100.000, or im­ grounds specified in section 104(a), the provi- relieve a governmental agency of any duty prisoned not more than 5 years, or both. sions of section 104(b) shall apply and the pursuant to section 103 to notify an Indian (b) RELEASE OF INFORMATION.— May 25, 1993 CONGRESSIONAL RECORD — SENATE S 6461 (1) INITIAL VIOLATION.—Any person who port, cultivate, harvest or distribute peyote General and the Congress a report knowingly releases any information required as may be consistent with the purpose of this containing— to be held confidential pursuant to this title title. (A) an Institution-by-institution assess­ shall, upon conviction, be fined not more (c) TEXAS LAW.—This section does not pro­ ment of the recognition, protection, and en­ than $10,000, or imprisoned not more than 1 hibit application of the provisions of section forcement of the rights of Native American year, or both. 481.111(a) of Vernon's Texas Code Annotated, prisoners to practice their religions under (2) SUBSEQUENT VIOLATIONS.—In the case of in effect on the date of enactment of this this Act; and a second or subsequent violation, be fined Act, insofar as those provisions pertain to (B) specific recommendations for the pro­ not more than $100,000, or imprisoned not the cultivation, harvest or distribution of pe­ mulgation of regulations to implement this more than 5 years, or both. yote. Act. TITLE II—TRADITIONAL USE OF PEYOTE TITLE III—PRISONERS' RIGHTS (3) COMPOSITION OF COMMISSION.—The Com­ SEC. 201. FINDINGS. SEC. 301. RIGHTS. mission shall consist of 5 members, at least The Congress finds that— (a) IN GENERAL.— 3 of whom shall be Native Americans and— (1) some Indian people have used the pe­ (1) ACCESS.—Notwithstanding any other (A) at least 1 of whom shall be a Native yote cactus in religious ceremonies for sac­ provision of law, Native American prisoners American traditional leader; ramental and healing purposes for many gen­ who practice a Native American religion (B) at least 1 of whom shall be a Native erations, and such uses have been significant shall have, on a regular basis comparable to American ex-offender; and in perpetuating Indian tribes and cultures by that access afforded prisoners who practice (C) at least 1 of whom shall be a Native promoting and strengthening the unique cul­ Judeo-Christian religions, access to— American woman. tural cohesiveness of Indian tribes; (A) Native American traditional leaders (4) NOMINATIONS.—The Native American (2) since 1985, this religious ceremonial use who shall be afforded the same status, rights members selected under paragraph (2) shall of peyote by Indians has been protected by and privileges as religious leaders of Judeo- be appointed from nominations submitted by Federal regulation, which exempts such use Indian tribes, Native Hawaiian organizations Christian faiths; and Native American traditional leaders. from Federal laws governing controlled sub- (B) subject to paragraph (6), items and ma­ stances, and the Drug Enforcement Adminis­ terials utilized in religious ceremonies; and (5) CHAIRPERSON.—The Commission shall tration has manifested its continuing sup- select 1 of its members to serve as Chair- (C) Native American religious facilities. person. port of this Federal regulatory system; (2) MATERIALS.—Items and materials uti­ (3) the State of Texas encompasses vir­ lized in religious ceremonies are those items (6) COMPENSATION.—Each member of the tually the sole area in the United States in and materials, including foods for religious Commission who is not a Federal employee which peyote grows, and for many years has shall be compensated at a rate equal to the diets, identified by a Native American tradi­ daily equivalent of that prescribed for level administered an effective regulatory system tional leader. Prison authorities shall treat which limits the distribution of peyote to In­ V of the Executive Schedule under section these items in the same manner as the reli­ 5316 of title 5, United States Code. All mem­ dians for ceremonial purposes; gious items and materials utilized in cere­ (4) while numerous States have enacted a monies of the Judeo-Christian faith. bers of the Commission while away from home or their place of business, in the per­ variety of laws which protect the ceremonial (3) HAIR.— use of peyote by Indians, many others have formance of the duties of the Commission, (A) RIGHT OF PRISONER.—Except in those shall be allowed travel and other related ex­ not, and this lack of uniformity has created circumstances where subparagraph (B) ap­ hardships for Indian people who participate penses, including per diem in lieu of subsist­ plies. Native American prisoners who desire ence, in the same manner as persons em­ in such ceremonies; to wear their hair according to the religious (5) the traditional ceremonial use by Indi­ ployed intermittently in Government serv­ customs of their Indian tribes may do so pro­ ices are allowed expenses under section 5703 ans of the peyote cactus is integral to a way vided that the prisoner demonstrates that— of life that plays a significant role in com­ of title 5, United States Code. (i) the practice is rooted in Native Amer­ (7) STAFF.—The Commission may hire, bating the scourge of alcohol and drug abuse ican religious beliefs; and among some Indian people; without regard to the provisions of title 5, (ii) these beliefs are sincerely held by the United States Code, governing appointments (6) the United States has a unique and spe­ Native American prisoner. cial historic trust responsibility for the pro­ in the competitive service, and may pay (B) DENIAL OF REQUEST.