Statements of Ola Cassadore Davis to the United Nations
December 14, 1998
Indigenous Project Team
High Commissioner/Center for Human Rights
Attn: Julian Burger
Palais des Nations
1211 Geneva 10
Statement for the record of Ola Cassadore Davis, Chairperson, Apache Survival Coalition, San Carlos Apache Reservation, Arizona to the United Nations
1. The continuing construction and existence of telescopes on Dzil Nchaa Si An (Mt. Graham) is interfering with the practice of our religion. This is the consensus of our own spiritual leaders and non-Indian experts as well.
2. We received No Timely Notice But Were Dismissed Twice From Court For Suing Too Late. Such an application of "laches" is unusual in a case involving on-going harm that is within the power of the defendant to stop or reverse. Furthermore, last year the Court of Appeals overlooked the unclean hands of the University of Arizona and the U.S. Forest Service and their attorneys in their fraudulent avoidance of the requirements of the National Historic Preservation Act.
3. The project was found to be illegal twice in other court cases but the Congress each time passed specific provisions of law exempting only that project on our Mountain from the environmental laws that could have protected our interests using procedures that violated even standard Congressional rules against authorizing in an appropriations bill. Those exemptions are by definition an exercise in discrimination against those who value the Mountain in its natural state. Many would say that these exemptions are violations of the spirit and intent, and possibly the letter, of the equal protection and due process clauses of the U.S. Constitution. We could not afford the monetary requirements of appealing these questions to our own Supreme Court.
4. Furthermore, a portion of the summit is now completely off limits to any but the U. of Arizona which can arrest anyone who goes on that part of the Mountain. That deprives us of our aboriginal right to conduct our rites and ceremonies or to pray wherever we need to on the Mountain's high places.
5. The permit under which this is being done provides that it may be revoked for several reasons, including a finding that the project is not in the public interest. The permit also provides that the University can collect up to $10,000 in the event that the permit is revoked in the public interest..
6. The May 1996 Executive Order of the President (EO 13007) on Sacred Sites is intended to protect the physical integrity of places such as Dzil Nchaa Si An. The fact that it has not been applied to Mt. Graham and that by its own terms it cannot be enforced in court, is in itself evidence of a policy of discrimination -- that is, a standard of law that can be applied to some and not to others without any rational basis for the distinction between protected and unprotected sites. As of late November, 1998 the Office of Management and Budget of the White House had failed to allow the promulgation of binding regulations protecting sacred sites under the 1992 amendments to the National Historic Preservation Act, so non-binding guidelines have been issued. To date the U.S. Forest Service and the Arizona State Historic Preservation Office have avoided performing the proper cultural and ethnographic studies required under U. S. laws, e.g., the National Historic Preservation Act (Sec. 106 & 110), and the federal trust responsibility to Native Americans.
7. There are 35 or more better places to put such telescopes according to the best study of the subject by the National Optical Astronomy Observatories, but there is only one Dzil Nchaa Sin. Biologists also can verify that there is only one such ecosystem in the world - no other hosts the endangered Mt. Graham red squirrel, which has a special place in our religious heritage. That squirrel is likely to be driven to extinction by this project. Recent information has revealed that a faulty methodology has been used to date by the University of Arizona and federal biologists to estimate the squirrel population, resulting in exaggerated population numbers.
8. In his State of the Union message of this year, President Clinton said that "discrimination against any American is un-American". He went on to say that he and Hillary had launched the White House Millennium Program to...preserve our heritage and culture into the 21st Century. Our culture lives in every community, and every community has places of historic value that tell our stories as Americans. We should protect them . I am proposing a public-private partnership to ...celebrate the millennium by saving America's treasures great and small. He also said, "...we must continue to see that science serves humanity, not the other way around. ... I ask all Americans to support our project to restore all our treasures so that the generations for the 21st Century can see for themselves the images and words that are the old and continuing glory of America..."
The Apaches and Dzil Nchaa Si An are waiting.
9. We ask the U.N. to:
A. Adopt a robust official Declaration of Indigenous Peoples Rights, including the right to preserve and use sacred sites, and a fair and intelligent process for adjudicating and defending those rights.
B. Recommend a general reform by the U.S. in its approach to Native American Religious Freedom, including sacred site restoration, which could begin with making them policies of general application, readily enforceable by those affected, as civil laws (as opposed to criminal laws) generally should be; and
C. Recommend that other nations or foreign entities, such as the partners in the telescopes, remove investments from sites where there is either a clear violation of or failure to enforce the laws or standards of general application in that country, or where international standards have been breached or ignored.
