From the Director's Desk
Welcome to the inaugural issue of Justice, a newsletter designed especially for you -- our supporters, members and friends.
We at the Native American Rights Fund understand that as a NARF advocate you understand and embrace the importance of our work to assert justice on behalf of American Indian people. However, we also understand that sometimes the issues of federal Indian law can be very complex and foreign. Thatþs why we decided to develop a newsletter just for you.
Each issue will feature a lead article that explores a particular Indian law issue or case we are working on; "The Eagle Feather" which will honor an individual or individuals who are making a difference; an "Update" on recent case developments; and "Eyapaha" a message from Director of Planned Gifts, Don Ragona. We anticipate these and other newsletter departments will help you better understand the battles we are fighting together.
So as we come off the 1996 holiday season and look forward to the year ahead, we have chosen to focus our first edition of Justice on American Indian religious freedom and the work the Native American Rights Fund has done to protect it.
I hope you enjoy this issue, as well as those to follow. We look forward to keeping you apprised of our efforts to stand firm for justice.
John Echohawk (Pawnee)
American Indian Religious Freedom
"Some people want the medicine men and women to share their religious belief in the same manner that priests, rabbis, and ministers expound publicly the tenets of their denominations; others feel that Indian ceremonials are remnants of the primitive life and should abandoned."
The First Amendment of the United States Constitution states that "Congress shall pass no law that infringes upon the free exercise of religion" -- a freedom most Americans take for granted. For Indians, religious freedom is especially important because it is the underpinning of life itself. Religion, culture, and way of life are inseparable. However, freedom of religion has not always applied to American Indians.
Since Columbus' arrival in 1492, there has been a long history of intolerance and government suppression of traditional American Indian religious practice. This has come in the form of prohibiting so-called "pagan" religious practices, and government policy designed and enacted to "civilize" Indians. Although the pilgrims and immigrants came to America in search of religious freedom -- a pillar upon which our nation was founded -- those values have been disregarded in the federal government's hostile and insensitive treatment of the first Americans.
In the 1890's, after tribes were placed on reservations, U.S. troops effectively suppressed the Ghost Dance religion by slaughtering Sioux Ghost Dance worshippers at Wounded Knee and arresting Pawnee Ghost Dancers in Oklahoma. In that same decade, the Bureau of Indian Affairs (BIA) who were under the auspices of the Executive Branch outlawed the Sun Dance and banned other ceremonies which were declared "Indian offenses" and made punishable by withholding of rations or imprisonment. The ban was not lifted until 1934, more than a generation later and ten years after Indians were granted citizenship in 1924.
Serious problems in Indian religious freedom persisted into the 1970s. Federal agents arrested Indians for possession of tribal sacred objects such as eagle feathers; criminally prosecuted traditional Indians for the religious use of peyote; cut the hair of Indian children; denied access to sacred sites located on federal lands; and interfered with tribal ceremonies.
In 1978, the United States Congress sought to reverse this history and create a federal policy that would cease the deplorable treatment of American Indian spiritual practices, by enacting the American Indian Religious Freedom Act (AIRFA). Section 1 states that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom of worship through ceremonial and traditional rites."
As many Indian people feared, this policy proved to be meaningless and lacked any "teeth" for enforcement. While it was the intention of Congress to have traditional religious practices protected, the courts and land management agencies ignored AIRFA altogether in decisions that impacted the practice of American Indian religion.
American Indian tribes, Native Hawaiians and Alaska Natives and all world religions share a unifying dependence upon sacred sites. Worship at sacred sites is a basic attribute of religion itself. However, when thinking of sacred sites, most Americans think only of well-known Middle Eastern sites familiar to the Judeo- Christian tradition such as the Mecca, the Wailing Wall, Mount Sanai or Bethlehem. Unfortunately, the laws of the United States overlook that our own landscape is dotted with equally important American Indian religious sites that have served as cornerstones for indigenous religions since time immemorial. The Forest Service, Park Service and private interests have been allowed repeatedly to destroy irreplaceable Native sacred sites.
