July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Native American Prisoners Obtain Religious Freedom

By Gabriel S. Galanda


Despite the barbwire-fenced entryway, security pat downs and presence of several armed corrections officers, a sense of freedom filled one corner of the Washington State Penitentiary in Walla Walla on May 22. At the pow wow I attended there that day, there were many Native American men who will never again walk outside those prison walls. But that day their freedom of belief reigned.

That was in no small part due to the fact that a handful of Native children were also present that day, thanks to policy reforms enacted earlier that month by the Washington Department of Corrections (DOC). For the prior two years, Washington tribal leaders and lawyers advocated for the restoration of religious rights that the state stripped from Native prisoners in the spring of 2010.

On May 22, the reform effort culminated, appropriately, in hopeful ceremony, song and dance, performed by Indian men who have little more than that to hope for.

Federal Law

Prison inmates "do not forfeit all constitutional protections by reason of their conviction and confinement in prison."1 Rather, prisoners enjoy free exercise rights protected by the First Amendment.2 Despite a 1987 decision by the Rehnquist Court that supplanted the longstanding strict scrutiny basis for review with a "legitimate penological interest" test,3 restrictions on Native prisoner religious practices such as sweatlodge ceremonies have been held to unlawfully infringe upon such a prisoner's right to "free exercise" of religion.4

The Religious Land Use and Institutionalized Persons Act (RLUIPA)5 was passed in 2000 to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate's religious exercise unless the imposition of the burden on that person "is in furtherance of a compelling governmental interest" and is the "least restrictive means" of furthering that interest.6 Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies7 and to participate in talking circles and pipe and drum ceremonies.8

As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to "protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the[ir] traditional religions."9 Although AIRFA does not create a cause of action,"10 the law has been cited as persuasive authority in a number of cases concerning the religious rights of America's first peoples, including those who live behind bars.

State Law

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