D. Recommend that the U.S. revoke the permit for the observatory, restore Mt. Graham to its original condition to the extent possible, and remove restrictions on the non-consumptive, non-destructive use of the mountain.
We look forward to working with you, the Commission on Human Rights, and the United Nations as together we seek "liberty and justice for all". Thank you.
For additional background: Call for the Revocation of the Permit for an Observatory On Mt. Graham August 19, 1998
The Mt. Graham Coalition and the Apache Survival Coalition are asking the President to direct the Secretary of Agriculture to review and revoke a permit that is currently authorizing construction of an observatory of several buildings, roads, and permanent destruction of ancient forest in critical habitat atop the most sacred site of the San Carlos Apache tribe, a site acknowledged to be sacred by all the surrounding Apache tribes. In a May 27th, 1998 letter urging the National Aeronautics and Space Administration not to seek or provide funding for the observatory, over one hundred organizations in the U.S. and abroad, including Native American, environmental, historic preservation, religious and scientific groups objected to the project's continuing avoidance of the laws that generally apply to such activities and the refusal of the Agriculture Department to conduct any serious review of the permit.
Revocation of the Permit Could Remove Any Duty to Obligate FY98 Mt. Graham Telescope Funds
In the spring of 1996, over the specific objection of the Clinton Administration, the Congress included a legislative rider in the omnibus funding bill for FY96 that, despite unresolved questions over historical and environmental issues, declared to be legal a decision to allow the construction of an observatory on a new site under an existing permit for construction of three telescopes on Mt. Graham in the Coronado National Forest in Arizona. The rider said that the decision to relocate the site under the existing permit was "legal". It did not alter the 1988 law providing for the original permit, nor the permit itself, nor the requirements of the National Historic Preservation Act and the federal trust responsibility to Native Indians, in any way, nor waive the right of the Secretary of Agriculture to revoke the permit if he finds such revocation to be in the public interest (Term Special Use Permit, User Number 2035, April 7, 1989, para. 16, pp. 17-18).
The permit can also be revoked under paragraph 15, if its conditions have been breached, which happened, for example, with the unauthorized construction of facilities beyond those permitted. Those were removed on the order of the Forest Service. The 1989 permit issued pursuant to the 1988 law gave the University of Arizona use of the affected section of Mt. Graham in paragraph 2, but the University stipulated in the permit that any permit revocation would require a payment of only $10,000 to the University to help move the telescopes off the mountain (para. 17). In using the line-item veto in late 1997 to strike ten million dollars largely destined for the observatory, the President took a major step forward. We are asking the President to exercise his further authority to revoke the permit for the telescopes and to restore the mountain's forest cover.
An investigation by the United Nations' Commission on Human Rights has begun into this and other examples of de facto or de jure discrimination against Native American on the basis of their religion or obstructions of their religious practice. A hearing on the Mt. Graham case was held in February, 1998 in Arizona.
The Fiscal Year 1996 statutory provision was added to an appropriations bill as a "rider" without the benefit of hearings and only after rules against such measures were waived by the Congress. It was originally adopted in conference without being in either the House or Senate bill at the request of Rep. Jim Kolbe (R-AZ) in an amendment which deleted a provision requiring a study of HIV prevention on Indian reservations. That provision was replaced by the committee with the rider that deemed "legal" a forest service decision that had three times been ruled illegal and thus potentially subject to a court order to remove the observatory. The amendment was approved by the conferees over the objections of the ranking minority member of the House Subcommittee. It was also opposed in a Dear Colleague letter sent by the ranking Members of the Committee on Resources.
The FY96 rider was introduced as merely a "technical amendment" to a 1988 statutory provision that directed the Service to issue a permit and exempted the three telescopes to be permitted from some aspects of federal law. The 1988 provision was also approved without a hearing. That provision was accepted by the few who were aware of it in Congress based upon an understanding on the part of the Committees of jurisdiction that a legal and proper Biological Opinion and Environmental Impact Statement had been issued by the Fish and Wildlife Service and Forest Service respectively concerning the construction of telescopes by the University of Arizona on Mt. Graham. In 1990, the GAO and two House Subcommittees determined, however, that the Biological Opinion process in regard to the Mt. Graham telescopes was so irregular that it would not have withstood a court challenge. In 1990, Reps. Vento and Studds conducted a joint hearing in which the "no jeopardy" opinion on behalf of the telescopes was admitted by the Fish and Wildlife Service Regional Director who signed it to be concluded in violation of the law. Yet the already enacted 1988 rider shielded that Biological Opinion and the Forest Service permit based on it from any challenge in court.
