Introduction

For centuries Native Americans have struggled to retain and to engage in their traditional spiritual practices in a society dominated by Judeo-Christian values and beliefs. As difficult as this struggle has been in free society, for Native Americans incarcerated in prisons throughout the United States, the struggle has been even more arduous. Little Rock Reed, a former federal prisoner, compiled first hand accounts of these struggles by Native American prisoners in a powerful book called The American Indian in the White Man's Prisons: A Story of Genocide.(1) Many cases have been brought by Native American prisoners desperately trying to have their spiritual practices afforded the same respect and treatment that prison officials give to Christian practices.

Since 1831, the Supreme Court has acknowledged that the United States government has a special trust relationship with the Indian peoples of this land.(2) Congress has responded several times to the public outcry for legislation protecting Native American religious freedom.(3) These responses, however, have failed miserably in assuring the religious freedom of native prisoners. As it stands right now, courts give almost total deference to the so-called penalogical concerns of prison officials. For this reason, courts quickly dismiss most religious freedom claims brought by Native American prisoners, with little consideration to the merits of their claims.

The practice of Native American spirituality in prison offers benefits to both the Native American prisoners and to the prison systems. Concerns of prison officials that prison security is somehow being compromised by allowing Native American spiritual practices are, for the most part, speculative and unsubstantiated. Yet prison officials continue to discourage Native American spirituality, and the courts continue to let this happen.

The solution to the Native American prisoner religious freedom issue rests with Congress. It must act to halt the religious persecution of native prisoners. Until the Indian people band together in a spirit of oneness to demand that these practices be stopped, the oppression and persecution of Native American prisoners will continue.

Native American Spirituality

Since the arrival of the "white man" to the lands of what is now known as the United States, Native Americans have been fighting to keep their spiritual practices alive. Right from the beginning, Native American religious practices were misunderstood and forbidden. Christian missionaries believed that Native Spirituality was a "worthless superstition inspired by the Christian devil, Satan."(4) The United States government tried to force Christianity upon the Indians in a desperate attempt to destroy their traditions and to assimilate them into white Christian society; but it soon became "apparent to United States political and Christian leaders that the political and religious forms of tribal life were so closely intertwined as to be inseparable, and that in order to successfully suppress tribal political activity, it was imperative that tribal religious activity be suppressed as well."(5)

As the United States government realized early on, Native American spirituality differs from Christian religious doctrine. For Christians, there is a distinct separation between religious practice and everyday activity.(6) For Native Americans, however, no such clear-cut distinction exists because religion cannot be separated from everyday life.(7) Even using the word "religion" to describe Native American spirituality is misguided, because it fails to take into consideration the inseparable connection between spirituality and culture. One cannot exist without the other. Native American spiritual observances are "guided by cycles, seasons and other natural related occurrences,"(8) and these spiritual aspects are inextricably woven into the culture itself.

Throughout the decades, United States policy in Indian affairs shifted, and eventually Congress took steps to establish certain protections for Native American religious practices. In 1978, Congress enacted the American Indian Religious Freedom Act which stated:

"[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."(9)

As promising as this Act appeared for Native Americans wanting to be free from governmental intrusion in practicing their native spirituality, it contained a fatal flaw: there was no provision for enforcement. The Supreme Court interpreted the Act to be merely a requirement that the government consult with the Indians about the potential devastating effects its actions might have on Indian religious practices.(10) For the Indian people, the Act meant absolutely nothing without provisions for enforcement. Many Native Americans ended up in prison for simply practicing their spirituality in the traditional ways that their ancestors had used since time immemorial.

Native American Spirituality In Prison

The struggle to practice native spirituality goes on each and every day inside the prisons. Most prison administrators are completely ignorant of native spirituality. They refuse to recognize that native ceremonies, spiritual teachings, and practices are not conducted on a weekly basis, as are Christian religious ceremonies,(11) but instead are "integrated into daily life, rather than reserved for a special day of the week."(12) Prison officials also fail to understand that "sacred pipes, eagle feathers, various herbs and the wearing of long hair are all integral parts of the ceremony necessary for native spiritual expression," in the same ways that church ceremonies involving the sacrament of communion and the wearing of crosses are for members of the Christian faith.(13)

The ceremonies practiced by Native American prisoners, although sacred, are certainly not mysterious. There is no reason why prison officials should fear these ceremonies. Possibly one of the reasons why officials are so determined not to allow Native American spiritual practices is because they have not been properly educated about them. Lenny Foster is a spiritual advisor for Native American prisoners, as well as an educator for prison officials.(14) He describes the significance of the ceremonies and practices in this manner:

"[The sweat lodge] purifies the mind, the body, the spirit . . . and it resolves the misgivings and misdealings and shortcomings that a person has in his daily life . . . . [The Sacred Pipe] takes our prayers, the prayers we make with the smoke, to the Creator . . . . Long hair is a beautiful expression of one's Indianness . . . . [I]t is an extension of [one's] . . . thoughts and prayers . . . . [There exists] a universal serenity that the Native American has when he's in harmony and unity with all living things through his connection to the Creator with his hair . . . ."(15)

Traditional spiritual practices benefit Native American prisoners to an extent that no other type of prison sponsored program has done before.(16) Native American prisoners who participate in sweats and other native ceremonies benefit through rehabilitative changes, reductions in alcoholism and anti-social behavior, decreased recidivism rate, and improved self-esteem and dignity.(17) In fact, the few enlightened prison wardens who understand and support Native American spiritual practices in prison express exasperation at other officials's so-called security excuses as a basis for disallowing the practices.(18)

It simply makes no sense why prison officials continue to refuse to allow Native American spiritual practices in prison, especially when one considers the benefits realized. The Supreme Court itself has acknowledged that rehabilitation of prisoners is a legitimate penalogical interest.(19) This Nation needs to get beyond the "lock them up and throw away the key" (20) attitude and start focusing on implementing the prison programs which actually work.