—If a Native Amer­ without regard to the provisions of chapter tection and preservation of Indian tribes and ican prisoner satisfies the criteria in para- cultures, and the duty to protect the con- 51, and subchapter III of chapter 52 of such graph (3)(A), the prison authorities may deny title relating to classification and General tinuing cultural cohesiveness and integrity such request only where they can dem­ of Indian tribes and cultures; Schedule pay rates, such staff as necessary onstrate that the legitimate institutional to fulfill its duties under this section. In ad­ (7) it is the duty of the United States to needs of the prison cannot be met by viable protect and preserve tribal values and stand­ dition, the Commission may request any less restrictive means which would not cre­ Federal department or agency to make ards through its special historic trust re­ ate an undue administrative burden. sponsibility to Indian tribes and cultures; available to the Commission personnel on a (4) DEFINITION OF "RELIGIOUS FACILITIES".— nonreimbursable basis, to assist the Commis- (8) existing Federal and State laws, regula­ The term "religious facilities" includes tions and judicial decisions are inadequate sion in fulfilling such duties. sweat lodges, teepees, and access to other se­ (8) TERMINATION.—The Commission shall to fully protect the ongoing traditional uses cure, out-of-doors locations within prison of the peyote cactus in Indian ceremonies; cease to exist upon the expiration of the 60- grounds if such facilities are identified by a day period following the date of submission (9) general prohibitions against the abusive Native American traditional leader to facili­ use of peyote, without an exception for the of its report to the Congress. tate a religious ceremony. TITLE IV—RELIGIOUS USE OF EAGLES bona fide religious use of peyote by Indians, (5) DISCRIMINATION PROHIBITED.—No Native lead to discrimination against Indians by American prisoner shall be penalized or dis­ AND OTHER ANIMALS AND PLANTS reason of their religious beliefs and prac­ criminated against on the basis of Native SEC. 401. RELIGIOUS USE OF EAGLES tices; and American religious practices, and all prison (a) IN GENERAL.—Within 1 year after the (10) as applied to the traditional use of pe­ and parole benefits or privileges extended to date of enactment of this Act, the Director yote for religious purposes by Indians, other- prisoners for engaging in religious activity of the United States Fish and Wildlife Serv­ wise neutral laws and regulations may serve shall be afforded to Native American pris­ ice (hereafter in this section referred to as to stigmatize and marginalize Indian tribes oners who participate in Native American re­ the "Director") shall, in consultation with and cultures and increase the risk that they ligious practices. Indian tribes and Native American tradi­ will be exposed to discriminatory treatment. (6) SCOPE OF SUBSECTION.—Paragraph (1) tional leaders, develop a plan to— SEC.202.TRADITIONALUSEOFPEYOTE. shall not be construed as requiring prison (1) ensure the prompt disbursement from (a) IN GENERAL.—Notwithstanding any authorities to permit (nor prohibit them Federal repositories of available bald or other provision of law, the use, possession, or from permitting) access to peyote or Native golden eagles, or their parts, nests, or eggs transportation by an Indian of peyote for American religious sites. for the religious use of Indians upon receipt bona fide ceremonial purposes in connection (b) COMMISSION TO INVESTIGATE RELIGIOUS of an application from a Native American with the practice of a Native American reli­ FREEDOM.— practitioner; gion by an Indian is lawful and shall not be (1) IN GENERAL.—The Attorney General (2) provide that sufficient numbers of bald prohibited by the Federal Government or shall establish the Commission on the Reli­ or golden eagles are allocated to Native any State. No Indian shall be penalized or gious Freedom of Native American Prisoners American practitioners to meet the dem­ discriminated against on the basis of such (hereafter in this section referred to as the onstrated need where they are available by use, possession or transportation, including, "Commission") to investigate the conditions reason of accidental deaths, natural deaths, but not limited to, denial of otherwise appli­ of Native American prisoners in the Federal or takings permitted by Federal law; and cable benefits under public assistance pro- and State prison systems with respect to the (3) simplify and shorten the process by grams. free exercise of Native American religions. which permits are authorized for the taking, (b) REGULATION AUTHORIZED.—This section (2) REPORT.—Not later than 36 months possession, and transportation of bald or does not prohibit such reasonable regulation after the date of enactment of this Act, the golden eagles, or their parts, nests, or eggs and registration of those persons who im­ Commission shall submit to the Attorney for the religious use of Indians. S 6462 CONGRESSIONAL RECORD — SENATE May 25, 1993 (b) CONSULTATION WITH REGIONAL ADVISORY SEC. 403. OTHER ANIMALS AND PLANTS. SEC. 603. AUTHORIZATION OF APPROPRIATIONS COUNCILS.— In developing the plan required (a) PLAN.—Within 1 year after the date of There are hereby authorized to be appro­ by subsection (a), the Director shall consult enactment of this Act, the Director of the priated such sums as may be necessary to with the Regional Advisory Councils estab­ United States Fish and Wildlife Service carry out the provisions of this Act. lished pursuant to subsection (c) to deter- shall, in consultation with Indian tribes and SEC.604.EFFECTIVEDATE. mine whether these goals might best be met Native American traditional leaders, develop This Act takes effect on the date of its en­ by decentralizing the system for the dis­ a plan to implement the recommendations of actment. Application and enforcement of bursement of bald or golden eagles or their the President's 1979 American Indian Reli­ this Act does not depend upon the promulga­ parts, nests, or eggs for Native American re­ gious Freedom Task Force Report regarding tion of regulations by any governmental ligious purposes. the disposition of surplus plant and animal agency.