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Defending the Religious Rights of Native Prisoners

Gabriel S. Galanda
5/29/14

On April 18, 2014, National Congress of American Indians President Brian Cladoosby wrote U.S. Secretary of State John Kerry. Native America is accustomed to consulting with the State Department on, for example, nation-to-nation issues like climate change, border issues, conservation, and land and water use. But on this occasion, the issue of concern was much more local, in fact personal, to American tribal communities.

President Cladoosby wrote the Secretary of State about human rights violations occurring in our own backyards, specifically the “increasing number of state-level regulations that restrict the religious freedoms of Native American prisoners, including their participation in religious ceremonies and possession of religious items.” We of course all have relatives in the Iron House.

Here is how Native prisoners religious rights advocacy movement that started locally at a grassroots level, has ascended to national and international heights.

Background

As previously documented in Indian Country Today Media Network, on Easter Sunday in 2010, a Tulalip Indian man—a so-called Native Chaplain—was “walked off of the hill” at the state’s Monroe Corrections Center, when he attempted to bring tribal ceremonial tobacco into the prison for use during a Change of Seasons sweatlodge ceremony. Although as recent as last month federal courts have recognized that “tobacco plays a central role in sweat lodge ceremonies” and other Indian religious practices and thus affirmed its use in prison circles, on that fateful Sunday, the tobacco was deemed “contraband” by state corrections personnel, and confiscated.

In the months that followed Washington tribal leaders and advocates learned that the Easter Sunday incident and designation of traditional tobacco as “contraband” was part of sweeping state Department of Corrections (DOC) policy reforms that effectively barred almost all Native prisoner religious practices. By mid-2011, after a concerted inter-tribal diplomatic effort, the DOC apologized for its transgressions and formally restored the various Native prisoners’ religious rights. Yet perhaps more profound than Washington State’s virtually unprecedented mea culpa and about-face regarding Indian rights, is the resulting groundswell of momentum that has ensued ever since, catapulting typically local Native prisoner religious concerns into national and international venues.

“See You Again”

Native peoples in the United States endure the highest incarceration rate of any racial or ethnic group, at 38 percent higher than the national rate. Inspired by that reality, and the accomplishment of getting Washington State to remedy its recent wrongs, in 2012 local tribal leaders and advocates formed a non-profit organization to provide economic, educational, rehabilitative and religious support for Native American, Alaska Native and Native Hawaiian prisoners, chiefly those Natives imprisoned in the Washington DOC.

Huy was formed. In the traditional Coast Salish language of Lushootseed, Huy, pronounced “hoyt,” means: “See you again/we never say goodbye.” “Hoyt” is what many Pacific Northwest Native people say to one another or loved ones instead of saying “goodbye.” In many Native languages, there is no word for goodbye.

Headquartered in Seattle, Huy launched its efforts by watchdogging state prison religious policymaking in Olympia and agency behavior towards Native inmates throughout the state’s twelve prisons; by sharing religious rights information throughout Indian Country, chiefly via the Internet and social media; and by obtaining IRS 501(c)(3) tax status and fundraising for charitable monies. To date, through the generosity of the Muckleshoot, Swinomish, Nisqually, Snoqualmie, Tulalip, Stillaguamish, Squaxin Island, Kalispel, Spokane and Grand Ronde Tribes, Huy has raised and in turn gifted over $100,000 to “circles” of Native prisoners in Washington and elsewhere.

Little did Huy’s founders know that those local, grassroots efforts would quickly evolve into Native prisoner religious rights advocacy throughout the United States and abroad. Within two years, Huy appeared in:

  • The Washington State Supreme Court, in a consolidated appeal regarding the unconstitutionality of the life-without-the-possibility-of-parole sentence for juvenile convicts, given that three of the 28 Native prisoners in Washington suffer from the cruel and unusual punishment imposed by such sentence;
     
  • Administrative rulemaking proceedings in California to decry changes to state prison religious practice regulations that are akin to Washington’s now reversed reforms of 2010;
     
  • National Congress of American Indians (NCAI) and Affiliated Tribes of Northwest Indians (ATNI) assemblies to obtain an NCAI Resolution that “calls upon the United States, all fifty American states and the District of Columbia . . . to take all reasonable steps to commend, support and facilitate incarcerated American Indigenous Peoples’ inherent rights to believe, express, and exercise traditional indigenous religion”; and
     
  • Federal courts ranging from the U.S. District Court for Hawaii in a case arising in Arizona, to the Fifth Circuit Court of Appeals seated in Texas, and all the way up to the U.S. Supreme Court in case out of Alabama, in challenge to various states’ deprivation of Native prisoners’ religious rights, including their right to wear unshorn hair.

As these interventions illustrate, corrections agencies in far too many states – like California, Hawaii, Arizona, Montana, South Dakota, Wyoming, Indiana, Missouri, Texas, and Alabama – have yet to grasp that Native inmates “do not forfeit all constitutional protections,” particularly First Amendment rights to religious freedom, “by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520 (1979).