Not only do prison officials ignore the benefits of native practices, they also consistently engage in coercive tactics to either discourage Native American prisoners from practicing their native spirituality or to punish them for asserting their constitutional rights to its free exercise. Scores have been written on this subject, which is one reason why it has become a world-wide human rights campaign. Prison officials engage in numerous types of destructive and coercive tactics to keep the native prisoners silent, such as physical brutality,(21) mental torture through the use of control units,(22) transferring inmates from facility to facility,(23) prohibiting possession of certain religious literature,(24) general harassment,(25) and either requiring a minimum number of participants (26) or else requiring 100% participation.(27) All of this is done simply because NativeAmerican prisoners are trying to assert their right to have their spirituality protected and respected to the same extent as other religions in prison.

Why Should Society Even Care About Prisoners

Focusing on the fact that these are prisoners and "persons whom most of us would rather not think about,"(28) totally ignores the issue. As easy as it is to think of prisoners as "members of a separate netherworld,"(29) they are still members of society entitled to basic human rights. When prisoners "emerge from the shadows to press a constitutional claim, they invoke no alien set of principles drawn from a distant culture;" rather, they "ask us to acknowledge that power exercised in the shadows must be restrained at least as diligently as power that acts in the sunlight."(30) "As Senator Inouye once wrote, history has shown that when the fundamental human rights of one group are taken away, the rights of others will soon follow."(31) It is a tragedy to this Nation that we have members in Congress who make remarks such as these:

"Have we become so concerned with prison rights that we have forgotten the rights of society? Remember these are people in jail because they have been convicted of felonies. They are not there because we are trying to check to find if they are good or bad. They are felons. And we are spending 40 percent of the court's time on this trash."(32)

Citizens should always be concerned when constitutional rights of one group are taken away. Oftentimes, this represents the first step in taking away the rights of the rest of society. The Supreme Court is not adverse to this method of chipping away at religious protections, as was evidenced by the Employment Division v. Smith (33) decision. Even though Smith involved criminal laws of general application, it would not be a huge leap in logic to fear that the Supreme Court might later apply Smith to all laws of general application. If the RFRA is held to be an unconstitutional breach of Congressional power, all citizens of every religious faith will have much to be concerned about.

Native Americans should be especially concerned about their native brethren in prison. A study prepared in 1982 by the National Minority Advisory Council on Criminal Justice revealed startling statistics on Native American prisoners. That study found, in part: Native American arrest rates were eleven times higher than those of whites and three times higher than those of blacks; once jailed, Native Americans serve thirty-five percent more time in prison than non- Indians (committing similar offenses) before being paroled; and finally, Native American defendants usually plead guilty in court just to avoid a confrontation.(34)

With such great numbers of Native Americans imprisoned, the responsibility of watching over and guarding against the religious persecution of those imprisoned falls upon the Native Americans in free society. The threat of retaliatory action against native prisoners is oftentimes great enough to force their silence. It is this silence, however, which has allowed the persecution to continue. Before taking a look at some of the lower court cases brought by those Native American prisoners who were brave enough to challenge the prison officials, it is first necessary to examine how the Constitution applies in the prison context and how the Supreme Court and Congress have interpreted the Free Exercise Clause of the First Amendment. The next section discusses the constitutional protections of prisoners.

Prisoners And The United States Constitution

The First Amendment of the Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."(35) The First Amendment actually contains two separate clauses: the Establishment Clause, which prohibits state and federal laws that aid or prefer one religion over another;(36) and the Free Exercise Clause, which prohibits laws that burden the practice of religion.(37) When a prisoner sues for violations of his (38) religious freedom rights, it is almost always the Free Exercise Clause which is implicated. Under the Free Exercise Clause, the right to believe in a religion is absolutely protected,(39) but the right to engage in conduct related to the exercise of that religion is not.(40) Oftentimes, however, the fine line between religious belief and religious conduct blurs and the two become inextricably woven, as is the case of Native American spirituality.

The Supreme Court acknowledges that prisoners do not forfeit their constitutional rights simply because they have been convicted of a crime and sentenced to prison.(41) Prisoners clearly retain the protections afforded by the First Amendment,(42) including its directive that no law shall prohibit the free exercise of religion.(43) The constitutional rights of prisoners, however, must be balanced against the very weighty penalogical objectives of the prison system, which include deterrence of crime, rehabilitation of prisoners, and institutional security.(44) This balancing of interests has long been accepted as proper by the Court, because "incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."(45)

In accordance with this balancing of interests, the Supreme Court has directed that courts of this land must allow for "respect and deference . . . for the judgment of prison administrators."(46) What this means for prisoners is that courts are required to give almost complete deference to the penalogical concerns of prison officials, regardless of how speculative the concerns might be. In many courts, all a prison official has to do is speculate about a so-called security concern, without ever having to show any real evidence, in order to prevail against a prisoner's free exercise claim. When a prisoner brings a free exercise claim, it is from under this immense umbrella of balanced interests and prison authority deference (the so-called deference doctrine) that he must try to prevail. The next section explains how the Supreme Court decides prisoner and non-prisoner Free Exercise Clause cases, and how Congress has responded to what many believe is an outright abolishment of First Amendment protections by the Supreme Court.

