Protecting Indian Prisoners' Religious Freedom
Despite the barbwire fenced entryway, security pat downs, and presence of several armed corrections officers, a sense of freedom filled one corner of the Washington State Penitentiary in Walla Walla on Tuesday, May 22. At the pow wow I attended there that day, there were many Native men who will never again walk outside those prison walls, let alone enjoy a Fourth of July barbeque or fireworks show. But that day their freedom—freedom of Indian religious belief—reigned.
That was in no small part due to the fact that a handful of Native children were also present that day, thanks to policy reforms enacted earlier that month by the Washington Department of Corrections (DOC). For the prior two years, Washington tribal leaders and lawyers advocated for the restoration of religious rights that the state stripped from Native prisoners in the spring of 2010.
On May 22, the reform effort culminated, appropriately, in hopeful ceremony, song and dance, performed by Indian men who have little more than that ceremony to hope for year in and year out.
To be clear, Native inmates “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish (1979). Rather, they enjoy free exercise rights protected by the federal First Amendment. Pell v. Procunier (1974). Despite a U.S. Supreme Court decision in 1987 that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley (1987), restrictions on Native prisoner religious practices such as sweat lodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter (8th Cir. 1994). Further, some state constitutions, like Washington State’s, afford more protection for religious freedoms than the federal First Amendment. First Covenant Church v. City of Seattle (1992).
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber (D.S.D. 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik (W.D. Wis. 2006).
As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc. (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples—including those who live behind bars.
In sum, RLUIPA, possibly coupled with state rather than federal constitutional claims, affords Native prisoners the strongest basis to challenge a state restriction on their exercise of Indian religion.
As I previously chronicled for ICTMN, in early 2010, the DOC effectively barred almost all of Native prisoners’ religious practices, under the auspices of drastic state budget cuts. The DOC deemed tribal traditional tobacco “contraband” and reclassified their various other sacred medicines, like sage, sweet grass, lavender and cedar, as non-religious. The agency barred the frybread, salmon, and buffalo the prisoners would break four-day fasts with during Change of Seasons rituals, and eat during pow wows, and scaled back sweatlodge ceremonies altogether. The DOC altered what could be safely stored and protected in an inmates’ sacred items shoebox, thereby allowing tribal hand drums, feather fans and medicines to be rifled through by DOC corrections officers. The agency also barred children from attending summer prison pow wows.
Even worse, as a result of these sweeping policy reforms, the attitude of state corrections officers toward Native inmates changed to passive aggression, if not outright disdain and discrimination; resulting in deeply disturbing confrontations during tribal ceremonies and body cavity searches immediately following those ceremonies, as well as desecration of sweat lodge grounds, throughout 2010. Native prisoners were prevented from engaging in what tribal theologian Vine Deloria, Jr. termed “spiritual problem-solving”—the Good Red Road was barricaded for them.
Thankfully, in June of 2011, the DOC restored Native inmates’ religious rights, and reopened their road towards spiritual peace and rehabilitation. The state’s unexpected turnaround began with a humble apology. After nine tribes wrote Governor Christine Gregoire decrying the DOC’s discrimination against their incarcerated citizens, DOC Secretary Eldon Vail met with tribal leaders. Pivotally, instead of professing some constitutionally protected penological interest that justified the state’s violent policy changes – a tact that would have likely landed the state in U.S. District Court—he simply apologized. He promised to fix the state’s mistake. And, remarkably, in a state that has never shied away from litigating Indian cultural rights, he and the DOC then made right.
Yet one reform remained: the return of Indian children to DOC pow wows. The state expressed hesitation, citing a legitimate penological interest in protecting not only tribal youth and families at pow wows, but also Indian prisoners, especially convicted sex offenders. Again, however, state and tribal leaders put aside religious freedoms law and instead focused on how to reconcile state security concerns with tribal spiritual concerns, primarily for sake of helping Native prisoners rehabilitate. The only question was how. In the end, the DOC decided additional security staffing was needed to allow children at prison pow wows, and the tribes did not hesitate to promise payment for that extra security. (The tribes also caused children to return to other faith groups’ ceremonies.) A common sense solution was reached, and the last of the religious rights stripped from the Native prisoners in 2010 was restored.
On May 22, three generations of Indians danced with the men in the pow wow circle, including children and elders. Tribal regalia, headdresses, and feather fans were in full bloom. Two outside drum circles thumped the drum and sang for the men, from deep within their souls. The men gifted several visitors painted drums they had made from hand, in gratitude for their support. Everyone enjoyed buffalo stew, salmon, and frybread that DOC chefs obviously prepared with pride, and the men served their guests with even more pride. The half-day ceremony was filled with not just reverence and prayer—of course with each step of pow wow dance said to be a prayer—but joy and laughter. When one lifer was asked what he would do the next day, Wednesday, May 23rd, he said: “start counting down the 364 days until our next pow wow.”
For me—the son of a man who was “down” at Walla Walla while I was in my mom’s womb—it was an overjoying yet fundamentally tragic experience. In a just society, we must be judged by how we treat even our least worthy citizens. On May 22, the exercise of religious freedoms restored to Native prisoners in Washington State said as much about the United States of America as it did about those men. Spiritual freedom reigned that day, and on this Fourth of July and the other 364 days of the year, we on the outside should all feel a deeper sense of freedom as a result.
Gabriel S. Galanda is a partner with Galanda Broadman, an American Indian-owned law firm dedicated to representing tribal interests. He is an enrolled member of the Round Valley Indian Tribes of California.