Nor should any state want Native prisoners to forgo traditional Indian religion practices, which are proven to instill discipline, to reduce violence, to aid rehabilitation, and to reduce recidivism. Indeed, as Walter Echo-Hawk explains, when Native inmates “are released, it is important to the cultural survival of Indian tribes and Native communities that returning offenders be contributing, culturally viable members.” That is in part why as a matter of national inter-tribal policy, NCAI resolved that “Native governments, communities, and societies generally share [federal and state] penological goals of repressing criminal activity within their jurisdictions” and a commitment to “self-determination in facilitating spiritual rehabilitation of their citizens.”

By 2013 Huy aligned with longtime Native religious rights warriors, the Native American Rights Fund and the American Civil Liberties Union, to grieve the religious plight of Native inmates in state prisons throughout the United States, to even higher powers. That coalition filed letters of allegation with the United Nations Office of the High Commissioner for Human Rights’ Special Rapporteur on the Rights of Indigenous Peoples, as well as the UN Human Rights Committee, proclaiming that:

Although the United States has enshrined principles of religious freedom and equality in federal and state law, these protections have proved insufficient to stop state correctional agencies and officers from engaging in a pattern of increasing restrictions on indigenous prisoners’ ability to possess religious items, engage in religious ceremonies, and otherwise engage in traditional religious practices.

Huy had arrived—in Geneva, Switzerland.

International Human Rights

International human rights law is replete with protection for indigenous prisoner religious freedoms. Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that “[e]veryone shall have the right to freedom of thought, conscience and religion,” including the “freedom, either individually or in community with others and in public or private, to manifest his religion or belief.” Additionally, the right of indigenous persons to maintain their religious and cultural practices is protected by Article 27 of the ICCPR, which states that persons belonging to “ethnic, religious or linguistic minorities . . . shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

In the context of the religious freedoms of prisoners, Article 18(3) of the ICCPR states that “[f]reedom to manifest one’s religion or beliefs 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.” The UN Human Rights Committee clarified that “[p]ersons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the restraint.”

Further, Article 10 of the ICCPR articulates that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The Committee explained that persons deprived of their liberty may not “be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.”

The ICCPR’s protections are furthered by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, in its Article 1, makes clear that indigenous individuals “have the right to full enjoyment . . . of all human rights and fundamental freedoms as recognized in . . . international human rights law” such as the ICCPR. The UNDRIP, which the United States endorsed at President Barack Obama’s behest in 2010, further affirms in Article 12 that: “Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; [and] the right to the use and control of their ceremonial objects.”

Indeed, there is no denying that under the laws of so-called civilized nations, American indigenous prisoners are entitled to worship using tobacco and other sacred medicines, in sacred spaces within prison walls, and through rites like sweatlodge ceremony.

The United States’ Breach

In 2012, the United States acknowledged that “[i]ndigenous representatives and some representatives of civil society have raised a number of particular concerns” including “religious freedom for prisoners at the federal and state levels,” and promised that “[t]he Administration is aware of these concerns and is working to address them.” But the federal government has not honored its word. The Obama Administration has not yet even consulted with American tribal governments in regard to those concerns, despite NCAI’s Resolution that the United States “explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples.”

In June 2013, the Special Rapporteur on the Rights of Indigenous Peoples, joined by the UN Special Rapporteur on Freedom of Religion or Belief, wrote the U.S. State Department, requesting that within sixty days the Federal Government respond to the Huy coalition’s allegations and “provide any additional information it deems relevant to the situation.” The Special Rapporteurs posed a series of questions, including:

What measures exist to ensure the protection of the religious freedoms of Native American prisoners in state and local prisons? Specifically, what legal, policy or programmatic actions, if any, have federal and state Government authorities taken to ensure that Native American prisoners are able to engage in religious ceremonies and traditional practices as well as have access to religious items in state and local prisons?

Now almost a year later, the State Department has yet to in any way respond to the UN Special Rapporteurs. That is why last month, President Cladoosby “called out” the U.S. State Department, requesting answers, and consultation, from the federal government.

The United States’ continued silence is indicative of its and its sibling states’ failing, to respect the right of American indigenous prisoners to freely exercise their religion, and to afford those prisoners with effective remedies when state correctional agencies and officers violate their guaranteed rights. Hopefully the United States will finally keep its word by addressing the religious plight of American indigenous prisoners. “Hopefully the United States will now answer to somebody.”

Meanwhile, Huy and its allies stand watch at various local levels of domestic government, in protection of what Walter Echo-Hawk describes as the “important human and cultural resources” who are Native American prisoners.

Gabriel S. Galanda is the founder of Huy (www.huycares.org), Chairman of its Board of Advisors, and the Managing Partner of Galanda Broadman, PLLC.

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tateota's picture
Excellent article
tateota