Copyright © 1998 NLThomas
All Rights Reserved

FOREWORD

The National Indian Policy Center Planning Office was established
by congressional initiative and authorized by Public Law 101-301. 
The legislation, supported by a number of tribal leaders, provided
for the planning office to be located at The George Washington
University in Washington, DC.

The Planning Office operates under the direction of a Planning
Committee comprised of nationally prominent tribal leaders and
representatives of major Indian organizations.  Recommen-dations
and support are not limited to Native governments and national
organizations; individuals are also invited to participate in the
development of the Center.  For additional information on how to
participate, please contact the National Indian Policy Center.

The National Indian Policy Center commissioned this study as a
demonstration project.

Prepared for the National Indian Policy Center by

Mimi Smith
Native American Rights Fund
1506 Broadway
Boulder, CO  80302
(303) 447-8760

Copyright © MSmith
All Rights Reserved

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TABLE OF CONTENTS I.EXECUTIVE SUMMARY 1 II.QUESTIONS AND BRIEF ANSWERS PRESENTED 2 III.STATUTORY PROTECTION FOR SACRED SITES ON PUBLIC LANDS DOES NOT GIVE NATIVE AMERICAN RELIGIOUS PRACTITIONERS VETO POWER OVER PUBLIC LAND DECISIONS 3 A. Establishing a Sacred Site 3    1. Definition of sacred site in the proposed legislation 3    2. Determining a threat to a sacred site 3    3. Native Americans have no veto power, in effect 4    4. The draft amendments would not disrupt land-use plans 4 IV.THE AMENDMENTS WOULD FOSTER MULTIPLE USE 6 V. EXISTING STATUTES, REGULATIONS AND POLICIES ARE WHOLLY INADEQUATE TO PROTECT SACRED SITES, AS IS EVIDENT FROM A REVIEW OF THE DECIDED CASES, THE PENDING CONTROVERSIES, AND THE REQUIREMENT OF EXISTING LAW AND POLICY 10 A. The Cases 10 B. Current and Recently Resolved Controversies 11 1. Mount Shasta, California 11 2. Mount Graham, Arizona 12 3. Big Horn Medicine Wheel, Wyoming 12 4. Enola Hills, Oregon 12 5. Badger Two Medicine, Montana. 13 C. Existing Statutes, Regulations and Policies Offer Only Procedural and Discretionary Protection for Sacred Sites 13 1. The National Park Service 14 2. The land management statutes 14 a. The Federal Land Planning and Management Act 14 b. The National Forest Management Act 14 3. The cultural resource protection statutes 15 VI.THE LEGISLATION WOULD APPLY ONLY TO TRADITIONAL NATIVE AMERICAN RELIGIONS AND RELIGIOUS PRACTICES 16 VII. CONCLUSION 17 I.EXECUTIVE SUMMARY The American Indian Religious Freedom Act (AIRFA) became law in August of 1978. It is a single paragraph that states Congress' policy to recognize and protect the free exercise of traditional Native American religions, including worship through ceremonies and access to religious sites on public lands. Since 1978, no federal land managing agency except the National Park Service has promulgated rules to protect sacred sites located within their jurisdiction. 1 Instead of using the next 13 years to promulgate rules implementing AIRFA, federal land-managing agencies have continued practices that destroy sacred sites, and the courts have upheld them. The agencies also have not issued explicit directives managing their protection, and courts have found AIRFA too vague to enforce. In 1992, the American Indian Religious Coalition, which consists of more than 100 Indian, church and environmental groups, circulated draft amendments to give AIRFA some "teeth." In May of 1993, Sen. Daniel Inouye (D-Hawaii) formally introduced the amendments as part of S. 1021, the Native Indian Free Exercise of Religion Act. To be adopted, the amendments will have to withstand opposition from federal land managers and commercial developers of public lands. They have testified against previously proposed amendments on various grounds, including that: 1.Native American traditionalists would gain a de facto veto and ownership over public land use decisions. They would do so by demanding exclusive use of the lands containing their sacred sites. 2.Sacred sites protection would inject chaos and unpredictability into public land management, because of the undocumented and unwritten nature of traditional Native religions. 3.Sacred sites protection would trump all other resource management and undermine the "multiple use" balancing principle of federal land management. 4.Existing statutes and regulations amply address the religious freedom concerns of Native Americans. II.QUESTIONS AND BRIEF ANSWERS PRESENTED This paper seeks to address these concerns of developers and land managers as expressed in previous congressional hearings on earlier proposals to amend AIRFA. The questions to be discussed, and the answers in brief, are: 1.Does substantive protection for sacred sites mean veto power for Native Americans over the use of public lands? The notion of a veto was raised in Justice Sandra Day O'Connor's opinion in Lyng, and developers have since echoed it. 2 No. This concern is wholly unwarranted by the history of sacred sites claims. Indian traditional leaders have not excluded other users except forbrief periods of time required for religious practices. 