Sacred Lands and the Right of Spiritual Practice

The following is a segment of the Consolidated Indigenous Shadow Report, compiled by the International Indian Treaty Council. The report will be presented to the United Nations Committee on Racial Discrimination in February in Geneva.

Sacred Lands and the Right of Spiritual Practice

This Parallel Report cites the many instances whereby the United States has attempted to extinguish aboriginal title.[1] We also cited the concern of competent international human rights mechanisms over this practice.[2] But Indigenous Peoples throughout the jurisdiction of the United States, recognized, terminated, unrecognized and ignored, continue their ancestral spiritual relationship to their ancestral Sacred Lands. This aboriginal use has never been extinguished in fact. Throughout the jurisdiction of the United States, Indigenous Peoples continue their Spiritual Practice on Ancestral Sacred Land in constant conflict with the United States government as they have since time immemorial.

In accordance with the customary principles of international law cited above,[3] consistent with the United Nations Declaration of the rights of Indigenous Peoples and General Recommendation XXIII, these lands and their Spiritual use should be returned to them.

I. Sacred Lands
The then Special Rapporteur on Religious Intolerance, Mr. Abdelfattah Amor, visited the United States in 1999. In examining the situation of religious intolerance in the United States, He found that the situation of religious tolerance is generally satisfactory, but that, “[T]here are nevertheless some evident exceptions that must be pointed out, particularly as regards the situation of Native Americans.”[4]

“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.”[5]

Mr. Amor had come to the United States pursuant to a communication by the International Indian Treaty Council concerning the forced removal of Navajo Elders from their ancestral lands in order to make way for the expansion of the Peabody coal mine. In this regard, the Special Rapporteur found that:

“82. Because of economic and religious conflicts affecting in particular sacred sites, the Special Rapporteur wishes to point out that the freedom of belief, in this case that of the Native Americans, is a fundamental matter and requires still greater protection. The freedom to manifest one's belief is also recognized, but can be subject to limitations insofar as they are strictly necessary and provided for in article 1, paragraph 3, of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief and in article 18 of the International Covenant on Civil and Political Rights. The expression of the belief has to be reconciled with other rights and legitimate concerns, including those of an economic nature, but after the rights and claims of the parties have been duly taken into account, on an equal footing (in accordance with each party's system of values). As far as Native Americans' access to sacred sites is concerned, this is a fundamental right in the sphere of religion, the exercise of which must be guaranteed in accordance with the above-mentioned provisions of international law on the matter.”[6]

The Special Rapporteur applied these recommendations particularly to the forced relocation of Navajo elders from their ancestral lands. He wrote “On the subject of Black Mesa, the Special Rapporteur also calls for the observance of international law on freedom of religion and its manifestations.”[7] In the case of the Navajo elders, the reconciliation of their human rights and other legitimate concerns were not taken into account. No consideration was given their spiritual practices and beliefs by the United States government in ordering their relocation.

Economic interests, such as the coal mine, have often prevailed over Indigenous human rights. These are principally private ventures that do not have a true public interest, and their activities rarely consider the fundamental rights or freedom of others. International law had not been observed with regard to the Navajo Elders. The right to practice religion as found in article 1, paragraph 3, of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief and in article 18 of the International Covenant on Civil and Political Rights has not been respected or protected by the United States. Indeed, the United States continues to affront this most basic element of human dignity.

In his excellent analysis of United States jurisprudence on the issue of intolerance of Native American spiritual practice, the Special Rapporteur focused on a discussion of the United States Constitution and its First Amendment at the time of his visit in 1999. The Supreme Court of the United States had established the rule under the First Amendment that a law aimed at a specific religious practice would be examined with “strict scrutiny.” That is, when a law is aimed at a particular religion, its restrictions on that religion must, in effect, “prohibit” the religious practice and furthermore must be justified by a “compelling governmental interest” when challenged under the First Amendment.[8]

A law of “general applicability,” that is a law that is not aimed a particular religion or religious practice that “happens” to restrict a religious practice, is not held to this high standard. With regard to sacred lands, at the time of the Special Rapporteur’s visit to the United States, the infamous G-O Road case[9] was, and still is, the law in the United States under the First Amendment. In that case, a proposed Forest Service road through lands held sacred by many Northern California tribes was allowed, in spite of the Forest Service and Supreme Court admission that the road would substantially “burden” the spiritual practice, destroying the sanctity of the place.