Supreme Court And Congressional Decisions Affecting Native American Prisoners's Free Exercise Of Religions Protections

The Court initially indicated that religious conduct fell outside the Free Exercise Clause protections,(47) but later abandoned this view, because the right to believe in religion would be meaningless without the protection to engage in conduct expressing that belief. The Court used the "compelling interest" test in Sherbert v. Verner (48) and Wisconsin v. Yoder,(49) when it held that a law imposing burdens on religious practices could be justified only by a showing of a "compelling state interest" and only if "no alternative form of regulation" existed.(50) This standard required courts to ask two questions: first, does the government have a substantial or compelling reason for burdening the person's exercise of religion; and second, is there a less restrictive way that the government can achieve its goals. Even though Sherbert and Yoder involved denial of unemployment benefits, one could make an argument for applying the standard to all claims of free exercise violations, including prisoner claims.

In 1987, however, the Supreme Court settled the issue when it decided two cases involving prisoner claims of constitutional violations, surprising many by explicitly rejecting the compelling interest test of Sherbert and Yoder and creating an almost insurmountable standard for deciding whether a prison rule or regulation violated a prisoner's free exercise of religion.(51)Even though the Court managed to command a majority in both cases, it divided 5-4 on the question of which standard should be applied. The five Justice majority held in Turner v. Safley and affirmed in O'Lone v. Shabazz that as long as the prison rule or regulation was "reasonably related" to legitimate penalogical interests, a prisoner's constitutional claim would fail.(52) The Court had, in effect, exempted prisoners from the compelling interest test set forth in Sherbert and Yoder.

The new prisoner standard reflected the Court's balancing of interests and application of the deference doctrine. Unfortunately, it was a standard that most prisoners would never be able to meet, as was clearly articulated by the dissenting Justices. Justice Stevens, writing for the dissent, expressed his dissatisfaction with the standard:

"[I]f the standard can be satisfied by nothing more than a "logical connection" between the regulation and any legitimate penalogical concern perceived by a cautious warden, . . . it is virtually meaningless. Application of the standard would seem to permit disregard for inmates' constitutional rights whenever the imagination of the warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation. Indeed, there is a logical connection between prison discipline and the use of a bullwhip on prisoners . . . ."(53)

Justice Stevens further warned that this standard would allow prison officials to merely "surmise" and "speculate" that the expressed penalogical concerns existed without having to offer any proof that the assertions were actually valid.(54) The proper standard, according to the dissent, was the "compelling interest" and "least restrictive means" tests employed in the previous Free Exercise Clause cases.(55) "Our objective in selecting a standard of review is . . . not, as the Court declares, '[t]o ensure that courts afford appropriate deference to prison officials.' . . . This Court's role is to ensure that fundamental restraints on [governmental] power are enforced."(56) In the dissent's view, if a prison completely deprives an inmate of his freedom to exercise his religion, then the prison officials must offer proof that the rule or regulation is "necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restrictions are no greater than necessary to effectuate the governmental objective involved."(57)

Nevertheless, the die was cast, and in order for prisoners to prevail on their assertions of free exercise violations, they now had to show that the prison rule or regulation was not "reasonably related" to valid penalogical concerns. A meaningless standard, indeed, because almost any rule or regulation could be described as being "reasonably related" or logically connected to penalogical concerns.

In 1990, the Supreme Court issued a final devastating blow to free exercise of religion protection. In Employment Division v. Smith,(58) the Court once again abandoned the compelling interest test of Sherbert and Yoder and held that criminal laws of general application (meaning religiously neutral) only incidentally burden a person's right to exercise his or her religion and are, therefore, presumptively constitutional.(59) This means that if a state chooses to outlaw some activity that appears to have no direct relation to religion, e.g. criminalizing drug use, then the courts will presume that the law does not violate the Free Exercise Clause, and thus no free exercise claim can be made challenging the law, regardless of how severe the burden on religion actually is. The Court seemed to forget that, just seventeen years before, it had cautioned in Yoder that "a regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the Free Exercise of religion.(60) As was aptly noted by attorneys working for the Native American Rights Fund, the Smith Court had, in effect, just re-written the First Amendment to read "Congress shall make no laws except criminal laws prohibiting the free exercise of religion.(61)

The Smith decision prompted quick and fierce action by Congress. Citizens of all religious faiths expressed outrage at the Court's bold move to abolish the Nation's sacredly guarded religious protections. On July 26, 1990, three months after the Court issued its Smith decision, the Religious Freedom Restoration Act (RFRA) was introduced in the House of Representatives.(62) The Act, which President Clinton signed into law on November 16,1993, explicitly overturned the Supreme Court's decision in Smith and restored the compelling state interest-least restrictive means test of Sherbert and Yoder to free exercise of religion claims.(63)

Although the Act did not explicitly overrule the Turner and O'Lone prison-context decisions, the legislative history shows that intense debate occurred over whether RFRA was applicable to prisoner claims.(64) The Senate Judiciary Committee issued a report entitled Application of the Act to Prisoners' Free Exercise Claims, which stated: "[a]s applied in the prison and jail context, the intent of the act is to restore the traditional protection afforded to prisoners to observe their religions which was weakened by the decision in O'Lone v. Estate of Shabazz"(65) Thus, the legislative history conclusively indicates that the Turner-O'Lone "reasonably related" standard was superseded by the enactment of RFRA.

Even though RFRA's constitutionality is presently being challenged in the Supreme Court,(66) lower courts currently deciding prisoner free exercise claims should be applying the compelling interest-least restrictive means test re-established by RFRA. Unfortunately for prisoners, however, "the legislative history . . . shows that the Senate intended to mitigate RFRA's effects on prison management by defining compelling interests in such a way that prison administrators would almost always be able to justify prison regulations as furthering a compelling interest."(67) Although RFRA successfully protects non-prisoner free exercise claims, prisoners still face the uphill battle of overcoming the lethal combination of the Sherbert-Yoder standard with the interest-balancing and deference doctrines.

