<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:81170.wais]
S. Hrg. 107-519, Pt. 2
NATIVE AMERICAN SACRED PLACES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
THE PROTECTION OF NATIVE AMERICAN SACRED PLACES AS THEY ARE AFFECTED BY
DEPARTMENT OF DEFENSE UNDERTAKINGS
__________
JULY 17, 2002
WASHINGTON, DC
__________
PART 2
__________
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
Statements:
Bowekaty, Malcolm, Governor, Pueblo of Zuni, Zuni, NM........ 19
Boxer, Hon. Barbara, U.S. Senator from California............ 2
Cachora, Lorey, housing director and consultant, Culture
Committee, Quechan Indian Tribe, Fort Yuma Indian
Reservation, Yuma, AZ...................................... 16
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 2
Coyle, Courtney Ann, counsel, Quechan Indian Tribe...........16, 18
Harjo, Suzan, president, Morning Star Institute, Washington,
DC......................................................... 26
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
Committee on Indian Affairs................................ 1
Jackson, Sr., Michael, president, Quechan Indian Tribe....... 16
Kearney, Christopher, deputy assistant secretary, Policy and
International Affairs, Office of Policy, Management and
Budget, Department of the Interior......................... 6
Masayesva, Vernon, executive director, Black Mesa Trust,
Kykotsmovi, AZ............................................. 28
Nickels, Marilyn, group manager, Cultural and Fossil
Resources, Bureau of Land Management....................... 6
Parker, Patricia, chief, American Indian Liaison Office...... 6
Parsons, Stephen, hydrologist, Office of Surface Mining...... 6
Robbins, John, assistant director, Cultural Resources,
Stewardship, Partnership, National Park Service............ 6
Appendix
Prepared statements:
Bowekaty, Malcolm............................................ 33
Coyle, Courtney Ann (with attachments)....................... 213
Harjo, Suzan................................................. 37
Kearney, Christopher......................................... 35
Masayesva, Vernon (with attachments)......................... 41
Obey, Craig D., vice president, Government Affairs, National
Parks Conservation Association (with letter)............... 60
Palmer, Fredrick D., executive vice president, Peabody Energy
(with attachments)......................................... 67
Trepp, Robert W.............................................. 189
Additional material submitted for the record:
Minthorn, Armand, chair, Cultural Resources Committee,
Confederated Tribes of the Umatilla Indian Reservation
(letter)................................................... 195
Parker, LaRue, chairwoman, Caddo Nation of Oklahoma (Letter). 202
Sutherland, PhD, Donald R., Principal Archeologist/Federal
Preservation Officer, BIA, Report on the Inspection of
Construction Activity on Trust Lands of the Poarch Creek
Indians, Wetumpka, Alabama, to Determine if Such Activity
Might Have Occasioned a Violation of the Archeological
Resources Protection Act of 1979........................... 205
NATIVE AMERICAN SACRED PLACES
----------
WEDNESDAY, JULY 17, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to recess, at 10:06 a.m. in
room 485, Senate Russell Building, Hon. Daniel K. Inouye
(chairman of the committee) presiding.
Present: Senators Inouye and Campbell.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The Committee on Indian Affairs meets today
for the second in a series of hearings on Native American
sacred sites.
Long before Europeans landed on the shores of America, the
Native people of this Nation revered and protected the lands
and natural resources that they knew as their homeland. Their
cathedrals had the sky as their ceilings and the mountains and
the trees as their walls. The sun and the moon and all of the
natural elements were respected as the manifestations of a
creator who watched over all the beings of the world.
With the advent of European settlement and westward
expansion, the places that Native Americans held as sacred
became vulnerable to desecration and destruction. In
contemporary times, the Government of the United States has
slowly but surely begun to understand that these sacred places
must be protected and preserved.
Through these hearings, we hope to identify where the best
protection practices are taking place and where we need to
focus our attention if we are to have improvement.
Like other Americans, among the places that Native
Americans hold sacred are the grave sites of their dear
departed loved ones. Because of the tragic record of the
desecration and destruction of Native American grave sites, the
Congress enacted a law in 1990 to provide for the protection of
graves. That law is an Indian law. It is codified, as are all
other laws enacted for the benefit of the Native people of the
United States, in title 25 of the United States Code. It is
intended to provide for the protection of Native American
graves.
Today the committee will receive testimony on some of the
land management activities of the Department of the Interior
and the impact of those activities on the Federal policy which
supports and protects Native American sacred places.
May I now call upon the cochairman of the committee,
Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Thank you, Mr. Chairman.
As the committee deals with the pressing needs of Indian
people like health care and housing, this issue often goes
overlooked, but it is extremely important. Today we will
receive testimony on the issue of Native sacred sites and how
those sites have been or are being impacted by the activities
of our Department of the Interior.
Native peoples, perhaps more than most, are affected
because the places we hold dear are being encroached on by the
needs and demands of the modern economy and economic activities
such as mining, logging, recreation, and building. The
dichotomy, of course, is that in this day and age sometimes
Indian people need those activities, themselves, for jobs and
making sure that their families are well fed.
Many of the most sacred places are now located on private
lands, which makes the protection of those sites even more
difficult than usual.
A legitimate question to ask: How has the Federal
Government responded to those needs, particularly in a Nation
that historically has turned our sacred sites on non-Indian
land, such as battlefield and cemeteries, into tourist
attractions? Just as President Nixon launched the Indian Self-
Determination Act in 1970, 1 year later, in 1971, he signed
important legislation returning the Blue Lake Band to the
Pueblo of Taos, which holds them sacred. A real awakening has
taken place since 1971.
Next year we will celebrate the 25th anniversary of the
American Indian Religious Freedom Act, and we are joined today
by one of the people on the panel, our good friend, Suzan
Harjo, who was instrumental in working the halls of Congress
and the White House to get that key legislation passed.
As much as a milestone as the American Indian Religious
Freedom Act was, the courts have interpreted it to be lacking
in enforcement authority. In the years since that enactment,
there have been other efforts to protect the Native sites--
NAGPRA in 1990, President Clinton's 1996 Executive Order on
Sacred Sites, and progressive action by many agencies at the
Federal level. Just as Native people continue to try and
protect their sacred places, it is evident to me that the legal
protections now in place for cultural and religious sites in
America are lacking in many respects.
With that, Mr. Chairman, I thank you for convening this
hearing and look forward to the testimony of our witnesses.
The Chairman. It is my great pleasure and honor to
recognize the distinguished Senator from the State of
California, The Honorable Barbara Boxer.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM CALIFORNIA
Senator Boxer. Thank you so much, Mr. Chairman, and thank
you so much, Senator Campbell, for holding this important
hearing and for your stewardship on the whole issue of Indian
affairs. It is so important, and you both are there every day,
and I can't tell you how much I appreciate it.
Before I start my testimony, which probably goes about 4
minutes, I would like to ask if it would be possible for you to
submit some questions on my behalf to the Administration and
ask them to answer these in writing for me.
The Chairman. We will submit those questions.
Senator Boxer. I thank you so very much.
This whole issue of sacred sites has become very personal
with me because I was introduced to a particular issue I will
talk about today and thought that it was all resolved. It turns
out it isn't. I'm going to need your help.
I am very happy that today there are two witnesses here, in
particular, President Jackson and Lorey Cachora on behalf of
the Quechan Nation. I have had a long relationship with this
tribe, a relationship that came about because of unfortunate
circumstances I will describe in a few minutes.
Let me first try to elaborate on your eloquence on the
importance of sacred sites and how strongly I feel that they
must be protected.
Mr. Chairman, in this world there are a number of sacred
sites that we all recognize, respect, and revere as sacred,
regardless of our individual faith. The very idea of placing,
say, an oil rig next to the Wailing Wall or making a parking
lot out of Notre Dame or placing that same oil rig near the
Blue Mosque or Westminster Abbey, it is to preposterous to even
say or to even imagine. Yet, there are numerous Native American
sites, sacred sites, that are unknown, but many that are known
that are currently being ravaged and destroyed in these very
same ways.
I feel comfortable saying that in this room we all
understand the importance of sacred sites and the role they
play in the spiritual and religious life of a tribe, but
there's a difference between understanding that sacred sites
exist and respecting these sites, being cognizant of their
importance and protecting them with the full force of the
Federal law.
The protection of sacred sites is certainly not a new
issue. It has been dealt with a number of times, as Senator
Campbell has alluded to, through executive order and Federal
laws and regulations. However, even all that doesn't change the
fact that sacred sites are being threatened today in my State
of California and across this Nation.
I want to tell you about a specific sacred site in which I
have been intimately involved, one that involves the Quechan
Nation. It is an epic battle against a proposed gold mine.
The story spans nearly a decade and began in 1994 when the
Canadian-based GLAMIS Imperial Corporation proposed development
of an open pit gold mine that would impact over 1,600 acres of
land in Southern California. ``Impact'' is a term that can mean
many things. This proposed mine wouldn't just impact these
lands, it promises to destroy them.
Open pit gold mining, which is what GLAMIS proposed,
literally alters the very face of the landscape, and, because
of the scope and the damage, it is so hard to comprehend. I did
bring a chart, and it doesn't even do it justice, but imagine
this. This are is all--this is another are in my State, not far
from where this is, and it was all beautiful, green, rolling
hills, and you can see what happens.
We also have--and you can't see it, it's in the small part
here--yellowish-orange rivers near this mine. The rivers are
dead zones--dead zones--and have been poisoned by the cyanide
used in this type of gold mining.
We know how Indians, Indian tribes, Native Americans love
the land, the water, respect and treasure it, and here we have
a situation of dead zone that has been poisoned by cyanide from
this type of gold mining that has been proposed by GLAMIS.
It is fair to say that this type of gold mining creates
sacrifice zones, and in this case GLAMIS proposed that the
sacrifice zone be a location that is sacred to the Quechan
people.
During the permit review process, President Clinton's
Advisory Council on Historic Preservation testified that the
mine would essentially--and I'm quoting, Mr. Chairman:
Essentially destroy the tribe's ability to practice and
transmit to future generations the ceremonies and values that
sustain their cultural existence.
I think that is an eloquent quote. I'm going to say it one
more time. The President's Advisory Council on Historic
Preservation testified that the mine would:
Essentially destroy the tribe's ability to practice and
transmit to future generations the ceremonies and values that
sustain their cultural existence.
To me, I would put it in even starker words. It says that
this mine would rip the heart out of the tribe's religious
center.
The tribe, the its credit, played by the rules, Mr.
Chairman. They participated in the environmental review
process, they expressed their objections. I repeatedly
expressed mine in writing, verbally. I met with Secretary
Babbitt to let him know of my opposition. I was very strong.
In January 2001, the Clinton administration did the right
thing. In an unprecedented move, it denied GLAMIS the necessary
permits. Never before had the Bureau of Land Management denied
a mine because of cultural impacts. The Administration's
decision to reject the mine was based, in part, on the fact
that:
The proposed project is in an area determined to have
nationally significant Native American values and historic
properties and would cause unavoidable adverse impacts to these
resources.
The day that decision was made was a day when the Federal
Government honored its legal and ethical obligations to protect
the interest of the Quechan Tribe. It sent a powerful and
positive message that Native American religious rights would be
honored and their sacred sites would be protected.
Mr. Chairman and Mr. Cochairman, that was a wonderful day
when that decision came down, but the victory didn't last long.
In November 2001, Secretary Gale Norton came up with a new
interpretation of mining law and decided she was going to
reopen consideration of the GLAMIS proposal. Although the
initial permit denial took 6 years and hundreds of hours of
consultation, the decision to reopen the permit involved no
public input and took only a few months.