• (c) REGIONAL ADVISORY COUNCILS.— products by Federal agencies. Mr. HATFIELD. Mr. President, I am (1) ESTABLISHMENT.—Within 120 days after (b) ASSESSMENT.—In developing this plan, pleased today to cosponsor the Native the date of enactment of this Act, the Re­ the Director shall— American Free Exercise of Religion gional Directors of the United States Fish (1) assess the availability of surplus ani­ and Wildlife Service shall establish Regional mals, plants or parts from Federal agencies; Act of 1993. Earlier this year, I rejoined Advisory Councils. (2) determine whether there is a need for the Committee on Indian Affairs after (2) COMPOSITION.—Each Regional Advisory such parts for religious purposes by Native having served on the committee in the Council shall consist of 3 Native American American practitioners; and 95th and 96th Congresses. I am very traditional leaders appointed by each Re­ (3) evaluate the feasibility of developing a much looking forward to working gional Director of the United States Fish joint uniform set of regulations to govern again on such important issues as reli­ the disposition of surplus animals, plants or INOUYE, and Wildlife Service from nominations sub­ parts which have been confiscated or gath­ gious freedom with Chairman mitted by Indian tribes and Native American ered under the jurisdiction and control of Vice Chairman MCCAIN, and the many traditional leaders located within the region. Federal agencies. other distinguished members of the (3) DUTIES.—The Regional Directors and committee. the Regional Advisory Councils, in consulta­ TITLE V—JURISDICTION AND REMEDIES tion with Indian tribes and Native American SEC. 501. JURISDICTION AND REMEDIES. The issue addressed by the Native traditional leaders, shall— (a) IN GENERAL.—Any appropriate United American Free Exercise of Religion (A) develop a plan to— States district court shall have original ju­ Act drives to the very heart of what (i) ensure that all bald and golden eagles risdiction over a civil action for equitable or this country should, and indeed does, and their parts, nests, or eggs which are re- other relief, including damages, brought by represent to other nations all around covered within the region are promptly an aggrieved party against the United States the globe. The protection that we af­ transmitted to and collected by the United or a State, to enforce the provisions of this ford the free exercise of religion stands States Fish and Wildlife Service and made Act. as a sterling example to the rest of the available for distribution as provided by law (b) BURDEN OF PROOF.— world of what a free thinking society and consistent with the plan developed by (1) IN GENERAL.—Except as provided in ti­ must demand of its government. the Director pursuant to subsection (a); and tles I through III, if an aggrieved party (ii) expedite the review and approval of meets the burden of proving that a govern- As Americans, most of us take these permit applications at each regional level; mental action restricts or would restrict the religious freedoms for granted. We (B) consult with the Director regarding the practitioner's free exercise of religion, the grow up worshipping every week or advisability of decentralizing the distribu­ governmental authority shall refrain from every day without thinking about the tion system; and such action unless it can demonstrate that application of the restriction to the practi­ daily persecution that our ancestors (C) monitor the operation of the collection, suffered before coming to this great permit, and, if applicable, the distribution tioner is essential to further a compelling system at the regional level. governmental interest and the application is land. Continuing from the colonial pe­ (4) COMPENSATION.—Members of the Re­ the least restrictive means of furthering that riod through today, there has been a gional Advisory Councils established under compelling governmental interest. constant flow of people into this coun­ paragraph (1) of this section shall serve with- (2) SPECIAL RULE FOR NATIVE AMERICAN try who have found refuge in the great out pay, but shall be reimbursed at a rate PRACTITIONERS.—The burden of proof for a ideals of those who founded this new equal to the daily rate for GS-18 of the Gen­ Native American practitioner is a showing of concept of freedom. eral Schedule for each day (including travel any evidence that a restriction upon the But, just as the first amendment was time) for which the member is actually en- practitioner's free exercise of religion exists gaged in council business. Each member as a result of Federal or State action. Native created by the Founding Fathers to shall receive travel expenses, including per American practitioners may elect to provide protect themselves and their posterity diem in lieu of subsistence, in accordance testimony about their beliefs in camera or in from persecution as suffered in Europe, with sections 5702 and 5703 of title 5, United some other protective procedure. so must it continue to protect the free States Code. (c) ATTORNEY'S FEES.—An aggrieved party exercise of religion for those Ameri­ (d) TRIBAL LAW.