Later it became apparent that the site selected by the University of Arizona was a poor astronomical site. When the University sought to build a third and larger telescope on a site not covered in the 1988 Act, the District Court and the 9th Circuit Court held that they would have to comply with the standard federal laws first. Then the 1996 rider was signed into law. The 9th Circuit Court on June 16th, in light of the rider, lifted a 1994 injunction. That injunction had been issued after the courts found that the 1988 rider did not cover a new site sought by the University of Arizona for telescope construction and operation.
The permit was issued without the required environmental, cultural and historic preservation reviews. So far, those reviews would include finishing the environmental impact statement process to assess less destructive alternatives, and concurrent endangered species act consultation to avoid jeopardizing the endangered Mt. Graham Red Squirrel or destroying its critical habitat, as well as consulting with the affected Indian tribes and conducting an ethnographic study of the mountain as required under historic preservation law and the federal trust responsibility to Native Americans.
In April 1996, an Executive Order intended to protect Native American Sacred Sites was signed. It instructed agencies to avoid harming the physical integrity of such sites but it is not enforceable by anyone other than the Federal Government itself. The Order has not yet been complied with on Mt. Graham.
Since the rider was signed into law, a massive forest fire has burned a substantial portion of the Mountain and the habitat of the red squirrel, as well as other rare and listed species. Since prime habitat is the controlling factor in long-term survival, this destruction of ancient forest will make recovery for the squirrel much more difficult even without more habitat destruction. The telescope in the ancient forest of the Coronado National Forest has now been partially built by the University of Arizona. Four years of fundraising, construction and mirror casting remain before one lens is operable and several years more before the project is done.
The courts were asked by Apache plaintiffs to require due process and historic and cultural preservation reviews, but held only that the procedural doctrine of laches, or untimely action, prevented the Apaches from enforcing the law. The courts have never held that the authority of the Secretary is so limited, because it is not. The Secretary can and should review whether the public interest still supports a permit and revoke the permit if finds it not to be in the public interest. On August 16, 1996 the Supervisor of the Coronado National Forest was also formally notified by the President's Advisory Council on Historic Preservation that due to the substantial evidence of its central role in the historic culture of the surrounding tribes, the modification of the telescope project requires that Mt. Graham in its entirety must be reviewed for eligibility for listing on the National Register as an historic site under the National Historic Preservation Act, which neither rider addressed nor waived. The Council further advised the Forest Service that Mt. Graham should be subject to immediate consultations to avoid further harming its historic character. The Council confirmed assertions made by the surrounding Apache tribes and historic preservation organizations and numerous religious groups. Although the Forest Service is not required to halt its actions pending the review, it has that power, and it was advised to conclude the review and consultations concerning the project and alternative sites off of Mt. Graham before taking irrevocable action in constructing the telescope.
In fact, the University's Vice President for Research was quoted in the press after the courts held up construction on the new site pending studies of alternatives and their impacts, as saying that the project could be relocated to another mountain.
If the project proponents are sure that their actions will not harm the squirrel population or the ecosystem or interfere with Apache traditional cultural uses, they should feel confident that they could demonstrate as much in the normal course of complying with the law, through a standard environmental impact statement and biological opinion. They could seek an exemption as provided in the Endangered Species Act, if necessary, on the grounds that the project is of major regional or national importance, if in fact the telescope project and location are so scientifically unique, which experts dispute. In fact the only peer reviewed study of Mt. Graham as an astronomic site ranked it only 37th out of 56 available alternatives in the United States and Northern Mexico (National Optical Astronomy Observatories, 1984).
In February 1998, a special rapporteur from the United Nations' Commission on Human Rights took testimony at a hearing in Arizona from the Apache Survival Coalition concerning the effective denial of religious freedom and destruction of cultural property being carried out as a result of the numerous waivers of general law and the failure to enforce other law in regard to the observatory on Mt. Graham. To our knowledge, the rapporteur has not yet filed his report nor made recommendations to the Commission.
The best course of action now is for the President to acknowledge his Advisory Council's expertise and direct the Secretary of Agriculture to review the available evidence and determine whether to revoke the permit as provided in paragraphs 15, 16, and 17 of the permit. In light of the advances in Administration policy on Native American sacred sites since mid-1996, advances in understanding about this historically sacred site, the Mt. Graham forest fire, and the substantial case that has been growing for some time that the public interest compels a revocation, the permit could be revoked in short order.
The Administration could, in the alternative, suspend construction now and complete the formal review processes previously ordered by the courts to determine the public interest before deciding whether to resume construction on Mt. Graham. In either case, the government could assist the University in finding another mountain for its observatory site, or simply drop any Federal assistance for project.