2.Will sacred sites protection undo management for multiple uses? No. The proposed legislation will enhance multiple use, not undermine it, because it will serve to restore balance between commercial and non-commercial, consumptive and preservation uses. 3.Do existing statutes, regulations and policies adequately address the religious freedom concerns contained in AIRFA? No. The record of these laws is dismal, in court cases and in agency interpretation. 4. Considering the proliferation of non-Native land-based religions, how would the draft amendments affect attempts by non- Indians to raise religious claims to public lands? The draft amendments would have a neutral effect on such attempts, because they are grounded in the federal government's trust responsibility to protect Indian tribes and culture. The United States has no trust duty to preserving non-Indian culture, although claims by non-Indians can be brought under the Free Exercise Clause in the First Amendment of the Constitution, which guarantees the free exercise of religion. The fact that Indians have special religious protections on public lands that non-Indians do not is based on the trust responsibility and not directly on the First Amendment. III.STATUTORY PROTECTION FOR SACRED SITES ON PUBLIC LANDS DOES NOT GIVE NATIVE AMERICAN RELIGIOUS PRACTITIONERS VETO POWER OVER PUBLIC LANDS A. Establishing a Sacred Site At hearings in 1989, mining and oil industry officials objected to there being no impartial or objective way to determine when federally permitted activities would pose a threat to traditional Indian religious practices, because these religions were undocumented and unwritten. 3 1. Definition of sacred site in the proposed legislation The 1992 draft amendments defined a Native American religious site as a place that is sacred to a Native American religion, a gathering place for substances needed for cultural or religious purposes, or a place for religious practices. It would be up to the practitioners of the religion to determine if there were a sacred site present. 2. Determining a threat to a sacred site To help identify the sites, federal agencies planning actions that might affect the integrity of sites would have to notify tribes and Native traditional leaders. These leaders could then inform the relevant agency that the undertaking or decision "will or may alter or disturb the integrity of Native American religious sites or the sanctity thereof... or adversely impact the exercise of a traditional Native American religious practice," according to the draft amendments. In that case, the agency would begin an impact assessment similar to regulations implementing the National Environmental Policy Act. 4 The draft amendments would also require agencies to include a "religious impact statement" in NEPA and other laws applicable to sacred Native sites. The draft amendments would not give Indians the final say over whether an activity infringes on religious freedom. Rather, they would allow them to initiate a full disclosure process, similar to that currently existing under NEPA, to ensure that impacts on sacred sites are fully anticipated. This way alternatives could be designed early in any planning process. The draft amendments to AIRFA would raise Native ceremonial and religious sites on public lands to the level of concern that agencies currently grant to natural resources. Currently, natural resource statutes and regulations require agencies to fully appreciate and document the impact of proposed activities on the environment. 3. Native Americans have no veto power, in effect At the 1989 hearings, developers insisted a Native's claim that a site was sacred would effectively act as a veto to development, even if the federal government had the power to make the final decision. But under the draft amendments, if the Indian parties still perceived a threat after the agency offered alternatives, the burden of proof would pass to Indians to show that an activity "poses a substantial and realistic threat of undermining or frustrating a Native American religion or religious practice." This would not be an automatic win for Indian parties. The amendments would simply create a fuller review process than currently exists under the law. 4. The draft amendments would not disrupt land-use plans The mining and timber industry, as well as Nevada's attorney general, expressed concern in 1989 that Native American traditional religions could be granted the exclusive right to use vast tracts of public lands containing untold thousands of sacred sites. 