“The government does not dispute, and we have no reason to doubt that the logging road building project at issue in this case could have a devastating effect on traditional Indian religious practice. Even if we assume that we should accept the Ninth Circuit’s prediction, according to which the G-O Road will ‘virtually destroy the …Indians’ ability to practice their religion,’ the Free Exercise Clause only constrains the government from ‘prohibiting religion,’ not taking actions which may make it more difficult to practice religion, but which have no tendency to coerce individuals into acting contrary to their beliefs.”[10]

The Supreme Court went on to say, “Whatever rights the Indians may have to use the area, however, those rights do not divest the Government of its right to use what is, after all its land.”[11]

The problems of access to Sacred Lands for spiritual purposes and the desecration of Sacred Lands go hand in hand. Development on Sacred Lands does in fact limit access as well as desecrate the lands used for religious purposes, many times rendering these Lands unfit for spiritual practice, destroying the sanctity of the place.

The United States government and its agencies, the Bureau of Land Management (BLM) and Forest Service (USFS) continue to harass and or deny Indigenous Peoples appropriate access to their Sacred Lands and continue a policy of allowing the desecration of these Lands for profit making enterprises. The IITC received many statements and contributions for submission from the various nations and peoples affected by the continuing lack of protection and access contained in Addendum, Sacred Lands, part A. We focus within this report on only a few, with greater detail in the Addendum, in the hope that the CERD Committee will pay heed to the earnest Spiritual aspirations of all of those whose testimonies are included in that Addendum:
A. Recognized Tribes and Treaty Rights: The Lakota Nation and Bear Butte (Mato Paha), Black Hills, South Dakota:

In his Final Report, the Special Rapporteur on treaties, agreements and other constructive arrangements between states and indigenous [sic] populations, Mr. Miguel Alfonso Martinez found the following with regard to “obvious and serious violations of the legal obligations undertaken by State parties”:[12]

“Probably the most blatant case in point is the United States federal Government’s taking of the Black Hills (in the present day state of South Dakota) from the Sioux Nation during the final quarter of the nineteenth century. The lands which included the Black Hills had been reserved for the indigenous nation under provisions of the 1868 Fort Laramie Treaty. It is worth noting that in the course of the litigation prompted by this action, the Indian Claims Commission declared that “A more ripe and rank case of dishonorable dealing will never, in all probability, be found in our history” [citation omitted], and that both the Court of Claims, in 1979, and the Supreme Court of that country 61 decided that the United States Government had unconstitutionally taken the Black Hills in violation of the United States Constitution. However, United States legislation empowers Congress, as the trustee over Indian lands, to dispose of the said property including its transfer to the United States Government. Since the return of lands improperly taken by the federal Government is not within the province of the courts but falls only within the authority of the Congress, the Supreme Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The indigenous party, interested not in money but in the recovery of lands possessing a very special spiritual value for the Sioux, has refused to accept the monies, which remain undistributed in the United States Treasury, according to the information available to the Special Rapporteur.”[13]

According to the testimony in Attachment A, the Lakota people have an inherent relationship with Mato Paha as instructed by our Creator and inalienable rights to pray there and preserve our culture there. From time beyond memory, our people have gone to Mato Paha for prayer and other distinctly Lakota activities. Mato Paha is located near the town of Sturgis, SD, about 30 miles north of Rapid City. As the largest urban area in western South Dakota, Rapid City is the center of tourism for the Black Hills region, which is the target destination for much of the tourism in South Dakota. Sturgis is another target destination for much of the tourism, during August, it is the location of the annual ten-day “Sturgis Motorcycle Rally”, which draws up to half a million bikers. Much of this population converges around Mato Paha, where there are a large number of alcohol stores and bars, concert venues, camping grounds, pornographic establishments and other such businesses developed solely to celebrate the Rally.

