And now:Ish <[EMAIL PROTECTED]> writes: PART 2 Please contact Action Resource Center with any questions or comments: [EMAIL PROTECTED] or contact (310) 396-3254 for Los Angeles Action Resource Center, Kim Mizrahi or Jennafer Waggoner United Nations Report on Religious Intolerance � 55th session This is the URL web address for the report: http://www.unhchr.ch/Huridocda/Huridoca.nsf/0811fcbd0b9f6bd58025667300306dea /3129ccf9f586f71680256739003494e4?OpenDocument#IC ---------------------------PART 2 One of the closest things that Mr. Amor comes to land based religion 54. It was explained to the Special Rapporteur that it must be clearly understood that the continuation and preservation of traditional Native American religion is ensured only through the performance of ceremonies and rites by tribal members. These ceremonies and rites are often performed at specific sites which are often established by creation myths and other events of importance in the native community. These sites may also be based on special geographic features such as burial sites, areas where sacred plants or other natural materials are available, and structures, carvings or paintings of religious significance. For most Native American religions, there may be no alternative places of worship since these ceremonies must be performed at certain places and times to be effective. 55. Concerning the situation of Native Americans in the religious domain, regulations restricting traditional ceremonies, including dances, lasted until 1934 when the Indian Reorganization Act was adopted. In 1978 Congress adopted the American Indian Religious Freedom Act (AIRFA) which stipulates, in particular, that: "It shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions ... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites". In 1990 came the Native American Graves Protection and Repatriation Act to ensure that Native American remains and sacred objects retained by federal, state and local governments, as well as universities and museums, are returned to the appropriate tribes and/or descendants and that burial sites on tribal and federal lands are properly protected. Finally, in 1996, President Clinton issued the Executive Order on Indian Sacred Sites calling for the protection of sites considered sacred by tribes and directing federal agencies to provide Native American traditional practitioners access to those sites. 59. Concerning the Native American Graves Protection and Repatriation Act, (b) On 7 January 1997, a bill (HR 193) was introduced to prohibit sites of traditional significance from being listed in the National Register of Historic Places. This bill would have a significant impact on Native American historic and sacred sites and would result in increased damage to these sites, further infringing on the capacity of Native Americans to practise their religion within the bounds of existing law; (d) There is a pressing need for federal protection of the religious rights of Native Americans incarcerated in federal, state and local penal and other institutions. MINING 62. A first series of complaints relates to sacred sites and sacred natural objects used in rituals (plants, rice, etc.). They involve first of all damage to sites due to the execution or attempted execution of economic projects (for example, mining projects affecting the sacred sites in the Little Rocky Mountains of the Gros Ventre and Assiniboine tribes on the Native American reserve of Fort Belknap in the Northern Montanales (Montana) and the sites near Lake Rice in the Sokaogon Chippewa reserve in northern Wisconsin; a plan to build a road in a national park affecting a sacred site of the Pueblo Indians near Albuquerque (New Mexico); a uranium mining project affecting the sacred site of the Havasupai tribe in the Grand Canyon (Arizona); economic development projects at the Mount Shasta sacred site of the Shasta, Pit River, Wintu, Karuk, Okwanuchu and Modoc tribes and at the Medicine Lake Caldera sacred site of the Pit River, Shasta and Klamath/Modoc tribes in California; a nuclear project on the Ward Valley sacred site of the Fort Mojave tribe in California). Then there is the problem of access to religious places and sacred features situated on private property (for example, a request for compulsory authorization for Native Americans to practise their religion on the Mount Graham sacred site situated near the University of Arizona's telescopes), on Native Americans' own property (case mentioned above of the Sioux nation having been unable to recover their property in the Black Hills and being denied the exclusive use of their sacred site for religious ceremonies), or situated on the frontier with Mexico (for example, case of the Yaki nation and the Tohono O'odham). In general, these complaints reflect both a real lack of understanding and consideration and an indifference and even hostility on the part of the various officials and other parties involved (in the economy, research, etc.) with regard to the values and beliefs of the original inhabitants of the United States. 