5 The draft amendments would allow federal land managers to avoid this scenario in two ways: by adopting procedures to involve Native American traditional experts early in land-use planning; and by allowing a two-tiered cause of action that leaves the ultimate decision to the federal government, albeit one that could be challenged in court. For example, the two-tier cause of action would make it difficult for Indians to show a substantial and realistic threat to the religious vitality of an entire mountain range. If the Indians could not make this showing, they could seek a lesser ruling that the undertaking or activity would "alter or disturb the integrity" of a sacred site or practice. To this the government could simply respond with a showing that it has chosen the least intrusive action. The first tier calls for a balancing of the religious freedom interests against the need of the government for the project. The government would prevail if the Indians did not demonstrate a substantial or real threat, or if they did and the government demonstrated a compelling interest in pursuing the activity. Under the second tier, if the Indian party claimed that an agency action would alter or disturb a site's integrity, then the government would prevail if it demonstrated that it had chosen the least intrusive action. If the government met the requirements of the second tier, it could proceed with the least intrusive action. Thus, there would be no absolute veto or absolute preemption over public land uses for Native American religious practitioners. However, litigation would be, as it always has been, a last resort for Indians to pursue. Throughout the history of sacred site cases, courts have rarely found governmental activity to burden Indian religion, or have rarely challenged government claims of having a compelling interest in an action that also adversely affected the Indian religion. In Wilson v. Block, a court found no burden was found when the Forest Service destroyed Hopi and Navajo sacred site and shrines, for the sake of a ski lift. 6 In Fools Crow v. Gullet, the court found the state government to have a compelling interest in building platforms and intruding on Sioux vision questing site in Bear Butte State Park. 7 More examples will be provided in section five. IV.THE AMENDMENTS WOULD FOSTER MULTIPLE USE Mining and oil representatives protested at the 1989 hearings that safeguarding sacred sites would upset government balancing of the various environmental uses that land serves. 8 Noted Indian rights lawyer Reid Chambers stated at the hearings that the Forest Service has "mewed piteously" about the burden of protecting sacred sites when faced with requests to use the land otherwise. 9 The draft amendments would enhance the agencies' ability to use land for environmental purposes, by promoting eight or nine of ten resources identified for "multiple use" balancing management in the Federal Land Policy Management Act. That act lists ten multiple uses as "recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values." 10 This discussion of multiple use will be confined to the Bureau of Land Management, which is governed by the Federal Land Policy Management Act, and the Forest Service, which is governed by the National Forest Management Act. 11 FLPMA defined multiple use for the Bureau of Land Management as "the management of the public lands and their various resource values... a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non- renewable resources." 12 The Forest Service also abides by this definition. It is widely conceded by proponents and opponents of the draft amendments that multiple use has been a failure, and has eased the use of public lands and resources for timber, mining (hard rock, oil, gas), and grazing. In congressional testimony, the Forest Service has conceded that it has been unable to manage for multiple use because of the demands of mining interests allowed to dominate under the 1872 Mining Law. 13 Forest Service officials have testified that political pressures to meet illegal timber quotas frustrated multiple use, and exacerbated the imbalance between extractive uses and forest conservation. The Bureau of Land Management has also admitted to bowing to pressure from both miners and grazers. 