—If bald or golden eagles who is a prevailing party in any administra­ cans whose ancestors were already on or their parts, nests, or eggs are discovered tive or judicial proceeding brought pursuant this land when our new Nation was on Indian lands and the Indian tribe on to this Act shall be entitled to attorney's formed. The rich diversity that we whose land the eagles or their parts, nests, fees, expert witness fees, and costs under the enjoy in this country demands that or eggs were discovered has established or es­ provisions of section 504 of title 5, United tablishes, by tribal law or custom, a proce­ States Code, and section 2412 of title 28, practices which are an integral part of dure for— United States Code. a culture, tradition, and heritage be (1) issuance of tribal permits to Native TITLE VI—MISCELLANEOUS protected. American practitioners, and SEC. 601. SAVINGS CLAUSE. As of late, some question has arisen (2) distribution of bald or golden eagles or Nothing in this Act shall be construed as regarding this country's commitment their parts, nests, or eggs in accordance with abrogating, diminishing, or otherwise to protecting the free exercise of reli­ tribal religious custom, affecting— gion for all Americans. This is espe­ the Indian tribe may distribute said bald or (1) the inherent rights of any Indian tribe; cially evident in some recent decisions golden eagles or their parts, nests, or eggs to (2) the rights, express or implicit, of any of the Supreme Court. In my home Native American practitioners in accordance Indian tribe which exist under treaties, Ex­ State of Oregon, we are very familiar with such tribal law or custom. ecutive Orders and laws of the United States; with one of the cases. Employment Divi­ (e) SCOPE OF SUBSECTION (d).—Subsection and (d) applies only to eagles which have died by (3) the inherent right of Native Americans sion v. Smith, 494 U.S. 872 (1990). In this reason of accidental deaths or natural deaths to practice their religions. instance the court held that an Oregon and does not authorize the taking of live ea­ SEC.602.SEVERABILITY. State law of general affect could gles which, subject to standards established If any title or section of this Act, or any abridge the free practice of religious in section 501(b), shall continue to be gov­ provision or portion thereof, is declared to be rituals such as use of peyote by bona erned by regulations promulgated by the unconstitutional, invalid, or inoperative in fide members of the Native American United States Fish and Wildlife Service. An whole or in part, by a court of competent ju­ Church. Indian tribe under subsection (d) shall pro- risdiction, such title, section, provision or vide an annual report by March 31 of each portion thereof shall, to the extent it is not I have also cosponsored the Religious year to the United States Fish and Wildlife unconstitutional, invalid, or inoperative, be Freedom Restoration Act which would Service summarizing the number and type of enforced and effectuated, and no such deter­ return the law to pre-Smith status. bald and golden eagles and their parts, nests, mination shall be deemed to invalidate or And while I believe that the impact of and eggs that have been discovered and dis­ make ineffectual the remaining provisions of this debate reaches far beyond any par­ tributed during the previous calendar year. the title, section, or provision. ticular religion, I believe that the spe- May 25, 1993 CONGRESSIONAL RECORD — SENATE S 6463 cific provisions in the Native American ples of the wrong we intend to right, in this is not meant to refer to some spir­ Free Exercise of Religion Act address­ a brief hearing here in Washington, but itual Jerusalem, some paradise in the ing the Smith decision are needed to as consultants on the very elements of afterlife. It is a reference to the real ensure protection for native American the bill itself. city and the real place. Of course, practices. Throughout the series of hearings today there is serious controversy In addition, it is important that an- held around the country on NAFERA, around what part of Israel should be other decision, Lyng v. Northwest In­ one theme repeated itself over and over considered sacred to Jews and what dian Cemetery Association, 485 U.S. 439 again: our traditional understanding of parts can be returned to the Palestin­ (1988), not be allowed to continue to how to protect religious freedom, based ian people. But my main point here is deny native American input into Gov­ on a European understanding of reli­ that as a Jew, I do not find it at all ernment actions that might affect his­ gion, is insufficient to protect the strange that a people should mark torically sacred sites. These lands and rights of the first Americans. I believe their history and the history of their natural formations are integral to the that the bill we are introducing today spirituality in real, concrete places. exercise of many native American reli­ will move this country toward a broad­ Jews have often done this. So, I might gious ceremonies involving the phys­ er definition of religion and, in doing add, have many other peoples. ical environment, water, plants, and so, make it possible for all Americans What we are talking about here is animals associated with those sites. to enjoy the freedom to worship in not religion in the sense it is often un­ Similarly, it is only fitting that na­ their own manner. derstood in the United States. Reli­ tive American prisoners who practice a About a year ago, the distinguished gion, for traditional native Americans, native American religion should have anthropologist Jack Weatherford, who is not some set of practices easily dis­ access to traditional leaders and facili­ teaches at Macalester College in St. tinguished from everyday life, accom­ ties comparable to the access afforded Paul, published a stirring opinion piece plished in specific buildings, with par­ prisoners who practice Judeo-Christian in the Minneapolis Star-Tribune, call- ticular religious authorities presiding. religions. However, it is reasonable to ing on Congress to guarantee the rights Instead, religion is deeply intertwined place certain limits on these freedoms of native Americans to