63. The Special Rapporteur wishes to draw attention here to two situations which have already been the subject of a communication addressed to the United States authorities, in June 1997. First of all, there is the case of Mount Graham, where telescopes are being constructed by the University of Arizona on the sacred site of the Apache nation with the authorization of the federal water and forest service. The other case concerns the complex and sensitive situation resulting from the Relocation Act (25 USC) following a land dispute between two Native American tribes, the Navajos and the Hopis; in connection with the resettlement of families from these two tribes in the Black Mesa region of Arizona, the Navajos consider that their right of access to their sacred sites in the area allocated to the Hopis is not respected; the Hopis for their part consider that their religion and its practices should also be respected (for further details, see the report entitled "Hopi-Navajo relocations", prepared by Erica-Irene A. Daes and John Carey -E/CN.4/Sub.2/1989/35, parts I and II). ****Mr. Amor seems to separate the mining paragraph from the issues that he tends to link together which is the Apache Mt. Graham issue regarding an observatory on Native Land and separates the mining issue of the top paragraph and the bottom. 64. A second series of complaints relates to ceremonial instruments and objects (eagles' feathers, tobacco, cactus, peyotl, etc.). Persons having them in their possession sometimes run into serious difficulties, including confiscation, especially at frontiers, arrest and prosecution, for the reasons given in the section on legal issues (see in particular the Smith case). A third series of complaints concerns the restitution and non-profanation of human remains, particularly on the part of the scientific community, a problem mentioned in that same section. 65. A fourth category of complaint concerns Native American prisoners (some 7,000) in the United States prison system, both State and federal. Sweat lodges (for cleansing and purification ceremonies), long hair worn in a traditional fashion, headbands, medicine bags, possession of sage, cedar and tobacco and other practices have been banned as "security risks" by one prison or another. Concerning the question of cutting the hair of Native American prisoners, many individuals asserted that this act was tantamount to castration. According to the information received, enforcement of and compliance with laws and regulations have not been uniform and lawsuits filed to enforce existing laws have resulted in contradictory decisions. The freedom of religion of Native American prisoners has depended upon the whim of individual prison officials. Lawsuits are pending and complaints have been filed against the Departments of Correction of Texas, California, New York, Wisconsin, Minnesota, Nevada, Missouri, Washington, Oregon, Pennsylvania and Arizona. 67. During official consultations, State department representatives said that there were many problems relating to Native Americans. However, while recognizing the existence of very serious abuses in the past, they emphasized that recent years had been marked by progress towards greater protection and autonomy for indigenous peoples. They also explained that the process was a long-term one. 68. Officials from the Departments of Justice and the Interior described past United States policy as destructive towards Native Americans and biased in favour of the country's economic interests. According to them, President Clinton's policy, on the contrary, took account of Native Americans' interests. They stressed nonetheless the difficulties caused by the conflict between economic values involving vast financial interests and the importance of the concept of private property, on the one hand, and Native Americans' traditional values, on the other. It will be noted that the Native Americans are a small religious minority in a democracy shaped by the will of the majority... 69. The Office of the Legal Counsel of the Department of Justice stated that while the legislation adopted for the benefit of Native Americans was in general positive, there were problems at the level of courts and public services, which, in many cases, did not abide by it. As regards the sacred sites, the Office pointed out that a process was being worked out for taking due account of these places, which, for the most part, were unfortunately not situated on Native American property. In some cases, however, it had not been possible to arrive at a compromise. III. CONCLUSIONS AND RECOMMENDATIONS 71. Concerning the legal situation in the field of religion or belief, the existence of a well-developed Constitution and legislation has to be recognized. The two constitutional clauses relating to "non-establishment" and free exercise constitute fundamental guarantees for the protection of religion and belief, particularly within the context of the mosaic of religions and beliefs that is typical of the United States. It is evident, however, that the interpretation of these two clauses by the Supreme Court creates problems, because they are sometimes seen by some people as prejudicing the freedom of religion and belief, more particularly of religious minorities. Firstly, concerning the clause on free exercise, many religious and non-governmental representatives contest the "new" jurisprudence that emerged from the Smith case, establishing that neutral laws of general applicability do not typically offend the free exercise clause merely because in application they incidentally prohibit someone's exercise of religion, and therefore the Government no longer has to demonstrate a compelling interest unless a law is specifically targeted at a religious practice or infringes upon an additional constitutional right. The religious communities feel that they are thus vulnerable in the face of legislation and political and administrative institutions governed by a conception of the separation of religion and the State which requires that