14 The draft amendments would enhance enforcement of multiple use since sacred Indian sites usually fall within the multiple-use categories of cultural and historical resources. By providing land managers with stronger authority to manage for uses other than development, sacred site protections would in turn enhance protection for water, wilderness, biological diversity, scientific, historical and cultural resources, fishery and wildlife. In the spring of 1990, the General Accounting Office reported on the Bureau of Land Management's and Forest Service's performance in managing for wildlife. The reports attributed a decline in resources to mining, timber and grazing: No single reason fully explains BLM's and the Forest Service's limited wildlife protection and enhancement efforts. We belie ve, however, that the agencies' deference to competing uses of the public land resources such as mining, timber and grazing has been a key factor... In most instances it occurs because agency priorities, budgets, and management practices have been oriented in these directions [of deferring to consumptive users]. 15 Some of the recent press coverage on political pressures on land management agencies highlights what happens to personnel who stress resource preservation. John Mumma was ousted as regional forester in the area of the Badger Two Medicine (Lewis and Clark National Forest), Mont. The Denver-based regional director of the National Park Service, Lorraine Mintzmeyer, was removed "apparently because of her... stubborn resistance to the prospect of unbridled development around Yellowstone," the Denver Post said in a Sept. 23, 1991, editorial. A story in the New York Times on Sept. 11, 1991 quoted a federal district judge in Seattle as saying that he found "a deliberate and systematic refusal by the Forest Service and the Fish and Wildlife Service to comply with laws protecting wildlife." The Forest Service told the General Accounting Office that mining activities prevent it from enforcing multiple use. "According to agency land managers, the provisions of the Mining Law of 1972 limit the ability of federal officials to protect wildlife or other resource interests on lands subject to mining claims." 16 There are currently over 1.2 million active mining claims on roughly 460 million acres of public land. This does not include millions of acres that have passed into private ownership by way of the patent provisions of the 1872 Mining Law. Unlike the requests of Native American religious practitioners to the nonexclusive, nonpossessory use of public lands, miners take de jure ownership of their claims under the mining laws, thus removing the lands forever from the public domain. In February, 1990, the House Subcommittee on Interior and Insular Affairs heard from the GAO on the Bureau of Land Management's performance in managing public lands. James Duffus testified that the decade-long study demonstrated that: One consistent pattern has emerged. Because of its historic focus on the needs of special interests rather than on the long-term health of the lands under its jurisdiction, BLM has allowed important natural resources to degrade, in some cases irreversibly. BLM's historical deference to the needs of special interests such as livestock permittees and mine operators at the expense of conservation-related objectives had led to agency management actions inconsistent with principles of multiple-use and sustained yield. We also noted that because of this management pattern, some of these interests had come to view the use of the public lands not as a privilege conferred by the public at large but as a property right for their private benefit. Such perceptions are important because as they harden and become accepted as established policy, it becomes progressively more difficult to make land management changes that reassert the broader public's interest. 17 V.EXISTING STATUTES, REGULATIONS AND POLICIES ARE WHOLLY INADEQUATE TO PROTECT SACRED SITES, AS IS EVIDENT FROM A REVIEW OF THE DECIDED CASES, THE PENDING CONTROVERSIES, AND THE REQUIREMENT OF EXISTING LAW AND POLICY At the 1989 hearings, developers and agencies insisted that AIRFA had not failed and that amendments were unnecessary because a plethora of statutes, regulations and policies already addressed religious concerns. It is true that legislating for the benefit of Native American religions is not a new concept. Congress has acted to defend the free exercise of these various religions on a site- by-site basis. The return of Blue Lake to the Taos Pueblo in New Mexico is a shining example. The transfer of the land came as a result of a 60-year battle. But AIRFA's purpose was to create a more efficient system for resolving government interference with Native religions. Other laws on the books are the National Environmental Policy Act's land management statutes and cultural resource provisions; the implementing regulations of the National Historic Preservation Act; and the Archaeological Resources Protection Act. Despite these laws and regulations, land agencies have been unable to resist the pressure to use public land for consumption and extraction. Some agencies have also chosen to create a paper trail of meaningless consideration of sacred sites whenever they stand in the way of a preferred use of the land in question. A. The Cases The sacred sites cases read like a litany of indifference to Indians' religious concerns: The Forest Service has been allowed to destroy Hopi and Navajo sacred site and shrines on San Francisco peaks to make room for a ski lift. 18 The Park Service and Bureau of Recreation have been allowed to destroy irreplaceable Navajo sacred sites, and to intrude on Navajo ceremonies. 