After passage of RFRA, it still remained uncertain whether peyote (68) use by Native American religious adherents would be able to survive the compelling interest test. In 1994, Congress passed the American Indian Religious Freedom Act Amendments of 1994 (69) in response to the Smith decision.(70) Interestingly enough, the Act contained another provision stating that the Act was to be construed as neither permitting nor prohibiting the use of peyote by prisoners.(71) In 1987, the Eighth Circuit had affirmed a decision disallowing the use of peyote by Native American Church members in the Nebraska State Penitentiary.(72) The decision clearly foreshadows how courts will decide this issue.

Considering the prisoner issue debate surrounding the passage of RFRA, it comes as no surprise that in 1994, Senator Inouye, Chairman of the Senate Committee on Indian Affairs, introduced S.2269,(73) the Native American Cultural Protection and Free Exercise of Religion Act of 1994, which would have protected Native American spiritual practice in prison to a degree never before seen. The specific provisions of the Act pertaining to Native American prisoners are important enough to include here. The Act stated, in part:

"Purpose: The purpose of S.2269 is to protect Native American cultures and to guarantee the free exercise of religion by Native Americans.

Title II - Prisoners' Rights Section 201. Rights Section 201(a)(1) ensures that Native American prisoners who practice a Native American religion will have access to (A) traditional leaders, (B) items and materials used in religious ceremonies, and (C) religious facilities on a basis equal to that afforded other prisoners who practice other religions. Section 201(a)(2) requires prison authorities to treat items and materials (including traditional foods) 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. Section 201(a)(3)(A) permits Native American prisoners to wear their hair according to the customs of a Native American religion if they can demonstrate that (i) the practice is rooted in Native American religious beliefs, and (ii) the beliefs are sincerely held. Section 201(a)(3)(B) 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. Section 201(a)(4) describes religious facilities 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. Section 201(a)(5) 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."(74)

The purpose of this Act was not to afford Native American prisoners greater protections than other prisoners. Rather, as Senator Inouye stated, 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, ministers, rabbis, and other religious leaders."(75) Senator Inouye also expressed that it was incumbent upon the United States, as trustee of the Native people, to correct the current inadequate protection of and respect for Native American spiritual practices.(76) After S.2269 was passed by the Senate Committee on Indian Affairs and referred to the Senate Energy and Natural Resources Committee, "[n]o further action was taken on the bill due to mounting concerns regarding the sacred sites by various senators and representatives of the development and extraction industries."(77) The concerns apparently arose over whether it was in the best interest of the tribes, pursuant to tribal sovereignty, to decide how to protect their sacred sites, or whether those decisions should be left up to the federal government.(78)

For the moment, it appears that Native American prisoners who assert claims will have to rely on the standards set by RFRA in order to prevail against a prison rule or regulation which infringes on their free exercise of religion. Even though the RFRA gave Native American prisoners new hope in asserting their free exercise claims, the compelling interest-least restrictive means test can still be manipulated by prison officials. In all actuality, the standard is not what is getting in the way of prevailing; it is the almost absolute deference that courts give to prison officials's penalogical concerns, which more often than not, are ludicrous and unsubstantiated, and are obvious attempts by the officials to retain their tyrannical power over the prisoners. The next section gives a brief sample of the claims of native prisoners, the asserted penalogical concerns, and the standards each court applied.

Native American Prisoner Claims In Federal Court Cases (79)

A. Pre-Turner-O'Lone

During the years before 1987, most Native American prisoner claims involved the right to keep their hair long in the traditional way of their people. No one identifiable standard appeared throughout the circuits, although courts engaged in heavy balancing of the penalogical interests with the constitutional rights of the prisoners.

In Teterud v. Burns,(80) the defendant, a Cree Indian, claimed the right to keep his hair long in accordance with his religious beliefs. Prison officials asserted security and safety concerns as a basis for denying his request: contraband could be hidden in long hair and thus would entail more costly searches; prisoners could escape and change their appearance by cutting their hair; dirty hair created sanitation problems; and long hair could get caught in machinery.(81) The court dismissed all of the above as not meeting sufficiently important and substantial prison interests, as well as not being the least restrictive means available.(82) For example, prison officials could take comparison photos of the inmate with his hair down and with it pulled back; contraband could be hidden anywhere, not just in long hair; nothing was stopping the officials from requiring that the inmates keep their hair clean; and hair nets solved the safety problem around machinery.(83) Two other cases, Gallahan v. Hollyfield (84) and Weaver v, Jago,(85) were decided in a similar fashion.

B. From Turner-O'Lone to RFRA

Courts struck down many Native American inmates's claims during the years 1987-1993, on account of the "reasonably related to penalogical concerns" standard set forth in Turner. Nevertheless, native prisoners began challenging different prison regulations such as: policies forbidding access to pipe ceremonies,(86) sacred tobacco and sweetgrass;(87) policies prohibiting headbands (88) and medicine bags; (89) and policies refusing the construction of sweat lodges.(90)These years represented dark times for Native American prisoners. Even the regulations prohibiting long hair were being upheld as reasonably related to prison security. (91) The loose standard allowed prison officials to prevail with assertions of virtually any unsubstantiated penalogical interest. (92)

C. Post-RFRA Years

The dark ages ended with the enactment of RFRA in 1993 and its return to the compelling interest-least restrictive means test. Because of the controversy surrounding the issue of RFRA's constitutionality, however, courts are hesitating to apply the compelling interest standard as the settled and applicable law, and are instead engaging in an odd combination of tests. Three cases in particular stand out: Werner v. McCotter, (93) Hamilton v. Schriro, (94) and Thomas v. Gunter. (95)

In Werner, a Cherokee inmate contended that prison officials denied him access to a sweat lodge, prohibited him from receiving or possessing a medicine bag, and failed to provide him with access either to a Cherokee Native American Spiritual Advisor or to religious literature appropriate to his beliefs. (96) The court noted that prison officials must do more than just offer "conclusory statements that a limitation on religious freedom is required for security, health or safety."(97) It remanded on the sweat lodge and medicine bag issues, acknowledging that the inmate might have a claim, but because RFRA applied retroactively, the lower court erred in granting summary judgment using the Turner-O'Lone standard.(98)