An entrepreneur from Florida proposes to build the Black Hills’ biggest bar and concert venue, right on the state park boundaries of Bear Butte. This particular development of 600 acres includes a 155,000 square foot asphalt parking lot, a 22,500 square foot Saloon, an amphitheater that will seat 30,000 (the amphitheater will use the sewer water brought in from Sturgis to irrigate its’ new landscaping) 24-hour dining, and an un-policed environment-all this in time for the August 2006 Motorcycle Rally. There is discussion of the development plans of a new road to be built near Bear Butte, resulting in a four-lane highway which will create more noise and traffic to desecrate not only Mato Paha, but that also will uncover a Ute burial ground. There are development plans to construct another amphitheater at the Glencoe Campground that will also seat up to 30,000.also in time for the 2006 Motorcycle Rally. There is building going on now, for the construction of a 110 dry-cabin campground at the Full Throttle Saloon-in plenty of time for the 2006 Motorcycle Rally.
B. Dishonored Treaty, Seeking Recognition: The Winnemmem Wintu of Northern California, McCloud River:

Mr. Mark Franco, Headman of the Winnemem Wintu, a Northern California unrecognized Tribe seeking recognition to protect their Sacred Places, writes:

“The Winnemem Wintu Tribe is an historic tribe of California natives. Represented in the 1851 Treaty at Cottonwood Creek, the Winnemem along with other Wintu bands ceded a vast amount of territory from Sacramento to near the Oregon border to the United States, in exchange for a 25 square mile reservation along the Sacramento River.

“History shows that the California legislature, much in the same way that they deal with the Winnemem today, pushed for the President of the United States, Millard Fillmore not to ratify any of the 18 treaties government agents signed with California tribes “in peace and friendship.” The fact that the legislature had completed this duplicitous act remained sealed from the American public for over 50 years, until the treaties were discovered in the early 1900’s.

“This legacy of duplicity continues today for the Winnemem as the United States government, the one with which we signed a treaty, now denies that the Winnemem are a tribe at all. This action has caused the tribe an almost irreparable loss to our cultural landscape and tribal sites and now jeopardizes our healthcare, the education of our youth, our basic housing needs and the continuation of our lifeway.

“In the protection of our religious freedom the tribe is fighting for the protection of our cultural sacred sites and yet undisturbed graveyards. Since the BIA and other agencies do not see us as a ‘tribe,’ our cultural landscape is at their mercy. We have seen burials disturbed, remains sent to colleges for study without our consent, and the remaining ceremonial sites we continue to use today in danger of flooding by the proposed Shasta Dam and its appurtenant work.”[14]

As the National Parks Service has denied the Winnemem Wintu request that their ceremonies be allowed privacy on a small Sacred Shore of the McCloud River, they are forced to conduct their Ceremony under the drunken eyes and racist taunts of passing tourists.[15]
C. Indigenous but with No Recognized Rights: the Native Peoples of Hawai’i, Mauna Kea:

Mauna Kea is profoundly significant in Hawaiian culture and religion, representing the zenith of the Native Hawaiian people’s ancestral ties to Creation itself. The upper regions of Mauna Kea reside in Wao Akua (realm of the Akua-Creator) and the summit is considered to be the temple of the Supreme Being in many oral histories throughout Polynesia, which pre-date modern science by millennia. Mauna Kea is also the head waters for the island of Hawai'i. Modern Native Hawaiians continue to regard Mauna Kea with reverence and perform many cultural and religious practices there.

For Native Hawaiians, Mauna Kea is the home of Na Akua (the divine deities), Na'Aumakua (the divine ancestors), and the meeting place of Papa (Earth Mother) and Wakea (Sky Father) who are considered the progenitors of the Hawaiian people. Mauna Kea, it is said, is where the Sky and Earth separated to form the Great-Expanse-of-Space and the Heavenly realms. Mauna Kea is both the burial ground and the embodiment of the most sacred ancestors, including NaAli'i and Kahuna (high ranking chiefs and priests).