Nowhere in the convoluted explanation that Secretary Norton
gave to justify this decision did she ever address the tribe's
concerns. She simply acted as if it didn't matter, or maybe she
knew there was no legal or moral justification she could give.
The decision is a rejection of her trust obligations to
that tribe. It ignores her duty to comply with the executive
order on sacred sites and it rejects her obligation to comply
with the Native American Grave Protection and Repatriation Act.
But what really bothers me deeply is that Secretary Norton
met with the GLAMIS Corporation, a private Canadian company,
prior to reversing the Clinton decision, but from everything we
can gather--and we've asked everyone, and you can ask,
yourself--she did not meet with or consult with the tribe. In
fact, it is my understanding that she still has not met with
the tribe, despite her plans to move forward with a project
that will tear the heart out of their culture.
I hope that today's witness for the Administration can give
us confirmation that the Secretary will meet with the tribe in
the near future to discuss this.
When I ask myself how this could happen, the only
conclusion I can draw is that Secretary Norton views the GLAMIS
project as just another mining project, but I'm here to tell
you it isn't. The GLAMIS project is about the desecration of a
sacred site, the Notre Dame, the Wailing Wall, Westminster
Abbey.
We in Congress must find a way to ensure that the Quechan
Nation sacred sites and the sacred sites of other tribes are
not allowed to fall prey to this type of destruction. Although
I have mentioned one situation in my State, I know that this is
not a State-specific issue, it is a national issue, and that is
why I am so grateful to you for putting this issue on the map.
It must be addressed at the national level.
I once again thank you, Mr. Chairman and Mr. Cochairman for
convening this series of hearings and to your dedication to
making sure that these sacred sites are forever protected.
Thank you very much.
The Chairman. Your strong and moving words will be kept in
mind as we progress, madam.
Senator Boxer. Thank you. Thank you so very much.
Senator Campbell. May I just say to Senator Boxer that I
certainly agree with her and I intend to write a letter to the
Secretary and try to talk to her about it personally.
I'm glad you have such a good feeling, too, about these
sacred sites. You know, Indian sacred sites are not just based
on where remains lie. It is where the spirits of their
ancestors lie. I guess, because of our history of America, in
which many of them were not recorded or documented or located,
in some cases you have to ask Indian people, obviously, where
they are. They know because their fathers and their
grandfathers have told them, but it wasn't recorded in some
book in Washington, D.C.
As I understand it--as you do--there is an obligation, when
opening a new mine for instance, to negotiate with the tribes,
but meeting with them and consulting and then doing what you
want anyway is not my idea of fulfilling an obligation with two
parties involved.
I just wanted you to know I am certainly willing to help
you.
Senator Boxer. I just want to say how grateful I am to you
and to Senator Inouye, and I think there is not an
understanding here. Look, for people who haven't really focused
on this, it is the whole notion. You're dealing with sovereign
nations. You're right--it's not a matter of having filed a form
with another nation.
What you say I agree with 100 percent, and I thank you
again.
The Chairman. Our next witness is the deputy assistant
secretary, Policy and International Affairs, of the Office of
Policy Management and Budget of the Department of the Interior,
Christopher Kearney.
STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY,
POLICY AND INTERNATIONAL AFFAIRS, OFFICE OF POLICY, MANAGEMENT
AND BUDGET, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY PATRICIA
PARKER, CHIEF, AMERICAN INDIAN LIAISON OFFICE; STEPHEN PARSONS,
HYDROLOGIST, OFFICE OF SURFACE MINING; MARILYN NICKELS, GROUP
MANAGER, CULTURAL AND FOSSIL RESOURCES, BUREAU OF LAND
MANAGEMENT; AND JOHN ROBBINS, ASSISTANT DIRECTOR, CULTURAL
RESOURCES, STEWARDSHIP, PARTNERSHIPS, NATIONAL PARK SERVICE
Mr. Kearney. Good morning, Mr. Chairman and Mr. Cochairman.
Thank you for inviting me to testify. We have some witnesses
joining us who will be able to answer a number of technical
questions for you should we be getting into that, and with your
indulgence I will begin my statement.
The Chairman. Will you identify your staff, sir?
Mr. Kearney. Yes; I will, sir.
As I said, my name is Chris Kearney. I am the deputy
assistant secretary for Policy and International Affairs in the
Office of the Assistant Secretary of Policy, Management, and
Budget. I am accompanied today by Stephen Parsons, a
hydrologist with the Office of Surface Mining; Marilyn Nickels,
the group manager, Cultural and Fossil Resources, Bureau of
Land Management; and also John Robbins, the assistant director,
Cultural Resources, Stewardship, Partnerships, the National
Park Service; and Patricia Parker, chief of the American Indian
Liaison Office.
Executive Order 13007 regarding Indian sacred sites was
issued in 1996. That order requires Federal land management
agencies, to the extent practical permitted by law and not
clearly inconsistent with essential agency functions to
accommodate access to and ceremonial use of Indian sacred sites
by Indian religious practitioners and avoid adversely affecting
the physical integrity of such sacred sites.
Where practical and appropriate, it implements procedures
to ensure reasonable notice is provided of proposed actions or
policies that may restrict future access to or ceremonial use
of or adversely affect the physical integrity of these sites.
The order also requires Federal agencies to consult with
tribes on a government-to-government basis whenever plans,
activities, decisions, or proposed actions affect the integrity
of or access to the sites.
Each relevant Cabinet agency was required to send an
implementation report to the President within 1 year of the
order's issuance.
Coordination of the Department of the Interior's
implementation was assigned to the Office of American Indian
Trust, OAIT. OAIT is responsible for ensuring Departmentwide
compliance and overall consistency of the sacred sites
executive order.
To assist that office to communicate with various bureaus
in the Department, an inter-agency working group on
implementation of the sacred sites executive order was created,
comprising representatives of each departmental bureau,
appropriate offices, and the Office of the Solicitor.
The working group has actively sought input from tribal
representatives on all aspects of the implementation process.
The Department asked for tribal input on the structure,
location, and content for consultations, and hosted three
formal discussion meetings between tribal and Federal
representatives focusing on implementation from both a
procedural and substantive perspective. Those meetings were
held in Portland, Oregon; Denver, Colorado; and Reston,
Virginia in March and early April 1997.
Topics at the meeting included how to conduct meaningful
consultation, how and when the processes are triggered, how to
protect the physical integrity of the sites, how to protect the
confidentiality of culturally sensitive information,
accommodating access and use, as well as dispute resolution.
In October 2001 the Department attended a Sacred Lands
Forum in Boulder, CO, and through considerable internal review
and dialogue with interested participants of the forum it
became clear that we needed to move forward on establishing
policies and procedures for protecting sacred lands and the
executive order.
At the Overcoming the Challenges Symposium that was held in
March of 2002, held as part of the Washington, DC Sacred Lands
Forum, we announced our intent to reconvene the Department's
Sacred Sites Working Group.
In June of this year, each of the Department of the
Interior offices and bureaus involved with sacred sites were
notified of plans to reconvene the working group, and they were
asked to assign a representative to it. Our objective is to
renew the momentum within the bureaus for establishing the
necessary procedures to carryout our obligations understood in
the policy we created and ensure that we fully take into
account all tribal concerns.
It is also our intent, working with the tribes, to finalize
and then publish these policies and procedures and provide them
to the tribes and other interested parties and to ensure that
implementation occurs in a timely manner.
The Office of American Indian Trust is responsible for the
coordination, logistics, and staff assistance within the
Department.
The first working group meeting occurred just this past
July 2 in the Office of the Assistant Secretary for Indian
Affairs. We are in the process of now identifying the current
status of sacred site management across the bureaus, and that
will be followed by future meetings with developing management
changes and tools to ensure full compliance with the order.
In addition, and as a result of the sacred lands forum, on
August 14 the Department and the Advisory Council on Historic
Preservation are sponsoring an inter-agency meeting on sacred
lands and cultural resources under the auspices of the Inter-
Agency Working Group on Environmental Justice. These meetings
are meant to help bring awareness and enhance coordination of
sacred sites, not just within the Department but
governmentwide.
This concludes my statement. I would be pleased to answer
any questions you might have, and any technical questions these
folks would be happy to answer for you, as well.
The Chairman. I thank you very much, Mr. Kearney.
[Prepared statement of Mr. Kearney appears in appendix.]
The Chairman. The committee has been advised that last
February an employee of the National Park Service segregated
and destroyed several boxes of NAGPRA--that's the Native
American Grave Protection and Repatriation Act--and archeology
and ethnographic program documents. Did this ever happen? And
what did they destroy, if they did?
Mr. Kearney. Mr. Chairman, my understanding is that some
answers and some questions related to that have been provided
to you already. Is that correct, or have you received other
information?
The Chairman. Staff tells me it is not correct.
Mr. Kearney. Okay. My understanding of the information was
that this was as part of offices in the National Capital Region
Office that they were moving to another office, that they were
consolidating space, that they were going through old files and
records, reducing what they had, and that there were no NAGPRA
original records or materials that were destroyed. In fact, all
of the material, as I understand it, was retrieved from the
trash where it had been sent, and that the material was
reviewed and examined, and that it was a range of magazines, of
outdated forms, Government-related papers and so forth,
miscellaneous materials.
To the extent there was anything that was NAGPRA related,
it was duplicative forms and information. There were no
sensitive records or information destroyed is the information
that I have. In fact, all of those boxes were retrieved, and it
was simply a process associated with essentially throwing out
outdated materials and records--not records, but outdated
materials and forms and so forth.
The Chairman. Is there an ongoing investigation or are you
satisfied with your findings?
Mr. Kearney. My understanding is that there was a thorough
review and independent evaluation at that time, and that we are
satisfied with that conclusion.
The Chairman. So nothing relevant or important was
destroyed?
Mr. Kearney. That's correct.
The Chairman. Some have suggested that the NAGPRA program
office should be moved to the Office of the Secretary. What are
your thoughts on that?
Mr. Kearney. The Department's position is that, based on a
review of that program last year and with a number of changes
and actions that the Park Service has taken, we are satisfied
that the program can remain within the Park Service and will
remain in the Park Service; however, we are open to any
suggestions and ideas by way of improving the management and
the process and giving additional levels of comfort that the
committee may need to ensure that that's the case, but we are
satisfied that steps have been taken to ensure that the program
can operate appropriately.
In the Park Service, for example, staffing has been
improved. There have been changes in individuals who oversee
the program. And there is a redirection and a refocus of the
program.
The Chairman. So at the present time this move is not under
serious consideration?
Mr. Kearney. That's correct. That's right. The decision has
been made to retain it at the Park Service.
The Chairman. Was the explanation or description provided
by Senator Boxer on the gold mine accurate from your
standpoint?
Mr. Kearney. I would defer to the technical folks on some
of the specific aspects with respect to that in terms of
whatever question you might want to ask about it.
Ms. Nickels. Could you give me specifically what part of
the testimony you were----
The Chairman. Well, you were here when Senator Boxer
testified.
Ms. Nickels. Right.
The Chairman. And she said, first, there was no
consultation with members, appropriate members of the Indian
nation. Second, it is a very sacred site listed as one of the
10 most important by the Government of the United States, and
it was once declared to be sacred and therefore inviolate, but
then this Administration suddenly changed positions, without
hearings or consultation. Are those statements correct?
Ms. Nickels. It is my understanding that the Solicitor's
opinion in the last Administration was reviewed. The
Solicitor's opinion, which underlay the decision by the
Secretary in the past Administration to deny the mining plan of
operation was reviewed by Solicitor Meyers in this
Administration, and that he advised the Secretary that, based
upon his review, that that Solicitor's opinion should be
overturned, and advised her to rescind that decision of denial.