everyone must comply with the same rules and regulations, and which hence regards any request from religions that their specific nature should be respected in their rights and freedoms as a request for privileges. Secondly, concerning the clause on "non-establishment" of religion, the Supreme Court's interpretation, particularly with regard to public aid for religion, recognition of religion in State schools and financial aid given by the Government to religious schools, unfortunately appears from a general viewpoint to be vague and confused, as was stated, incidentally, by members of the Supreme Court. According to John Witte, professor at Emory University in Atlanta, the development of a coherent and comprehensive framework for interpreting and applying the two constitutional religion clauses would be most useful. That unified approach could come in a variety of forms - through grand synthetic cases or through comprehensive statutes, restatements, codes, or even constitutional amendments ("The Essential Rights and Liberties of Religion in the American Constitutional Experiment", Notre Dame Law Review, vol. 71, No. 3, 1996). The Special Rapporteur wholly endorses the approach of taking into account the traditions of other peoples as reflected in the main United Nations human rights instruments, namely, the International Covenant on Civil and Political Rights (article 18 and General Comment No. 22 of the Human Rights Committee; see paragraph 78 below) and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. For example, the prioritizing of liberty of conscience, free exercise and equality principles might well serve as a prototype for the integration of the values enshrined in the free exercise and "non-establishment" clauses. This second approach would be a way of correcting the attitude of the United States of America that human rights are to be treated as belonging to international affairs and not as a domestic matter. We may point out here that this attitude was also noted by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions, in his report on his mission to the United States of America (E/CN.4/1998/68/Add.3). 73. Finally, ratification of the Convention on the Rights of the Child by the United States is strongly encouraged: it would be a logical consequence of the human rights policy proclaimed by that country at the international level. It will be remembered, however, that as happened in the case of Mr. Bacre Waly Ndiaye's mission, the federal authorities which are supposed to represent the states of the Union at the international level did not take it upon themselves to organize meetings between the Special Rapporteur and the state authorities. Furthermore, most of the official and non-official representatives that the Special Rapporteur met in the states did not seem to know the international human rights instruments. Similarly, statements by certain public figures irritated by United Nations special rapporteurs' visits to the United States are surprising to say the least, in that they would seem to imply that the world's leading Power fears United Nations "domination", on the one hand, and on the other, wishes to set itself up as entitled to give other countries lessons while rejecting criticisms of its domestic situation, which is seen in a positive light without any limitations or reservations. It would therefore be desirable that these individual positions should remain incidental phenomena not affecting the move towards a more open policy both at home and abroad which is evident in the United States and that the country's commitment in the field of human rights should take on a practical aspect -rather than remaining simply a matter of form - both internationally and nationally. 76. The situation of Muslims is distinctly less favourable, although taken all in all it is not negative. The Muslim community can certainly flourish freely in the religious sphere, but it has to be recognized that there is an islamophobia reflecting both racial and religious intolerance. This is not the fault of the authorities, but of very harmful activity by the media in general and the popular press in particular, which consists in putting out a distorted and indeed hate-filled message treating Muslims as extremists and terrorists. American public opinion - and hence society - is thus informed -and formed - by negative representations of the Muslims. The Special Rapporteur raises the question of the responsibility of the media for manifestations - direct or indirect, intentional or not - of racial and religious intolerance and discrimination in society, on the part of citizens, but also of officials acting on their own initiative and of private corporations, manifestations which may be marginal, but nevertheless do really affect Muslims. It is up to the public authorities to help combat the iniquitous representation of Muslims. Here the Special.... At the end of his study, the Special Rapporteur considers that the actual situation in the United States in the field of tolerance and non-discrimination is in general satisfactory. There are nevertheless some evident exceptions that must be pointed out, particularly as regards the situation of Native Americans. (74) pg. 20 79. A situation which raises a problem is that of the Native Americans: they have in the past been exposed to a policy of assimilation which many of them describe, with surprising insistence, as genocide and which continues to have effects even today. In recent years a policy in favour of these indigenous peoples has been set in