Thirteen telescopes and supporting facilities are already built on Mauna Kea, and a consortium of institutions has proposed building another six, with underground light tunnels, around the existing W.M. Keck Observatory. The cinder cone upon which NASA’s outrigger telescope project is to be built — Pu'u Hau'oki — is one of three cinder cones that, together, were historically known as Kukahau'ula. Kukahau'ula is a male character who appears in recorded Hawaiian traditions and stories. He is the husband of Lilinoe and an 'aumakua (family deity) of fishermen. Lilinoe is said to have been buried at the summit of Mauna Kea. She has been called “the woman of the mountain” and is known as the embodiment of fine mist — the literal meaning of her name.
D. No recognition and no rights at all: The Taino, Native Peoples of Puerto Rico, The Sacred Caguana Ceremonial Center in Utuado, Borikén:

“Caguana Ceremonial Center is one of many Sacred Sites for the Taíno People. [16] It is the largest and most complex Ceremonial Sites in the West Indies; which consists of a large central Batey (“plaza”), ceremonial dance area, ten rectangular earth-and-stone–lined Batey (“ball courts” and “plazas”) and one circular Batey (“plaza”).

“While the Free Associated State of Puerto Rico government, agencies, and archaeologists view Caguana Ceremonial Centers as a set of ballparks and petroglyphs, the Taíno People know her as the embodiment of a divine being who brings forth, renews, and sustains life. Caguana evokes stories through the Cemi and petroglyphs bordering the batey or batei (“ball fields”). Cemi, and petroglyphs found within the Batey, are Living Beings and Spirits that transmit Creation, Voyage, Hero, and Cosmological stories, ceremonial, agricultural, and fishing cycles. Batey arrangements transmit vital wisdom about Sacred Cosmic Lunar, Solar, and Constellation phases important to the social, economic, ceremonial, recreational, and spiritual life of the people. Caguana Ceremonial Center and all Sacred Sites, Burial Grounds, Village Sites and Ceremonial Centers must be safeguarded for future generations to live.

“Competitions held on these ancient Batey (“courts”) historically substituted for warfare between autonomous Taíno communities. The recent revival of the Ceremonial Batu (“ball games”) is an opportunity for young Taíno warriors both male and female, to demonstrate their skill and valor and gain the respect and esteem of their community members.

“The Institute of Puerto Rican Culture currently operates the Caguana site as an archaeological tourist park. Maintenance practices threaten the integrity of the stones, such as weed trimmers and tractors hurling pebbles and debris at the fragile, ancient stones. Guards and tour guides freely jump between the stones threatening to topple them to the ground. According to the NPS, “stones bearing petroglyphs have been worn down and decayed to the point that these prehistoric works of art may be irretrievably lost.” To the Taíno, these images are not works of art, but living beings and spirits that are dying slowly under gross neglect, culturally un-sound and inappropriate maintenance, caretaking, and mismanagement by government agencies entrusted to protect, preserve and conserve for present and future generations.

“Every year that passes, the government agencies treatment of Caguana as an archaeological recreation park instead of a Sacred, Living, Vibrant and Vital Ceremonial Center, increase these threats while more and more visitors degrade the physical, spiritual, and ceremonial integrity of this Sacred Ground. Under the guise of improvements, the National Park Service has made culturally, spiritually, physically inappropriate concrete additions and erected iron fencing. The Taíno believe this attempt to imprison and disconnect Caguana spiritually and physically from the adjacent river, surrounding Sacred Spaces, Cemi Mountain and the Natural World, has had a devastating effect on the Living Beings, Ancestors and Spirits, which dwell in these Sacred Spaces. For the Taíno, Cemi Mountain, surrounding Sacred Spaces the Natural World and river are all elements of the Sacred Grounds of Caguana that cannot be demarcated.”