Pursuant to that decision by the Secretary, the Bureau of
Land Management has proceeded forward with a review now of the
mining plan of operation. It is to be preceded by validity
examinations which are required before we approve the mining
plan of operation or go forward with review of the mining plan
of operation.
The Chairman. Did you consult with the leaders of the
nation?
Ms. Nickels. I believe that the Bureau of Land Management
was not involved directly at the decision at the Secretarial
level, and so I would defer to the Secretary's office to answer
questions about consultation with tribes on that decision.
Mr. Kearney. We would be happy to respond to that in
writing to be sure that we get the facts for you correctly.
The Chairman. Was the Secretary's office or the appropriate
offices aware that this site was considered one of the ten most
sacred sites in the United States?
Mr. Kearney. Again, I would be happy to get you an answer.
The proceedings and the steps through which that unfolded is
information we want to make sure that we have for you
correctly, exactly what the full context and the story was.
The Chairman. Well, I have a document here that says this
is one of the top 10--in fact, the most sacred of all sites--
but the Interior Department wasn't aware of that?
Mr. Kearney. Senator, I was not directly involved in the
activities and the decisions, and rather than--I do not want to
mischaracterize or characterize steps and actions, level of
information that was aware. I'm certain that there was a full
set of facts and information that went into these decisions. I
simply want to make sure we have it accurate for the committee.
The Chairman. Are you aware of the National Trust for
Historic Preservation?
Mr. Kearney. Yes, sir.
The Chairman. Is that a worthy and meritorious
organization?
Mr. Kearney. Yes, sir; certainly they are.
The Chairman. And they have set forth America's 11 most
endangered historic sites. Have you seen this document?
Mr. Kearney. I'm not immediately familiar with it. No,
Senator.
The Chairman. This appeared in the ``Atlantic Monthly,''
August 2002, so it is most recent. The first site described is
the one that we are speaking of in Imperial County, California,
Quechan Sacred Site.
Ms. Nickels. Senator, we are aware of the list of the
National Trust for Historic Preservation that lists Indian Pass
as one of the most endangered, yes.
The Chairman. But, notwithstanding that, you did not
consult with the leaders of the nation?
Ms. Nickels. As I mentioned before, at the Bureau level we
must defer to the Department to characterize the discussions
that went on and the decision to rescind the past denial.
The Chairman. Well, if they break down St. Peter's
Cathedral I hope we consult with them.
What is a culturally unidentifiable human remain?
Mr. Kearney. Under NAGPRA, culturally unidentifiable----
The Chairman. Yes, yes.
Mr. Kearney [continuing]. Human remains are human remains
that cannot be culturally affiliated with a federally
recognized tribe.
The Chairman. And I have been told that you have a
rulemaking regarding disposition. What is the rule that you are
suggesting?
Mr. Kearney. Under the original act one of the sections
that further regulations were to be developed for was the
disposition of culturally unidentifiable human remains, and the
development of that rule is underway now.
The Chairman. You are supposed to have a list of these
remains; is that correct?
Mr. Kearney. Yes; one of the first tasks regarding
culturally unidentifiable human remains is the development of a
list that----
The Chairman. Have you completed this list?
Mr. Kearney. No; that list is not complete, but it is
underway.
The Chairman. When that list is completed, will it be
shared with us?
Mr. Kearney. That list will be available to the public and
we'll make sure that the committee has a copy of that list.
The Chairman. Is there any government-to-government
consultation that is taking place with Native Americans on this
proposed rule?
Mr. Kearney. The way that the--the terms of the rule, the
draft was developed from recommendations that were developed by
the Native American Graves Protection and Repatriation Review
Committee, which is the citizens advisory committee under
NAGPRA, and the recommendations of the committee were developed
in several public meetings, the Review Committee's public
meetings.
The rule then has been drafted based on the committee's
recommendations, and then again this is a draft rule which
would then be available for public comment.
The Chairman. It will be open to the leaders of Indian
Country?
Mr. Kearney. Yes.
The Chairman. I have several more questions, but I'll call
on our cochairman.
Senator Campbell. Thank you, Mr. Chairman. We got our first
call to vote, and we'll get a second one in 1 minute, so we're
going to have to run. I assume you're going to take a break for
a couple of minutes.
The Chairman. Yes.
Senator Campbell. Just in the couple of minutes I have, I
don't want to reduce it just to asking a bunch of sanitized
technical questions dealing with rules and times and dates. I'd
just point out not too long ago I was on a CODEL and we stopped
at Normandy, where I visited Omaha, Juno, and Sword, the
beaches where so many Americans died. I know that my chairman
understands the feeling of being a decorated military hero,
himself. When you visit a place where your brothers fell, I
guess I would only ask you--and you don't have to answer it out
loud, but consider in your own heart how would you feel if your
grandfather died there or your father and you found out a mine
was going to be built on Omaha Beach.
I think we get bogged down here in Congress so much with
doing it by the book and doing it by rules that we don't do
enough by the heart, and I want you to think about that while
we're voting.
Thank you, Mr. Chairman.
The Chairman. We will stand in recess for 5 minutes.
[Recess.]
The Chairman. Any more questions?
Senator Campbell. I have one or two, Mr. Chairman. Thank
you for letting me continue with questions, since I didn't
really get to ask one a while ago that I wanted an answer for.
Mr. Kearney, I happen to be a westerner. I'm certainly
sympathetic with the importance and the need to develop natural
resources and at the same time to protect the environment. We
really get caught in a cross-fire out west, as you might
imagine, sometimes people calling it the War Between the Old
West and the New West.
I think the Secretary shares that view, too, coming from
Colorado, and a person that has been involved in public policy
so many years.
Let me ask you about the Department. As I understand it, it
has been engaged now for six years with tribes on sacred place
protection. What is the end goal? And do we need more
legislation or do we need a change in policy? We're certainly
missing somewhere with the tribes.
Mr. Kearney. Well, Senator, let me try to answer it this
way and perhaps give you a further follow-up answer. We
certainly find it to be critically important to take into
account all matters related to sacred sites, and we are trying,
as part of this working group, to give some guidance to the
executive order. There are a number of issues that the working
group will be looking at, and it may well be in that context
that that can be examined. We're really trying to develop
guidance that gives Federal land managers on the ground ways to
address and deal in advance with issues like those that have
been raised by GLAMIS and others so that we have some sense of
what we're dealing with before we go into situations to try to
minimize controversy and to take into consideration the
concerns of the tribes and others. So that is our commitment
and that's what we are focused on.
Senator Campbell. But tribes really don't have a veto. That
means if you go out and meet with them and you listen to their
concerns, whoever wants to develop the mining area, if they've
got enough clout it tends to get done, in my view, because, as
I understand it, tribes may complain, they may register their
views on it, but bottom line is it can be run over the top of.
Is that correct or not? Unless they go to court, and maybe the
courts might uphold their claim.
Mr. Kearney. Well, I think, Senator, that there is a
commitment to do everything possible to maximize and take into
consideration the concerns and the impacts and the effects on
tribes and taking steps necessary to mitigate those to every
extent that we possibly can. That is in every regard. We always
will try to do that.
Senator Campbell. Can you give the committee a couple of
instances in which tribal complaints have stopped a big
development, say a mine development?
Mr. Kearney. In my direct experience, nothing immediately
comes to mind, but I would be happy to try to check for you and
see if anything falls into that category.
Senator Campbell. I'd appreciate it if you would, because
it is my information that they have never been able to stop
one. I mean, there might be some consultation, but the bottom
line is it gets done.
Thank you, Mr. Chairman.
The Chairman. I thank you very much.
If I may for a moment go back to the destruction of
documents, according to my files here the committee was advised
that several solicitors conducted an inventory and reviewed the
documents in the boxes, and that, contrary to your
understanding, the boxes contained NAGPRA records, personnel
records, financial records, and travel records. Can you provide
the committee with a clarification of this in writing?
Mr. Kearney. Certainly.
The Chairman. I am certain you are aware that a very famous
dance shirt, the ghost dance shirt of Crazy Horse, was sold by
Sothebys, and the Department did not pursue this matter because
it did not have a final rule in place. Is there such a rule now
that can stop the sale?
Mr. Kearney. I apologize, Senator. I was taking a note on
your previous request. Could you repeat that question, please?
The Chairman. It is the committee's understanding that one
of the items of cultural patrimony, the ghost dance shirt of
Crazy Horse--in minds of Native Americans, that's a very
important shirt----
Mr. Kearney. Yes, sir.
The Chairman [continuing]. Was sold by Sothebys and the
Department did not pursue the matter because the Department did
not have a final rule in place. Do you have a final rule in
place?
Mr. Kearney. I believe so, but I'd defer to----
The Chairman. On civil penalty regulations?
Mr. Kearney. I believe so.
Mr. Robbins. Currently the rule in place is an interim rule
on civil penalties, and the final rule continues to be in
development.
The Chairman. So if we have another valuable shirt of this
nature, you can't do anything to stop its sale?
Mr. Robbins. The decision to pursue civil penalties or not
is a decision taken in consultation with the Solicitor's
Office, and I have not been part of any of those decisions. But
on the matter of interim and final rule, currently an interim
rule is in effect and the final rule is in preparation.
The Chairman. So with this interim rule, would the
Government have been able to save Crazy Horse's shirt?
Mr. Robbins. I would have to respond to that. I would
request that I would be able to respond to that in writing.
The Chairman. Please do.
I would like to know in your response also what is the
status of the civil penalty rule. It is an interim rule. How
long will it be interim?
Mr. Robbins. We will include that in the response.
The Chairman. Do you have any idea how long it will be?
Mr. Robbins. The final rule is in preparation now, and I
would want to give you an accurate status report on where that
is in the process towards final rulemaking.
Mr. Kearney. We'll be sure to get that to you, Senator, as
soon as we can.
The Chairman. Going back to the GLAMIS gold mine, the
former Secretary of the Interior based his findings that the
open pit cyanide heat leach gold mine would cause undue
impairment to cultural and natural resources; however, the
present Secretary rescinded the earlier denial of the mine
permit on the grounds that the Department did not have
regulations that defined undue impairment, and that lack of
such definition thus prohibited the Department from denying the
mine, despite the fact that the statutory standard has been in
place for 20 years in the California desert conservation area.
If that is the case, what information did the Department
rely on to make its rescission of the denial of the proposed
mine project ?
Mr. Kearney. Senator, I would be happy to respond to you in
writing. I was not directly involved in that and do not have
the information to provide to you at this time with respect to
that.
The Chairman. Anyone here involved in it?
Mr. Kearney. No; Senator.
The Chairman. Do you know what undue impairment is?
Mr. Kearney. Not familiar with the term specifically as it
relates that it was the basis for that.
The Chairman. Does the BLM consider sites of religious and
cultural significance to Native Americans to be one of the
resources to be protected under the existing authority,
including the Federal Land Policy and Management Act?
Ms. Nickels. Yes, Senator; we do include that category of
property in all of our considerations under the Federal Land
Policy and Management Act, the American Indian Religious
Freedom Act, the executive order on sacred sites, and the
National Historic Preservation Act requirement, so a suite of
laws govern our decisionmaking process and the process that we
go through before we reach these decisions.
The Chairman. That being your view, I presume you will
define ``undue impairment,'' won't you?
Ms. Nickels. Again, I would have to defer to the Department
and to the Solicitor's Office for that in answering that
question.
The Chairman. Don't you think it is important?
Ms. Nickels. Yes, Senator; it is important.
The Chairman. Because if that is not promulgated, BLM may
not be able to implement the Congressional mandate in the
California desert conservation area and protect that area;
isn't that correct? It will be just two words, ``undue
impairment.''
