Harmony Behind Bars

Date01 June 2007
Published date01 June 2007
Subject MatterArticles
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
© 2007 Sage Publications
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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

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