Part 1 of our series on Native American Spirituality In The United States Prison System examined spiritual practices and sacred objects prohibited in prison and their importance. Part 2 asks the question, “How did this obvious denial of freedom to practice Native spirituality in prison begin?”
Legal Battles to Protect Native American Spirituality in the U.S. Prison System
In order to answer that question we will take a brief look at the current legislation affecting the religious freedom of incarcerated Native Americans. Before doing so, it is important to clearly define what is meant by freedom of religion. The First Amendment of the Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (U.S. Constitution Amendment I). This breaks down into two separate clauses: The Establishment clause, which prohibits state and federal laws from advocating or preferring one religion over another; and the Free Exercise Clause, which prohibits laws that burden the practice of religion. Under the Free Exercise Clause, the right to believe in religion is absolutely protected but the right to engage in conduct related to the exercise of religion is not. This applies directly to incarcerated Native Americans.
The Supreme Court gives the prison system a very unique power. Prison administrators may actively restrict religious freedom in prisons if they believe the overall safety of the prisoners and prison employees is compromised. This seems logical enough; however, prison officials do not have to give a specific reason for why they deny a certain right. In court, mere speculation will hold up without proof of real evidence feeding the official’s concern. This power alone is detrimental to the Native Americans’ religious rights.
In the late 1980s, there were several Supreme Court decisions which radically weakened the religious rights of prison inmates. Such cases as O’Lone v. Estate of Shabazz (1987) and Turner v. Safley (1987) severely affected the Native American free exercise of religious protections (Echo-Hawk 62). These cases greatly weakened the religious freedom rights of inmates by exempting prisons from the traditional compelling government interest test. This test prohibits state restrictions on religious liberties, unless justified by a proven compelling government interest, which cannot be protected by any less restrictive means. The new test provides that, when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest (Echo-Hawk 64). This far more lenient standard for prisons allows restrictions on worship upon only a minimal showing of need. The new test gave prisons greater opportunity to infringe upon Native inmates’ religious freedom rights, which many wardens quickly took advantage of.
The result of this change in law was devastating for inmates. Almost any restriction on worship can be argued to be related to some legitimate penological interest, however remote or speculative.
Thus, the courts allowed inmates’ worship to be denied under broad and vague security or safety concerns of correctional institutes. In the Indian context, pre-O’Lone cases were reversed, allowing wardens to prohibit Native inmates from wearing long hair pursuant to the religious beliefs. Sweat lodge ceremonies were denied. Prisons prohibited or severely restricted prayer with the sacred pipe (Reed 73).
On July 26, 1990, after outrage at the bold denial of sacredly guarded religious protections for Native Americans, the Religious Freedom Restoration Act (RFRA) was introduced in the House of Representatives. The Act was signed into law by President Clinton on November 16, 1993 and overturned the Court’s O’Lone decision.
In overturning this case, RFRA provided that the government may substantially burden a person’s exercise of religion only if it demonstrates that the burden is: 1) in furtherance of a compelling government interest; and 2) is the least restrictive means of furthering that interest (Reed 132).
The passage of RFRA seemed beneficial to incarcerated Native Americans. However, the implementation of the RFRA is not automatic. It requires litigation.
The Native American Cultural Protection & Free Exercise of Religion Act
In response to this vague outline of rights by the RFRA, Senator Inouye, Senate Committee on Indian Affairs, introduced the Native American Cultural Protection and Free Exercise of Religion Act (NACP&FERA) in 1994. Ideally, this Act would protect Native American spiritual practice in prison to a degree never before seen.
The specific provisions of the Act pertaining to prisoners are as follows:
It ensures that Native American prisoners who practice a Native American religion will have access to traditional leaders, items and materials used in religious ceremonies, and religious facilities on a basis equal to that afforded other prisoners who practice other religions; it requires prison authorities to treat items and materials identified by a Native American traditional leader and used in religious ceremonies in the same manner as religious items and materials used in other religions; it permits Native American prisoners to wear their hair according to the customs of a Native American religion if they can demonstrate that the practice is rooted in Native American religious beliefs and the beliefs are sincerely held; it provides that a prisoner’s request may be denied only where prison authorities can satisfy the criteria of Section 3 of the Religious Freedom Restoration Act; it provides for the use of religious facilities such as sweat lodges, teepees and other secure locations within the prison grounds if requested by a Native American traditional leader to facilitate a religious ceremony; and it prohibits penalizing or discriminating against Native American prisoners on the basis of religious practices and extends to all prison and parole benefits or privileges for engaging in religious activity to Native American prisoners who participate in Native American religious practices (Reed 210-211).