In Hamilton, a native inmate alleged that prison officials had violated his free exercise right by requiring him to cut his hair and by denying him access to a sweat lodge. (99) In its analysis, first the court considered all the penalogical interests and then concluded that the prison officials's actions were rationally related to legitimate penalogical interests of safety and security (applying the former Turner-O'Lone standard). Next the court went on to apply RFRA (just in case?) to the claims and came out exactly the same way, holding "the prison officials in the present case demonstrated that the prison regulation and policy at issue are the least restrictive means of maintaining the prison's compelling interest in institutional safety and security." (100) The dissenting judge made it clear that, in his opinion, RFRA was unconstitutional. (101) Perhaps the dissent's position on the matter was persuasive enough to prompt the court to apply both standards, just in case RFRA is held to be unconstitutional.

In Thomas v. Gunter, the court did not even bother to fool around with the RFRA issue. It just went ahead and applied the former Turner-O'Lone test, and held that the native prisoner's denial of extended daily access to the sweat lodge was rationally related to legitimate penalogical concerns. (102) Not even once is RFRA mentioned, which is odd because this case was decided on January 8, 1997, three years after the enactment of RFRA. Apparently the Eighth Circuit has decided it no longer wants to play the RFRA-Turner-O'Lone game anymore.

Conclusions

As the preceding cases show, the passage of RFRA has not gone over too well with the federal circuits. Regardless of RFRA's outcome in the Supreme Court, Native American prisoners will continue to suffer injustices in the courts. Congress appears to be native prisoners's last resort. The Native American Cultural Protection and Free Exercise of Religion Act of 1994 would have gone a long way in protecting the spiritual practices of Native American prisoners. People like Senator Inouye need public support in their tireless crusade to bring down the walls of prison secrecy and shame. Prison authorities are not beyond the reach of the law. Native Americans in free society must rise up and demand that prison officials be held accountable for their treatment of Native American prisoners whose only desire is to practice their sacred spirituality - a spirituality that existed long before the United States and its Supreme Court.

Footnotes

1 The American Indian in the White Man's Prisons: A Story of Genocide (Little Rock Reed ed., 1993) [hereinafter White Man's Prisons]. This book is very hard to find. As of right now, it is out of print.

2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (characterizing tribes as "domestic dependent nations" in a state of "pupilage," with their relationship to the United States resembling that of a ward to his guardian).

3 See American Indian Religious Freedom Act, 42 U.S.C. o 1996 (1978); Religious Freedom Reformation Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (1993); American Indian Religious Freedom Act Amendments of 1994, Pub. L. No. 103-344, 108 Stat. 3125 (1994).

4 Native American Spirituality: Native Religious Development (http://www.religioustolerance.org/nataspir.htm).

5 Part I: Defacing our Mother and Dehumanizing our Children, in WHITE MAN'S PRISONS , supra note 1, at 2.

6 Glimpses of the Prison Struggle, in White Man's Prisons, supra note 1, at 73 (citing Randolph J. Rice, Native Americans and the Free Exercise Clause, 28 Hastings L.J. 1509-1536 (1977)).

7 Id; See Reinert v. Haas, 585 F.Supp. 477, 479 (S.D. Iowa 1984) ("Indian religion and Indian culture are one and the same. It is a way of life that is practiced constantly. Its essence, as a way of life, is living in harmony with all of one's surroundings).

8 Caravan for Justice in 1996: Religious Freedom in the Prisons (http://prop1.org:80/caravan/coj12.htm).

9 American Indian Religious Freedom Act, 42 U.S.C. o 1996 (1978).

10 Wilson v. Block, 464 U.S. 956 (1983).

11 Caravan for Justice in 1996: Religious Freedom in the Prisons (http://prop1.org:80/caravan/coj12.htm).

12 Peter d'Errico, Concept Paper: Medicine Teachers Association for Prisons (1995) (http://www.maxwell.syr.edu/nativeweb/subject/trapp/concept.html).

13 Caravan for Justice in 1996: Religious Freedom in the Prisons (http://prop1.org:80/caravan/coj12.htm). See Reinert, 585 F.Supp at 479, 481 ("The circle is highly significant in Indian culture and religion . . . as a visual representation of basic forces of life and the universe. The headband is a symbol of the cosmic circle; however, the headband is not just symbolic, it is sacred . . . . It is [a Native American's] constant touch with his faith."). Prisons officials and judges fail all too often to grasp the concepts of Native American spirituality. Those judges and officials who do manage to understand, only do so by analogizing the native practices with the religious practices of Judeo-Christian religions. William Norman, Native American Inmates and Prison Grooming Regulations: Todays Justified Scalps: Iron Eyes v. Henry, 18 AM. INDIAN L. REV. 191, 199 (1993) For example, only by analogizing headbands to the wearing of a Christian cross, and by comparing the significance of moose meat to the wine and wafer in Christianity, were judges able to understand the significance of the native practices. Id. at 200-201.

14 Interview of Lenny Foster by Little Rock Reed, in White Man's Prisons, supra note 1, at 62. Lenny makes it clear that prison officials refuse to give him the same respect and deference as they give to other religious leaders who administer religious services inside the prison. Additionally, prison chaplains (usually Christian) are paid by the prison for their services, yet native spiritual advisors are not. The lack of deference shown toward native spiritual leaders and medicine teachers is just an extension of the mistreatment of native prisoners by prison officials.

