Volume 34 Issue 2 The International Law of Natural Resources and the Environment: a Selected Bibliography Spring 1994 Sacred Sites and Federal Land Management: An Analysis of the Proposed Native American Free Exercise of Religion Act of 1993 Jody Neal-Post Recommended Citation Jody Neal-Post, Sacred Sites and Federal Land Management: An Analysis of the Proposed Native American Free Exercise of Religion Act of 1993, 34 Nat. Resources J. 443 (1994). Available at: https://digitalrepository.unm.edu/nrj/vol34/iss2/7 This Comment is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. COMMENT Sacred Sites and Federal Land Man- agement: An Analysis of the Proposed Native American Free Exercise of Religion Act of 1993 INTRODUCTION In 1978 Congress passed the American Indian Religious Freedom Act (AIRFA).' AIRFA's purpose was to state a congressional policy of protecting and preserving the inherent right of Native Americans to "believe, express, and exercise" their traditional religions, including but not limited to access to religious sites.2 Since its passage the United States Supreme Court has interpreted AIRFA as merely a governmental policy statement that confers no cause of action to enforce its provisions.3 Attempts in 1988 and 1989 to legislate teeth into AIRFA failed.4 A 1993 draft bill, S.1021, is the latest attempt to provide protection for Native American religious practices.5 The new proposal, a freestanding bill entitled The Native American Free Exercise of Religion Act of 1993 (NAFERA), addresses religious freedom in four areas: protection of sacred sites6 in Title I, traditional use of peyote in Title II, and prisoner's rights and religious use of eagles, plants and animals in Titles III and IV.7 This comment is presented in two parts: Part I will provide a brief background on AIRFA and the judicial decisions that created the impetus to amend it. It will also summarize the attempts to amend AIRFA, and the development of the draft before the 103rd Congress. Part II begins with an introduction to the federal land manager's position regarding land use legislation. Part II also analyzes several sections of 1. Pub. L. No. 95-341, 92 Stat. 469 (1978) (codified at 42 U.S.C. § 1996 (1993)). 2. Id. 3. H.R. Rep. No. 1308, 95th Cong., 2d Sess. 1 (1978), reprinted in 1978 U.S.C.C.A.N. 1262. See also K. Boyles, Note, Saving Sacred Sites: The 1989 Proposed Amendment to the American Indian Religious Freedom Act, 76 Cornell L. Rev. 1117 (1991). 4. See Boyles, supra note 3 (providing an explanation of the 1988 amendment attempt, and the initial stages of the 1989 attempt). 5. 139 Cong. Rec. S6457 (daily ed. May 25, 1993). 6. The word "site" is the designation used in NAFERA and in much of the literature discussing Native American religious areas. The word "place" may be more appropriate and will be used interchangeably in this comment for "site." See generally, D. Suagee & K. Funk, CulturalResources Conservation in Indian Country, 7 Nat. Resources & Env. 30 (Spring 1993). 7. See supra note 5. NATURAL RESOURCES JOURNAL [Vol. 34 NAFERA relating to management of Native American' sacred places on federal public lands, including the policy and definition sections. Title I, Protection of Sacred Sites, is reviewed with special emphasis on § 104(b), which deals with cases where secrecy is required. A minor revision is also suggested for Title V, Jurisdiction and Remedies. Proposed revisions are included, with the entire revised text of the reviewed sections appearing in Appendix A. Although questions on various aspects of the constitutionality of S.1021 have been raised, this comment will not address them. The focus, instead, will be the search for statutory language balancing Native American religious exercise with the federal land manager's daily task of administering federal lands for multiple 9 uses. In conclusion, this comment will recommend passage of Titles I and V of The Native American Free Exercise of Religion Act of 1993, with certain language revisions. The proposed revisions will assuredly draw criticism from Native Americans and land managers alike, but the political process of legislating change is nothing if not a compromise. As introduced in the May 26, 1993 version, S.1021 is unlikely to pass.'0 Revisions are likely to increase the odds of passage. PART I: BACKGROUND WHY NAFERA IS NEEDED The most oft repeated comment about The American Indian Religious Freedom Act of 1978 has been that it lacks "teeth," and indeed, the first person to say so was its sponsor in 1978." It was Representative Udall's characterization that this "simple" little resolution would be a statement to federal land management agencies that Indians should be able to congregate and hold their ceremonies and rites on public lands they had traditionally used for such purposes, unless there existed some overriding reason why they should 8. The terms "Native American" and "Indian" will be used interchangeably throughout this comment. 