The purpose of this Act was not to grant Native American prisoners more and better protection than other prisoners. As stated by Senator Inouye, the Act served to protect the rights of Native American prisoners to the same extent as prisoners of other religious faiths. Many Native American prisoners are denied access to spiritual leaders, and denied the opportunity to practice their religions, despite the fact that other prisoners are consistently provided access to priests, nuns, ministers, rabbis, and other religious leaders (Reed 75). This Act was passed by the Senate Committee and for a moment offered new hope to incarcerated Native Americans. However, complete freedom was definitely not upheld.
The importance of Native American Spirituality in the U.S. Prison System
How are America’s correctional institutions dealing with the issue of Native American spirituality? Many prisons are allowing access to religion as a form of rehabilitation. However, since the U.S. penal system has its roots in Judeo-Christian concepts of punishment and redemption, Christianity is encouraged and presented to the Native Americans before their own traditions. Many Native Americans are first sent to Christian services with the prison’s minister. Although some prisoners enjoy the company and teachings of these ministries, individual failures are stressed and prisoners are led to believe that their only salvation is Christianity (Ross 136). Many Native American Rights advocates argue that imprisoned Native Americans cannot be effectively rehabilitated with access only to Christianity. Judeo-based rehabilitation involves an individual inner-reflection of one’s own wrongdoings. This is completely against the belief system of Native Americans. They see all people, all animals, and all the elements that make up the universe as an inter-related force. The individual is not alone in their troubles. The community is part of the individual and therefore has caused some of his or her wrongdoings. Consequently, a prisoner cannot be rehabilitated by self reflection and individual counseling. The community needs to be involved and the appropriate healing ceremony must take place.
Lenny Foster, director and spiritual advisor for the Navajo Nations’ Corrections Projects, concludes that a spirit based model of rehabilitation is the only answer for incarcerated Natives. Foster argues that Native American programs have been exceedingly successful in changing negative prison behavior. Moreover, he maintains that the positive changes are taken back to Native families and communities. Because Native teachings are viewed as strengthening and healing, many Native prisoners who either fell away from the Native cultures or never knew traditional Native ways seek out their culture while imprisoned (Ross 137).
George Sullivan, Deputy Director for Operations for the Colorado Department of Corrections has noticed the benefits of allowing Native Americans to participate in their traditional ways, the Sweat Lodge Ceremony in particular. Sullivan first implemented sweats for prisoners when he was warden of the Oregon State Correctional Institution.
Besides allowing Native spiritual leaders to visit and counsel inmates, Sullivan soon recognized the importance these activities had for the Indian people at the facilities. It gave them the opportunity to rekindle their relationships and understandings of their heritage, and I think it was very valuable to them’ (Fordham 170).
Prison officials had no problems with any Native American prisoners who participated in these Native American religious services.
Sullivan later instituted a similar Native American religious program at the New Mexico State Penitentiary when he became warden there. Once again, the program was a success. When Sullivan assumed his current position as Deputy Director of Operations for the Colorado Department of Corrections, wardens in the state were actively opposing the implementation of religious ceremonies for Indian prisoners. Undaunted, he used his authority to mandate that all wardens within the state institute religious programs for Native inmates that incorporated sweats and regular visits by spiritual advisors.
These programs have been in all ways a positive experience and result. Some wardens continue to argue that there are security risks involved, but based on his experience, Sullivan says: “Those contingencies are just not valid. There’s absolutely no reason an inmate cannot wear his or her hair long per his or her religious beliefs, no reason not to have his or her medicine bag, there’s absolutely no reason whatsoever why they cannot have their sweat lodge…eagle feathers, or their pipes. There is just no good security reason why this cannot be permitted” (Fordham 171).
Security is not the issue seen by Native Americans. Many Native Americans relate that wardens frequently see their return to Native religion while imprisoned as a step backward, a return to the savage ways rather than a true religious awakening. This hypothesis is logical because it seems odd that so many prison officials oppose programs that suggest lower rates of disciplinary action, improved prisoner attitude, and the possibility of reduced recidivism.
Sources consulted for this series include:
Beck, Peggy, et al. The Sacred. Arizona: Navajo College Press, 1996.
Brooks, Laura. Interview. In the Words of the Native Prisoners Themselves. With Ravens Voice, Lone Wolf, Alex Montana, and Oswisnii Oswiiguh. University of Main Law Review March 1998: 45-60.
Echo-Hawk, Walter. Native Worship in American Prisons. Cultural Survival Quarterly: January 1996: 58-69.
Fordham, Monique. Within the Iron Houses. Social Justice Spring – Summer 1993: 165-172.
Reed, Little Rock. The American Indian in the White Man’s Prisons: A Story of Genocide. Arizona: Navajo College Press, 1993.
Ross, Luana. Inventing the Savage. Austin: University of Texas Press, 1998.