In 2000 the Bureau of Land Management withdrew the Indian
Pass area from new mining claims to protect the Indian cultural
and religious values found there. Is the Bureau of Land
Management considering any action to rescind the withdrawal of
the area from mineral entry?
Ms. Nickels. To my knowledge we are not.
The Chairman. Can we get an official response from the BLM
on that?
Ms. Nickels. We would be happy to followup with answer in
writing.
The Chairman. Thank you very much.
Ms. Nickels. I am advised, Senator, it is a standard 20-
year withdraw, the action that was taken originally.
The Chairman. Could you find out for this committee,
because it is our understanding that the Bureau of Land
Management did not consult with the Quechan Nation and other
affected tribes before it rescinded the denial of the mine
permit. And you said you have no idea?
Ms. Nickels. I'd like to clarify my response. The decisions
with regard to the rescission of the denial that was provided
to her by the Solicitor--I asked about extent to which tribes
were consulted in that decision which the Secretary made.
The Chairman. I think it would be important to the
committee to know whether there was or there was not
consultation with the Nation.
Does the Office of Surface Mining have a tribal
consultation policy?
Mr. Kearney. Yes; my understand is yes, sir, they do. Yes,
sir, my understanding is that they do, and they can speak to
more detail.
Mr. Parsons. Yes; we have a directive, a Bureau directive,
on consultation with Indian tribes regarding the permitting and
other activities associated with coal mining and BLM activities
and that sort of thing.
The Chairman. In the Peabody Mine activities, with whom did
the Office of Surface Mining consult regarding activities
affecting the Hopi community, or did you consult pursuant to
the policy?
Mr. Parsons. Yes; from the time that the permanent program
application for Surface Mining Control and Reclamation Act
permit came in in 1985, I believe, the Hopi Tribe and the
Navajo Nation, as well, were involved, consulted, involved in
review. They were provided with the same materials that we
receive, and----
The Chairman. So you did consult with the national leaders
of the Hopi Nation?
Mr. Parsons. Yes.
The Chairman. I have several other rather technical
questions. May I submit them to you?
Mr. Kearney. Yes, Senator; we would be happy to do that.
Senator Campbell. Mr. Chairman, I will also submit some
further questions.
I would like to just say a sentence or two since you
brought up the question of Crazy Horse's shirt and dealt with
rules in your questions, too.
Years ago you and I worked very hard on a bill to authorize
the building of the Museum of the American Indians with the
Smithsonian, as you remember. That is being built now and is
going to be open in a few years to the enjoyment of millions of
people throughout the world to be able to visit that. But when
we authorized that bill we put a section in there that required
the Smithsonian to return skeletal remains and funerary
objects, many that were taken by force or stolen. And, by the
way, that's still going on in some places, as you probably
know. There are museums all over the country if not all of the
world, things that were taken from burial sites of Indian
people. You can put yourself in that same feeling, if you
would, you know, just recognize how you would feel if something
was taken out of your grandmother's grave and you saw it in a
museum later. It is an extremely touchy issue.
But the rules, when they are promulgated, when we passed
that bill we found there was a glitch, and that was that some
of those things are not returned because they don't have a
clear chain of possession from the time it disappeared from the
tribe to the time they suddenly have it in their glass case in
the Smithsonian. I think I can apply that logic to all the
rules with all the agencies. If they don't have that very
clear-cut progression in writing somewhere, then they assume
that they can't give it back, which I think is wrong. Cheyennes
have been trying to get a pipe back for 15 years and can't do
it because there is a hole in from the time it disappeared
until the time it showed up in the Smithsonian collection.
I don't want to malign the Smithsonian because I am a big
supporter of it, but I think that shows you the intent of
Congress sometimes really is foiled by the rules. By the time
they get done with the rules, that's not what we meant when we
wanted to do something good for people. I would just like this
committee to keep that in mind.
Thank you, Mr. Chairman.
The Chairman. I just want to note that I am also involved
in DOD matters, and I always find that, in discussing sacred
sites with the highest officials of DOD, they are always
prepared to respond as to policy matters. I hope when we have
the next meeting on sacred sites the Department will be able to
give us some response on policy matters.
Mr. Kearney. Yes, sir.
The Chairman. With that, I thank you very much, sir. Thank
you very much.
Now may I call upon the third panel: Michael Jackson,
Senior, president of the Quechan Indian Nation; accompanied by
Lorey Cachora, Housing Director, consultant to the Culture
Committee, Quechan Indian Nation, Fort Yuma Indian Reservation
in Arizona; Malcolm Bowekaty, Governor of the Pueblo of Zuni of
New Mexico.
The Chairman. President Jackson, welcome, sir.
STATEMENT OF MICHAEL JACKSON, Sr., PRESIDENT, QUECHAN INDIAN
TRIBE, ACCOMPANIED BY LOREY CACHORA, HOUSING DIRECTOR,
CONSULTANT TO THE CULTURE COMMITTEE, QUECHAN INDIAN TRIBE, FORT
YUMA INDIAN RESERVATION, YUMA, AZ AND COURTNEY ANN COYLE,
COUNSEL, QUECHAN INDIAN TRIBE
Mr. Jackson. Good morning. Again, it is an honor, Senator
Inouye and Senator Campbell, to be among you.
Our nation is located in Fort Yuma, California, Imperial
County. My shava and tribal member, Mr. Cachora, is seated next
to me. We have come a long way to bring from our tribe, from
our most elders, and also from our most precious resource, our
younger generation of our tribe.
Our religion, our culture, our tradition has been handed
down from time immemorial through our elders for generations,
so we will not let our beliefs die.
Our most sacred site, Indian Pass, is under attack to be
destroyed by a mining company, which we all know. We have
spoken about it this morning. It plans to operate an open pit
cyanide leach operation.
Years ago we followed the correct legislative process,
which the United States requested us to follow, which we did.
We followed the permit process, environmental process, numerous
hearings, consultation process between our government and the
Federal Government. We had tremendous support throughout the
country. Finally, Secretary Babbitt, under the Clinton
administration, denied the mine, which was a great victory for
the Quechan Nation to save our history.
Immediately under the new Bush administration the decision
was reversed. Gale Norton made the decision against the Quechan
people without consulting with our nation, without sitting down
at the table and talking to us, looking into our eyes, hearing
from our hearts why this was a most sacred site to our people
for our past and our future. She did not follow the correct
legislative process, and still today she refuses to sit down
and talk to us.
As you asked the questions this morning, no, there was no
consultation period with us. I would know. I am the president
of our tribe. The process follows that they'll call me saying
that we want to talk to you about this very important matter
that affects you. I'll contact my council, the president of our
Culture Committee, Mr. Cachora, will set a time and date. I'm
still young. My mind is still sharp. I did not forget, so this
never happened.
When this happened, when the reverse decision was made,
this is something that our younger generation in our tribe just
doesn't understand. We thought we won the victory, then it was
taken away before we had a chance to celebrate. Our elders just
shake their heads, knowing this has happened too many times in
the past.
Since that time, our sacred sites have been placed on the
most endangered historic places, which was said this morning.
The Quechan Nation is watching and waiting for the Federal
Government to make the only right decision--that is, to make a
final decision to deny the gold mine once again.
Our ancestors left Indian Pass for a reason--to pass on to
the generations to come--that is us today and our youngsters.
Mother Earth is in our bodies, our blood. The river water runs
through us. It is very sacred to us. Native Americans across
the country, as you know, are the ones who saved Mother Earth.
They cherish Mother Earth, and they will do anything to save
what we walk on.
I bring the very hearts of our people to you today to help
save our history, our past, to preserve it through the ages. We
only talk the truth. Hopefully, somebody will listen to us,
what we are trying to say. Without Indian Pass, we can't carry
on our culture, our tradition, our religious beliefs. They will
be gone forever should this land mine be permitted to proceed.
In closing, I would like to make a final statement. Senator
Inouye, you posed a question to the group here earlier, and it
really strikes me that they didn't answer the questions
completely. When they make a decision against somebody, there
should be a reason why a decision is made. Hopefully like you
said, in the future you'll come up and let us know why such a
decision was made without walking the ground, looking at the
site. Gale Norton should be on the site with us to know what we
are fighting for. If she would come tomorrow, we'll take her to
the site. I know for a fact that she mostly will likely change
her mind about helping us save our site and not go against us.
You cannot make a decision against the people until you know
what decision you're making and what they're fighting for.
I would just really like to state to you that we would like
a meeting with her in the future. She has to know from our
hearts what we are trying to say.
And that word ``undue impairment,'' that was a play of
words on the decision that was reversed. Hopefully the
officials that sat up here earlier will understand what the
word means and how it affects our tribe.
Thank you.
The Chairman. I thank you very much, Mr. President.
Does Mr. Cachora want to testify?
Mr. Cachora, you are recognized.
LOREY CACHORA, HOUSING DIRECTOR, CONSULTANT TO THE CULTURE
COMMITTEE, QUECHAN INDIAN TRIBE, FORT YUMA INDIAN RESERVATION,
YUMA, AZ
Mr. Cachora. Thank you, Mr. Chairman and members of the
committee. Normally when I give presentation I'm on my feet,
but in this case it's kind of awkward for me to sit behind a
table. In either case, I am Lorey Cachora. I'm here today in my
role as a Quechan Tribal Cultural Committee consultant.
I am pleased to be here today to testify on the matter of
the important legal subject related to the cultural
preservation law. As you well know, I am accompanied by Mr.
Jackson and Courtney Coyle, attorney.
The Quechan Tribal Council and the Cultural Committee and
the Quechan community has addressed concerns about prehistoric
cultural sites, lands that have been affected or could be
affected.
The lectures, presentations to the community, county,
State, national level have been consistent with the commitment
of non-Indians and the Indians of the Nation to help preserve
freedom to practice the Quechan religion and culture.
The Quechan people have acknowledged the unique relations
with the U.S. Government--that as sovereign nation they retain
their inherent rights to self-government. They have expressed
what others have expressed long ago. This is the lack of
enforcement of provisions in existing preservation laws that
should protect sacred sites.
This generation recognizes the problem again today. Someone
in the Federal Government is failing to recognize American
Indian traditional cultural values.
The Department of Interior follows its own regulations and
other controlling laws, but they do not adhere to the
requirements of the due process; therefore, they cannot reach
their final resolution. This causes the agency to make up rules
and regulations as they see fit.
Now the history of the Quechan Tribe along the lower
Colorado River--share an ideology and cosmology that
encompasses the entire region. Although there are some
linguistic differences among the river tribes, they are closely
related linguistically and culturally. The Quechan Tribe, also
known as the Yumas, includes people of all the Colorado River
and other groups with the Lower Colorado River and Gila River
as a focus of their lifeway, share a history and belief system,
and common ancestry.
All of the river people have since been incorporated into a
decisionmaking regarding the cultural landscapes of the region.
Topographic features along the Lower Colorado River and Gila
River are major focal points in the cosmology of the river
people. This area includes the Indian Pass area and others
along the river system. Important events occurred at these
locations, and the Quechan of the area have a very, very strong
belief that geographic locations in the performance of ritual,
which is vital to their effectiveness.
A synthesis of extremely complex creation story--difficult
to accomplish because the tale takes four days to tell.
However, it encompasses not only the creation of the world and
its inhabitants, but the teaching of how to live in the world
with proper respect for one's surroundings and other
inhabitants of those surroundings, as well as the proper way to
treat the resources that have been provided by the spiritual
beings.
The Quechan Tribes were in existent in this region and they
are imbued with spiritual power. A web of continuity of power
spiritually connects these locations with other features in the
land as sort of a nervous system.
