Harmony Behind Bars

• DOI: 10.1177/0032885507303746
• Author: Mark A. Vezzola
• Date: 01 June 2007
• Published date: 01 June 2007
• Subject Matter: Articles

Harmony Behind Bars

Mark A. Vezzola

Palomar College, San Marcos, CA

As prison populations swell across the country, lawmakers and prison offi-

cials must face difficult questions concerning how to accommodate growing

numbers of inmates. Aside from where to house them and what kind of med-

ical care to provide, decision makers must also consider the constitutional

rights of prisoners to practice their religion behind bars as guaranteed under

the First Amendment. This is no simple task, however. Native American spir-

ituality comes in many forms, ranging from traditional ceremonies such as

the Sun Dance to organizations modeled after Christian sects. But which cer-

emonies and practices are permissible for Native Americans to practice

behind bars remains unclear. Courts have applied various tests to balance

these interests with the security concerns of individual prisons, leaving many

Native prisoners without a spiritual outlet, which is neither constitutional nor

constructive. This article assesses the health of Native American spirituality

in prison and reports its well-being in various jurisdictions.

Keywords: constitutional rights; incarceration; Native American; prison

Religion plays a special role in many people’s lives. This is particularly

true for Native Americans, whose religion is embodied in their daily

lives and colors their view of the world. When Native Americans are denied

the right to practice their religion, the harmony in the world is lost, yet reli-

gious needs do not always fit neatly within prison regulations. The skepticism

of prison officials, who doubt the authenticity of these needs and suspect reli-

gion being used as a cover illegal activity, compounds the problem. The situ-

ation has forced Congress and the Supreme Court to spar over the boundary

line separating Native American religion and prison regulations for decades,

producing an unclear doctrine to govern incarcerated Native Americans seek-

ing to maintain their spirituality and constitutional rights.

The religious rights of Native American prisoners denied by prison reg-

ulations are protected under two different clauses in the Constitution—the

Free Exercise of Religion Clause and Equal Protection Clause (U.S. Const.

amend. I, XIV, §1). The first prohibits the government from burdening

an individual’s right to free exercise of religion. The second ensures that

The Prison Journal

Volume 87 Number 2

June 2007 195-210

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individuals will enjoy equal protection with other people under the law. The

cases discussed below all stem from claims brought under one or both of

these clauses and reached mixed results.

A General Overview of the Religious

Rights of Native Americans

By the 1970s, two Supreme Court cases, Sherbert v. Verner (1963) and

Wisconsin v. Yoder (1972), laid out a test for determining when a govern-

ment burden on the right to free exercise of religion, protected under the

First Amendment, was unconstitutional. For a law that burdens the exercise

of religion to be upheld, the government must show a compelling reason for

burdening religion and that there is no less restrictive way. Even at this

early date, Native American prisoners used the test to argue that prison reg-

ulations violated their rights under the Free Exercise Clause or Equal

Protection Clause or both.

The most prominent religious rights cases brought by Native Americans

in the 1970s actually focused on the rights of prisoners. In Teterud v. Burns

(1974/1975), the court found that the prison’s justifications for a ban on

long hair did not sufficiently show a compelling interest and therefore vio-

lated the religious rights of prisoners.1The court also found that the ban was

not the least restrictive means available. Several other courts also found that

prison bans on hair length violated the religious rights of Native American

prisoners, who regarded hair “as a sense organ, a manifestation of being,

and a symbol of growth” (Gallahan v. Hollyfield, 1982; also see Weaver v.

Jago, 1982). These favorable decisions owe their outcomes to the demand-

ing compelling interest test fashioned in earlier cases such as Sherbert

(1963) and Yoder (1972).

During this time, the American Indian Religious Freedom Act (AIRFA)

of 1978 became the first piece of legislation to directly deal with the reli-

gious rights of American Indians. AIRFA responded to widespread bans on

Native American ceremonial practices and religious articles, which prison

officials often associated with symbolism for illegal activity.2The need for

such a reform was well documented. A federal task force created to justify

the need for AIRFA issued a report that cited specific problems occurring

in Indian country. According to letters and other documents gathered by the

task force, one third of the problems related to Native American ceremonies

came from state prisons (Federal Agencies Task Force, U.S. Department of

the Interior, 1979).

196 The Prison Journal