Excerpt from Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1998/18. United Nations Doc. # E/CN.4/1999/58/Add.1, 9 December 1998. [Full text at United Nations High Commissioner for Human Rights (Follow links to Commission on Human Rights Reports, 1999: United Nations Doc. # E/CN.4/1999/58/Add.1)]
52. The situation of the Native Americans was discussed in depth with officials, including the Assistant Secretary of the Interior for Indian Affairs, representatives of the Native Americans and non-governmental organizations and various personalities.
53. The Native Americans are without any doubt the community facing the most problematical situation, one inherited from a past of denial of their religious identity, in particular through a policy of assimilation, which most Native Americans insist on calling genocide (physical liquidation, religious conversion, attempts to destroy their traditional way of life, laying waste of land, etc.).
54. It was explained to the Special Rapporteur that it must be clearly understood that the continuation and preservation of traditional Native American religion is ensured only through the performance of ceremonies and rites by tribal members. These ceremonies and rites are often performed at specific sites which are often established by creation myths and other events of importance in the native community. These sites may also be based on special geographic features such as burial sites, areas where sacred plants or other natural materials are available, and structures, carvings or paintings of religious significance. For most Native American religions, there may be no alternative places of worship since these ceremonies must be performed at certain places and times to be effective.
55. Concerning the situation of Native Americans in the religious domain, regulations restricting traditional ceremonies, including dances, lasted until 1934 when the Indian Reorganization Act was adopted. In 1978 Congress adopted the American Indian Religious Freedom Act (AIRFA) which stipulates, in particular, 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 ... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites". In 1990 came the Native American Graves Protection and Repatriation Act to ensure that Native American remains and sacred objects retained by federal, state and local governments, as well as universities and museums, are returned to the appropriate tribes and/or descendants and that burial sites on tribal and federal lands are properly protected. Finally, in 1996, President Clinton issued the Executive Order on Indian Sacred Sites calling for the protection of sites considered sacred by tribes and directing federal agencies to provide Native American traditional practitioners access to those sites.
56. With respect to the jurisprudence of the Supreme Court, in Lying v. Northwest Indian Cemetery Protective Association (1988) [Ed. Note: should be Lyng.] the Court declared that AIRFA was only a "policy statement". Although the Court recognized that the Government did not have a "compelling interest" in constructing a road on sacred land, as there existed alternatives, and although the project implied the annihilation of religious practices, the First Amendment did not provide the relief sought. Consequently, there are no enforceable safeguards for worship at sacred sites. The Smith case and the failure of the Religious Freedom Restoration Act (see chapter I, section A) also directly affected the religious practices of Native Americans.
57. On the basis of that brief legal background, the representatives of Native Americans and non-governmental organizations explained that the legislation concerned with the recognition and protection of Native American religious practices suffered from many weaknesses and gaps, which limited or even prevented its application.
58. Concerning the Executive Order in particular, it was stated that while it was very positive for tribes, the Order had no "action clause", leaving tribes without the needed legal "teeth", and that a stronger commitment to effective tribal consultation and higher standards for the protection of sacred sites were needed.
59. Concerning the Native American Graves Protection and Repatriation Act, representatives of Native American and non-governmental organizations expressed concern that the Act was too limited and failed to resolve, inter alia, the repatriation conflict between the scientific community and tribal governments. Concerns were also expressed on the following issues:
(a) On 24 October 1997, the Advisory Council on Historic Preservation approved regulations that place tribes in a secondary role, in regard to section 106 of the National Historic Preservation Act (16 USC 470), when a tribal sacred site is located off tribal lands;
(b) On 7 January 1997, a bill (HR 193) was introduced to prohibit sites of traditional significance from being listed in the National Register of Historic Places. This bill would have a significant impact on Native American historic and sacred sites and would result in increased damage to these sites, further infringing on the capacity of Native Americans to practise their religion within the bounds of existing law;
(c) In April 1994, President Clinton issued an Executive Memorandum on Native American Access to Eagle Feathers, directing the Department of the Interior to take the necessary actions to ensure priority distribution of eagles, a protected species, to Native Americans for traditional religious purposes. The memorandum simplifies the eagle permit application, minimizes delays, involves tribes in the distribution process, reviews methods for storage, etc. While the Federal Government has increased its efforts to improve its eagle distribution process, many concerns remain, in particular conflicts between religious needs and federal directives and laws such as the Endangered Species Act and the Eagle Protection Act; the waiting period involved in the acquisition of an eagle through the federal repository; and the condition of the eagle once it is received by the religious practitioner;
(d) There is a pressing need for federal protection of the religious rights of Native Americans incarcerated in federal, state and local penal and other institutions.