worship in their with the very fabric of native Amer­ such as allowing prison authorities to traditional ways, on their traditional ican cultural identities. At our hearing deny prisoners access to peyote and re­ sacred sites. Professor Weatherford in Minnesota we heard witnesses speak ligious sites. wrote, and I am quoting directly here, in moving terms about these ties and These examples of issues addressed that: about the importance of traditional by the Native American Free Exercise Of all the spiritual suffering a people can spirituality in their everyday lives. of Religion Act illuminate the very es­ undergo, the separation from traditional re­ But, again, I want to stress some par­ sence of the words of the first amend­ ligious sites seems to be one of the most allels here. How often have we heard ment. More than just a long set of painful and often one of the most difficult to the debate about whether Judaism is a clauses in an aged document, these justify by any government, for religions such culture or a religion? In the end, for as Judaism, Islam, Taoism, Hinduism and words constitute an assurance of free­ Christianity, the sacred site usually is a most Jews, you cannot separate the dom granted by the Government to all temple, church, monastery or shrine. For the two. The same is true for native Ameri­ people. No one religion is above any native peoples who follow traditional ways of cans. other; no philosophy reigns supreme. worship, the site more often is a sacred I think that it is clear that when we As Americans, each of us is assured brook, a quiet forest, a rocky promontory, a talk about religious freedom for native protection, within reasonable bound­ special lake or some other natural spot that Americans, our first problem is to clear aries, to practice our sincerely held re­ has not been transformed into a man-made up the obvious misunderstandings ligious faiths as we believe. Almost ev­ edifice. about what is under consideration. For eryday news of barbaric actions in This sort of suffering, as Professor native Americans, religion means other countries reminds us all too well Weatherford and many others have something different than it does for the of why this constitutional protection is noted, occurs all over this country, dominant religions in this country. But just as critical now as it was when rati­ every day. Indian sacred sites are de­ once we understand what that meaning fied over 200 years ago. I commend stroyed by builders, sometimes even on is, it should be a simple matter for us Chairman INOUYE for his work in ad- Federal lands. Indians are prevented to understand that their freedom to dressing this difficult issue and urge from practicing forms of worship that worship ought to be guaranteed. I am swift passage of this bill. require isolation, peace, and quiet be- sure that I do not need to remind my Mr. WELLSTONE. Mr. President, I cause their sites are invaded by tour- colleagues that freedom of religion is am pleased to join today with Senator ists. In other cases, conflicts erupt one of the fundamental rights provided INOUYE in sponsoring the Native Amer­ around traditional practices simply be- for every citizen of this country. ican Free Exercise of Religion Act of cause non-Indians do not understand But I think we need to go just a little 1993 [NAFERA]. Senator INOUYE is to them and feel threatened by them. This further in our understanding of this be congratulated not only for introduc­ has often been the case with the ritual question. The Congress of the United ing this legislation today, but for the use of peyote. This lack of understand­ States, and with it, the entire Federal leadership he has shown in putting to­ ing has also played a role in the dif­ Government, has an obligation to pro­ gether the bill. Senator INOUYE and his ficulties Indian inmates have faced in tect the rights of Indian tribes. This is staff have spent a great deal of time on having access to traditional practition­ called the trust relationship. I want to the road, traveling around the country, ers when in prison. Mr. President, it is stress that while there are general rea­ listening to native Americans, reli­ time for us to find a way to put an end sons of religious freedom behind the gious leaders, constitutional scholars, to these difficulties and to provide na­ legislation we are introducing today, and others before writing this final ver­ tive Americans with the same chances the Native American Free Exercise of sion of the bill. He worked closely with for freedom of worship that we already Religion Act of 1993, is needed because native groups in many States in order provide to most other Americans. we have an obligation to protect Indian to see that their concerns were met in I think that I can, as a Jewish Amer­ rights to free worship. The question is the proposed legislation. I am proud to ican, make a claim to a special under- not, should we protect Indian religious note that one of the many field hear­ standing of some of the issues at stake freedom? Instead, we must ask, how ings on this legislation took place in here. Every year, for the past 2,000 can we best live up to our obligation to my State, Minnesota, and I think that years, Jews have celebrated the holi­ protect that freedom? some of the views expressed there have day of Passover, commemorating the This is an important question, be- had some impact on the form this leg­ exodus of our ancestors from slavery in cause one might legitimately want to islation has finally taken. This is, Mr. Egypt and their eventual return to the ask why we need a bill to address spe­ President, a good example for all of us land of Israel. And every year, every cifically the religious freedom of na­ to follow—a legislative process in Jewish family has finished its ritual tive Americans, instead