15 Id. See Norman, supra note 13, at 199 ("The basic belief is that everything the Creator gave the Indian remains sacred. For example, the body, along with nature and the earth, denotes spirituality. Hair is considered a gift from the Creator . . . it embodies the strength needed to endure difficult times. If an Indian's hair is removed, his life is drained of all energy.").

16 For a discussion on the nearly 100% failure rate of programs such as AA and NA in prison, see White Man's Prisons, supra note 1, at 275-277, 296-311.

17 White Man's Prisons, supra note 1, at 59-60, 70, 169, 233-234, 315-316, 340.

18 White Man's Law in Theory and Practice: A Travesty of Justice, in White Man's Prisons, supra note 1, at 233-234.

19 O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

20 Steve Castillo, The Armageddon of Prisoners, 1994 Prison News Service 48 (http://www.peacenet.org/prisons/archive/a.../sagepns-The-armageddon-of-prisoners.html)

21 See Letter from Dale N. Smith, in White Man's Prisons, supra note 1, at 103 ("I've been beaten, chained, humiliated and shipped from facility to facility by prison officials as payment for my persistence. These are the dues I've paid for the right to pray in my tribal ways . . . ."); Standing Deer Wilson, And Truth can Never Die, in White Man's Prisons, supra note 1, at 167 (inmate was "charged, hit, thrown to the floor, limbs wrenched, handcuffed, and shackled, carried out of his cell to the middle of the quad where his head [was] forcibly shaved while guards [held] him and [laughed] and onlookers [watched]"); Iron Eyes v. Henry, 907 F.2d 810, 817 (Heaney, J., dissenting) ("About 9 or 10 other guards handcuffed me behind my back real hard and put leg shackles on me and made me go in a room with all of them. Then they shoved a table in front of the door so nobody could get out. Then . . . the Asst. Supt. said that I am going to get a hair cut one way or the other and that they didn't care if I was Geronimo . . . . [T]he guards all took my leg shackles and handcuffs real hard and held me down and this barber . . . came over and cut my hair into a raggedy mess. That is when they all started laughing and [the major] said that now I could get some white religion."). Iron Eyes's version of the haircut and racial abuse was "supported by the deposition testimony of . . . the white prisoner who performed the haircut." Id. at 817 n.1.

22 In control units, prisoner spend 23+ hours a day locked in their cells. Many prisoners are sent into these torture chambers for "filing grievances or lawsuits or for otherwise opposing prison injustice." The Fear of Reprisal, in WHITE MAN'S PRISONS, supra note 1, at 258-260.

23 See White Man's Law in Theory and Practice: A Travesty of Justice, in White Man's Prisons, supra note 1, at 234 ("Native American prisoners are systematically removed to prisons distant from their homes, making it virtually impossible to have visits from family, friends, and spiritual leaders.").

24 For example, Little Rock Reed writes that State prisons in Texas do not allow Native American prisoners to receive the "Iron House Drum," which is a newsletter that "informs prisoners of their human rights and offers suggestions on how to effectively assert those rights." Glimpses of the Prison Struggle, in White Man's Prisons, supra note 1, at 103.

25 See Letter from Oowah Nah Chasing Bear, Some Common Grievances: Glimpses of Subtle Discrimination, in WHITE MAN'S PRISONS, supra note 1, at 198 (When asked why one Native American inmate was allowed to wear long hair without harassment from officials, yet another Native American inmate received constant harassment, the warden said, "Well, he does not look like an Indian.").

26 Little Rock Reed writes that in some institutions, "religious groups are denied access to space for religious services or to have spiritual leaders enter the prison unless there are at least 5 prisoners in the general population who are adherents to the respective religion." This creates problems for Native Americans incarcerated in prisons with a low native inmate population. Some Common Grievances: Glimpses of Subtle Discrimination, in WHITE MAN'S PRISONS, supra note 1, at 209.

27 See Letter of Bernie Elm, Cayuga Leader, in White Man's Prisons, supra note 1, at 214 ("The institution seems to believe there must be a 100% agreement among the Indians in the population before they will act on any proposal. This, of course is absurd, as the Christian population as a whole cannot agree upon the types of church service that would best serve the Christian population!").

28 O'Lone v. Shabazz, 482 U.S. 342, 354 (Brennan, J., dissenting).

29 Id. at 355.

30 Id.

31 Chris LaMarr, Free Exercise of Religion by Native American Prisoners: A Plan of Action, 21 Native American Rights Fund Leg. Rev. 1 (1996).

32 Id. (quoting sponsor of S1093, Religious Freedom Act of 1993 Amendments Act of 1995) (seeking to exclude prisoners from RFRA protection).

33 See supra notes 58, 59 and accompanying text.

34 The Inequality of Justice: A Report on Crime and the Administration of Justice in the Minority Community, in White Man's Prisons, supra note 1, at viii (based on U.S. Census figures for years 1976-78).

35 U.S. Const. amend. I.

36 Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 15 (1947) (upholding resolution providing for transportation of students to both public and parochial schools).

37 Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).

38 Due to time and length constraints, this paper focuses only on the religious persecution of Native American men in prisons located in the United States. The struggles of incarcerated native women and youth are equally as compelling, as are the struggles of native peoples in the Canadian prison systems.

39 Cantwell v. Connecticut, 310 U.S 296, 303-304 (1940) (reversing a conviction for unlicensed religious solicitation); Braunfeld v. Brown, 366 U.S. 599, 603 (1961) (holding that "the freedom to hold religious beliefs and opinions is absolute" in decision upholding Sunday Closing laws).

40 Cantwell , 310 U.S at 304 (stating that "conduct remains subject to regulation for the protection of society").

41 Bell v. Wolfish, 441 U.S. 520, 545 (1979) (upholding prison regulations as not violating due process or First Amendment).

42 Pell v. Procunier, 417 U.S. 817, 822 (1977) (holding prison regulations did not violate prisoner's First Amendment rights).