motion, particularly under the presidency of Mr. Clinton, but it needs to be strengthened in the religious sphere. (80) Concerning the American Indian Religious Freedom Act, the Supreme Court has declared that this law was only a policy statement. As for the Executive Order on Indian Sacred Sites, unfortunately, it does not contain an "action clause", leaving the tribes without the needed legal "teeth". Higher standards or the protection of sacred sites are needed and effective tribal consultation should be ensured. (80) Concerning the Native American Graves Protection and Repatriation Act of 1990, it is apparent that its coverage was too limited; it is of the utmost importance that concrete solutions be found to solve the repatriation conflict between the scientific community and tribal governments. It is also essential to secure genuine de jure and de facto protection of Native American prisoners' religious rites. (81) In general, the Special Rapporteur recommends that steps should be taken to make sure that there is no conflict or incompatibility between the different federal, state and local laws, so as to arrive at a uniformity - or at least a convergence - in the legal protection of indigenous peoples' religion throughout the territory of the United States, while guaranteeing effective application of these texts, by everyone, for everyone and everywhere, all other things being equal (we may cite as an example the 1994 Executive Memorandum on Native American Access to Eagle Feathers -see paragraph 59 (c) above). It is also recommended that in the legal sphere Native Americans' system of values and traditions should be fully recognized, particularly as regards the concept of collective property rights, inalienability of sacred sites and secrecy with regard to their location. Separated the following paragraphs on purpose for clarity. 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. 83. These recommendations apply of course to the two particular situations of Mount Graham and Black Mesa. In the first case, according to information received since the visit, the Italian Parliament has adopted new legislation forbidding Italian participation in the project to set up a telescope, which would be a profanation of the Mount Graham site. As regards the permit delivered to the University of Arizona by the federal water and forest service for the establishment of telescopes on Mount Graham, which is a sacred site of the Apaches, the Special Rapporteur considers it necessary to make sure officially that the conditions stated above with regard to international law have been respected. On the subject of Black Mesa, the Special Rapporteur also calls for the observance of international law on freedom of religion and its manifestations. ACTION ITEM 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. ACTION ITEM 85. In general, it is essential to make society and the whole of the administrative and political apparatus aware of the indigenous peoples' religions and spiritual beliefs in order to prevent any attitude - often involuntary because due to ignorance - of discrimination and intolerance in the field of religion (cutting young Native Americans' hair in schools, etc.). The participation of Native Americans in the executive is particularly important and helps to promote greater awareness and reduce the marginalization of these people; it is therefore to be welcomed. It is also desirable that Native Americans, who in general suffer from an accumulation of unfavourable conditions - economic, social, cultural and religious - should benefit in practice from a policy of support to compensate for these inequalities. The Special Rapporteur fully understands that, as the authorities stated, the Native American question is to be viewed in the context of a long-term process, and he welcomes the advances made in recent years. Some official representatives, however, said that more could be done; the Special Rapporteur shares that view and would encourage the authorities to act accordingly. ACTION ITEM 86. Finally, the Special Rapporteur wishes to emphasize that education can play a primary role in making people aware of the values of tolerance and non-discrimination in the field of religion and belief and of the richness of every denomination and belief. In schools, in particular, it can inculcate values based on human rights and thus... ACTION ITEM 87. The Special Rapporteur also recommends a campaign for greater sensitivity in the media so that they do not put out a biased and harmful message with regard to religion and beliefs. There have to be limits on the fundamental freedom of the press when it generates actual intolerance, the antithesis of freedom. There is something wrong if certain media hide behind the fundamental principle of freedom in order to pervert it. ACTION ITEM The Special Rapporteur reiterates his recommendations regarding action to be taken under the advisory services programme (E/CN.4/1995/91, p. 147) and particularly the organization of training workshops for representatives of the media. ACTION ITEM He also calls for the establishment of machinery for consultation between the media and the religious communities. Finally, he invites media proprietors to show a more acute sense of responsibility in all fields. ACTION ITEM 88. Last but not least, the Special Rapporteur wishes to emphasize the value of the interdenominational dialogue which he found to be taking place in certain places he visited, and particularly in California. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