60. In general, the charge is often made that legislation derived from a western legal system is incapable of comprehending Native American values and traditions. Native Americans are being asked to "prove their religion", and in particular the religious significance of sites, most of which are situated on land belonging to the federal, state or local Governments and some on private land; but the need to provide "proof" conflicts with certain values, because the sacred site has to remain secret; furthermore, to reveal its location would allow the authorities to interfere in matters of religion. Similarly, the definition of property is based on the western concept of individual rights, whereas for Native Americans property is collective. The jurisprudence of the Supreme Court is also seen as showing a lack of understanding of Native American values. According to the Native American representatives, there is thus a double standard: because the Native Americans' system of values is not recognized, their religious practices are less well protected than those of other religions. These legal shortcomings and weaknesses associated with the Supreme Court's jurisprudence make it easier to neutralize the legislation on religious matters analysed above. Furthermore, the adoption of neutral laws of general applicability enables economic projects to be undertaken on sacred sites, which is tantamount to profaning them or destroying them. It was underlined that conflicts concerning the use and protection of sacred sites between traditional Native American religious practitioners, developers and land managers were likely to continue to affect Native Americans unless clear guidelines for protection were established and enforced. Similarly, legislation to protect animals or prohibit the use of certain plants may affect Native American religious practices, such as those requiring the use of eagles' feathers or the consumption of the peyotl cactus. Finally, the Special Rapporteur was informed that court decisions in Native Americans' favour on the ownership of sacred sites had not led to their restitution, but to financial compensation, which, for example, the Sioux nation was refusing in the case of the Black Hills of South Dakota, which it was deprived of illegally according to a Supreme Court decision in 1980.
61. Apart from these problems of a legal nature, the representatives of the Native Americans and non-governmental organizations reported very many cases of what they called intolerance and discrimination in the field of religion, which, in fact, resulted from these legal problems.
62. A first series of complaints relates to sacred sites and sacred natural objects used in rituals (plants, rice, etc.). They involve first of all damage to sites due to the execution or attempted execution of economic projects (for example, mining projects affecting the sacred sites in the Little Rocky Mountains of the Gros Ventre and Assiniboine tribes on the Native American reserve of Fort Belknap in the Northern Montanales (Montana) and the sites near Lake Rice in the Sokaogon Chippewa reserve in northern Wisconsin; a plan to build a road in a national park affecting a sacred site of the Pueblo Indians near Albuquerque (New Mexico); a uranium mining project affecting the sacred site of the Havasupai tribe in the Grand Canyon (Arizona); economic development projects at the Mount Shasta sacred site of the Shasta, Pit River, Wintu, Karuk, Okwanuchu and Modoc tribes and at the Medicine Lake Caldera sacred site of the Pit River, Shasta and Klamath/Modoc tribes in California; a nuclear project on the Ward Valley sacred site of the Fort Mojave tribe in California). Then there is the problem of access to religious places and sacred features situated on private property (for example, a request for compulsory authorization for Native Americans to practise their religion on the Mount Graham sacred site situated near the University of Arizona's telescopes), on Native Americans' own property (case mentioned above of the Sioux nation having been unable to recover their property in the Black Hills and being denied the exclusive use of their sacred site for religious ceremonies), or situated on the frontier with Mexico (for example, case of the Yaki nation and the Tohono O'odham). In general, these complaints reflect both a real lack of understanding and consideration and an indifference and even hostility on the part of the various officials and other parties involved (in the economy, research, etc.) with regard to the values and beliefs of the original inhabitants of the United States.
