A pattern of restricting American indigenous prisoners’ religious freedoms is currently occurring throughout the United States. In recent years, states have issued new regulations curtailing the ability of American indigenous prisoners to possess religious items, participate in religious ceremonies, and otherwise engage in traditional practices. Further, changes in regulations continue to move forward absent meaningful consultation with indigenous peoples.
- California: On February 21, 2013, the Department of Corrections issued an “emergency” regulation significantly limiting prisoners’ religious property.[i] Effective immediately, prisoners no longer have access to sacred medicines like kinninnick, copal, and osha root, cloth for prayer ties, beads, pipes and pipe bags, and numerous other traditional items. The process for getting religious items approved was also made significantly more burdensome. Because the regulations constituted an emergency regulatory action, they went into effect immediately, without any consultation whatsoever with American indigenous peoples or opportunity for public comment.
- Texas: Prison authorities recently changed regulations for an American indigenous prisoners’ unit, significantly restricting ceremonial participation. American indigenous prisoners are no longer allowed to participate directly in pipe ceremonies, smudge indoors, keep locks of hair from deceased relatives, or perform important ceremonies such as the Wiping Away the Tears ceremony.[ii] Texas prison guards are also known to engage in overt racism toward indigenous prisoners. The media reports that on January 27, 2013, prison guards searched an indigenous prisoner’s cell, handling his medicine bag. When the prisoner stated that the guards were not supposed to touch his sacred items, a guard said “I don’t give a shit,” and that “being an Indian didn’t make him special.”[iii]
- Montana: American indigenous prisoners in Montana are currently challenging en masse strip searches conducted prior to sweat lodge ceremonies as well as the confiscation or prohibition of smudge tobacco, antlers, herbs, and other sacred materials.[iv] The state of Montana issued an investigatory report in 2009 confirming almost all of the allegations as well as describing the derogatory treatment of indigenous prisoners by guards.[v]
- South Dakota: American indigenous peoples comprise 27 percent of the South Dakota prison population, the highest proportion of any state in the country.[vi] On October 19, 2009, the Department of Corrections extended a ban on tobacco to indigenous religious uses. Indigenous prisoners were no longer allowed to use tobacco in sweat lodge ceremonies, pipe ceremonies, or for prayer ties and flags. When a federal district court held the ban violated federal law, prison authorities were still unable to agree with prisoners on an accommodation, forcing the court to issue a remedial order.[vii] South Dakota has appealed the case to the Eighth Circuit Court of Appeals.
- Washington: In 2010, the Washington Department of Corrections barred almost all American indigenous prisoners’ religious practices, banned tobacco, reclassified sacred medicines such as sage and sweet grass as non-religious, prohibited foods for traditional meals such as frybread and buffalo, disallowed children from attending summer prison pow wows, and altered regulations so that certain religious items could no longer be securely stored. After ten tribes petitioned the governor, the Department of Corrections reversed course, consulting with tribal leaders about reforms and reaching an accommodation to restore American indigenous prisoners’ religious rights.[viii] Events in Washington demonstrate both the larger pattern of rising restrictions on indigenous prisoners’ rights as well as the importance of consultation with American indigenous peoples concerning administrative measures that affect them. That state-tribal consultation and reform effort is what gave rise to Huy.
[i] State of California Office of Administrative Law, Notice of Approval of Emergency Regulatory Action, http://www.oal.ca.gov/res/docs/pdf/emergency_postings/2013-0206-01EON_App.pdf.
[ii] Appellant’s Opening Brief, Chance v. Texas Department of Criminal Justice, No. 12-41015 (January 14, 2013), https://turtletalk.files.wordpress.com/2013/01/chance-opening-brief-filed.pdf.
[iii] Brian Daffron, “Inmate’s Religious Rights Allegedly Violated Within Texas Prison System,” Indian Country Today (March 8, 2013), http://indiancountrytodaymedianetwork.com/2013/03/08/inmates-religious-rights-allegedly-violated-within-texas-prison-system-148058.
[iv] Knows His Gun v. Montana, 866 F.Supp.2d 1235 (D. Mont. 2012), http://www.narf.org/nill/bulletins/dct/documents/knows_his_gun.html.
[v] Montana Department of Corrections Investigation Team, “Investigation into Complaints from Native American Inmates at the Crossroads Correctional Center, Shelby, Montana,” May 14, 2009, Part 1: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation1.pdf, Part 2: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation2.pdf.
[vi] Native Am. Council of Tribes v. Weber, No. Civ. 09-4182, 2012 WL 4119652 (D.S.D. Sept. 19, 2012), https://turtletalk.files.wordpress.com/2013/01/dct-remedial-order.pdf.
[vii] Id.; Remedial Order, Native Am. Council of Tribes v. Weber, Civ. 09-4182-KES (D. S.D. 2013), https://turtletalk.files.wordpress.com/2013/01/dct-remedial-order.pdf.
[viii] Gabriel S. Galanda, “Native American Prisoners Obtain Religious Freedom,” King County Bar Association Bar Bulletin (July 2012), https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=07&Year=2012&AID=article1.htm.