In the 1988 Lyng v. Northwest Indian Cemetery Protection Association decision, the United States Supreme Court allowed the Forest Service to virtually destroy an ancient site held sacred by the Karok, Tolowa and Yurok peoples of California. The court ruled that construction of a road would not violate the First Amendment rights of these American Indians whose spiritual lives are inextricably linked to that area. The Lyng decision meant that a basic cornerstone of tribal religion is unprotected opening the door to unchecked government destruction of sacred sites.
Two years later, a court decision that dramatically departed from First Amendment law, carved out the Free Exercise Clause and religious liberty and made it easier for the government to intrude upon freedom of worship for all Americans. In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court denied constitutional protection for an Indian religion of pre- Columbian antiquity which involves the sacramental use of the cactus plant peyote by members of the Native American Church of North America. The court in its decision found that protection of "diverse American religious liberty [such as the tenets of the Native American Church] is a luxury that a democratic society cannot afford."
To combat the injustice, the Native American Rights Fund, as counsel to the Native American Church organized the American Indian Religious Freedom Coalition to develop and support legislation to restore the protections of the First Amendment to American Indian people. Members of the coalition included over 100 Indian tribes, Indian organizations, religious groups, environmental organizations and human rights groups.
In May 1993, Senator Daniel Inouye, Indian Affairs Committee Chairman, and other co-sponsors introduced the Native American Free Exercise of Religion Act of 1993 (S. 1021) (NAFERA) . In 1994, NAFERA was replaced with S.2269, the Native American Cultural Protection and Free Exercise of Religion Act of 1994. This replacement bill was introduced to reflect progress made pursuant to year-long negotiations among the administration, the Senate Committee on Indian Affairs, and the American Indian Religious Freedom Coalition
On October 6, 1994, President Clinton signed into law Public Law 103-344 which exempts the religious use of peyote by Indians in bona fide traditional ceremonies from controlled substance laws of the federal and state governments. It also prohibits discrimination against Indians for such religious use of peyote, including the denial of otherwise applicable benefits under public assistance programs. The law closes the door to government prohibition of sacramental use of peyote by Indians and effectively reverses the 1990 United States Supreme Court decision in Smith v. Oregon . The Native American Rights fund played a key role in the passage of the legislation.
In the spring of 1996, President Clinton signed an executive order preserving American Indian sacred sites. There was great hope for this executive order. However, this past summer, Congress passed the "Salvage Rider" authorizing the clear-cut logging of public lands and salvage. Some of the sacred sites that are threatened by the Salvage Rider include Oregon's Mt. Hood National Forest and the Winema National Forest, Eagle Peak located in the Gila National Forest in New Mexico and California's Ironside Mountain.
Deeply ingrained religious attitudes toward the dead can be found in cultures worldwide. Native Americans are no exception. Few people, other than a small cache of anthropologists and archaeologists would dispute the notion that Indians and tribes have a superior moral claim to Indian remains and goods that is based on traditional religious and cultural beliefs and values. However, only since the 1980s have American Indians gained the legal rights and authority over their tribal burial sites, remains and funerary objects.
In May 1989, following a lobbying effort led by the Native American Rights Fund on behalf of the Pawnee Tribe of Oklahoma and the Winnebago Tribe, Nebraska lawmakers enacted a law which required state-sponsored museums to return Indian skeletal remains and associated burial goods to the tribes of origin for reburial. The law was the first of its kind. As a result of the Nebraska action, the Kansas legislature enacted a state bill in 1991 banning unregulated public displays of human remains and protecting unmarked graves from unnecessary disturbances. The legislature also passed necessary legislation that allowed for the reburial of Pawnee, Wichita and Arikara deceased ancestors who were on public display for over 50 years at a tourist attraction.
NARF was a leading proponent of the Native American Graves Protection and Repatriation Act, which President Bush signed into law on November 23, 1990. The law :
1) requires federal agencies and private museums that receive federal funding to inventory their collections of Native American human remains and funerary objects, notify the tribe of origin, and return the ancestral remains and funerary objects to the tribe upon request;
2) makes clear that Indian tribes have ownership of human remains and cultural items which are excavated or discovered on federal or tribal land and that they alone have the right to determine disposition of Indian human remains and cultural remains discovered in these areas;
3) prohibits the trafficking of Native American human remains and cultural items;
4) requires federal agencies and private museums that receive federal funds to create a summary of sacred objects in their possession. If a tribe can prove a right of possession to these objects, then they must be returned upon request of the tribe.
