been preserved for ourselves, our children, our grandchildren, and people that would make pilgrimages to these holy areas.

What is not of general knowledge in this country is that right here in the United States there also exist holy areas. These are the religious areas of the American Indians, who have as their point of religious reference a sacred area right here in this country. Unfor tunately, these religious areas are the subject of misunderstanding, and in fact are verging on extinction.

Many of the Federal land management agencies since the date of the enactment of the Religious Freedom Act have indicated in court cases that they are unwilling to accommodate native worship on Federal lands or that they are unable to accommodate religious worship on Federal lands at these sites. These are the very same agencies who, on the other hand, are able to accommodate religious activities on the part of Christians on Federal lands. I would refer ence the committee to exhibit B of my testimony, in which it shows that the National Park Service, for example, administers over 121 churches on park lands, and in no instance, to my knowledge, has any first amendment issue ever found its way into the courts regarding_the_protection of these properties, the worship in these properties. But for some reason, Indians are always forced into court to basically receive the same types of accommodations.

Another area that is of concern involves the practice of native ceremonies and the use and possession of religious objects in those ceremonies. I think that perhaps one good example here might be the Native American Church, also known as the Peyote Church. My tribe has been practicing this religion for about 100 years now. This is a very hard religion. It involves prayer that commences at sundown and ends at sunrise the next day, 12 hours, probably, of praying, of singing, of partaking in very profound ceremonies.

Members of this church are in the past and presently being subjected to all kinds of difficulties in practicing the religion. The religion involves the use of the plant peyote. It involves the use of eagle feathers and other protected feathers, the use of water and fire, and is conducted in a tepee. One may be arrested or a ceremony intruded upon at any time at any place. Presently a case is pending in the State of Washington. One may be arrested during this ceremony for possession of peyote, for possession of protected feathers. One may even be arrested for having a fire without a permit, or if not conducted in a remote area, one might be arrested for distubing the peace, in fact.

On the other hand, in terms of securing peyote, practitioners make pilgrimages to the Rio Grande to the peyote gardens to harvest in accordance with religious rites. At that time the people, having traveled great distances to harvest the sacrament, must also comply with Federal and State regulations, and possibly later to be subject to arrest for possession. The same is true with regard to attempting to obtain eagle feathers. So this is an example of the types of problems that we are confronted with in that area.

Mr. EDWARDS. There is a vote in the House of Representatives. We are going to have to recess for 5 minutes.

[Recess.]

Mr. ECHO-HAWK. Mr. Chairman, I was talking earlier about giving examples of problems that have confronted native Americans, and I would like to continue if I may along that same line. When the hearing went into recess I was talking about the difficulty of Federal land managing agencies to accord some measure of accommodation to Indian worship on Federal lands. I have an additional set of documents that I would like to submit for the record, if I may, by way of example of the manner in which one agency has been able to accommodate a religious site located in the State of Oklahoma. This religious site is known as Holy City, and it is located in the Wichita Mountains Wildlife Refuge.

Mr. EDWARDS. Without objection, it will be made a part of the record.

[The information follows:]

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FWS-HOLY CITY-WICHITA MOUNTAIN WILDLIFE REFUGE

Secretary of the Interior Cecil D. Andrus ruled today that the annual Easter pageant at Wichita Mountains National Wildlife Refuge in Oklahoma could continue and that religious symbols on the site would not be removed.

"No one is going to disturb the observance or the sacred symbols on that refuge as long as I am Secretary of the Interior, " Andrus said, after conferring earlier this weck with Governor Nigh and members of the Oklahoma Congressional delegation.

Andrus decision was announced following a meeting with members of his top staff, including the Interior Department's Solicitor (chief legal officer).

The Interior Secretary's involvement in the case came after widespread publication of an opinion by an associate solicitor indicating that Christian symbols at the refuge were in conflict with the First Amendment to the Constitution.

"1 looked into the matter," Andrus.said, "and learned that this has been going on for 45 years without any record of a serious complaint by the people of Oklahoma. A special use permit for the Easter pageant to be conducted on the Refuge was first issued in 1935. The 'Holy City,' a group of structures that serves as a backdrop to the pageant, was built during the 1930's--by Depression-.. Federal agencies using Federal funds, with the personal consent of Franklin Delano Roosevelt. More recently, pageant sponsors placed a statue of Jesus Christ on the 152-acre special use site, with the consent of the U. S. Fish and Wildlife Service.