If there is a break in the web, it affects the entire
cosmo. Although peaks are most important in the valley, between
peaks and the desert pavement floor are the pathways for the
web that flows through from one peak to the other.
This is a brief statement which entails the Quechan
practice, beliefs, lifeway, existence. Unfortunately, comments,
statements, public education, and national government
statements have fallen on deaf ears.
I ask that someone in Washington, DC enforce the
responsibility of the Federal Government. If the mining or
other industry is permitted on any sacred sites, this will
destroy the lifeway of the American Indian.
Today we are here to stay for an indefinite future as
Americans. If we say it is sacred, we ask that you impose the
maximum degree of protection.
These words that I have expressed here come from the
community, Cultural Committee, and Council members. Thank you
for listening today.
The Chairman. Thank you very much, Mr. Cachora.
Now may I call upon Governor Malcolm Bowekaty.
STATEMENT OF MALCOLM BOWEKATY, GOVERNOR, PUEBLO OF ZUNI, ZUNI,
NM
Mr. Bowekaty. Thank you, Chairman Inouye and Vice Chairman
Campbell.
Before I get started, on behalf of my Zuni people I want to
have the privilege of introducing a delegation with me that
accompanied me for this as well as tomorrow's session. We have
Lieutenant Governor Barton Martza in the audience, as well as
our special assistant to the Council, Pablo Padilla. We also
have some people that have been working with us on this
particular issue--Jaime Chavez from the Water Network.
I'm going to be talking a little bit about the Zuni Salt
Lake as a specific example of how the Department of the
Interior has not protected the sacred sites under any stretch
of the imagination, whether it be regulatory acts or whether it
be through executive orders. The Zuni Salt Lake is a very
sacred place. Most of our tribes in the southwest have had some
linkages prior to the United States becoming a nation. We have
certain protocols and diplomatic ties that were established
long before that was even contemplated by our U.S. Government.
The southwest tribes in all the areas of New Mexico,
Arizona, and Colorado made pilgrimages to the Salt Lake to
harvest salt. Although some of the tribes were actually at war
during those historic and pre-historic times, as well as the
collective memories of our respective tribes in the southwest,
they basically agreed to set aside a sanctuary district that is
at least 12 miles from the center of the Salt Lake, a circle
surrounding that radius, where they considered it a neutral
zone, where warring parties actually came in and encountered in
that area would actually not fight each other. Hostilities
ceased. I think that really underscores the sanctity of the
area.
The Salt Lake is a very unique geological feature. It is
actually a salt marsh within a volcano within a volcano. It is
what they call a ``volcanic marr.'' There are two cinder cones
that are in a bigger caldera. The surrounding area has always
been protected, has a lot of shrines for all the Pueblos, as
well as the Navajo Nation, as well as the Apache Nations, the
White Mountain Apache Nation, the Mescalero, as well as the
Jicarilla Apache Nation.
The domestic uses for the salt have been for pilgrimages
where tribes went there for treks to pray, ask for spiritual
guidance and protection, and also for the basic utilitarian
support of basically using the salt for preservative for their
meats and for a lot of their produce.
The Zuni Salt Lake is in real danger of disappearing. In
the late 1980's the Salt River Project, an Arizona-based power
company, began purchasing land and applying for coal leases
from the Bureau of Land Management, as well as purchasing
private land and ranches to consolidate a logical mine unit.
These specific Salt River Project proposes an 18,000-acre coal
strip mine. It is roughly 25 sections. You look at 25 sections,
each section is considered a mile-by-mile width.
The Salt River Project proposes to strip mine the coal,
haul it on a 45-mile railroad corridor to their Arizona
Coronado Generating Station. We have, as a tribe, collectively,
with prior governors and tribal councils, have fought since the
early 1980's to stop this coal mine from occurring. We have
played by the rules and played the games as far as the
regulations are concerned.
The National Environmental Protection Agency, as well as
the act, the National Historic Preservation Act, as well as the
Executive orders have consistently failed to provide due
process for our tribe's behalf and on behalf of all the tribes
in the southwest.
We have gone to the extreme of actually trying to be
reasonable neighbors with our counterparts, both at the Salt
River Project, with the State of New Mexico, and with the
Federal Bureau of Indian Affairs, as well as Department of the
Interior. We have gone into private settlement negotiations.
All those broke down. We are here to beseech and implore this
committee to strengthen the National Environmental Protection
Acts as they relate to sacred sites to make sure that the due
process and due diligence by those Federal officials are
ultimately the sole objective.
We also beseech this committee to look at the National
Historic Preservation Act, not to retrofit it to historic
architecture, but, more importantly, to create a new section
that looks at tribes' perspectives.
Everybody uses mitigation. Mitigation is not in our
vocabulary. Mitigation assumes that when a project is created
and conceived that it will go and bulldoze its way through, no
matter what the obstacles, to have a mine open. That is not the
intent and perspective for a lot of our Indian nations.
I would like to point out some of those irregularities in
the National Environmental Protection Act as it relates
specifically to Zuni experiences in those processes.
The Zuni Tribe has been trying to regulate the regulators.
We have had to exploit and explore the environmental protection
processes, to look at the environmental impact statements. We
have had to use our tribe's resources to disprove and to
highlight the questions that I know will become evident in your
mind as you hear the rest of the testimony.
I also at this point in time wanted to ask the honorable
chairman to ask the same questions of the Secretary and the
Assistant Secretary in your further hearings about the
questions that may arise from our testimony here.
One of the things we had to do was look at the water
resources. We are only looking at two issues relative to the
mine. The issues are the water as well as the archeological
sites and the traditional cultural properties that are within
the Zuni Salt Lake area, as well as the logical mine area of
the proposed coal mine.
The water issue--the Bureau of Land Management, the Office
of State Engineer for New Mexico, the Coal Surface Mining
Commission of New Mexico, the Bureau of Land Management all in
their environmental assessments stated that there is going to
be no hydrological connections between the Zuni Salt Lake and
the proposed mining unit, which is 12 miles away. It took 4
years for our tribe to find this way and prove enough
scientific merit to raise the questions.
Just this past July the New Mexico State Mining and
Minerals Division issued a revised cumulative hydrological
impact assessment that stipulated that there is a hydrological
connection.
We are raising the same kind of issues relative to
archeological sites. It is ironic that you have individuals in
responsible, decisionmaking positions--and I'll give you two
examples. The former State Historic Preservation Officer for
the State of New Mexico considered the sanctuary district as
ineligible for inclusion in the National Register of Historic
Places. We have had to make two trips here to meet with the
keeper of the Treasury as well as the National Advisory Council
on Historic Preservation. They deemed the tribe's input as very
meritorious, and they actually declared the site as an eligible
site.
Given that, we have actually had to work with the same
exact executive director for the State Historic Preservation
Office of New Mexico to look at the archeological sites and to
deem those within the classification system of archeological
sites under criteria A, B, C, and D. Most of those
archeological sites are classified as D, where it specifically
states that it is of informational value. In no place did they
even consider criteria A or B, which means--and I quote at this
point in time--``Criteria A, places important to events in
history, critical to a culture's history.'' I will show--and I
beg the committee's permission to submit this map of the
logical mine area that has depicted the 5-year mining plan and
the areas of disturbance for the proposed coal mine. It has
here a lot of numbers and a lot of dots. Each of those number
and each of those dots are a proposed surface visible
archeological site.
It is very critical, and these were obtained under the
Freedom of Information Act, so these are public information.
The significance behind this map is indicated and predicate on
our tribe's Zuni Cultural Resource Enterprises. We have an
archeological clearance company that has been in business for
20 years doing business with New Mexico State, the Federal
Government, the Navajo Nation, the Hopi Nation, and our own
tribe. They have 20 years of experience where they have gone
out in the whole Four Corners area, excavated archeological
sites.
Their experiences indicate that, depending on the
archeological classification of a site--and I remind you, there
are a lot of numbers and a lot of dots--each of these are sites
within the logical mine unit. Some of these numbers indicate
that is identified as a site related to a particular time
period. You're talking at the ``paleolithic'' Indian period,
the archaic period, the pit structure of early Pueblo and later
Pueblo. If you look at these archeological sites and look at
the classification system that is promulgated by the State of
New Mexico, some of these sites are classified as
``paleolithic'' Indian, which means that there is a low
probability that you're going to find 5 to 10 human remains
when you excavate that particular site with that
classification.
Contrast that with the probability--and there are a lot of
sites. There are over 600 sites identified in this mine area.
Five hundred of those are probably within the late Pueblo or
early Pueblo periods. There is a very high probability, based
on our experiences--on-the-ground, 20-year experience where we
have done excavation--there is a very high probability that you
will find 800 to 500 human remains in one of those sites.
Given that, this area would probably harbor, if these were
excavated and strip mined, thousands of human remains. That is
an abomination to our tribe, on behalf of all the southwest
tribes.
The driving force behind that is New Mexico's own
publication for the Mining and Minerals Division. This is a
copy of a map of all the coal fields in the area. This is the
San Juan Basin. The Zuni Salt Lake is one of those fields.
That's the driving force for a lot of these activities.
As I stated before, some of the areas that we're talking
about are the sacred pilgrimages by different tribes. We have
documented the Hopi Nation, the Zuni Nation, and the Acoma
Nation's Salt Lake pilgrimage trails. Those will be bisected by
the proposed railroad corridor. I don't believe that there has
been any mitigation that has been promulgated within this
process.
To that extent, we again re-emphasize to this committee
that the process and the rules and the name of the game have
been played by this tribe, yet we have not managed to stop the
mine, simply because mitigation is the end-all under any of
these three acts that I have cited.
We need to move to a different category where you have
absolutely no adverse effects, no impacts should tribes deem
that.
I'm glad that the vice chairman asked the question of the
previous panel, ``Is there ever an incident where a decision by
the Secretary to oppose and stop a mine?'' There has never been
any. We assume and we hope that we will see that in the near
future.
It is especially critical because traditional cultural
properties for a lot of our tribes is the understanding that it
is our collective history, it is the oral history of a lot of
tribes. We consider every one of those archeological sites as a
traditional cultural property for our tribe. Why? Because it is
our recordation, it is our documented history of the wanderings
and the origins of our Zuni people. Our origin stories talk
about when we emerged from the Grand Canyon area, where we
broke into four different bands. One group went south toward
Land of the Everlasting Sun through South America, Central
America. We have never seen those brothers come back. The other
three have circled the Mesa Verde area, the Monument Valley
area, and have come back to present day Zuni. The two remaining
ones went as far as the Great Plains and have come back. And
the current one, the third one, is the one that we identify
with.
Those are our history. Those archeological sites are our
history book, so to speak, and to that end I beg this committee
to make sure that we up and remodify the National Environmental
Protection Act so that it is more sensitive to sacred sites. We
need to beef that up.
We must also create a new section of the National Historic
Preservation Act so it is not a retrofitting of protecting
historic architecture. We need to create a subsection that
actually looks at archeological sites as deemed by the
necessary American Indian tribes, hopefully with the
consultations that our previous panel have been talking about
as being promulgated right now.
We must also look at the executive orders. Those are good,
but they are absolutely toothless paper tigers. It depends on
the President who is in there who believes here and here and
consolidates those to make it meaningful. I think we need to
put more teeth behind that.
On that note, I would like to beg the committee's
indulgence by submitting these three pieces of paper that I can
assure you are free of any antlers--the map with all the
archeological sites, this map of the State of New Mexico and
Arizona where the proposed coal mine areas are, and a copy of
all the religious pilgrimage trails.
On my Zuni people's behalf, I thank you very much.
