The following is a statement given by Suzan Shown Harjo, president of the Morning Star Institute, on the Significance of the United Nations Declaration on the Rights of Indigenous Peoples in the areas of language, culture and sacred sites, for the conference and consultation with the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, at the University of Arizona Rogers College of Law, Tucson, Arizona on April 27.
Thank you for inviting me to present views and recommendations for the Special Rapporteur on ways in which the United States should reform law and policy regarding Native American heritage languages, cultures and sacred places, in light of the United Nations Declaration on the Rights of Indigenous Peoples. My name is Suzan Shown Harjo and I am a Cheyenne citizen of the Cheyenne & Arapaho Tribes, as well as Hodulgee Muscogee from the Nuyakv Grounds. I have developed and led campaigns to achieve Native American cultural rights laws – including the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation Act and the Museum of the American Indian Act – and have helped Native Peoples to protect sacred places and recover more than one million acres of land.
This testimony is provided on behalf of The Morning Star Institute, a national Indigenous rights organization devoted to cultural and traditional advocacy, arts promotion and research. We present background and overview statements below, about problems Native American Peoples encounter today when attempting to exercise our cultural rights, and provide recommended solutions that are within the power of the U.S. to realize. Each problem is addressed and each recommendation is bolstered by the Declaration’s prefatory clauses and specific articles and sections, and therein is its significance for us. The U.S. need not look beyond the plain text of the Declaration for an authority upon which it may rely for its actions. The reason the U.S. should take affirmative steps to do good for Native American peoples is because it has a sorry history of doing harm, as this statement will address in brief.
President [Barack] Obama’s announcement of the U.S. endorsement of the Declaration in December 2010 was roundly applauded by leaders of Native Nations and national Native organizations. Since that time, however, the State Department has led federal agencies’ interpretive sessions in emphasizing U.S. qualifying statements to the Declaration, claiming that: 1) the Declaration is aspirational and non-binding; 2) the Declaration is a political and moral force whose commitment is carried out within the scope of the U.S. Constitution; 3) the Declaration’s free, prior and informed consent phrase means meaningful consultation, but not consent; and 4) the Declaration primarily covers federally-recognized tribes and, where appropriate, non-federally-recognized Indigenous Peoples.
This recalcitrance by State – together with certain federal agencies that stall implementation of positive policies and resist change that would benefit the Native American cultural interest – result in today’s situation where Native American cultural rights are not protected, at best, and attacked, at worst. This is not the fault of the Executive Branch alone; Congress and the courts are at least equally to blame. Oftentimes, they work in tandem to undermine Native cultural rights and then blame the Native Peoples for having caused the problem, or for waiting too long to find a solution or for using the wrong door to enter the courthouse, agency or congressional committee.
For example, when the U.S. Congress was enacting the American Indian Religious Freedom Act (P.L.95-341, August 11, 1978), the U.S. Agriculture Department and its Forest Service were allowing a logging road to cross a Native ceremonial area in Northern California and did not want AIRFA to create a cause of action for the Native religious practitioners to defend the sacred place. USDA and FS officials approached the Chairman of the House of Representatives Agriculture Committee and asked him to carry their water, which he did by threatening to kill the bill, unless the Interior Committee Chairman stated that AIRFA had no teeth to protect Native sacred sites; and the Interior Chairman made that statement and AIRFA passed and was signed into law.
Ten years later when the resultant litigation reached the U.S. Supreme Court, it cited that House floor colloquy as evidence that AIRFA was not a cause of action to protect Native American sacred places and declared that the U.S. Constitution’s 1st Amendment freedom of religion clauses do not provide a right of action for sacred places; the high court further stated that, if Congress wants one, it would have to enact a special statute for that purpose. Congress has not enacted such a statute and no Administration has asked it to do so.
In the meantime, the FS, USDA and other federal agencies have damaged and permitted destruction of Native sacred places, knowing that Native Peoples have no remedies and Congress is not likely to provide any. In some cases, federal agencies have gotten congressional members to add riders to appropriations and other bills authorizing destructive development at sacred places, adding the phrase, “notwithstanding any other provision of law,” and thus removing any environmental, historical, religious freedom or any other protections, and leaving federal agencies to use the excuse that their hands are tied. The Justice Department has aggressively defended the USDA, FS and other federal agencies and private developers in their actions that damage Native sacred places and do harm and injury to practitioners of traditional Native American religions. Federal agencies have not included Native Peoples in the pre-planning and planning of federal developmental undertakings and approval processes that could relocate activity sites and otherwise prevent harm to sacred places.