In all of the cases cited above, although Indigenous Peoples have sought to secure privacy and periods of time to conduct their Spiritual Practice, they are for the most part denied, under the rubric that US lands are for everyone and no-one can have exclusive use even for a brief period of time. In the litigation surrounding San Francisco Peaks, Arizona, counsel for the plaintiffs, the Navajo Nation et.al. listed 380 religious use permits for exclusive use by Christian Churches of Federal lands.[17] Clearly, by granting exclusive rights of use to Christian Churches and forcing Indigenous Peoples to fend for themselves in the exercise of their religious rights, having to secure permits to pray, or having to pray under the watchful eyes and cameras of tourists and bikers, the United States is discriminating against Indigenous Peoples and their religious practice.

Only a few examples of the destruction of Indigenous People’s Sacred Lands and spiritual practice occurring throughout the jurisdiction of the United States are described herein and in Addendum A. United States intolerance of Indigenous Peoples rights to practice their religion affect all Indigenous Peoples in the United States, recognized or not. As is noted in many of the narratives in Addendum Sacred Lands A., many if not most of these Sacred Lands are “owned” by the United States and administered through the Bureau of Land Management (BLM), the National Parks Service (NPS) or the Forest Service (USFS).[18]

It is time that the United States returns these Sacred Lands and Places to their rightful owners, who continue their spiritual ties to these Places and have not relinquished their aboriginal title of use. The United States government should start with the Sacred Black Hills of the Lakota Nation.

II. The Religious rights of Prison Inmates
The practice of wearing long hair is long standing among many Native American males. It has cultural and spiritual significance. For example, when a family member passes to the Spirit World, hair, as a spiritual practice, is cut and buried or burned. Many Federal and State prisons, Indigenous men are forced to cut their hair or face solitary confinement and the loss of certain “privileges” until the cut their hair.

Many such prisons also prohibit the conduct of Native American ceremony including Sweat Lodge or the visitation by Native American spiritual leaders to counsel and conduct ceremony. Native American prisoners are routinely denied ceremonial objects, food and plants. All of this based on purported “security concerns” “hygiene” or similar rationalizations. The Special Rapporteur found these prison practices of particular concern.

“84. Concerning the religious rights of Native American prisoners, apart from the recommendation made in the section on legal issues, the Special Rapporteur recommends that the positive and practical action taken in many federal prisons (fully compatible with security requirements, e.g. ending the practice of cutting their hair) should become general throughout the United States prison system and that steps should be taken to ensure, particularly through training, and perhaps through penalties for prison officers and governors, that these rights are not treated as privileges that can be granted or refused at the whim of an authority or official.”[19]

Mr. Lenny Foster, Dine’, a Board Member of the International Indian Treaty Council, is a Navajo spiritual adviser who works with hundreds of prisoners across the country and has testified before Congress and the United Nations on native rights. He also provided documentation and testimony that led to Special Rapporteur Amor’s conclusions with regard to the denial of Indigenous prisoner’s rights to practice their spirituality in United States prisons. He provides the following testimony as to the current state of religious practice of Native Americans in US prisons:

“The Native American peoples are confronted with a major crisis and are at a crossroad with the issue of having the traditional religious, cultural and spiritual practices and beliefs not being fully recognized and approved for participation.

“The paramount Native American human rights problem in the United States prison system today is the denial of the right to practice tribal religion. For the past thirty seven years there has been a movement across Indian Country to reclaim the pride and dignity through the participation in the culture and traditions and a spiritual healing and wellness has resulted.

“The ability to practice the traditional native religions is paramount to the cultural survival of Native peoples. The imprisonment of large numbers of the Native peoples is a familiar way of life for many Native families throughout Indian Country. The Native peoples are incarcerated in highly disproportionate numbers to their numbers in the general population.

“Recent studies have shown there are over 26,000 Native Americans in adult correctional facilities and Native prisoners are approximately 1% of the population in the United States. Native peoples make up 1.6% of the prison population in the Federal Bureau of Prisons and 1.3% of prisoners in the state prison systems. Some states such as Hawaii, Alaska, Montana, South Dakota, and Arizona are overwhelmed and Native peoples comprise up to 30% of the prison population.