9. See Multiple-Use Sustained Yield Act of 1960 (MUSY), 16 U.S.C. §§ 528-31. See also Federal Land and Management Planning Act (FLPMA), 43 U.S.C. 1702 defining multiple use, in part, as: "the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people." 10. The odds that NAFERA would pass as of December 28, 1993 were 20 percent for passage by the Senate Committee on Indian Affairs, two percent for the House Committee, eight percent for passage in the Senate and one percent for passage in the House of Representatives. 1993 Information for Public Affairs, Inc., Bill Number S.1021, 103rd Cong., Ist Sess., available in WESTLAW, Billcast database. 11. See 124 Cong. Rec. 21,445 (1978) (comments of Representative Morris Udall). Spring 1994] SACRED SITES not.2 Federal land management agencies interpreted AIRFA as requir- ing them to consult with Native Americans regarding Indian religious interests on lands with pending projects, but the agencies in general did not see AIRFA as requiring deference to Indian religious uses of lands." Neither did the United States Supreme Court. 4 In Lyng v. Northwest Indian Cemetery Protective Association, the United States Supreme Court weighed a Forest Service land use decision against a Native American claim that a proposed timber harvest and road construction would violate their First Amendment Free Exercise rights.5 The Court also addressed the Indians' claim that AIRFA authorized the injunction sought by the Indians against completion of the road through their religious places. 6 The Court, speaking through Justice O'Connor, disagreed with the Indian's claim that the road construction constituted a burden of such significance as to violate the Free Exercise Clause, even while admitting the logging and road construction would likely have "devastating effects on traditional Indian religious practices." '" Justice O'Connor seemed concerned with what has come to be known as an "Indian veto"'$ for religious use over other uses for federal land; "the diminution of the Government's property rights, and the concomitant subsidy" of Indian religion could result in de facto ownership by Native Americans of large tracts of public land."' As long as federal land management decisions did not prohibit Indians from exercising their religions, the First Amendment would not give them a veto over other legitimate federal programs.' ° 12. Id. at 21,444. 13. See generally Wilson v. Block, 708 F.2d 735,745-47 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983). 14. See Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 453-56 (1988). 15. Id. at 442. 16. Id. at 454-55. 17. Id. at 447, 451. 18. The "Indian veto" is a phrase used by federal agencies and special interest groups to describe the perceived power Indians would acquire to veto land uses conflicting with their First Amendment rights to exercise their religion on federal public lands. The concern is that if Native American First Amendment rights to public lands are recognized, no other competing land use will be able to displace the powerful and revered First Amendment right, hence the de facto veto of other land uses. See also Religious Freedom Act Amendments: Hearingon S. 1124 Before the Senate Select Committee on Indian Affairs, 101st Cong., 1st Sess., at 130,135-140 (1989) [hereinafter Hearings] (statement of Scott M. Matheson, Parsons, Behle & Latimer), microformed on Sup. Doc.s No. Y 4 IN2/11:S.HRG.101-514, at 130, 135-140 (U.S. Gov't Printing Office). 19. Lyng, 485 U.S. at 453. 20. See id. at 452. NATURAL RESOURCES JOURNAL [Vol. 34 The Court also found the Forest Service had complied with AIRFA when it consulted with Native American religious leaders regarding protection of the religious rights and practices in question and had completed the required report dealing with this evaluation." Any further hopes of using AIRFA to protect sacred places were quashed by the Court's flat and unequivocal pronouncement, "Nowhere in the law [AIRFA] is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights."' The response to Lyng in the Native American community was outrage.' The response in the legal community was overwhelmingly critical.' Following the initial outrage, the Native American community set about to follow the Court's advice to seek a balancing of religious beliefs and governmental concerns for federal land use in the legisla- ture.' Their first effort after Lyng resulted in proposed amendments to AIRFA, introduced in the 101st Congress on June 6, 1989, as S.1124.