Category: Top Story

Steve Robinson, Water4fish.org

AHOLAH, WA (4/30/13)– The government of the Quinault Indian Nation (QIN) is calling on the United Nations to undertake a special investigation into the treatment of American Indians in US prisons in connection with their right to exercise traditional religious practices.

In a letter sent recently to S. James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples in Geneva, Switzerland, Quinault President Fawn Sharp called for the United Nations representative to open immediate investigations with particular attention to prisons in the United States administered by the states of California, Texas, Montana, South Dakota and Washington.
The Quinault government joined the efforts of the Seattle-based non-governmental organization, Huy, pronounced “Hoyt” in the Coast Salish Indian Lushootseed language and meaning “See you again/we never say goodbye.”
In separate correspondence, Huy called for “an investigation into the pervasive pattern in the United States of increasing restrictions on the religious freedoms of indigenous persons who have been deprived of their liberty, particularly by American state corrections agencies and officers.”
“Indigenous peoples in the United States have the highest incarceration rate of any racial or ethnic group—38 percent higher than the national rate,” said Sharp, quoting a 1999 Bureau of Justice Statistics report.  As of 2011, 29,700 indigenous persons were incarcerated in the United States—per capita the largest percentage of any ethnic group.

“But statistics aside, we cannot lose sight of the fact that these men and women are individual human beings and that, even as prisoners, there are certain rights they do retain, legally and morally. No government possesses the right to violate the laws of man or God in carrying out their punishment,” said Sharp.

The United States government is a party to international agreements that prohibit the violation of indigenous peoples’ religious rights. The Quinault government seeks to secure a United Nations sanctioned investigation to ensure that the United States will comply with human rights laws and agreements established over the last 60 years to fully protect American Indian, Alaskan Native and Hawaiian religious rights.
“Taking away the ability for these men and women to exercise their traditional spiritual practices is the same as saying rehabilitation is not important. It is a mindless, bullying tactic that contributes to recidivism,” she said.
“These actions go way beyond any reasonable level of punitive action and are more accurately described as anti-Indian activities,” said Sharp. “They constitute cruel and unusual punishment, and thus cross the line in terms of U.S. constitutional legality,” she said.

In 2010, the Washington Department of Corrections barred almost all American indigenous prisoners’ religious practices, banned tobacco, reclassified sacred medicines such as sage and sweet grass as non-religious, prohibited foods for traditional meals such as fry bread and buffalo, disallowed native children from attending summer prison powwows, and altered regulations so certain religious items could no longer be securely stored.

“Occasionally, the government-to-government relationship we have worked so hard to implement in Washington State does work,” said Sharp. “Ten tribes petitioned Governor Gregoire, and the Department of Corrections reversed course, consulting with tribal leaders about reforms and reaching an accommodation to restore American indigenous prisoners’ religious rights,” she said.
“But the fact that those bans could take place, even in this state—where we do have a working intergovernmental relationship—did illustrate both the larger pattern of rising restrictions on indigenous prisoners’ rights in this country as well as the importance of consultation with our tribal governments concerning administrative measures that affect our people.  Another important thing this all points out is that, even in Washington, we have to remain ever-vigilant in the protection of all of our traditional values and rights. The state-tribal consultation and reform effort that resulted from this recent transgression by the state gave rise to Huy. We will support its efforts,” said Sharp.
“In the overall picture, we have to conclude that the United States is failing to fulfill its duty to protect the religious freedoms of American indigenous prisoners. There is a pervasive pattern of human rights abuses currently occurring in the United States in violation of both domestic and international law,” said Sharp. “We will oppose it.”
                                                                                

Legal Background

The U.N. Declaration on the Rights of Indigenous Peoples affirms that indigenous peoples have the right to “manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites and the right to the use and control of their ceremonial objects. Other components of this same declaration further guarantee the protection of native tradition and cultural heritage, freedom from discrimination and provide that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative measures that may affect them.” The United States has signed on to this declaration.
The International Covenant on Civil and Political Rights protects the right to freedom of religion, including the “freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” That covenant further states that ethnic and religious minorities “shall not be denied the right, in community with other members of their group, to enjoy their own culture, or to profess and practice their own religion.” It also provides that “freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Human Rights Committee General Comment No. 22, para. 8 further clarifies that “persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their right to manifest their religion or belief to the fullest extent compatible with the specific nature of the restraint.”
Domestically, the First Amendment of the U.S. Constitution enshrines the right to the free exercise of religion. The U.S. policy, as articulated in the American Indian Religious Freedom Act of 1978 is to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions” of indigenous communities. With respect to prisoners, the federal Religious Land Use and Institutionalized Persons Act prohibits prison authorities from substantially burdening an inmate’s religious exercise unless in furtherance of a compelling governmental interest and accomplished by the least restrictive means. As the United States Supreme Court has recognized, prisoners “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979).