“The extreme racism and blatant discrimination that exists in the U.S. criminal justice has made it very difficult for the civil rights and human rights of the Native peoples to be recognized or affirmed. For the past thirty seven years the Native peoples have been denied their inherent right to practice their traditional native religious and spiritual beliefs, numerous lawsuits have been litigated to resolve these violations, numerous state legislations have been introduced in Arizona, New Mexico, Colorado, Utah and Minnesota and federal legislation have been introduced in U.S. Congress in 1992 and 1994 to allow Native Americans the right to practice their religion without discrimination. The lack of compliance and enforcement of these statutes has been a concern and often it has become a problem.

“The Native spiritual practices are very important for the spiritual healing and wellness of the Native peoples and it has proven to be very successful for the rehabilitation of the mind, body and spirit. This is very important for the Indian community and the Indian nations because these incarcerated thousands of young Native peoples represent important human and cultural resources to their Nations and families. It has been stated many times the traditional practices and beliefs are very important for the rehabilitation and recovery or the experience of incarceration becomes nothing more than warehousing of human beings.

“The restrictions placed on the time limit to four hours for the sweat lodge ceremony has become a major problem because the time limit prohibits the full exercise of the ceremony which takes approximately four to five hours. The lighting and heating of the stones takes two hours. The rationing of the firewood for the ceremony adds to the frustration and resentment because there should be an adequate supply to have a complete and bona fide ceremony without these restrictions placed on the Native American prisoners. The sweat lodge ceremony is a very therapeutic counseling session for recovery as it allows a cleansing and purification of the emotional, physical, psychological and spiritual well being. The wellness and a recovery from alcohol and drugs are very important for the young Native American prisoner and the spiritual services addresses that issue. It improved self esteem and dignity and decreases recidivism.

“Another problem is the lack of equal access to sacred items and materials such as the Pipe and Indian tobacco, sage, cedar, water drum, drum hide, gourd, eagle feather, corn pollen, medicine bags, pouches, bundles, willow saplings, lava rocks and proper firewood to conduct the sweat lodge ceremony. The restriction on use of tobacco for the Pipe Ceremony has become an issue because the ceremony using the tobacco has fallen in to the Smoke Free Environment in the prison setting and this policy doesn’t recognized the spiritual significance and sacredness of the use of tobacco for prayers.

“The prison policy arbitrarily and capriciously dictates what is secular and what is sacred and it is a racist policy that doesn’t recognize the humanity of the Native American prisoner. The prayers and songs are important in the ceremony and the Native prisoners should not be asked to speak English only so the correctional officers can understand what is being said is racist and overt discrimination. The correctional officers should stop making racist remarks like, “I don’t want them singing Indian because their music riles them up and they get hostile.”

“The Sweat Lodge ceremonies, Talking Circle, Pipe Ceremonies or Tobacco Ceremonies are very important and should be done in the ancient and sacred manner so the Native prisoners receive the full beneficial emotional and spiritual healing.

“Ignorance and lack of awareness should not be an excuse for systematically or arbitrarily denying religious and spiritual rights and then justifying these denials on the basis of “security concerns.”

“The Native prisoners should have equal access to traditional ceremonial foods for the annual ceremonial meal; and native prisoners should not be transferred to facilities where his religious practices and beliefs are prohibited and should only be transferred to facilities where his beliefs can be accommodated. The Native American inmates on Death Row should be allowed and permitted to visit with their spiritual leaders and have equal access to the Sweat Lodge and Pipe Ceremony for their traditional manner of worship and have their Last Rite request approved and accommodated.

“All of these problems for the Native American community and Indian Nations are serious human rights and civil right violations that need to be addressed and rectified. To deny these basic human rights and show indifference to a dignified spiritual healing is tantamount to a cultural genocide of a young generation of Native prisoners.”