In 1991, a Nebraska state court ruled in favor of the Pawnee Tribe in a dispute with the Nebraska State Historical Society (NSHS) as to whether the NSHS was required to disclose records of skeletal remains and burial goods unearthed and held by the agency. The NSHS refused to comply with the state public records law contending that it was a non-profit organization and not a state agency, thus making its records not subject to disclosure. The court agreed with the tribe's counter-claim that the NSHS is a state agency and that it had violated the law. One-thousand of these remains were identifiable to the Pawnee, Wichita and Arikara Tribes.
NARF was successful in negotiating with the Smithsonian Institution for the return of 750 Alaska Native remains and associated burial offerings to the Larsen Bay Tribal Council that were taken years ago from the traditional village site located on Kodiak Island, Alaska. In 1991, the artifacts were reburied at the original site in a traditional ceremony. In a related case the Native American Rights Fund represented the Pawnee Tribe of Oklahoma in repatriation claims against the Smithsonian Institution under the repatriation provisions of the National Museum of the American Indian Act. In June 1995, the Pawnee Tribe, together with related Arikara and Wichita tribal representatives, reburied the remains of 300 ancestors and associated funerary objects in their aboriginal lands in Nebraska. However, the Smithsonian refused to repatriate some 50 remains and the Tribe appealed to the Smithsonian Review Committee. In October 1995, in the first appeal under the Act, the claim of the Tribe was upheld.
Because religious freedom is the foundation that holds Indian communities and cultures together, it is a priority issue that directly affects tribal existence, sovereignty, and human rights. As a result, NARF has utilized its resources to protect First Amendment rights and will continue its commitment to safeguard the religious freedom of all Native Americans.
On the Case
Walter Echo-Hawk (Pawnee) and Robert Peregoy (Flathead) have been NARF's two lead attorneys on religious freedom and repatriation issues. Walter Echo-Hawk joined the Native American Rights Fund in 1973. In addition to his work on American Indian religious freedom issues, he has also worked on prisoner rights, water rights, and treaty rights. Walter was born on the reservation near Pawnee, Oklahoma. He earned a political science degree from Oklahoma State University and a law degree from the University of New Mexico, and is admitted to practice law in Colorado.
Robert Peregoy has been a staff attorney since June 1984. He currently works in the Washington, D.C. office. His work with NARF has included litigation, legislative and administrative advocacy in state and federal forums in the areas of religious freedom issues, federal recognition, oil and gas trust responsibility, off-reservation land acquisition for trust placement, and Indian education. Robert has a B.A. from the University of California-Santa Barbara, an M.A. from UCLA, a doctorate from Montana State University and a J.D. from the University of California-Berkeley. He is admitted to practice law in Colorado and the District of Columbia.
The Native American Rights Fund held a benefit "Cigar Dinner and Silent Auction" on November 12, 1996 at Prego Ristorante in Beverly Hills, California. This was the first event of its kind for our organization and we are very pleased with its success!
NARF development staff members Don Ragona (Director of Planned Giving) and Sonya Paul (Development Assistant) were joined by a guest list of about 50 individuals, including television celebrities Shadoe Stevens and Meshach Taylor of 'Dave's World' and Mike O'Malley of 'Life with Roger.' We are very honored to have their support.
The evening started out with pre-dinner cigars and entertainment by contemporary Native American recording artists Thunderhand Joe and the Medicine Show. Everyone enjoyed a much talked about traditional Native American dinner that featured grilled buffalo steaks, wild rice from the Leech Lake Band of Ojibwe, and roasted acorn squash.
The silent auction featured works by Indian artists Earl Biss, Ben Harjo, Jr., Harold E. Larsen, N. Scott Momaday, and Dolona Roberts. Throughout the evening our dinner guests jockeyed for the highest bids on all the auction items. Perhaps the most popular was a Navajo Textile Mills wool blanket embroidered with the NARF feather.