Since the U.S. approved the Declaration, the USDA and FS have spent a small fortune moving large numbers of federal employees around Indian country to “consult” with tribal leaders; this resulted in a draft report on sacred sites that was denounced as having ignored both the main points made in the consultations and the existing laws and policies it could be using to protect sacred places. Instead of responding substantively to the oral and written critiques, the USDA and FS have engaged in slight-of-hand attempts to get the White House and tribal leaders to embrace the objectionable draft report as the Administration’s main cultural rights accomplishment.
- That the President call on Congress to enact a statutory right of action to protect Native American sacred places, and that Congress pass and the President approve the new law.
- That the President impose a moratorium on any federal undertaking that would damage a Native American sacred place.
- That the President direct all federal entities to include Native American Peoples in all pre-planning, planning and decision-making processes, and on relevant administrative bodies, regarding federal undertakings or approvals that could damage a Native American sacred place.
- That the President direct the Justice Department to reevaluate its litigation course against Native Peoples who are defending sacred places and, instead, to engage in consultation with affected tribal and traditional religious leaders on ways to protect their sacred places.
- That the President update and strengthen Executive Order No. 13007 on Sacred Sites (May 24, 1996).
- That the President and/or Congress, as appropriate, fund the acquisition and maintenance of sacred places for Native Nations or intertribal coalitions and transfer title to them, and otherwise provide for tribal or intertribal co-management, co-stewardship or access agreements, or other protections of the integrity of sacred places; zero tolerance for damage to or destruction of sacred places; recognition that sacred places are to be defined only as places that are sacred to practitioners of Native traditional religions and that sacred places can include, but are not limited to, land (surface and subsurface), water and air, burial grounds, massacre sites, battlefields and ceremonial, observance and worship areas; early and meaningful consultation with tribal leaders and traditional religious leaders; recognition of and reliance on traditional religious leaders, tribal science and oral history as the authorities on sacred places; respect for traditional religious tenets and tribal law regarding non-disclosure of confidential information about sacred places; notice requirements that place the burden of proof on developers; application to undertakings and actions on federal land, water and airspace, and all such places with a federal nexus; severe federal penalties for violations of sacred places; and application of tribal criminal and civil law to violations of sacred places.
- That the President instruct the federal agencies to remove barriers that stand in the way of the exercise of Native American religious freedom regarding protection of and access to medicine plants, trees and other natural products and fishing, gathering and hunting ceremonial areas.
Today, hundreds of Native American sacred places, heritage languages and cultures are endangered. This happened because of dislocation of Native Peoples by a rapacious Euro-American population that wanted and overran Native lands, waters and resources; powerful states that wanted to ethnically cleanse Native Peoples from within state territories; and federal actions or inactions to accommodate mob rule and states “rights” or to find alternative solutions to extermination and prolonged warfare. Sometimes, the federal alternative solutions were as bad as the situations they were trying to avoid.
One example of this may be found in the federal “Civilization Regulations,” which confined Indians to reservations, banned all religious ceremonies, criminalized all tribal cultural practices and imposed stiff penalties of starvation and imprisonment for all “hostiles,” including religious leaders and their “pagan” and “heathenish” ways, and even parents who interfered with their children being taken to distant boarding schools, where they were taught to distain their nations, families, cultures, languages, clothes, shoes and hair in an English-only/Christian-only environment of corporal punishment. U.S. Secretaries of Interior issued the “Civilization Regulations” and Indian Commissioners issued implementing Circulars without authorizing legislation and as Congress looked the other way for more than a half-century, from the 1880s into the 1930s, when they were finally withdrawn as part of the Roosevelt Administration’s “Indian New Deal.”
By that time, many sacred places had been declared part of the “public domain” and were passed around to various federal agencies and private interests; most traditional religions and heritage languages were driven underground and many never reemerged. Removal and re-education of the boarding school generations caused breaks in clan and societal systems, knowledge gaps and cultural disruption that has created great hardship and anguish; for some, the damage has proven irreparable. It is estimated that 70 of our remaining 139 Native American spoken languages could go extinct by 2015.