of a bill that which the people affected by the legis­ dinner, the seder, with the phrase, addresses all religious at one time. lation are included, not just as exam­ "next year in Jerusalem." To many, There is, of course, such a bill, the Re- S 6464 CONGRESSIONAL RECORD — SENATE May 25, 1993 ligious Freedom Restoration Act under the first amendment." In other deep commitment to the goal of reli­ [RFRA], which has been recently intro­ words, in Lyng, Indian religions were gious freedom, I have reluctantly de­ duced by my colleague from Massachu­ understood as if they were just like cided not to cosponsor this bill. setts, Senator KENNEDY, and of which I other religions, a set of beliefs with no Owing to the high level of interest in am an original co-sponsor. I believe particular attachment to the land. this issue, and because I do not want that there is a strong argument to be RFRA provides no way to address the anyone to misinterpret my decision made that both of these bills ought to specificity of native religious prac­ not to cosponsor this measure as being be made into law. RFRA is designed to tices. In NAFERA. we do. Mr. Presi­ insensitive to the religious beliefs held respond in a very general way to judi­ dent, we cannot rely on RFRA to pro­ by native Americans, I have decided to cial decisions that have been made in tect native American religion. We need make this statement for the RECORD. recent years restricting the right to to pass NAFERA as well. I am sure This statement provides my general free practice of religion. It will restore that upcoming hearings on NAFERA view on this issue and highlights a few the compelling interest test as the con­ will further build the case I have out- of the specific concerns I have about stitutional standard for the free exer­ lined here. the bill. cise of religion. It sets a standard of a Mr. President, if we are to guarantee First, as some individuals will recall, "least restrictive means" for further­ the religious freedom of native Ameri­ I introduced S. 1124, the American In­ ing any compelling government inter­ cans we need to make sure that all dian Religious Freedom Act Amend­ est in restricting free exercise. I want Americans understand that traditional ments of 1989, in the 101st Congress. to stress that these standards worked native religions are different from Representative Udall introduced simi­ well for many years, for most religions those we usually have in mind when we lar legislation in the House and both in this country. And that is a very good speak of religious freedom. NAFERA is bills were the subject of hearings in the reason to support RFRA. designed with native specificity in 101st Congress. While S. 1124 only ad- But leaving the definition of such mind and, if passed, it will provide the dressed the issue of access to sacred standards up to the judiciary has not means to protect native practices and sites, the bill set forth my general view proven very effective for native Amer­ to educate the public about those prac­ that as a result of the enormous con­ ican religions. In NAFERA, on the tices. The support of a broad spectrum troversy among native Americans, Fed­ other hand, we provide language that of religious groups shows that that eral officials, and other parties, regard­ makes clear the particularities of na­ educational process is already under- ing the interpretation and implementa­ tive religious practices we intend to way. If we pass this bill, we can go even tion of AIRFA, the Congress had to address. Historically, Indian law and further in that process. What we are provide further guidance for the resolu­ policy have been defined by the judici­ seeking is to find a way to preserve the tion of the conflicts between the con­ ary because we have often not made rights of native Americans to worship cepts inherent in Indian and native cul­ our intentions very clear here in Con­ freely, in their own manner, the spirits tures and Federal land management gress. With this bill, we are making our of their choosing. We are looking for practices. This balance of competing intentions very clear. Native Ameri­ the means to end the spiritual suffer­ interests must be fully informed by the cans deserve the same religious free­ ing of many native Americans de- Constitution, our moral and legal obli­ doms as all other Americans and, if scribed by Professor Weatherford. This gations to native Americans, and the their religious priorities are very dif­ bill is good public policy, Mr. Presi­ legitimate interest of the Federal Gov­ ferent from those of other Americans, dent. I would like, once more, to thank ernment in the sound management of we can use this bill to make sure that Senator INOUYE for introducing it and Federal lands for the benefit of all those differences are understood by the call upon my colleagues to join me in Americans. courts. For this reason alone, NAFERA support of it. Under S. 1124, Federal lands which is needed in addition to RFRA. Mr. MCCAIN. Mr. President, today are considered sacred and indispensable Yet there is another area where Senator INOUYE. the distinguished to a native American religion and are RFRA does not address in any clear chairman of the Committee on Indian necessary to the conduct of that reli­ way the specific needs of Native Amer­ Affairs, has introduced the Native gion were entitled to protection. These ican religious practice. As Prof. Philip American Free Exercise of Religion lands could not have been managed in Frickey, of the University of Min­ Act of 1993. This bill involves a very a way that would have posed a substan­ nesota Law School, said in his testi­ complicated area of law which pro­ tial and realistic threat of undermining mony before the Indian Affairs Com­ vokes strong and deeply held views. I and frustrating the