Gale Courey Toensing, Indian Country Today Media Network

In late February, the California Department of Corrections and Rehabilitation issued a provisional emergency regulation denying indigenous prisoners access to items used in religious ceremony – sacred medicines like kinnikinnick, copal, and osha root; sacred pipes and pipe bags; drums and other instruments; water dippers; cloth for prayer ties; beads and beading supplies; animal hides and other objects.

The draconian restrictions have given rise to a backlash of protest and now a tribal organization is spearheading an effort both within the United States and in the international arena to stop California and other states from depriving American Indian and Alaska Native prisoners of their right to practice their traditional indigenous religions.

Huy (pronounced “hoyt”), a tribally-owned non-profit corporation in Washington state, has issued a call to action for tribes, tribal organizations, and individuals to submit written comments in opposition to the California Department of Corrections and Rehabilitation’s (CDCR) proposal to codify the emergency religious property regulation into law. Comments may be sent to CDCR, Regulation and Policy Management Branch, P.O., Box 942883, Sacramento, CA 94283-0001 or by fax to (916) 324-6075, or e-mail to RPMB@cdcr.ca.gov. (Related story: Huy: Washington State Non-Profit to Improve Indian Prisoner Ceremonies)

Time is of the essence, Huy Chairman Gabriel S. Galanda said. All written comments must be received by the close of the public comment period May 7, 2013, at 5:00 p.m. Also, a public hearing will be held on May 7, from 10:00 a.m. to 11:00 a.m. in Sacramento, specifically in the Kern room, located at 151 S Street, North Building, 95811. “The CDCR will then consider comments, evaluate proposed alternatives, and issue a final rule. We urge your timely written and public comment in opposition to the State of California’s unlawful effort to unduly restrict American indigenous prisoners’ freedom to believe, express and exercise traditional indigenous religion,” Galanda said. Galanda is a member of the Round Valley Indian Tribes, a lawyer with Galanda Broadman in Seattle, and director of the National Native Bar Association.

Huy explains the new CDCR restrictions in a blog posting on Galanda Broadman’s website. A prison order from  Soledad Prison in California from May 9, 2011 shows  the variety of items inmates were allowed to possess under the “Authorized Personal Property Schedule” back then. The items included but were not limited to sacred herbs, including sage, sweet grass, cedar, kinnikinnick, copal, bitter root and osha root; prayer fans; beaded items such as wristbands, headbands, bandannas; cloth to be used for prayer ties, beads and beading supplies including needles, looms, and thread; pipes and pipe bags; hand drums, flutes, rattles, and clap stick; gourd water dippers; soft leather from a variety of animals; and coyote and bear teeth.

By contrast, the new emergency regulations includes a “Religious Property Matrix” that prohibits kinnikinnick, copal, and osha root, cloth for prayer ties, beads or beading supplies, pipes or pipe bags, drums or other instruments, water dippers, leather, teeth, or other items. “The new Matrix should not affect the use of tobacco in ceremonies. Prisoners were not previously allowed to possess tobacco personally, though they were allowed to use it for religious purposes. … Thankfully, the regulations regarding tobacco have not been amended,” Huy’s blog entry says.

Equally as drastic as these prohibitions is the CDCR’s curtailment of indigenous prisoners’ sweat lodge ceremonies – a restriction that presents a potentially disastrous impediment to indigenous prisoners’ spiritual rehabilitation, said Kristen Eriksen, a criminal defense lawyer with a former client in Soledad with whom she has kept in touch. In addition to speaking with him on the phone, Eriksen has sent her former client “spiritual packages” of items used in ceremony several times a year for around three years. She asked that his name be withheld.

Eriksen said she doesn’t know why the CDCR imposed the new restrictions. “I haven’t looked into the limitations on other groups but from what my client has said they don’t have those same limitations,” she said. Reporting on a recent conversation with her former client, she said, “The Native Americans used to have every weekend for sweat lodge and there are 70 of them and there are two yards so they’d have eight sweat lodges a month – now they’re down to one, sometimes two a month.  They’re really being ignored and really to their detriment. The sweat lodge is very rehabilitative for them and it’s been something that’s really bound them together and helped them to develop their own spirituality, their connection to their culture, to each other, to themselves – everything, you know? – and I just can’t believe that anything positive can come from limiting that,” Eriksen said. “And it’s not as if there’s been any kind of problem. There’s been nothing,” she added.

Eriksen’s former client has filed a complaint seeking administrative review of the new restrictions “because it’s really quite severe in terms of taking away so many privileges and so many items that they previously had,” Eriksen said. “He’s in contact with the Imam of the Muslims who agreed to talk to the board with him, but the Imam said none of the other spiritual advisors would assist,” she said.