19 The Tennessee Valley Authority has been allowed to flood a sacred Cherokee site to create an area for water skiing. 20 Off-shore drilling has been permitted to disrupt Alaskan Eskimo religious activities on ice. 21 The Forest Service has been allowed to deny the Sioux a permit to construct a cultural and spiritual camp in the Black Hills National Forest area, while allowing access to Baptists having no cultural or historic ties to the area. 22 Uranium mining has been allowed at sites sacred to the Supai and Hopi in Arizona. 23 For the purpose of geothermal development, destruction of a volcano sacred site home of Goddess Pele has been permitted in Hawaii. 24 These cases document a history of lost sacred sites and cultural resources, which existing statutes and regulations have been powerless to forestall. B. Current and Recently Resolved Controversies In current administrative and judicial contests over the fate of Native holy places, the Forest Service is leading the charge against the sites' integrity. The very agency that has repeatedly announced that its excellent relationship with tribes makes these amendments unnecessary, has fought in court to destroy the sites within its jurisdiction. Following are two active controversies, followed by three resolved ones: 1. Mount Shasta, California The failure of the Forest Service's Shasta-Trinity branch to comply with the National Historic Preservation Act during a decade of planning for a ski resort is being litigated in the U.S. District Court for Northern California. 2. Mount Graham, Arizona The Forest Service's failure to initiate a review process in contemplating a permit for constructing three telescopes is being litigated in the U.S. District Court for Arizona. The San Carlos Apache Tribe is arguing that the Arizona-Idaho Conservation Act attempts to override the requirements of the Endangered Species Act for a "special use authorization." Construction on the telescopes has begun in earnest. 25 3. Big Horn Medicine Wheel, Wyoming The Forest Service has ignored National Historic Preservation Act requirements in planning to develop the tourist-drawing potential of the Medicine Wheel. The plans for developing the site, whose religious and cultural significance for Indians dates back thousands of years, includes construction of roads and a visitors' facility, and some harvesting of timber. Both the State Historic Preservation Office and the Advisory Council on Historic Preservation charged unsuccessfully that the Forest Service was not protecting Indian spiritual values. The irony of this is that the tourist attraction value lies in the wheel's significance to Indians. The historic preservation officials and affected tribes have asked for a buffer of a 2.5-mile radius to protect the religious practices and integrity of the site. Noise coming from road traffic would be particularly disruptive to the practices conducted at the site. 4. Enola Hills, Oregon Mount Hood National Forest attempted to schedule a timber cutting and sale in an area considered sacred and continuously used for religious practices by some Columbia River tribes. The Forest Service ignored the review process until taken to court. As part of a court settlement, the Forest Service commissioned a cursory survey of the cultural and religious significance of the site. 5. Badger Two Medicine, Montana The Forest Service recommended permitting two oil and gas drilling sites in the heart of a Blackfeet ceremonial site along Badger Creek. It instigated a belated and cursory survey of the site's significance, and said it intended to develop the oil resources of the site regardless of the site's historic register eligibility. But after the Blackfeet demanded that the Forest Service comply with National Historic Preservation Act procedures, the recommendations were withdrawn. The Forest Service made this ill- conceived statement in response to an Indian who raised a religious concern about the drilling: We both know a point of view the same as yours has been argued before the Supreme Court and they decided that while a government action may significantly affect a person's ability to pursue spiritual fulfillment, the government's action doesn't coerce individuals into violating their religious beliefs. 