The Chairman. Without objection, your documents will be
received by the committee and made part of the file.
Mr. Bowekaty. Thank you.
The Chairman. I thank you very much, Governor. May I assure
you that the purpose of this hearing is to determine whether we
need new rules, new regulations, and new legislation.
Mr. Bowekaty. Thank you.
[Prepared statement of Mr. Bowekaty appears in appendix.]
The Chairman. I thank you both very much, and we will have
the next panel coming up.
The next panel consists of the president of Morning Star
Institute, Suzan Harjo; the executive director of the Black
Mesa Trust of Arizona, Vernon Masayesva; and the Inter-Tribal
Sacred Land Trust of Tulsa, Robert W. Trepp.
I'm sorry. Governor and President, we'd like to ask a few
questions if we may.
Senator Campbell. Just one or two. If you have some first,
go ahead, Mr. Chairman.
The Chairman. No.
Senator Campbell. You don't have to all come back to the
table. You can just sit close by there.
The Chairman. I just want the record to show once again,
President Jackson, no one ever consulted with you?
Mr. Jackson. No, Mr. Senator; we were not consulted with at
all. We went through the process, like I said, the legislative
process, the correct legislative process that we requested. We
went through all that, years and years of it. In the end, like
I said, a decision came down in support of us, but when the new
Administration came on we got word from Gale Norton--I think it
was a four-line letter to our attorney--that she rescinded that
decision and reversed it.
The Chairman. It was a letter from the Department?
Mr. Jackson. Gale Norton to our attorney.
The Chairman. It was----
Mr. Jackson. The record of decision, the four-line letter
changing the decision, denying it--rescinding it. But before
that, you would think that she would have consulted with us,
but no consultation ever took place with our tribe and our
people.
The Chairman. But it was not sent to you?
Mr. Jackson. No; it wasn't. It wasn't sent directly to our
tribe, our people that was impacted by the decision. No. We got
it through our attorney. It wasn't sent to her. It wasn't
formally provided, she instructs me. She just happened to get
it off the Internet, I guess.
The Chairman. Governor, may I call upon you and your staff
to sit down with my staff to work out legislation if such be
necessary?
Mr. Jackson. We would be privileged.
The Chairman. Mr. Vice Chairman.
Senator Campbell. Thank you, Mr. Chairman.
The Interior appropriations bill has already gone through
committee, but we may be able to introduce something on the
floor in conference to at least hold this up for a while until
we can involve you.
Mr. Jackson, Secretary Norton approved the mining permits
in late 2001. What actions, legal or otherwise, has the tribe
undertaken? Have you filed suit or have you met with Neal
McCaleb about this matter?
Mr. Jackson. We have met with Neal McCaleb and members of
his staff. We talked to them of the importance of us meeting
with his boss, Gale Norton, to discuss the decision she made.
We told him it is imperative that our people meet with her, our
council, but at this time we are still trying to get a meeting
with her, but to no avail at this time.
Senator Campbell. Okay.
Mr. Jackson. It is very disturbing, like I said earlier,
when somebody makes a drastic decision against your people,
your history, without even talking to you.
Senator Campbell. What would your view be if--the Secretary
has to make a lot of difficult decisions and balance a lot of
interests. She has the trust responsibility to protect the
Indian resources, too. What would your view be if there was a
coal project proposed by neighboring tribes, proposed by
another tribe but the first tribe objected under whatever
grounds? Perhaps that was a sacred site to them in past history
or something of that nature? In other words, it really pits one
tribe against another when one wants to develop the resources
and another one might say that that was a sacred area, even
though it is not within their reservation. Do you have a view
on that?
Mr. Jackson. Well, we, as our brothers and sisters across
the country, if another tribe for some reason wanted to do it,
it's not our tribal stance to get in the way of any other
tribe, what they want to do with their land, their sacred
sites, if you say it's sacred sites. But if there is a reason
for them to do it, it has to be a very strong reason that
they're completely without resources to feed their people or
education, for health and welfare, for housing. That's why some
tribes will do it. But our tribe will never do that. Our
Quechan Nation will not set one dollar, one nickel, one penny
for that coal mine that they want to operate there.
Senator Campbell. Good.
Mr. Bowekaty, I didn't want this hearing to paint all
mining as all bad, because in fact in many cases it has helped
Indian tribes. They have sort of a mixed review, you might say,
in American history of some who believe mining is to spoil the
environment and others believe that almost all new wealth that
has made this Nation strong came from mining in one form or
another. And even Indians, themselves, have been mining for a
thousand years. If you go to Pipestone, Minnesota, they still
mine, but it is not done for profit, it is done for ceremony--
although I guess now perhaps it is done for profit. They make
some souvenirs out of that pipestone. But Indians, themselves,
are not exactly new to mining.
I wanted to ask you about that map. You pointed out maybe
600 points on that map you showed us. Are all of those off Zuni
Reservation?
Mr. Bowekaty. A large percentage of those are off Zuni
Reservation; however, the upper northwest quadrant of that map
that I showed you are Federal lands. The rest are a combination
of State lands, as well as private lands. But our Zuni Salt
Lake Reservation is 12 miles from that area.
Also, to expound on what you just mentioned, our tribe has
never deemed extracted mining as a total ban. Our tribe looks
at the impacts to sacred areas. That is the only reason why the
Salt Lake is such a vital and dear project for us, because it
directly impacts our sacred site. Otherwise, we would have no
objections.
Senator Campbell. Thank you. Last question--in your written
testimony, is the legend of Salt Lake and Salt Mother in your
written testimony so they can be part of the record?
Mr. Bowekaty. No.
Senator Campbell. Thank you. No further questions, Mr.
Chairman.
The Chairman. Thank you very much.
And now may I call upon the president of Morning Star
Institute, Suzan Harjo.
STATEMENT OF SUZAN HARJO, PRESIDENT, MORNING STAR INSTITUTE,
WASHINGTON, DC
Ms. Harjo. Thank you, Mr. Chairman and my Cheyenne brother
and chief, Mr. Vice Chairman.
I'm Cheyenne and Hodulgee Muscogee and I'm here because the
white people didn't kill all my ancestors and we have sacred
places because the white people did not destroy all our sacred
places. We have a rich legacy from our people and we have an
obligation to our ancestors and to our coming generations to
protect those places where our people historically and
traditionally have gone and continue to go for solace, for
healing, for commemoration, for vision questing, for emergence,
for burials, for mourning, for all of these purposes.
We have been controlled for more than 1 century as Native
Peoples by regulations, first by the civilization regulations
that drove so many of our Native nations' traditional religions
underground and nearly two-thirds to the point of extinction.
The most endangered species in the United States of America
are traditional Native Peoples, and it is so distressing to
hear the ignorance and the arrogance, however kindly spoken and
however well-meant, from the Administration witnesses earlier.
The notion that our sacred places just need to be taken into
account and that they lack guidance about sacred place
protection is startling. The Lyng Decision of the Supreme Court
which said that the American Indian Religious Freedom Act and
the First Amendment do not provide a cause of action for us to
get into court to protect our sacred places or defend them
against desecration or destruction also says something very
important in the way of guidance. It says that there shall be
no impact or no impairment audiolly, aurallys, visually, or
physically. That covers a lot of territory--literally a lot of
territory. Everything that you have heard today involves an
impact or an impairment that affects the site or sound or smell
or physicality of tangible places involving living cultures,
living traditional religions. So it is stunning to hear that
there is guidance that needs to be gotten.
I think that the Interior witnesses must have read the Lyng
Decision only to the point where it said ``no cause of action''
and did not read what they need to do and how they need to take
into account the American Indian Religious Freedom Act and the
First Amendment when it comes to protection of our sacred
lands.
Be that as it may, we need a cause of action. We need
something to protect our sacred places, because we see that the
Department of the Interior and most Federal agencies are not
going to do it on their own. We need legislation that provides
a way for us to defend ourselves and to get in the courtroom
door. That's very important. We need legislation that is a
Native American statute to protect even the information about
these sacred places. We need further guidance on the existing
law, Native American Graves Protection and Repatriation Act,
for example, because the people who are implementing it have
gotten horribly off track.
There was a statement made earlier today that the
culturally unidentifiable human remains are those remains that
cannot be identified with a federally recognized tribe. That is
such an ignorant reading of the act. We're not dealing with
federally recognized tribes, we are dealing with the people who
are the relatives of the dead Native people who are in the
possessions of these Federal agencies and museums and
educational institutions--Native Hawaiians, Native Alaskans,
non-federally recognized tribes, federally recognized tribes.
The ignorance in that statement, alone, is stunning to me.
The guidance is in the law. The guidance is in specific
laws. For NAGPRA, where we have to look is to the dozen years
of implementation since its enactment. We can get a lot of
information about how the Department of the Interior might
implement future legislation on sacred lands and how we have to
tie down everything so it is not left up to regulatory fiat or
just to customary practice, because if it is left up to
customary practice more and more of our people are going to be
under attack as we have been for more than a century, and more
and more of our sacred places are going to be destroyed, and
fewer and fewer of our dead relatives are going to be
protected.
We understand that the Department of the Interior, the
National Park Service, is permitting and perhaps funding
studies on the culturally unaffiliated human remains. I heard
the response earlier. We have taken some steps as a working
group on culturally unidentified human remains to find the
facts of this matter. And, our legal counsel, Walter Echo-Hawk
of the Native American Rights Fund, has written on our behalf
on July 11 to the Department of the Interior asking for any
studies that are underway to stop, asking for any information
about those studies to be given over to us under the Freedom of
Information Act, asking for the regulations on culturally
unidentifiable human remains that are in the works be halted
until certain steps are taken, like the Park Service completing
a task it hasn't completed since 1995 in listing who has what
culturally unidentified human remains.
These are not remains that cannot be identified. They could
be identified for the most part, we believe, to living Native
Peoples if we knew who submitted them, who has them, where they
are, under what circumstances did they acquire them, how are
they keeping them. If we only had that information, which the
Park Service is already required to prepare and to make public,
we could help with that process of changing them from the
category of unidentifiable or unidentified to culturally
affiliated.
We have heard various estimates from six months to two
years that it will take the Park Service to finish that task.
Until such time as they finish that task, they should not issue
these regulations, because the regulations turn on that
information being in place. They don't even know what is in
that category that they're issuing the regulations about.
Having delayed by so many years to this point, a little
more delay to satisfy the Native interest should not hurt.
Also, these regulations flip NAGPRA on its head by saying
that the scientists are in control of the Native human remains,
and the repositories where they are now, the Federal agencies
and museums, can make the discretionary decision as to whether
or not to return or keep the human remains. NAGPRA is so
clearly a Native American statute--and I really appreciate the
chairman's clarification of that earlier today. That probably
comes as news to some of the Interior witnesses, and I hope
they take it to heart, because they have actually said, some of
them, with straight faces, that NAGPRA is not a Native American
statute.
We beg you to help stop these studies that are going on on
our ancestors and our relatives and to stop the destruction of
documents that is taking place, to instruct Interior that
NAGPRA documents are trust documents, that NAGPRA does involve
trust assets. It involves people and material who are Native
Peoples, and the Department of the Interior has a trust
relationship there and an obligation, and they have to live up
to that.
Thank you for working with us on laws that you have already
implemented to make sure they get back on track, and then
working with us to develop new legislation that will try to do
the right thing by protection of sacred lands.
Thank you so much, Mr. Vice Chairman and Mr. Chairman.
The Chairman. Thank you very much, Ms. Harjo.
[Prepared statement of Ms. Harjo appears in appendix.]
The Chairman. Now may I recognize Mr. Masayesva.
