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Religious freedom in prison

Courts have long ruled that the U.S. Constitution protects religious freedom in prison. Despite this, we hear again and again about prison administrators interfering with or denying American Indian spiritual practices. When an inmate’s relationship to higher powers conflicts with a prison’s bureaucratic hierarchy, serious questions are raised about spiritual freedom.

The legal question is not whether an inmate can engage in spiritual practices. That much is settled. The only question is which practices can be accommodated within prison security. Law offers ways to analyze security issues and case decisions reflect specific circumstances. The bottom line is that a prison administrator who restricts access to spiritual practices can be required to prove the security problem in court.

American Indian spiritual practices are the foremost example of religious freedom conflicts in prison, and perhaps generally, because Native spirituality is so far removed from any bureaucracy. Medicine Teachers are not typically credentialed like rabbis, priests, imams and other ministers. In an important sense, Native spirituality is not “religion” at all, if religion means a church institution. Native spirituality has no bureaucratic reference points for prison administration.

There are many prisons around the U.S. and Canada where Native spiritual practices are recognized and supported; administrators in these prisons welcome Native spirituality. They are not afraid of pipes, drums, or Sweatlodges. In fact, where these practices exist, prison administrators often point out how Native spirituality changes inmates for the good. Inmates often say they don’t act out anymore because they learned to deal with anger and pain through spiritual practices like the Sweatlodge. The lives of these inmates are evidence that Native spiritual practices have power to reshape a person’s understanding of what it means to be human, even if incarcerated.

Why are there still prisons that resist Native spirituality? It’s not a shortage of information. The federal Bureau of Prisons provides information about Sweatlodges. Prisons in some areas run educational spiritual outreach programs. Books and articles have been published on the topic. Cases have been won. I think the reason for continuing resistance is narrow thinking and political agendas of some prison administrators, as well as outright discrimination.

A case I handled in Massachusetts took eight years from the time of filing, in 1995, to the order of the appeals court requiring prison administrators to provide access to Native spiritual practices. At the time of filing, Slow Turtle, Mashpee Wampanoag Medicine Man, had been working with a Native American Spiritual Awareness Council in one prison for more than five years. By the time the case reached the appeals court, Native Circles were meeting regularly in several prisons. Yet today, six years later, there are still problems, including refusal of administration to provide a sweat lodge in one prison because guards complained about smoke getting into the air conditioning system.

Resistance to American Indian spirituality has deep roots in religious discrimination, in a history that traces back to early Christian colonizers. Boarding schools, with their rules against Native languages, dress and hairstyle, are a prototype for these prisons. As recently as the late 1960s, when I was a lawyer with Dinebeiina Nahiilna Be Agaditahe Legal Services in Shiprock, Navajo Nation, I dealt with cases where students were punished for speaking Navajo and punished by having their hair cut. “Disciplinary” cutting of inmates’ hair still happens in prisons, and prison administrators are known to claim long hair presents a “security problem.” There are incidents of this in Oklahoma right now.

One special act of administrative resistance to Native spirituality in prison is the attempt to restrict access to “officially recognized” Indians. I have never heard of a prison administrator requiring inmates to “prove” they are baptized or have some special blood in order to see a priest or rabbi. But requiring an inmate to prove “Indianness” in order to meet with a Native spiritual teacher crops up again and again. This is happening in Nevada now.

I believe an inmate has a right to practice whatever spirituality is personally meaningful. There is no way this personal choice affects prison security, which is the only legal basis for administration decision. Whether or not a chosen practice may include specific activities – headband, pipe, etc. – is a separate question and is to be decided in relation to security issues. Any prison administrator who tries to restrict individual religious choice is violating a fundamental human right of spiritual freedom. Inmate access to Native spiritual teachers is an issue solely between the inmate and the teacher.

At a time when religious conflicts are bringing parts of the world to war, we should recognize that no good comes from attacking spiritual beliefs, practices and choices. The Great Spirit includes us all, however we pray.

Peter d’Errico graduated from Yale Law School in 1968, was staff attorney at Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. He taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues and has been involved with issues of religion in prison since 1994.