native American mittee, RFRA fails to clearly address want to commend Chairman INOUYE for religion or religious practice. Under the fundamental issue of native access his leadership on this important issue. that bill, Federal officials were granted to sacred sites. While, as Professor As is his usual custom, Senator INOUYE latitude to carry out legal responsibil­ Frickey points out, RFRA is designed has already invested a considerable ities of the Federal Government; to to restore the compelling interest/least amount of personal time chairing field protect a compelling governmental in- restrictive means tests, in the impor­ hearings and conducting meetings to terest, or to protect a vested property tant Lyng case, where a road was built ascertain the concerns and views of right. These land management officials across a sacred site, the court decided tribal and traditional religious leaders. were required, to the greatest extent that the Government's action did not These consultations have led to the in- feasible, to select the course of action burden native religious practice be- troduction of this bill which seeks to that would have been the least intru­ cause, and I am citing Professor advance the policy established in 1978 sive on traditional native American re- Frickey's testimony here, it did not under the American Indian Religious ligions or religious practices. Nothing " 'coerce' native Americans 'into vio­ Freedom Act [AIRFA]. in S. 1124 compelled a Federal official lating their religious beliefs' or 'penal­ Mr. President, for the past several to totally deny public access to Federal ize religious activity by denying any weeks a number of Indian tribes and lands. The bill established explicit bur- person an equal share of the rights, members of the American Indian Reli­ dens of proof for all parties in any judi­ benefits, or privileges enjoyed by other gious Freedom Coalition have written cial challenge to a Federal land man­ persons'." Professor Frickey goes on to to me urging my cosponsorship of this agement decision. Petitioners in such say that "Lyng thus arguably rede­ bill. I want to thank everyone who has cases would have been required to fined a 'burden' on the free exercise of taken the time to share with me their prove that the Federal decision posed a religion to include only coercion or concerns regarding Indian religious substantial and realistic threat of un­ penalties surrounding the practice of freedom issues. I want to convey to the dermining and frustrating a traditional religion, and to exclude the destruction Indian tribes, religious leaders, and co­ native American religion or religious of religious beliefs. Because the RFRA alition members my hope that this bill practice. If this burden of proof was provides no independent, congressional will spark a genuine consensus on the met, the Federal agency was required definition of 'burden', it seems reason- changes that are necessary to make to show that its decision was neces­ able to fear that Lyng would be decided AIRFA into an effective law. After sitated by law, to protect a compelling the same way under RFRA as it was careful review and notwithstanding a governmental interest, or to protect a May 25, 1993 CONGRESSIONAL RECORD — SENATE S 6465 vested property right. In all cases the will be referred to more than one com­ moratoriums on oil and gas offshore agency was required to prove that their mittee. Such a result will only serve to development exist. decision reflected the course of action delay the goal of making AIRFA into In July 1991. the U.S. Department of which was the least intrusive on the an effective law. While I recognize that the Interior issued a 5-year comprehen­ traditional native American religion or each of the titles in the bill address im­ sive program for oil and gas develop­ religious practice. The Federal courts portant Indian religious freedom con­ ment on the Outer Continental Shelf. were given the authority to enter any cerns, I believe it is incumbent on the This document is the blueprint for the order necessary to carry out the pur­ tribal proponents to advise the Con­ Interior Department's efforts and goals poses of the bill. gress whether they are willing to for near-term development off the Jer­ I have purposely described S. 1124 be- amend AIRFA by breaking the bill into sey shore. cause I want to remind interested par- its various parts or to proceed with the This document identified the mid-At­ ties that even though that bill was nar­ bill in its entirety. I realize the lantic region, which would include a rowly drafted it was opposed by the thought of compromise is perhaps the number of tracts off the Jersey shore, Justice Department on the ground that most distant concept in the minds of for continued planning and lease sales it violated the establishment clause of tribal proponents today, however, all of in 1994 and 1997. the Constitution. Other witnesses said us must deal with the art of the pos­ These proposals are much more like­ that S. 1124 would create an unconsti­ sible. In this instance, it may only be ly to result in anxiety, bad press, and, tutional Federal entanglement by re­ possible to consider one or more titles ultimately, another blow to our coastal quiring Federal agencies to make cer­ of the bill at this point in time while economy than to any significant dis­ tain administrative determinations re­ other titles are temporarily set aside. coveries of oil or gas. In the late 1970's, garding religious practices. The pro­ As I mentioned at the beginning of my roughly 28 exploratory wells were ponents of the bill introduced today statement, the issues surrounding drilled off our coast. Are any of these should be prepared to state why the AIRFA are complex and provoke strong wells still producing oil or gas? No. All two