"The pageant people have been good neighbors. It would be wrong from every point of view to abruptly tell them now that Uncle Sam had changed his mind and decided they had to tear down the statue or the other structures.

"The Solicitor has reviewed the preliminary opinion and has advised me that the pageant may continue to be held each year, and that existing structures and symbols may remain, as long as the site or a similar site on the Refuge is similarly available to others who wish to exercise their First Amendment rights. Under our Constitution, he told me, Federally managed lands must be evenhandedly made available to all who wish to exercise those rights.

"With that in mind, I have endorsed a proposal by the U. S. Fish and Wildlife Service to resume discussions with the Easter pageant sponsors toward a renewal of their present permit after it expires in 1982, to administer the entire area consistent with the evenhanded principles which will ensure all Constitutional rights are protected."

Subject:

Secretary

Solicitor

FWS involvement in the Holy City facilities on the wichita Mountains Wildlife Refuge

On June 27, 1980, a memorandum was issued by the Associate Solicitor for Conservation and Wildlife to the Director, Fish and Wildlife Service, addressing certain questions concerning the Holy City on the Wichita Mountains Wildlife Refuge in Indiahoma, Oklahoma. It concluded that the exclusive use of the site by the Easter Service Association, Inc., (ESA) must be terminated and that certain permanent and prominent religious fixtures must be removed. On August 12, 1980, I withdrew that opinion for consideration of all alternatives. sets forth my conclusions and recommendations.

This opinion

The Easter pageant was initially held on the refuge in 1935 under a special use permit issued by the Department of Agriculture. Prior to moving to the refuge, the pageant had been held at Medicine Park since 1927. The Holy City, constructed primarily by the Works Project Administration, consists of between 30 and 40 buildings, a number of small religious shrines made of stone or lumber, a small museum, a chapel, two residences, and a large white marble statue of

Christ.

The pageant and the ESA administration and maintenance of the site are currently conducted pursuant to a special use permit issued June 14, 1962, for the purpose of "holding certain religious services and pageants and other related uses. . . This permit was basically a reissuance of the 1935 permit, and it expires on July 31, 1982. */ It gives exclusive use to the ESA of a specific tract of approximately 151 acres within the much larger refuge.

(Permit No. 36592).

The 1935 permit, however, was issued to the Lawton Chamber of Commerce and had no termination date.

The access road to the facilities is maintained by the FWS, which also assists in maintenance of roads within the site. Maintenance of the site is the responsibility of the sponsoring organization, the Easter Service Association, Inc., which has day-to-day control over the facilities; no other organization or public association utilizes the Holy City.

B. Legal Analysis

The Department is bound to ensure that its operations and activities do not encroach upon any constitutional rights or exceed any constitutional limitations on its authority. Citizens Concerned for Separation of Church and State v. City and County of Denver, 481 F. Supp. 522, 524 (D. Colo. 1979) Ton appeal, Civ. No. 79-2303, 10th Cir.) Any action of the FWS or the Department must be within the constitutional confines of the first amendment, specifically here, the establishment clause, the free exercise clause, the free assembly clause, and the free speech clause, as well as the due process clause of the fifth amendment.

The first amendment to the Constitution provides in part that "Congress shall make no laws respecting an establishment of religion". The Supreme Court has held that this language "requires the state to be neutral in its relations with groups of religious believers and nonbelievers." Abington School District v. Schempp, 374 U.S. 203, 218 (1963) (quoting Everson v. Board of Education, 330 U.S. 1, 18 (1947)) (Emphasis added). That amendment also provides that "Congress shall make prohibiting the free exercise [of religion); DI

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no law abridging the freedom of speech or the right of the people peaceably to assemble With respect to use of federal lands, the courts require equal access for competing applicants for the exercise of first amendment rights. Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975). The Court of Appeals for the District of Columbia Circuit has held that where the use of public parkland for religious and other first amendment purposes is subject to reasonable, neutral regulation as to time, place and manner, and where the area is made available on an equal basis to all groups without discrimination, such activity is not constitutionally proscribed. O'Hair v. Andrus, 613 F.2d 931, 934, 937 (D.C. Cir. 1979) (action to halt permit for Papal Mass on the Mall in Washington, D.C.).

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