In addition to her legal work, Eriksen is in charge of her school district’s Native American Parents Advisory Committee. “We have these ceremonies a couple times a year and [my former client] has been really cool about making jewelry and medallions and things that we’ve been able to utilize to give to kids in our school. It’s been really nice. He’s gotten a lot of joy from beading and it’s been really good for him to be able to be creative and he’s improved a ton and it’s been beneficial to us too. Now they’re no longer allowed to bead,” Eriksen said. “It’s so wrong. There’s no reason for it and I truly believe it’s partly because they don’t have an advocate.”

Although Huy, which means “See you again/we never say goodbye” in the coastal Salish language, is focused on the CDCR’s immediate lawmaking effort, the organization has reached far to draw attention to abuses of indigenous prisoners’ religious rights across the country.

On April 19 Huy wrote to U.N. Special Rapporteur on the Rights of Indigenous Peoples seeking “an investigation into the pervasive pattern in the United States of increasing restrictions on the religious freedoms of Indigenous Peoples who have been deprived of their liberty, particularly by American state corrections agencies and officers.” The letter notes that Peoples in the U.S., have the highest incarceration rate of any racial or ethnic group – 38-percent the national rate.

The letter charges the U.S. with “failing to fulfill its duty to protect the religious freedoms of American indigenous prisoners” in violation of both domestic and international law, citing the U.N  Declaration on the Rights of Indigenous Peoples, International Covenant on Civil and Political Rights, and the U.S. Constitution’s First Amendment. Although the letter to Anaya did not mention the Universal Declaration of Human Rights and its protection of religious freedom, Galanda told Indian Country Today Media Network that the restrictions on indigenous religious practice clearly violate international human rights law. “The pervasive pattern of state violations of American indigenous religious liberty that we are seeing not only impinges upon international indigenous rights and American constitutional and civil rights but also universal human rights,” Galanda said.

Huy has also gained the support of NNABA, which passed resolution that Galanda proposed at its annual meeting April 10 in support of religious freedom for incarcerated American Indians, Alaska Natives and Native Hawaiians. On April 24 the NNABA wrote to the American Association of State Correctional Administrators, the American Correctional Association, the American Bar Association, the Federal Bar Association, the American Association of State Correctional Administrators, the Department of Justice Civil Rights Division, and the National Congress of American Indians asking for their official support for American indigenous prisoners’ freedom to believe, express and exercise traditional indigenous religion; to condemn any unduly burdensome or patently illegal federal or state restrictions on the Indigenous Peoples’ religious liberty; and to help explore how federal, state and American indigenous governments can jointly develop and advance shared  goals concerning American indigenous prisoners.

Source: Northwest Indian Fisheries Commission

A more accurate state fish consumption rate should be in place by next year, Maia Bellon, director of the state Department of Ecology, told tribal leaders and U.S. Environmental Protection Agency officials at a meeting Thursday.

The fish consumption rate is part of a human health criteria used by state government to determine how much pollution is allowed to be put in our waters. The rate is supposed to protect Washington residents from more than 100 toxins that can cause illness or death.

“We don’t need more debate. We have the science and we have had all of the discussions,” said Billy Frank Jr., chairman of the Northwest Indian Fisheries Commission. “Time is running out and we must move forward. We need the governor to work with us to make this happen,” he said.

“This is a public health issue for everyone who lives here,” said Brian Cladoosby, chair of the Swinomish Tribe. “We have worked hard with the state for the past eight years to revise our state’s fish consumption rate and water quality standards. We did not expect this issue to be kicked down the road, but that’s what happened. Now the debate is over and we need to move toward implementing a new rate, but we need a firm commitment from Gov. Inslee that he will help make that happen.”

Tribal, state and federal leaders agree that current rate is not accurate and that actual fish consumption is much higher. Tribes suggest a rate of at least 175 grams per day – the same standard recently adopted by Oregon – as a starting point for discussions.

The state’s current fish consumption rate of 6.5 grams per day – about one 8-ounce seafood meal per month – is one of the lowest in the nation, despite the fact that Washington has one of the highest populations of seafood consumers. That rate has been in place for more than 20 years and is not protective of most residents, especially tribal members and others who consume large amounts of seafood. Furthermore, tribal treaty rights depend on fish and shellfish being safe to eat.

The tribes and state Department of Ecology had been working to increase the rate when the effort was stalled last summer by business interests who complained to state government that a rate change would be too costly for them to implement. Since then tribes have been working with Ecology and the U.S. Environmental Protection Agency to get the process back on track.

“This is not a choice between a healthy environment and a healthy economy. Both of those things can go hand in hand,” said Russ Hepfer, vice chair of the Lower Elwha Klallam Tribe.