STATEMENT OF VERNON MASAYESVA, EXECUTIVE DIRECTOR, BLACK MESA
TRUST, KYKOTSMOVI, AZ
Mr. Masayesva. Thank you, Mr. Chairman and Mr. Vice
Chairman. I am from Hopi. I am the director of a new
environmental organization called Black Mesa Trust, and I was
the former chairman of the Hopi Tribe.
Before I go into my testimony, I would like to support what
my brother from the Zuni told you. His recommendations are
excellent. I completely support what he says, and I am thankful
to my brother, and for that I will compose you a song, my
brother.
I am a descendent of [Native word], the ancient people that
came and finally settled in what is now called Northern
Arizona. My ancestors, like your ancestors who came to American
in search of a new life, also came to the fingertips of Black
Mesa in search of a new beginning. I am here to address the
failure of the surface mining, reclamation, and enforcement to
fulfill their trust responsibility to the Hopis and to our
neighbors and brothers and sisters, the Navajo people.
For more than 10 years OSM has allowed the world's largest
mining company, Peabody, to take billions of gallons of
pristine groundwater and billions of gallons more of surface
water from Black Mesa without conducting a complete and
objective assessment of the environmental and cultural impacts
of such a loss.
OSM's failure is all the more inexcusable because water is
so sacred and scarce in the high desert countries of northern
Arizona and all the more harmful because water is so sacred to
us.
OSM's irresponsibility has left our way of life seriously
threatened. A discussion of how OSM has responded to our recent
concerns about the loss of water, particularly, or, more
accurately put, how OSM has failed to respond to those concerns
should begin with some understanding of how much water means to
my people. Only with this understanding can one begin to
appreciate the depth of the wounds OSM's actions and inactions
have inflicted.
For centuries, the land and waters of Black Mesa have been
central to our culture, religion, and likelihood. In the Hopi
view of life, all plants, animals, birds, fishes, insects,
human beings, exist in a delicate natural and spiritual
balance. Hopi people believe that earth, itself, is alive; that
water is the earth's life blood; and that life on Earth comes
from and returns to water.
When my ancestors settled on Black Mesa, they were given
three things by which to live by a deity we call Ma'saw, who is
the guardian of Mother Earth. We were given an ear of corn, a
planting stick, and a gourd of water. With these simple tools,
the Hopi entered into a covenant with Ma'saw to live a simple
life of reverence and respect for the land. They agreed to help
steward the land. Thus, the Hopi people not only drink and
bathe in the pristine waters of the Navajo Aquifer, it is also
sacred to us. It is used to worship and to water crops.
Corn, for example, has such spiritual meaning that it is
the first thing that touches a baby's lips and it is the bed on
which the bodies of those who have died are laid for their
journey back to the water world from which all life on earth
has sprung.
As important as the water is, it is by no means the only
cultural and environmental concern we have about the operation
of the Black Mesa Mine. The Hopi and Navajo have a number of
concerns that were set forth in detail in a comment submitted
to OSM by Black Mesa Trust on April 29th of this year. Copies
of those comments have been provided to members of this
committee.
Among those concerned is the withholding of 250 million
gallons of surface water impounded by Peabody. The loss of
surface water was addressed by my friend and president of Black
Mesa Trust, Leonard Selestewa, during a hearing held before
this committee on June 4.
OSM has never been short of words in proclaiming a
commitment to protect the interests of Indian people. In a
directive issued on March 28, 1996, OSM describes in great
detail its trust responsibility to Indian people. OSM's
director recognized that the United States ``has charged itself
with moral obligations of the highest responsibility and trust.
At a minimum'' OSM goes on to say ``it has to protect tribal
lands, assets, resources, and treaty rights, as well as a duty
to carry out the mandates of Federal law with respect to
American Indians and Alaska Native tribes.''
As the regulatory authority for surface coal mining and
reclamation operations located on Indian lands, and as a
Federal agency of the Department of the Interior, OSM
acknowledges its trust responsibility to ``ensure that the
lands and trust resources of Federally recognized tribes and
their family members are identified, conserved, and
protected.'' I repeat that--``identified, conserved, and
protected,'' not just mitigated.
Unfortunately, OSM's actions have not lived up to its
rhetoric. At no time in more than ten years has OSM conducted a
full and fair assessment of the cultural and environmental
impacts of Black Mesa Mine. To begin with, OSM has not
approached an impact assessment using the values and cultural
perspectives of the people it claims to protect, but rather
from the utilitarian perspective of the company it is supposed
to regulate.
For example, OSM does not view groundwater and surface
water as part of the integrated whole of the living Earth. It
sees water contained in a separate inanimate compartment. OSM
does not view water drawn from the Navajo Aquifer as sacred,
but as a commodity whose value lies in its utility.
Consequently, OSM does not see the that draw-down of an aquifer
has profound religious and cultural impacts. Similarly, OSM
does not look at how the mine's 200 water impoundment affects
the flow of surface water to the Moenkopi farmers at the foot
of Black Mesa.
OSM's analysis of environmental and cultural impacts is
seriously flawed on a more technical level, as well. OSM now
concedes that the USGS groundwater model it has used for years
is inaccurate and has now been rejected. The USGS model
provides no basis to rationally assess the impacts of pumping a
billion gallons of water each year from the Navajo Aquifer.
Even in the face of this shortcoming, OSM disregarded our
view, our science, the way we looked at the aquifers. We say
that people are connected to the land and water. Hopi
practitioners of Hopi science see sacred springs as passageways
to the world from which we came and eventually return. The
springs are breathing holes. When they stop breathing, the
water stops flowing. For years, Hopi farmers and ranchers who
walk the land have been saying what hard data now shows. Large-
scale withdrawals have seriously damaged the Navajo Aquifer.
OSM's criteria known as ``cumulative hydrologic impact
assessments,'' criteria for CHIA show serious damage to the
aquifer. Springs now produce far less water. Some have
completely dried up. Monitoring wells show significant lower
water table. Moenkopi Wash that used to run all year long is
now completely dry, completely dry.
Despite evidence of serious damage as shown by OSM's own
criteria, the Agency has taken no action towards restoring the
health of the Navajo Aquifer. OSM's regulations require a mine
applicant to submit a reclamation plan, yet OSM has never--and
I repeat, never--required Peabody to submit a reclamation plan
for the aquifer as part of its mine application. The agency has
offered no explanation for its failure to take any action to
protect and restore our water.
Just as troubling is the agency's failure to include us in
a meaningful discussion. In an application submitted by the
Peabody Mine, it describes the location of the mine with terms
such as ``township, range, and sections,'' which are
meaningless to most Hopi and Navajo people. The application,
itself, contains more than 1,000 pages, much of it in highly
technical jargon. The application was deposited at just two
locations on Black Mesa, two hours or more by care from some of
the villages, assuming every person living on Black Mason would
have access to an automobile.
The application has never been summarized or translated
into Hopi and Navajo languages, despite an executive order
requiring agencies to take steps to ensure that persons with
limited English proficiency can meaningfully access the
Agency's programs and activities.
OSM did not deny its obligation to try to reach out to
Indian communities. Instead, the reason it offered for not
translating public notices and other vital documents relating
to Peabody's mine application is not, in their view--I'm sorry,
they denied this saying that in their view ``Hopi is not yet a
written language.'' This response is astonishing, given the
fact that Hopi has been written since the 1850s and a number of
books have been written in Hopi, including a major Hopi/English
dictionary that took a Hopi scholar 15 years to complete.
The comment period also started during the month of
February, which is the month of [Native word] or purification,
which is the last of the three major religious ceremonies held
on Hopi every year. During February, all political meetings are
suspended, including tribal meetings, so therefore if we had
commented we would have been in violation of our traditional
laws.
More recently, on June 19, 2002, OSM wrote to me saying
that the Agency has decided to call all public hearings on
Peabody's mine application to mine additional 189 million tons
of coal and to increase pumping by 37 percent.
Weeks ago, OSM had agreed the hold five such hearings later
this summer. The reason OSM gave for calling off the hearing
was that on May 14th Peabody had submitted a letter claiming to
have ``identified'' an alternative source of water for the coal
slurry and requests that the public hearing be put off.
No information is provided showing that such an alternative
source is even feasible and is going to be feasible and cost
effective. In fact, an application submitted to the California
Public Utility Commission by Southern California Edison, which
operates a power plant using coal from Black Mesa, states that,
``The feasibility and cost of the alternative is still being
investigated.'' Nevertheless, OSM decided to renege on its
commitment to hold public hearing without consulting the people
of Black Mesa.
Black Mesa Trust responded to OSM on July 6. We have
demanded that the public hearings move forth. To date, we have
received no response.
As things stand now, the people most affected by Black Mesa
mines have been shut out of the public participation process.
As a result, the depletion--and, in my personal opinion, an
illegal depletion--of Federal trust assets, coal and water,
continues.
In conclusion I leave with you the same question my friend
Leonard Selestewa left you with on June 4. Why? Why? Why? Why
has there been such a failure by all agencies of the Federal
Government who have trust responsibilities failed to correct
the problem? Why in more than ten years has there not been a
comprehensive and fair assessment of the cultural and
environmental impacts of the Black Mesa Mine? Why has OSM been
more responsive to a company that it is supposed to be
regulating than to the people who it is obligated to protect?
I ask of Secretary Norton: Why are you continuing to ignore
a provision in the Hopi/Peabody contract which states that if
the waters of Black Mesa are endangered, the Secretary has
discretionary powers to direct the mining company, if they want
to continue the mining operations using slurry operations, to
find an alternative water source at its own expense, not at the
taxpayers' expense?
Senator Campbell. Mr. Masayesva, we will have to conclude
the hearing. I'm sorry. Senator Inouye had a conflict that he
already had to leave to and I'm already overdue, too, but your
complete written testimony that you didn't finish will be
included in the record.
[Prepared statement of Mr. Masayesva appears in appendix.]
Senator Campbell. I have no questions, but I am gratified
to see that at least one person from the Administration stayed
to hear your testimony. Too often people from agencies come and
make their statement and they leave and they don't hear from
the opposing view. Hopefully, the message that you put forth in
your testimony will be taken back.
Mr. Trepp, I'm sorry to say that you won't be able to
testify, but if you will give us your written testimony we'll
study it copiously.
Mr. Trepp. Thank you, sir.
[Prepared statement of Mr. Trepp appears in appendix.]
Senator Campbell. I think, in my own view, the big
difference between everybody else in this country and American
Indians is that everybody else came here from somewhere else.
They had nothing to lose and everything to gain by coming here.
It was called ``upward mobility'' in sociology terms. Only the
American Indian had everything to lose and nothing to gain, and
they have lost almost everything, with a little bit of land
base left, and the thing that they hang on to the most is their
religious beliefs and the memories of their ancestors. It just
seems terrible to me that we would take those away through some
bureaucratic method because of opportunity for profits. I know
Senator Inouye agrees with me that that's just plain wrong, and
we've got to take another look at these issues or get the
Administration to take another look at them.
So I commit that to you and appreciate your testimony.
The hearing record will stay open for 2 weeks. If anybody
in the audience wants to add something in written form, please
submit that and we'll include that for 2 weeks.
Thank you very much for being here today. With that, the
committee is adjourned.
[Whereupon, at 12:20 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Malcolm B. Bowekaty, Governor of the Zuni Tribe
On behalf of the Zuni Tribe, I want to thank Chairman Inouye and
Vice Chairman Campbell for convening this Oversight Hearing regarding
the U.S. Department of the Interior and the protection of sacred
places. This is an important subject to American Indians and Alaskan
Natives, and one that has not been given the National attention it
deserves.