An example of the results of the failure to recognize the religious rights of Indigenous Prisoners and the need of those rights enshrined in the Convention is the case of a condemned man in California, who has asked for the ceremony of Sweat Lodge as his final rites. The Prison warden denied his request and the United States District Court upheld the denial. On the issue of the rights expressed in the Covenant, the United States District Judge said:

“Finally, the plaintiff advances an argument based upon the international covenant on civil and political rights. The most recent judicial decision which addresses this precise issue held that the international covenant is not self executing and that there is no judicial authority which permits a private right of action under the covenant. Every judicial decision which has addressed this issue has held that there is no private right of action under the covenant, and that is a decision in which this court joins.”[20]

The Sweat Lodge ceremony was denied this Cherokee man on the grounds of prison security even though he had severe ortho-degenerative spinal disease that was so bad that for the month preceding his execution, he had been wheel chaired from his cell to the visiting room to meet with his attorneys. He was incapable of walking that distance from his cell to the visit area.
[1] According to the United States aboriginal tile was “extinguished long ago.” Periodic Report, paragraph 336.
[2] See, e.g., Human Rights Committee, Concluding Observations, United States of America, Eighty-seventh session 10-28 July 2006, paragraph 37: “The State party should review its policy towards indigenous peoples as regards the extinguishment of aboriginal rights on the basis of the plenary power of Congress regarding Indian affairs and grant them the same degree of judicial protection that is available to the non-indigenous population. It should take further steps in order to secure the rights of all indigenous peoples under articles 1 and 27 of the Covenant to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture.”
[3] See, Introduction and fn. [2] supra.
[4] UN Doc. E/CN.4/1999/58/Add.1, para. 74, Report submitted to the Commission on Human Rights by Mr. Abdelfattah Amor, Special Rapporteur on religious intolerance, Visit to the United States of America, 9 December 1999.
[5] Id, at paragraphs 53-54.
[6] Id, at paragraph 82.Article 1 section 3 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief states: “Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” Article 18 (Freedom of Thought, Conscience and Religion) section 3, of the International Covenant on Civil and Political rights contains the identical language.
[7] Id, at paragraph 83.
[8] The First Amendment to the Constitution of the United States includes the clauses, “Congress shall make no law respecting an establishment of religion,” and, “or prohibiting the free exercise thereof.”
[9] Lyng v. Northwest Indian Cemetery Assoc’n, 485 U.S. 439 (1988),
[10] Id, at 485 US 451-452.
[11] Id, at 485 US 452.
[12] Study on treaties, agreements and other constructive arrangements between States and indigenous populations, Final report by Miguel Alfonso Martínez, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1999/20, 22 June 1999, paragraph 275.
[13] Id, at para. 276 (citations omitted).
[14] July 9, 2007 electronic letter submitted to the OHCHR by Mark Franco, Headman of the Winnemem Wintu Tribe of California, included in Attachment Sacred Lands A.
[15] Video presentation by Mike Preston, Winnemem Wintu student and traditional dancer, at the Richard Oakes Celebration, San Francisco State University, San Francisco California, Thursday November 14, 2007; the video showed drunken tourists in a boat taunting the Tribe as it attempted to conduct their puberty ceremony on the banks of the river, and an official from the National Parks Service later apologizing, that “there was nothing he could do.”
[16] While the information focuses on Caguana Ceremonial Center, we will also reference Yacimiento Caguitas CS-2 in Caguas, Arecibo Flood Control Project, the more recently, PO29 “Archaeological Site” in Ponce.
[17] Brief filed by appellant Navajo Nation, et. al. in Navajo Nation v. United States Forest Service, 9th Circuit Court of Appeals, March 12, 2007. Although the Tribes contesting the use of recycled sewer water for artificial snow, desecrating Sacred San Francisco Peaks, was won at the 9th Circuit Court under an amended Religious Freedom Restoration Act, the Government, on behalf of the Forest Service, has been granted an appeal by an en banc panel.
[18] See, Attachment Sacred Lands C., a chart of total land ownership of US and State owned lands in the United States.
[19] Op. cit., Amor report, at paragraph 84.
[20] Darrell Keith Rich, et al., Plaintiff, vs. Jeanne Woodford, Warden of San Quentin State Prison, et al., no. c00‑0827 vrw, U.S. District Court for the Northern District of California, 13 March 2000, Transcript of Hearing.