63. The Special Rapporteur wishes to draw attention here to two situations which have already been the subject of a communication addressed to the United States authorities, in June 1997. First of all, there is the case of Mount Graham, where telescopes are being constructed by the University of Arizona on the sacred site of the Apache nation with the authorization of the federal water and forest service. The other case concerns the complex and sensitive situation resulting from the Relocation Act (25 USC) following a land dispute between two Native American tribes, the Navajos and the Hopis; in connection with the resettlement of families from these two tribes in the Black Mesa region of Arizona, the Navajos consider that their right of access to their sacred sites in the area allocated to the Hopis is not respected; the Hopis for their part consider that their religion and its practices should also be respected (for further details, see the report entitled "Hopi-Navajo relocations", prepared by Erica-Irene A. Daes and John Carey -E/CN.4/Sub.2/1989/35, parts I and II).
64. A second series of complaints relates to ceremonial instruments and objects (eagles' feathers, tobacco, cactus, peyotl, etc.). Persons having them in their possession sometimes run into serious difficulties, including confiscation, especially at frontiers, arrest and prosecution, for the reasons given in the section on legal issues (see in particular the Smith case). A third series of complaints concerns the restitution and non-profanation of human remains, particularly on the part of the scientific community, a problem mentioned in that same section.
65. A fourth category of complaint concerns Native American prisoners (some 7,000) in the United States prison system, both State and federal. Sweat lodges (for cleansing and purification ceremonies), long hair worn in a traditional fashion, headbands, medicine bags, possession of sage, cedar and tobacco and other practices have been banned as "security risks" by one prison or another. Concerning the question of cutting the hair of Native American prisoners, many individuals asserted that this act was tantamount to castration. According to the information received, enforcement of and compliance with laws and regulations have not been uniform and lawsuits filed to enforce existing laws have resulted in contradictory decisions. The freedom of religion of Native American prisoners has depended upon the whim of individual prison officials. Lawsuits are pending and complaints have been filed against the Departments of Correction of Texas, California, New York, Wisconsin, Minnesota, Nevada, Missouri, Washington, Oregon, Pennsylvania and Arizona.
66. Finally, a fifth category of complaints concerns children asked in certain schools to cut their hair. Children placed in non-Native American adoptive families and institutions are also a problem, because their links with traditional Native American religion are broken.
67. During official consultations, State department representatives said that there were many problems relating to Native Americans. However, while recognizing the existence of very serious abuses in the past, they emphasized that recent years had been marked by progress towards greater protection and autonomy for indigenous peoples. They also explained that the process was a long-term one.
68. Officials from the Departments of Justice and the Interior described past United States policy as destructive towards Native Americans and biased in favour of the country's economic interests. According to them, President Clinton's policy, on the contrary, took account of Native Americans' interests. They stressed nonetheless the difficulties caused by the conflict between economic values involving vast financial interests and the importance of the concept of private property, on the one hand, and Native Americans' traditional values, on the other. It will be noted that the Native Americans are a small religious minority in a democracy shaped by the will of the majority (we may cite, for example, the case of 500 persons claiming protection for their sacred site in the face of a project for the construction of ski runs which is of interest to 200,000 American citizens). The question of the proper response is made still more complex by the fact that intervention by the authorities on behalf of the Native Americans is not to lead to the establishment of an official religion. It was however stated that within those limits there was still room for improvement. Concerning the prisoners, the Special Rapporteur was informed that in general the federal Government was making every effort to meet, as far as possible, the religious needs of Native Americans in federal prisons. With regard to respect for holy days, they were recognized by the federal Department of the Interior, but unfortunately not by all official bodies.
69. The Office of the Legal Counsel of the Department of Justice stated that while the legislation adopted for the benefit of Native Americans was in general positive, there were problems at the level of courts and public services, which, in many cases, did not abide by it. As regards the sacred sites, the Office pointed out that a process was being worked out for taking due account of these places, which, for the most part, were unfortunately not situated on Native American property. In some cases, however, it had not been possible to arrive at a compromise.