Ola Cassadore Davis, Chairperson, Apache Survival Coalition
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Testimony to the United Nations' Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Peoples
Ola Cassadore Davis
July 28, 1999
Ola Cassadore Davis is an enrolled member of the San Carlos Apache and the Chairwoman of the Apache Survival Coalition.
UNITED NATIONS - COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Working Group on Indigenous Peoples
Seventeenth Session July 26-30, 1999
July 28, 1999
Item 5: Principle Theme: Indigenous Peoples' and their Relationship to Land
Madam Daes, Chairperson:
I am Ola Cassadore Davis, an enrolled member of the San Carlos Apache Tribe, located in western Arizona. We Apache people most earnestly seek the protection of this august body of the United Nations from the destruction of our culture and human rights by U.S., German, Italian and Vatican astronomers and their sponsoring governmental agencies focused upon a most sacred Apache mountain Dzil Nchaa Si An (Mount Graham) in Arizona. They are now building three telescopes on this most holy and ancient Apache place.
We Apache wish to preserve in perpetuity our rights as secured under Indian treaties and agreements with the United States, including the Constitution of the United States, including the First Amendment, the American Indian Religious Freedom Act, the Civil Rights Acts, the National Historic Preservation Act, U.S. Executive Order 13007, and any other laws, including but not limited to the federal trust responsibilities of the U.S. government to Indian people. We Apache wish to bring to the people of this world a better understanding of Indian people, in order that we are able to preserve and freely live by our traditional culture and religious beliefs.
The landform Dzil Nchaa Si An (Mount Graham) in Arizona is a central source and means of sacred spiritual guidance and a traditional cultural property of the Apache people, and a unique place on Earth through which Apache people's prayers travel to the Creator, and Dzil Nchaa Si An is presently being desecrated and harmed by the cutting of ancient forest, digging, and road building, and the installation of telescopes sponsored by the University of Arizona of Tucson, Arizona, various Max Planck Institutes of Germany, the Arcetri Observatory of Florence, Italy, the Vatican Observatory of Rome, Italy and Ohio State University in Columbus, Ohio. Apache spiritual leaders and medicine men and women have previously signed a petition opposing that desecration and such harms; and the San Carlos Apache Tribal Council has voted four times to oppose the installation of the observatory, most recently on June 13, 1995; and documents and testimony in the archives of the University of Arizona and U.S. government confirm the cultural and religious importance of this land. We Apache were greatly encouraged by the information gathering here in Arizona, and the findings and report of United Nations Special Rapporteur Mr. Abdelfattah Amor in 1998 and 1999. Dzil Nchaa Si An (Mount Graham) should be considered as a World Heritage Site.
On May 24, 1996, the President of the United States issued Executive Order 13007 requiring that all U.S. land management agencies shall "protect the physical integrity of Indian Sacred Sites" and all unrestricted access by Indians thereto. So far, that Presidential Order has not been enforced on our Sacred Mountain. On June 16, 1999 the U.S. Department of Agriculture Forest Service sent a letter to officials of the San Carlos Apache Tribe acknowledging that Mount Graham "is very important to the Apaches," and that "The Forest Service has, already, enough information to consider the mountain sacred under the American Indian Religious Freedom Act, the Religious Freedom Restoration Act, and the First Amendment." But the U.S. Department of Agriculture Forest Service has taken no positive action on those words. To this day, they have worked hard against us traditional Apaches.
Section 16 of the U.S. Department of Agriculture Forest Service's Special Use Permit for the observatory on the mountain, which was signed by the University of Arizona and the Forest Service, states that "If...the Secretary of Agriculture...shall determine that the public interest requires termination of this permit, this permit shall terminate upon thirty days' written notice..."
That permit provides for a payment of up to U.S. $10,000 to the University of Arizona by the U.S. to help defray the costs of removing the observatory from the mountain.
In conclusion, we Apache would respectfully urge this body of the United Nations to recognize and acknowledge that the disrespect and suffering caused by the nations and governments mentioned above be terminated forthwith. We Apache petition you for a resolution consistent with the National Congress of American Indians of 1993, 1995 and July 1999. They stated that the public interest in protecting Apache culture is compelling, and that the U.S. Secretary of Agriculture should accordingly require the prompt removal of the telescopes from Mount Graham.
Thank you for your continued attention to this matter.
Statement and Petition to the United Nations To Protect the Indian Sacred Site, Dzil Nchaa Si An (Mount Graham) by Ola Cassadore Davis.
Statement/intervention read out on July 29, 1999 by Daniel Zapata, Peabody Watch Arizona.
Ola Cassadore Davis,
Chairperson Apache Survival Coalition
San Carlos Apache Reservation
P.O. Box 1237
San Carlos, AZ 85550 USA
Tel. 001 520 475 2543