26 In each of these sacred sites controversies, the actions and words of the federal land management agencies, notably the Forest Service, belie the testimony of these same agencies that no further legislation is needed to protect sacred sites. The current and recent controversies point out again and again that present law is inadequate. The Forest Service in particular has repeatedly attempted to skirt the very procedures these laws require to be followed. C. Existing Statutes, Regulations and Policies Offer Only Procedural and Discretionary Protection for Sacred Sites AIRFA has remained unenforceable largely because federal agencies have failed to write implementing regulations. As Justice William Brennan, Jr. pointed out in 1988, federal agencies have "unilateral authority to resolve all future disputes in their favor, subject only to the Court's toothless exhortation to be `sensitive' to [Indian] religions." 27 1. The National Park Service The National Park Service has to its credit established a policy for recognizing and protecting Native religious practices and sites found on park lands. 28 Although its Native American Relationships Policy is laudable, the policy subjects religious needs to park rules. The draft AIRFA amendments would allow the Park Service to implement its Native American policy more consistently with its expressed intent to protect Native religious practice. 2. The Land Management Statutes a.The Federal Land Planning and Management Act FLPMA grants discretion to agencies to protect sacred sites, should the Bureau of Land Management choose to exercise it. But the act offers nothing to practitioners in the way of language directing the BLM to even consider such action: Section 1712(c)(9) governing land use plans promises to "assure that consideration is given to those State, local and tribal plans that are germane in the development of land use plans for public lands." b.The National Forest Management Act There are provisions in NFMA that direct the Forest Service to accommodate Native religious uses and to protect cultural resources, but only with discretion, not with enforcement. AIRFA directs the Forest Service to provide "protection and preservation of the inherent right of freedom of American Indians to believe, express, and exercise their traditional religions." 29 The Forest Service has applied this principle in issuing special use permits or waiving the permit requirement for Native American traditional ceremonies and religious uses on national forest land, but only so long as there has been no consumptive or extractive demand for the land. NFMA and the implementing regulations are inadequate in requiring the Forest Service to place a higher priority on protecting Indian sacred sites and religious freedom concerns. 3. The cultural resource protection statutes Because of the failure of AIRFA to protect sacred sites, Native religious practitioners have repeatedly brought their claims under cultural resource protection laws. These are notably: the National Historic Preservation Act, the Archaeological Resource Protection Act, and the cultural resource provisions of the National Environmental Protection Act. The National Historic Preservation Act, while offering carefully crafted directions for sensitively recognizing sacred and other cultural sites, has virtually no power to prevent them from being destroyed. The draft legislation would have filled the legal gaps remaining in land management and cultural resource protection in two ways: by ordering agencies to promulgate rules to implement AIRFA; and by providing a cause of action as a remedy to agency failure to manage consistent with AIRFA. VI.THE LEGISLATION WOULD APPLY ONLY TO TRADITIONAL NATIVE AMERICAN RELIGIONS AND RELIGIOUS PRACTICES As discussed in the section on current controversies, Save Mount Shasta, a non-Indian citizens group in Northern California, filed a claim challenging the Forest Service's permit to develop a huge ski resort that was to be followed by a condominium village. The non-Indian plaintiffs claimed a "religious relationship" with Mount Shasta, and religious use of the area known as Panther Meadows. They also claimed that Panther Meadows was an important cultural site to non-Indians because it is a "special place," but did not specify the grounds for those claims. The non-Indian plaintiffs additionally claimed a violation of their First Amendment to the free exercise of religion under the Constitution. 