- That officers of all branches of U.S. government, including judges and congressional members, take such action as necessary to inform themselves and those within their areas of responsibility about the history of how Native American cultural liberties and properties were impeded, appropriated and injured; what damage that has caused for Native American Peoples today; and what the U.S. can do to vigorously implement the Declaration, especially Article 11, Section 2: “States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with [I]ndigenous [P]eoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”
- That the President direct the federal entities to review and report on the manner in which they acquired jurisdiction regarding Native American sacred places and whether such jurisdiction was taken with or without Native Peoples’ free, prior and informed consent (and to instruct the agencies that the word consent means consent).
- That the President declare Native heritage languages to be in a state of emergency and issue an Executive Order on Native American Language Revitalization for mobilization of federal resources, an Interagency Working Group, a Presidential Board of Advisors and a White House Initiative and Conference to revitalize and protect Native American heritage languages.
- That Congress appropriate such funds as are needed to operate heritage language immersion programs and for other emergency measures, and to implement existing laws intended to protect and revitalize Native American heritage languages.
During the period when American Indian peoples’ lives were controlled by the “Civilization Regulations,” sacred objects and cultural patrimony were confiscated from “offenders” of the rules, including from those who conducted customary giveaways, ceremonies to honor newborns, vision questers, healers, historians, dancers, singers, providers, peacemakers and those who earned new names, took on duties of leadership or service, demonstrated exceptional courage or steadfastness and completed passages of life. The rules specifically noted that the excuse that one is a mourner is not a sufficient defense. The rules outlawed the Sun Dance and all other dancing ceremonies; federal agents were instructed to “undertake a careful propaganda against the Dance” (meaning any ceremony and its participants); and ceremonial clothing and objects were seized and kept in private and public collections, where most continue to be held today.
The U.S. Army Medical Museum (AMM), founded in 1862, started its “collection” of “Indian specimens” to study infectious diseases and quickly began its Indian Crania Study for the science of heads that was popular in America and Europe. U.S. Army Surgeons General directed field officers to “harvest” Indian heads, weigh the brains, measure the skulls, soak them in lye and send the cleaned crania to Washington, D.C. The AMM and Smithsonian Museum advertised in newspapers for anyone to send Indian heads, skeletons and “grave goods,” and struck a deal to split the osteological remains and burial and cultural items. They also shared collections with scientists, museums and universities in the U.S. and Europe. Indian bodies were “harvested” from caves, scaffolds, battlefields, massacre sites, forts, schools, guardhouses, and both fresh and older graves. When the study of heads was discredited at the end of the 1800s, the Army transferred its collections to the Smithsonian.
By the 1960s, there were more dead Indians in public and private repositories and collections than there were living Native People in the U.S. This resulted from widespread disinterment of Native human remains by farmers, loggers, developers and federal and state agencies, together with the sport, avocation and science of grave robbing. In the 1980s, the Smithsonian alone reported an inventory of 18,500 American Indian bodies and 4,500 American Indian heads. Native Peoples organized successful campaigns for Native American human rights laws for the return of human remains, funerary items, sacred objects and cultural patrimony; and gained repatriation policy under AIRFA in 1978, the first federal repatriations in 1979 and follow-on laws in the historic repatriation provision covering the Smithsonian collections, in the National Museum of the American Indian Act (P.L. 101-185, November 28, 1989), and the Native American Graves Protection and Repatriation Act (NAGPRA, P.L. 101-601, November 16, 1990), which covers all other federal and federally-assisted agencies, educational institutions and museums.
While the new laws were cause for celebration, the federal agencies were slow (and some even loathe) to implement them. This sorry record is documented by the U.S. Government Accountability Office in its July 2010 Report, the title of which reveals the GAO’s conclusion, “Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act.” The GAO Report details federal agencies’ high rates of failures to provide inventory notices, consult with tribes or actually repatriate human remains or funerary items. For more than a decade, the national NAGPRA office would not provide inventories and other material to Native Nations, particularly with respect to the “culturally unidentifiable human remains,” most of which were identifiable by tribal researchers with access to the relevant documents that were being withheld.