The Zuni Salt Lake is a sacred place. Located southeast of our
Reservation in west central New Mexico, this saline lake is a unique
geological feature and home to our Ma'lokyattsik'i, Salt Mother. For
centuries, indigenous tribes from the Southwest have made pilgrimages
to the Zuni Salt Lake to request spiritual guidance and rain, make
offerings, and collect salt for ceremonial, ritual and domestic use.
The surrounding land has always been respected as a sanctuary zone,
where waiting tribes put weapons down and shared in the sanctity of the
Salt Mother. just this past weekend, our brothers and sisters from the
Hopi, Yaqui, Pueblo, Xicano, Navajo and others joined us in a 260 mile
run from Hopi and Phoenix to Zuni to pay homage to her, as well as to
spiritually prepare us for this testimony today.
The Zuni Salt Lake is in real danger of disappearing. In the late
1980's, the Salt River Project [SRP], an Arizona-based power company,
began purchasing land and applying for coal leases from the Bureau of
Land Management. SRP proposes to develop an 18,000-acre coal strip mine
10 miles from the Lake. SRP also plans to use up to 85 gallons a minute
of water a year for 40 years for mining purposes. Finally, SRP proposes
a 44-mile railroad corridor from the proposed mine to the Coronado
Generating Station, which would dissect pilgrimage trails used by
tribes for centuries. Last month, to the dismay of the Zuni people, the
Department of the Interior approved the Life of Mine Plan, which gives
Federal Government approval for this project.
Protection of the Zuni Salt Lake and Sanctuary Zone has always
rested with the Zuni. In 1976, Senator Domenici from New Mexico
testified to the U.S. House Committee on Interior and Insular Affairs
and fought hard to have this land given back to the Zuni Tribe: This
bill [S. 877] will permit the Zuni Indian people to acquire a shrine
that has been theirs for literally centuries. Government intervention
and the inequities of history have prevented this great salt shrine
from being included in the boundaries of their reservation. This is
very important to their way of life, and is presently used by them as
part of their religious culture.
Twenty-five years later today, the Zuni Tribe feels that the U.S.
Department of the Interior has failed us in its obligations under
existing law and trust responsibility to continue to protect this
sacred lake and associated cultural resources from destruction.
In 1990, the Bureau of Land Management issued an Environmental
Impact Statement (EIS) for the proposed coal mine. This report was
flawed scientifically with regard to hydrology and failed to capture
the cultural importance of the Zuni Salt Lake. After repeated demands
from the Zuni Tribe to then Secretary of Interior Bruce Babbit and
others, a supplemental EIS was conducted in 1996. Since its issuance of
this SEIS, at least four major hydrological reports have been produced
which invalidate or contradict information contained in the SEIS. Yet
after several attempts by the past and current Zuni tribal councils, we
received a letter recently from the Office of Surface Mining stating
that DOI will base its decision on the 1996 SEIS and feels it not
necessary to amend the environmental impact analysis.
That the National Environmental Policy Act (NEPA) is oriented
toward process rather than outcome is a fact that the Zuni Tribe is
well aware of. We are thankful that the recently approved Federal Life
of Mine Plan contains provisions that somewhat protect the aquifers
that feed the Lake. However, it is unfortunate to realize that our
tribe had to go through such great lengths and expend resources it does
not have to prove to the regulators that the original hydrological
studies were flawed and biased toward the coal company. We believe that
is not the intent of NEPA nor of the Department of the Interior's
implementing regulations. American Indians and Alaskan Natives
protecting their sacred places should not have to carry the burden of
proof with regard to environmental impact analysis for projects
sponsored by Federal agencies. The Federal Government must be more
objective in its decisions and not bend toward industry.
As we understand it, the National Historic Preservation Act of 1966
was originally created to protect architecture, not sacred places.
There are subsequent problems with retrofitting this law when applying
it to the protection of sacred places. For example, with regard to the
protection of archaeological sites and traditional cultural properties
around the Lake, mitigation has meant digging, recording, and report
writing. The Zuni Tribe feels that protecting the information of a site
and then destroying it is not same as protecting the site itself In
other words, cultural resources are sacred not for the information they
contain, but because they have been placed their by our ancestors for a
purpose and should not be disturbed nor destroyed. This concept is very
difficult to convey to Federal agencies charged with compliance under
the National Historic Preservation Act using standard western
methodologies. A quick glance at eligibility requirements for inclusion
in the National Register of Historic Places (36 CFR 60.4) will reveal
that most sites are eligible under criteria D, information value.
This situation is exacerbated when applying scientific inquiry to
burials and associated funerary objects. Needless to say, the Zuni
Tribe finds it impossible to rationalize the displacement of our
ancestor's burials for the sake of making money. Therefore the Zuni
Tribe and other culturally affiliated tribes are extremely concerned
with the desecration that will occur, given the density of Puebloan
archaeological sites recorded in the mining site and the nature of
strip mining. Coupled with the fact that the implementation of the
Native American Grave Protection Repatriation Act (NAGPRA) has had
limited success with regard to actually protecting buries from
desecration, we are struggling to come to a resolve on the issue with
the Federal Government and the coal company.
While it is true that section 106 of the National Historic
Preservation Act and the National Park Service Bulletin 38 outline
methods of consultation with American Indians and Alaskan Natives to
protect cultural resources, the Zuni Tribe feels that the process does
not work effectively. Navigating through the consultation process for
this undertaking, the Zuni Tribe found itself in a bind when it comes
to the release of esoteric information. While the Federal agencies were
very sensitive to our need to protect esoteric information, it was
still difficult for us to convey the importance of specific cultural
resources without giving away information that was esoteric. Also, a
genuine sense of trust from the Federal Government is missing from the
consultation process, as we attempt to explain that a plant is sacred
to us without stating why it is sacred to us.
The Zuni Tribe understands the difficulty the Federal Government
has in dealing with competing interests. One of the major obstacles the
Department of the Interior has in protecting sacred sites like our Salt
Lake sterns from its organizational structure. The Office of Surface
Mining has a mission to regulate mining; the Bureau of Land Management
has a mission of leasing Federal resources; and the Bureau of Indian
Affairs has a mission to protect resources held in trust for American
Indians by the United States Government. Since these three offices are
housed under one Department charged with making a decision either way
on a particular issue, it stands to reason that one mission will
override the other. This is evident in the number of disagreements and
failed negotiations that took place within the DOI concerning whether
to approve or disapprove the Life of Mine Plan.
Engage tribes meaningfully in NEPA, NHPA and other processes early
on. This sentiment was echoed in the recommendations by the National
Research Council on Hardrock, Mining on Federal Lands, commissioned by
the U.S. Congress in 1999 (National Academy Press, Washington DC, 1999,
pg. 70).
Create legislation similar to what Congressman Rahall is proposing
in his draft Native American Sacred Lands Act. Legislation is needed
due to the fact that the existing Executive Orders on the subject do
not have the weight of law, existing laws are not working, and sacred
sites are being destroyed at an alarming rate without the tools
American Indian and Alaska Native governments need to engage industry
and governments.
Reorganize the decisionmaking process within the Department of the
Interior to better facilitate American Indian and Alaskan Native
concerns over sacred places.
Thank you very much for the opportunity to speak with you today on
this most important topic. The Zuni Tribe is willing to work with your
Committee and others in any way we can. E'lah:kwa.
______
Prepared Statement of Christopher Kearney, Deputy Assistant Secretary,
Policy and International Affairs, Department of the Interior
Mr. Chairman and Members of the Committee, it is my pleasure to be
here today to discuss the Department's role in protecting Native
American Sacred Places. My name is Chris Kearney and I am the Deputy
Assistant Secretary for Policy and International Affairs in the Office
of the Assistant Secretary for Policy, Management and Budget. I am
accompanied today by Stephen Parsons, Hydrologist, Office of Surface
Mining; Patricia L. Parker, Chief, American Indian Liaison Office, and
John Robbins, Assistant Director, Cultural Resources, Stewardship and
Partnerships, National Park Service; and Marilyn Nickels, Group
Manager, Cultural and Fossil Resources, Bureau of Land Management.
Executive Order No. 13007, 61 Fed. Reg. 26,771, Indian sacred
sites, was issued in 1996. The Order requires Federal land management
agencies to the extent practicable, permitted by law, and not clearly
inconsistent with essential agency functions, accommodate access to and
ceremonial use of Indian sacred sites by Indian religious practitioners
and avoid adversely affecting the physical integrity of such sacred
sites. Where practicable and appropriate, implement procedures to
ensure reasonable notice is provided of proposed actions or policies
that may restrict future access to or ceremonial use of, or adversely
affect the physical integrity of these sites. The Order also requires
Federal agencies to consult with tribes on a government-to-government
basis whenever plans, activities, decisions, or proposed actions affect
the integrity of, or access to, the sites. Each relevant Cabinet agency
was required to send an implementation report to the President within 1
year of the Order's issuance.
Coordination of the Department of the Interior's implementation was
assigned to the Office of American Indian Trust (OAIT). The OAIT is
responsible for ensuring department-wide compliance and overall
consistency of the Sacred Sites Executive Order. To assist that Office
to communicate with the various bureaus in the Department, an
interagency Working Group on the Implementation of the Sacred Sites
Executive Order was created, comprising representatives of each
departmental bureau, appropriate departmental offices and the Office of
the Solicitor.
The Working Group has actively sought input from Tribal
representatives on all aspects of the Department's implementation
process. The Department asked for Tribal input on the structure,
location and content for consultations and hosted three formal
discussion meetings between tribal and Federal representatives focusing
on implementation from both a procedural and substantive perspective.
The meetings were held in Portland, Oregon; Denver, Colorado; and
Reston, Virginia in March and early April 1997. Topics at the meetings
included: how to conduct meaningful consultation; how and when
consultation processes are triggered; how to protect the physical
integrity of sacred sites; how to protect the confidentiality of
culturally sensitive information; how to accommodate access and use;
and dispute resolution.
In October 2001, the Department attended the Sacred Lands Forum in
Boulder, Colorado. Through considerable internal review and the dialog
with interested participants at the forum, it became clear that we
needed to move forward on establishing policies and procedures for
protecting sacred lands. At the ``Overcoming the Challenges'' symposium
held on March 20, 2002, which was held as part of the DC Sacred Lands
Forum, we announced our intent to reconvene the Department's Sacred
Sites Working Group.
In June 2002, each of the Department of the Interior offices and
bureaus involved with sacred sites was notified of the plans to
reconvene the Working Group and they were asked to assign a
representative to the Working Group. Our objective is to renew the
momentum within the bureaus for establishing the necessary procedures
to carry out our obligations understood in the policy we created and to
ensure that we fully take into account Tribal concerns. It is also our
intent, working with the Tribes, to finalize and then to publish these
policies and procedures and provide them to Tribes and other interested
parties, and then to ensure that implementation occurs in a timely
manner. The Office of American Indian Trust is responsible for
coordination, logistics and staff assistance within the Department.
The first Working Group meeting occurred on July 2, 2002, in the
office of the Assistant Secretary for Indian Affairs. We are in the
process of identifying the current status of sacred site management
across the bureaus. That will be followed at future meetings with
developing management changes and tools to ensure full compliance with
the Executive Order. In addition, and as a result of the DC Sacred
Lands Forum, on August 14 the Department of the Interior and the
Advisory Counsel on Historic Preservation are sponsoring an interagency
meeting on sacred lands and cultural resources, under the auspices of
the Interagency Working Group on Environmental Justice. These meetings
are meant to help bring awareness and enhance coordination of sacred
site issues, not just within the Department of the Interior, but
government-wide.
This concludes my statement. I would be pleased to answer any
questions the committee might have.
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