It was a beautiful evening that provided us with a wonderful opportunity to meet new friends in the Southern California region. We want to thank the event sponsors:
Bielenberg Design, Harvey Dennenberg, Eight Days a Week, Espace Design & Construction, Hilary Henkin, Lamont Financial Services Corporation, Lantaff & Associates, L.A. Sound Corporation, Tom Seidman, Thomas Hinds Tobacconists, and Virgin Records. We would also like to acknowledge Creighton Anderson, Hilda McGonigle, Tom Dunphy, Kari Lynn Frace', and Andrea Bullo for their invaluable assistance in making the evening a success, as well as everyone who attended and purchased items from the silent auction.
On November 19, 1996 Walter Echo-Hawk and Don Ragona joined Mashpee Wampanoag Tribal Chairman Russell Peters and moderator Shepard Krech, III, Director of the Haffenreffer Museum, in a panel discussion on Native American repatriation issuesat Brown University. More than 150 people attended the discussion that focused on the repatriation of human remains and sacred religious objects and the Native American Graves Protection and Repatriation Act (NAGPRA). Walter Echo-Hawk also signed his 1994 book entitled Battlefields and Burial Grounds: Native American Rights. The panel, along with a dinner and book signing was sponsored by The Friends of the Haffenreffer Museum of Anthropology as part of National Native American Indian Heritage Month.
The Native American Rights Fund would like to honor Willie Kasayulie (Yupik) and Rick Hill (Oneida) who recently completely their terms on the NARF Board of Directors. Rick Hill is Executive Director of the National Indian Gaming Association (NIGA) and Willie Kasayulie is Tribal Operations Specialist for the Akiachak Native Community in Alaska.
We would also like to honor Rick Dauphanais (Turtle Mountain Chippewa) who recently left NARF after 16 years as a staff attorney.
We have been fortunate to work with them and acknowledge their dedicated efforts and commitment to Native American people.
A three-judge panel of the Ninth Circuit Court of Appeals has unanimously ruled in State of Alaska v. Native Village of Venetie Tribal Government that the Alaska Native Claims Settlement Act (ANCSA) did not extinguish Indian Country in Alaska, and that the land occupied by the Neets'aii Gwich'in people of Venetie and Arctic Village is Indian Country. "Indian Country" is the geographical territory within which an Indian tribe exercises territorial governing powers. This landmark decision by the Ninth Circuit overrules a 1994 district court ruling, and arises out of the Native Village of Venetie's attempt to impose a tax on non-Native corporations doing business on ANCSA lands within or near the villages. Heather Kendall (Athabascan) and Lare Aschenbrenner, NARF staff attorneys in the Anchorage office, are lead counsel in the case.
On January 7, 1997, NARF staff attorney Melody McCoy (Cherokee) argued Strate, et. al. v. A-1 Contractors, et. al before the United States Supreme Court . The case involves the jurisdiction of the tribal court of the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota to decide a personal injury case involving a non-Indian resident of the reservation and a non-Indian owner/employee of a company located off the reservation. A court decision is expected sometime before the court recesses in mid-summer.
On August 17, 1995 NARF supporter and friend Gertrude Burman passed away and began her journey on the Canku Wankan (holy road).
Miss Burman was born in Fort Yukon, Alaska in 1915. Her mother was an Athabascan Indian. Her father, a former member of the Royal Canadian Mounted Police, managed the Northern Commercial Trading Company in Fort Yukon.
Gertrude Burman spent her entire business career as a civilian in the United States Navy accounting department. Her travels to her regularly back to her birth state of Alaska. An art lover and an artist, Miss Burman's artistic talents were recognized at an early age. She was a multi-award winning needlepoint artist.
Throughout her life, Miss Burman held near and dear to her heart the well-being of Native Americans. She knew first-hand of their struggles, their hopes and dreams, and tried to make a difference in the lives of many Indian people. She was a member of many Indian organizations, both in Alaska and the southwest.
As an expression of her desire to further the well-being of all Native Americans she made a major bequest to the Native American Rights Fund. Gertrude Burman may have journeyed to the Spirit World, but her name and legacy will live on in all Native peoples she has touched with her generous gift.
On behalf of the NARF board of directors, staff, and especially our clients, I say to Miss Burman, her family and friends, "thank you."