The national NAGPRA office, which is in the Interior Department’s National Park Service, attempted to rush through regulations declaring culturally-unidentified Native human remains and associated funerary objects the property of the federal and federally-assisted repositories that held them. The national Working Group on Native American Culturally Unidentified Human Remains organized a successful effort to slow down the regulations and to speed up a national NAGPRA database to enable tribal identifications. The database was set up, but most federal agencies fail to report data or holdings to the NAGPRA office or to Congress, so federal and tribal policymakers and staff cannot adequately track culturally affiliated or unaffiliated persons and funerary objects that have not been repatriated.
The NAGPRA office finalized its rule on culturally unidentified human remains and associated funerary objects on May 12, 2010, as 43 CFR 10.11(c)(4). It mandates return of human remains, but purports to allow museums and other holding repositories to keep funerary objects associated with those remains, thus separating the deceased person from the items he or she was buried with, which are the property of the deceased in cultures and laws throughout the world. What the NAGPRA office has done is to tell Native Peoples that we can rebury grandma, but her moccasins, clothes, jewelry and other precious items that should be reburied with her now belong to the repositories that received the contraband directly or indirectly from the very thieves who robbed her grave.
The Working Group submitted comments to the NAGPRA office on May 14, 2010, identifying this significant problem, but it failed to change the rule. The Working Group, of which I am a founding member, and our legal counsel, Native American Rights Fund, find this is an unacceptable result. Together with the National Congress of American Indians (through Resolution #ABQ-10-012), we believe that the regulation should be changed to mandate that associated funerary objects be returned along with the culturally unidentified human remains being repatriated. When asked by NARF what the basis for this regulation was, NPS responded simply that mandating the return of associated funerary objects “might create a takings problem.” NARF writes that this response makes no sense, because even U.S. law does not permit the removal of objects deposited in a grave. The general common law rule is that one who removes objects from a grave without the permission of the decedent’s heirs does not hold a right of possession. This principle has been codified in criminal statutes in all 50 states, the only variations being that some states classify it as a misdemeanor and others a felony. NPS added to its argument that the text of NAGPRA required this rule by failing to mention associated funerary objects in the authorizing section. The Working Group and NARF do not agree with this analysis.
The Working Group and NARF also are addressing the need to amend NAGPRA to account for pre-1789 (founding of the United States) remains due to the unworkable and incorrect decision in the Bonnischen case. NARF has provided an analysis to the U.S. Senate Committee on Indian Affairs: ”The Unworkable Holding in the Kennewick Case and the Need to Amend NAGPRA.” The case involves the Ancient One, found on the banks of the Columbia River near Kennewick, Washington, and dubbed Kennewick Man. What resulted was a strange and unsupported ruling that, because Congress used the word “is” in the definition of “Native American,” human remains that predate the founding of the United States in 1789 are not covered by NAGPRA. Surely this is not what Congress intended and such a rule would be totally unworkable, given the number of human remains that predate this arbitrary line. We strongly encourage amending NAGPRA to make it explicit that NAGPRA covers all Indigenous human remains. Although the Bush Administration opposed this amendment, the Obama Administration rejected the position and has indicated by way of a letter to Senate Committee on Indian Affairs Chairman Akaka dated December 21, 2011, that it does not oppose this proposed amendment. This issue too has the full support of the NCAI (Resolution # TUL-05-029).
It must be noted that many who collect, study and base their theories on Native human remains, funerary items, sacred objects and cultural patrimony have been trying to overturn the repatriation laws since they were enacted. They are joined by those who traffic in Native human remains and cultural items, and whose livelihoods depend on staying one step ahead of these laws. Federal law enforcement officers and prosecutors comment that the repatriation laws need more teeth in order to adequately pursue violators.
- That Congress and the President take such measures as may be necessary to return all items confiscated from 1880 to 1935 under color of law of the “Civilization Regulations” and held in public or private collections domestically or internationally.
- That Congress and the President take such measures as may be necessary to return all human remains and funerary items taken from 1862 to 1898 under color of law of the “Indian Crania Study” and held in public or private collections domestically or internationally.
- That the Interior Secretary change the regulation of May 12, 2010 on culturally unidentified human remains and associated funerary objects, 43 CFR 10.11(c)(4), to mandate that associated funerary objects be returned along with the culturally unidentified human remains being repatriated.
- That Congress, if it opens NAGPRA for any reason, amend the Act to state expressly that culturally unidentified human remains may not be separated from their associated funerary objects; amending Section 8(c)(5) of P.L. 101-601 (25 U.S.C. 3006(c)(5)) by inserting “and associated funerary objects” after “culturally unidentifiable human remains” and by inserting “and associated funerary objects” after “such remains.”