constitutional concerns noted and deeply held views. Examining In­ 28 are plugged and abandoned. Were above do not apply to this bill which dian affairs issues in the legislative there any commercial discoveries of oil contains far more restrictive provi­ arena usually requires a significant and gas? No. Who expects there to be sions on Federal land managers than amount of time owing to the enormous found significant quantities of oil or those included in S. 1124. amount of education that most Mem­ gas off our shore? I don't know of any- Second, I note that the Judiciary bers of Congress require to make in- one. Committee has already acted on S. 578, formed judgments on pending issues. This past summer was a happy one on the Religious Freedom Restoration The size and complexity of this bill and the shore. On the beachwalk, many, Act. H.R. 1308, the companion legisla­ the potential constitutional issues in­ many people expressed their joy in the tion, passed the House on May 11. Both volved will require an unusual amount clean water and beaches. There was a bills would overturn the 1990 Supreme of time and patience by all parties. refreshing sense of optimism there. We Court ruling in Employment Division In closing, let me repeat that it con­ don't need a new dark cloud to dampen versus Smith by restoring the compel- tinues to be my hope that we will be this enthusiasm. We don't need to re- ling interest standard on a State gov­ able to achieve a consensus on advanc­ consider the issue of oil and gas leas­ ernment which seeks to pass a law lim­ ing the policy goals of AIRFA. I am ing. iting religious freedom. In light of this concerned, however, that the current In last year's natural energy strategy recent congressional action, I am inter­ approach, however well intended, will bill, I included a ban on leasing off our ested in knowing why the religious not yield the desired results and will coast until 2000. Unfortunately, even freedom bills referenced above do not only prolong the day when religious though both Houses agreed to my lan­ address the fundamental concerns freedom can be ensured for all native guage, the whole title dealing with off- raised under titles I and III of this new Americans. I believe it is incumbent shore issues was dropped because of bill. If the concerns have been ad- upon me as a U.S. Senator and as the other controversies. We didn't win; we dressed, then it seems to me that con­ vice chairman of the Committee on In- didn't lose; we were rained out. It's siderable time and expense can be dian Affairs to provide the Indian peo­ time for a replay. saved by narrowing the focus of the bill ple with a legislative analysis that is Every now and then, it's appropriate to the remaining titles. straightforward and candid. I believe it to draw a bright line: Some things you Third, I am concerned that the bill is incumbent upon the Indian people to just don't do. They're not worth it. You attempts to micromanage various Fed­ recognize the legislative constraints don't violate the pristine Arctic plain eral activities on issues involving eagle under which all Members of Congress in Alaska. And you don't burden a feathers, animal parts, and prisoners' must operate. Finally, I believe it is in­ coastal ecology that's struggling to rights. In addition, I am concerned cumbent upon my colleagues and the survive. You just don't drill off of our that the commission called for in title Federal agencies to reexamine current Jersey shore. III and the regional councils called for policies and to seriously consider in title IV are unnecessary. It appears measures that can be taken to assure I ask unanimous consent that the to me from the testimony I've reviewed that those who occupied the lands of text of my bill be printed following my on prisoners' rights and on the use of our Nation before us are ensured of remarks. eagle feathers and plants, that the pro­ their religious freedom. There being no objection, the bill was ponents of this bill are prepared to rec­ ordered to be printed in the RECORD, as ommend administrative steps that can follows: By Mr. BRADLEY (for himself S. 1022 be taken by the cognizant Federal or and Mr. LAUTENBERG): State agencies. Again, time and ex­ Be it enacted by the Senate and House of Rep­ S. 1022. A bill to prohibit the Sec­ resentatives of the United States of America in pense can be saved without sacrificing retary of the Interior from issuing oil Congress assembled, the purposes of both titles. I am inter­ and gas leases for waters off the coast SECTION1.SHORT TITLE. ested in knowing specific actions the of the State of New Jersey until the This Act may be cited as the "New Jersey proponents have taken since 1989 to year 2000, and for other purposes; to the Offshore Oil and Gas Moratorium Act". work with the various Federal agencies Committee on Energy and Natural Re- SEC.2.DEFINITIONS. to explore possible administrative rem­ sources. As used in this Act. edies to the issues raised in both titles. THE NEW JERSEY OFFSHORE OIL AND GAS (1) LEASE.—The term "lease" has the same Finally, I am concerned that the om­ MORATORIUM ACT meaning as is provided in section 2(c) of the nibus character of this bill will make it • Mr. BRADLEY. Mr. President, I am Outer Continental Shelf Lands Act (43 U.S.C. 1331(c)). much more difficult if not impossible very pleased to introduce today, with (2) PRELEASING ACTIVITY.—The term to complete the legislative process. my colleague, Senator LAUTENBERG, "preleasing activity" means any activity This point will perhaps become more the Offshore Oil and Gas Moratorium conducted before a lease sale is held apparent in the House of Representa­ Act. This legislation will add New Jer­ including— tives where a bill of this complexity sey to the other coastal areas for which (1) the scheduling of a lease;