30 The Wintu of Shasta County recognize Panther Meadows as a sacred site, and Mount Shasta itself is dominant in the cultural history of area tribes, including the Pit River, Shasta, and Wintu. There is no historic religious use by non-Indians; their use is modern, and thus cannot be brought under the Historic Preservation Act, as the pleadings intimated. The draft amendments would have no effect on claims such as these. AIRFA and the proposed amendments are grounded in the trust responsibility of the United States government to provide services to Indian tribes and protect Indian culture. This trust relationship is particular to federal Indian law, and does not extend to non-Indians or non-Indian culture. Therefore, the draft legislation would have no bearing on non-Indian religious claims to public lands. On a practical level, uses such as those espoused by Save Mount Shasta would continue to come under the land managers' discretion to grant special use permits, as for the general public. There are hundreds of Protestant camps set up on public lands. These range from the "chapel in the woods" to Baptist encampments. In addition, solace and spiritual pursuits easily fall under the recreational uses for which public lands are already well-equipped to accommodate. If non-Indian religious practitioners want a more favorable balancing test, they will have to seek their own legislative and legal remedies. VII. CONCLUSION All world religions have sacred sites, or holy places. This idea is not unique to Native American religions. The concept is foreign and frightening to non-native Americans because the holy places of this country's widely practiced religions, whether they be Jewish, Christian, Moslem or Buddhist, are found elsewhere, in the aboriginal lands of the respective religions. The holy places of Christianity are in the Middle East, as well as in sites where miracles are believed to have occurred. For traditional Native American religions, the holy places are here in this country. The draft legislation would protect these American holy places. The draft amendments would make AIRFA enforceable, while not giving Native traditional leaders a veto over land management. They would foster management for multiple use, a concept sorely in need of bolstering, by all admissions. Protection of Native sacred sites would protect other resources on our public lands. Existing statutes, regulations and agency policy are wholly inadequate to protect sacred sites; in fact, they have protected their destruction for the 13 years since AIRFA was passed. With nothing more than the existing laws, destruction of sacred sites for the sake of developing public lands is ensured. As for non- Indian claims to sacred sites on public lands, the draft legislation would have a neutral effect on such claims, because only Indians would benefit from it. However, non-Indians are free under the First Amendment's Free Exercise Clause to seek their own legislative or legal recourse. FOOTNOTES 1 See Moore Sacred Sites and Public Lands, in Handbook on American Indian Religious Freedom (c. Vecsey ed. 1991). 2 See Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), in which the high court ruled against Hoopa Indians in Northern California seeking an injunction against Forest Service plans for selling timber on a road where Natives conducted sacred dances. 3 See Religious Freedom Act Amendments: Hearings on S. 1124 Before the Senate Select Committee on Indian Affairs, 101st Cong., 1st Sess. 136 (1989), prepared statement of Scott M. Matheson, for the American Mining Congress, Timber Associations of California, Rocky Mountain Oil and Gas Association, Western States Public Lands Coalition, et. al. 4 See 42 U.S.C. 4321-4370a (1976); regulations at 40 C.F.R. 1502 et seq. (1990). 5 See Senate Hearings on S. 1124, pp. 130-150. 6 See 708 F. 2d 735 (D.C. Cir.). 7 See 706 F.2d 856 8th Cir. 1983. 8 See Senate Hearings on S. 1124, p. 167. 9 See Senate Hearings on S. 1124, statement of Reid Chambers, attorney, Sonosky, Chambers & Sachse, Washington, D.C, p. 44. 10 See 43 U.S.C. 1702 (c). 11 See 16 U.S.C. 1600-1614 (1982) and 43 U.S.C. 1701-1784. 12 See 43 U.S.C. 1702 (c) 13 See 30 U.S.C. 22 et seq. 14 See Rangeland Management, General Accounting Office Report to Congressional Requester GAO/RCED-88-80 (1980), and Public Lands, GAO/RCED 90-225 (1990). 15 See Wildlife Resource, GAO/RCED 90-_, p. 34. 16 See Management of the Public Lands by the Bureau of Land Management and the U.S. Forest Service, GAO/RCED 90-24 (1990). 17 See Id., pp. 2-3. 18 See Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983). 19 See Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980). 20 See Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir. 1980). 21 See Inupiat Community of Arctic Slope v. U.S., 548 F. Supp. 182 (D. Ala. 1982). 22 See U.S. v. Means. 23 See Havasupai Tribe v. U.S., 752 F. Supp. 1471 (D. Ariz. 1990). 24 See Dedman v. Board of Natural Resources, 740 P.2d (Hawaii 1987). 25 See paragraph 19 of the complaint. 26 See March 28, 1991 letter from Forest Supervisor John Gorman to Ron West, interpreter for Floyd Heavy Runner, p. 2. 27 See Lyng, 485 U.S., p. 562. 28 See 54 Fed. Reg. 4095-02, Jan. 27, 1989. 29 See 36 C.F.R. 219.1(b)(6), July 1990. 30 See Pleadings, Motion to Intervene, Save Mt. Shasta, et al. v. United States Forest Service.

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