- That Congress amend NAGPRA be to make it explicit that NAGPRA covers all Indigenous human remains, as follows: Section 2(9) of P.L. 101-601 (25 U.S.C. 3001(9)) is amended by inserting “or was” after “is.”
- That Congress amend NAGPRA to provide for increased penalties and additional causes of action for prosecution of those who desecrate Native American ancestors and burial grounds.
The Declaration contains numerous provisions regarding discrimination against Indigenous Peoples and the right of Indigenous Peoples to determine our own identities and to not have false identities and personalities imposed on us. These are important cultural considerations for Native American peoples, who contend daily with racist stereotypes of “Indians” in the sports world and throughout popular culture; and whose Native national character, beliefs, philosophies, religions and reputation are distorted by the phenomena of pseudo-Indians who adopt Native personae and market their products as “Indian-made,” when they are not, and cultural appropriators who take Native arts, cultures, histories, stories, science and symbols as their own or for their own financial gain.
The term “redskins” is the most vile and offensive term used to describe Native Americans. It is most disturbing to the overwhelming majority of Native Peoples that the professional football team in the U.S. Capitol uses a team name that demeans us. Of course, Congress cannot pass a law that prevents people from using racist terms or a law that dictates the team name for the Washington football team. Congress, however, can correct the error committed by the U.S. Trademark Office when it erroneously registered trademarks that use the disparaging term. In 1999, the Trademark Office admitted that it had committed a legal error when it registered the trademarks because trademarks that may disparage people are not eligible for registration. Congress should codify the 1999 decision of the Trademark Office in Harjo et al v. Pro Football, Inc. To deal with the problem of “Native” references in educational sports, Congress should take the Declaration’s language on non-discrimination and self-determining identity, and apply it to the athletic programs of any educational institution receiving federal funding, providing a timeline for schools to change their “Native” sports references to those that do not offend any group of people.
Native Peoples were blindsided last year when it came to light in a most public way that the U.S. military codename for the most wanted terrorist in the world was the name of Apache leader Geronimo. As we were absorbing the news of the taking of Osama bin Laden, we also heard that the message from the Navy SEALs was, “Geronimo EKIA (Enemy Killed In Action).” Geronimo was picked for the same reason that the term “Indian country” is still used to mean enemy territory. Irrespective of our treaties of peace and friendship and notwithstanding Native veterans’ service in U.S. wars at a higher rate than any other peoples, Native Peoples remain embedded in the American psyche as the enemy. It is imperative that the U.S. set the standard for ending racist stereotypes against Native American peoples.
- That the President instruct such federal entities as the Federal Trade Commission, Library of Congress and the Patent & Trademark Office to afford the rule of respect and recognition to Tribal Declarations of Cultural Property Rights, and not to issue licenses, copyrights, trademarks or other federal approvals for images, names and other material identified by one or more Native Nation(s) as its or their cultural property.
- That Congress amend the Indian Arts & Crafts Act of 1990, as amended (P.L. 101-644, January 23, 1990), to provide for tribal pursuit of offenders, in addition to federal prosecutions; to include protections for such other categories of as musicians, performers, writers and academicians; and to authorize concurrent federal-tribal prosecutions and Native Nations to pursue and recover triple damages against offenders who appropriate and misuse tribal identities and reputations, thus removing barriers in the way of tribal courts and the tribal law enforcement system to work effectively with federal agencies to better address this category of crimes across state lines.
- That Congress enact the “Non-Disparagement of Native Americans in Trademark Registrations Act,” which would cancel the registrations of trademarks that employ the term “redskins” in reference to American Indian nations and people and affirm the 1999 decision of the Trademark Trial and Appeal Board that the term “redskins” may disparage Native Americans and is therefore not eligible for trademark registration.
- That Congress enact a law using the Declaration’s language on non-discrimination and self-determining identity, and apply it to the athletic programs of any educational institution receiving federal funding, with a timeline for schools to change their “Native” sports references to those that do not offend any group of people.
- That the President instruct the Defense Department to cease the use of the name of Apache leader Geronimo as a codename for terrorists and other enemies; to cease the use of the term Indian country to mean enemy territory; and to cease the use of the term roam off the reservation to mean insubordination or gone missing or gone astray.