43 O'Lone, 482 U.S. at 348.

44 Pell v. Procunier, 417 U.S. at 822-823.

45 Price v. Johnston, 334 U.S. 266, 285 (1948) (holding that circuit courts have power to command that a prisoner be brought before it to argue own appeal in cases involving life or liberty).

46 O'Lone, 482 U.S. at 350.

47 Reynolds v. U.S., 98 U.S. 145 (1878) (finding constitutional the application of a federal criminal law against bigamy to a Mormon's claim that polygamy was his religious duty).

48 374 U.S. 398 (1963) (holding unconstitutional a state unemployment compensation law which denied a Seventh Day Adventist benefits because she refused to work on Saturday, the Sabbath Day of her faith).

49 406 U.S. 205 (1972) (invalidating application of a state compulsory school attendance law for Amish children).

50 Yoder, 406 U.S. at 215. The Court also held that any infringement upon one's religious practices must be substantial in order to claim a First Amendment Free Exercise Clause violation. Sherbert, 398 U.S. at 406.

51 Turner v. Safley, 482 U.S. 78 (1987); O'Lone, 482 U.S. 342 (1987).

52 Turner, 482 U.S. at 89; O'Lone, 482 U.S. at 349.

53 Turner, 482 U.S. at 100-101 (Stevens, J., dissenting in part).

54 Id. at 106.

55 See Sherbert, 374 U.S. 398 (1963); Yoder, 406 U.S. 205 (1972).

56 O'Lone, 482 U.S. at 356 (Brennan, J., dissenting).

57 Id. at 358.

58 494 U.S. 872 (1990). In this case, the state had denied Native American Church members unemployment benefits because they lost their jobs for using peyote during religious ceremonies. Peyote use violated the state's criminal drug laws, since no exemption was given to Native American Church members.

59 Smith, 494 U.S. at 878-879.

60 Yoder, 406 U.S. at 220.

61 Robert M. Peregoy et al., Congress Overturns Supreme Court's Peyote Ruling, 20 NATIVE AMERICAN RIGHTS FUND LEG. REV. 1, pt. II (1995).

62 RFRA Chronology (http://northshore.shore.net/rf/chronology.html).

63 42 U.S.C. oo 2000bb.

64 Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995) (recognizing that Congress debated and rejected an Amendment which would have excluded prisoners from the protections of RFRA).

65 Besh v. Bradley, 47 F.3d 1167, 1995 WL 68774 (6th Cir. Feb. 17 1995) (per curiam) (citing Sen. Rep. No. 103-111, July 27, 1993, at 9) (unpublished decision). The Senate Committee on the Judiciary also expressed its opinion that "courts would continue to give due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline. Abbott Cooper, Dam the RFRA at the Prison Gate: The Religious Freedom Restoration Act's Impact on Correctional Litigation, 56 MONT. L. REV. 325, 334 (1995) (citing S. REP. NO. 111, 10, reprinted in 1993 U.S.C.C.A.N. 1892, 1899).

66 Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, 117 S.Ct 293 (1996).

67 Cooper, supra note 65, at 333.

68 Peyote is a small, spineless cactus that grows primarily in southern Texas and northern Mexico. Peyote use by indigenous people as part of their religious ceremonies dates back 10,000 years. Studies have shown that peyote use is not addictive or habit-forming, and for Native Americans it has helped control alcoholism and alcohol abuse. The non-drug use of Peyote in religious ceremonies of the Native American Church has been exempted from federal drug laws since 1966. Robert M. Peregoy et al., Congress Overturns Supreme Court's Peyote Ruling, 20 NATIVE AMERICAN RIGHTS FUND LEG. REV. 1, pt. II (1995).

69 Pub. L. No. 103-344, 108 Stat. 3125 (1994).

70 Pub. L. No. 103-344, o 3(b)(1), 108 Stat. 3125 (1994). The Act declared that, "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State."

71 Pub. L. No. 103-344, o 3(b)(5), 108 Stat. 3125 (1994).

72 Indian Inmates of Nebraska Penitentiary v. Grammer, 649 F.Supp 1374 (D.Neb. 1986), aff'd, 831 F.2d 301 (8th Cir. 1987) (finding that the use of peyote by inmates could create a potential threat to a legitimate penalogical objective).

73 S. Rep. No. 411, 103d Cong., 2d Sess. (1994). S2269 originally was introduced as the Native American Free Exercise of Religion Act of 1993, S1021. See Karen M. Strom, Status of Senate 1021: Native American Free Exercise of Religion Act of 1193 Senate 1021: Background and Call to Action (hypertext version of a mailing prepared by the Native American Rights Fund: http://hanksville.phast.umass.edu/misc/NARF1021.html) (discussing how the bill protects sacred sites, religious use of peyote by Indians, religious rights of Native American prisoners, and religious use of eagle feather s and other animal parts).

74 S. REP. NO. 411, 103d Cong., 2d Sess. 1, 21-22 (1994).

75 140 Cong. Rec. S8382-01 (daily ed. July 1, 1994); Remarks on the Native American Cultural Protection and Free Exercise of Religion Act of 1994 as Introduced by Senator Inouye, 19 Native American Rights Fund Leg. Rev. 2 (1994).

76 140 Cong. Rec. S8382-01 (daily ed. July 1, 1994) Remarks on the Native American Cultural Protection and Free Exercise of Religion Act of 1994 as Introduced by Senator Inouye, 19 Native American Rights Fund Leg. Rev. 2 (1994).

77 Robert M. Peregoy et al., Congress Overturns Supreme Court's Peyote Ruling, 20 NATIVE AMERICAN RIGHTS FUND LEG. REV. 1, pt. II (1995).

78 Indian Freedom Bills Near Passage, 19 Native American Rights Fund Leg. Rev. 2 (1994) (discussing the purpose and scope of S. 2269 Native American Cultural Protection and Free Exercise of Religion Act of 1994).

79 This is just a small sampling of cases. Hundreds of free exercise cases have been brought since the passage of RFRA.

80 385 F.Supp. 153 (S.D. Iowa 1974), aff'd, 522 F.2d 357 (8th Cir. 1975).

81 Id.

82 Id. See Reinert v. Haas, 585 F.Supp. 477 (S.D. Iowa 1984). In Reinert, Native American prisoners challenged a prison regulation forbidding the wearing of traditional sacred headbands. Prison officials defended their policy on the grounds that wearing headbands promoted gang member identification, and if officials allowed the Indian inmates to wear headbands, all the other inmates would want to wear them as well. The court held that even though these concerns might be valid, no compelling security interest justified the ban.

83 Id. But see Cole v. Flick, 758 F.2d 124 (3d Cir. 1985), cert. denied, 474 U.S. 921 (1985) (finding that the plaintiff, a Cherokee inmate, failed to meet his burden of proving the prison officials's beliefs were unreasonable or exaggerated). In Cole, prison officials made the same arguments as in Teterud, but also added one other: long hair increased predatory homosexuality. Even though officials failed to show any evidence, the court found that testimony indicating it might happen justified the concern; Capoeman v. Reed, 754 F.2d 1512 (9th Cir. 1985) (holding that entry of summary judgment on qualified immunity claim was proper, because no clearly established right existed allowing inmates to have long hair); Pollack v.. Marshall, 656 F.Supp. 957 (S.D. Ohio 1987), aff'd 845 F.2d 656 (6th Cir. 1987), and cert. denied, 488 U.S. 897 (1988) (denying inmate's claim and giving very weighty deference to assertions of prison officials that Lakota inmate's long hair posed security, safety, and sanitation threats, which included clogged drains, lice, and increased homosexuality).

84 670 F.2d 1345 (4th Cir. 1982) (finding that the government's regulations must be reasonably and substantially justified and the least restrictive means possible).

85 675 F.2d 116 (6th Cir. 1982) (requiring that prison officials do more than just assert conclusory statements of penalogical concerns, because only interests of the highest order will justify the officials's security needs to cut a Cherokee inmate's hair).

86 See Allen v. Toombs, 827 F.2d 563 (9th Cir. 1987) (finding legitimate security interest in prison's refusal to allow segregated Native American inmates to have access to someone other than an outside volunteer conduct the sacred pipe ceremony at their cell doors, even though inmates in the general prison population were allowed to have other inmates conduct the ceremonies when an outside volunteer was not available); Sample v. Borg, 675 F.Supp 574 (E.D. Cal. 1987), vacated as moot, 870 F.2d 563 (9th Cir. 1989) (finding assertion that pipe could be used as a weapon by segregated native inmates was remote, arbitrary and exaggerated).

87 See Holloway v. Pigman, 884 F.2d 365 (8th Cir. 1989) (upholding summary judgment in favor of prison because native inmate, in his claim for access to sage, sweetgrass and sacred tobacco, failed to detail the practices his religion required and failed to show that he had been deprived of all opportunity to practice his religion).

88 See Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir. 1987) (deferring to prison officials's concerns that the wearing of spiritual headbands by native inmates in the dining hall presented sanitation and security problems).

89 See Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) (agreeing with prison officials that legitimate prison concerns existed over the possibility of inmate using medicine bag and bear tooth necklace to make weapons, choke an inmate or guard, or commit suicide).

90 See Kemp v. Moore, 946 F.2d 588 (8th Cir. 1991), cert. denied, 504 U.S. 917 (1992) (summarily affirming prison's refusal to allow inmate to have long hair or construction of a sweat lodge). The dissent expressed outrage by stating, "[t]his case smacks of harassment and religious persecution to me. The sooner our court en banc considers this question and resolves to do away with the penalogical myth that the director of this institution perpetuates, the better."

91 See Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990) (deferring to all asserted concerns by officials); Powell v. Estelle, 959 F.2d 22 (5th Cir. 1992), cert. denied, 506 U.S. 1025 (1992) (deferring to all asserted concern by officials, including hiding contraband, expense in extra searches, identification problems, industrial job safety, hygiene, gang activity, and homosexual contacts); Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994) (forcing native inmate to cut his hair, prohibiting him from attending religious services, from smudging, and from possessing his ceremonial pipe, medicine bag, eagle claw, and altar stones were all reasonably related to the legitimate penalogical interests of prison security and safety).

92 But see Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991), cert. denied, 510 U.S. 895 (1993) (arbitrarily exempting native inmate from the rule prohibiting long hair because he lacked sincere adherence to the faith was not reasonably related to legitimate penalogical concerns, because inmate had shown evidence to prison officials of his sincere belief).

93 49 F.3d 1476 (10th Cir. 1995), cert. denied, 115 S.Ct. 2625 (1995).

94 74 F.3d 1545 (8th Cir. 1996), cert. denied, 117 S.Ct. 193 (1996).

95 103 F.3d 700 (8th Cir. 1997).

96 Werner, supra note 93, at 1478-1479.

97 Id. at 1480.

98 Id. at 1480. As to the other two issues (spiritual advisor and literature), the court found that the prisoner had refused to meet with the prison's volunteer spiritual advisors because they were not Cherokee; and he had also refused to accept a book on American Indian religious beliefs, which the officials had arranged for him to receive. The court believed that the prisoner himself was responsible for the disposition of these two claims and accordingly affirmed summary judgment.

99 Hamilton, supra note 94, at 1547.

100 Id. at 1554.

101 Id. at 1557 (McMillian, J., dissenting).

102 Thomas, supra note 95, at 703.