Michael D McNally. Defend the Sacred: Native American Religious Freedom beyond the First Amendment. Princeton UP, 2020.
Introduction
The last chapter explored early twentieth-century strategic efforts by leaders of the Native American Church and Pueblo governments to articulate their traditions as matters of religious freedom in an effort to outmaneuver the Civilization Regulations (1883-1934). This next pair of chapters follows suit, tracking the career in the courts of sacred claims made by Native peoples in the discourse of religious freedom under the First Amendment, and subsequently under a series of religious freedom statutes passed by Congress. If it seems unremarkable that Native peoples should argue for legal freedoms of religion as religion, there is nothing straightforward about what courts have understood when they say they understand the religion of Native American religious freedom claims.
Religious freedom claims by Native peoples to this point have largely failed in the courts, especially so when they have involved claims to sacred lands and waters. Chapter 3 will examine a series of sacred land claims under the First Amendment that culminated in the devastating 1988 loss before the US Supreme Court in Lyng v. Northwest Indian Cemetery Protective Association, a decision that was instrumental to its Employment Division v. Smith decision two years later, through which the Rehnquist Court restricted the reach of the First Amendment’s Free Exercise Clause protections generally. Even after Congress answered the Supreme Court by restoring and even extending Free Exercise protection in the Religious Freedom Restoration Act (1993) and the Religious Land Use and Institutionalized Persons Act (2000), Native claims to sacred lands under the statutes have generally failed, still construed through the logic of the Court’s First Amendment decision in Lyng.
But the story of religion as religion, of Native claims in the courts to religious freedom, has not uniformly been one of failure, and this is where this chapter comes in. Where Native American religious freedom claims have had some success in the courts, they have prevailed in cases where the religion asserted has conformed to the shape of religion that religious liberty protections privilege: private, individual, believed. I don’t want to suggest all such claims prevail; they don’t. But taken as a whole, the cases involving Native claims to free exercise in prison stand in striking contrast to the sacred lands cases that fail. Here, those winning free exercise claims are not those of Native peoples, but Native people, Native individuals as individuals, and for their individual practices of religious expression, sacrament, prayer, or even assembly for worship that are tied to the rights of individuals to do so.
This pair of chapters emphasizes what the contrasting results in the sacred land and prison cases share: even when sacred claims to religion are made in the language of religion, Native claims are flattened to those of spirituality. To underscore this, we may justly regard this pair of chapters not in terms of the argument—religion as religion—but in terms of its reception—religion as spirituality.
The conceptual move from Native American religion to spirituality can make a lot of intellectual sense to some scholars and practitioners of Native traditions. It equips one to follow the contours of Native traditions that don’t comport with religion as conventionally understood. But as we shall also see, the term spirituality comes with its own baggage, especially when conjoined to Native traditions. The last chapter’s discussion of the development of an American romance with Native spirituality laid the groundwork, but the cultural appropriation of Native American spirituality by non-Natives has greatly intensified since the 1960s and 1970s. This chapter considers how courts have come to view Native claims to religious freedom through the distorting lens of this coveted spirituality.
This imagined Native American spirituality is anything but “organized religion.’” It is personal, authentic, one with nature, yet portable enough to be freely available to all who seek it. Even when jurists don’t number themselves among the seekers, romanticized notions pervade the decisions on religious freedom claims, misrecognizing some claims, like those made by tribes to sacred lands out of collective obligation, and rewarding other claims that fit with this pervasive view of Native religions.
In the prison cases, “Native American Spirituality” emerges as a term of art from corrections management, a line on the intake form for religious preference, and keyed to the language of the federal chaplaincy manual. Prison chaplaincy programs use it in an effort to articulate what’s often exceptional and irreducibly diverse about Native religious traditions and to articulate what makes them so difficult to pin down. Like those who profess “spiritual, not religious” to distinguish their commitments from organized religion, chaplaincy officials denominate Native spirituality in an effort to acknowledge its difference from other, more organized religions. Native spiritual leaders, for example, often are not credentialed in ways cognizable to administrators accustomed to ordination. “Native American Spirituality” is also a function of the intertribal forms so common to inmate piety: smudging with burning sage, safekeeping of medicine bags and sacred herbs, pipe ceremonies, and the sweat lodge. While nearly every tribe-specific religion can have its own variation on these forms with attendant teachings and obligations, as a bureaucratic matter it has made sense to speak of the congeries of practices as spirituality. Lastly, and crucial to our concerns, Native spirituality enables chaplains to speak fluidly of its practice not just by those who are citizens of Native nations or who have a clear tribal affiliation but by the full range of inmates, Native and non-Native alike, who list it as their preference.
Naturalization of Spirituality
This is a particular instance of what Winnifred Fallers Sullivan identifies as a much broader and broadly ramified “naturalization of spirituality.” In a study of chaplaincies in the secular spaces of hospitals, universities, legislatures, military bases, and prisons, Sullivan argues that the citizen is increasingly “understood to be fundamentally spiritual” as an aspect of being human. Although spirituality has entered the contemporary lexicon in frequent distinction from organized religion, the semantic difference between religion and spirituality is of little consequence for Sullivan here. In a previous work on several Establishment Clause cases, Sullivan had written of “religion naturalized,” but in her book on chaplaincy, she uses the terms interchangeably, favoring spirituality. Her larger point is that both remain largely unproblematic for any potential improper establishment of religion, because the courts increasingly see such religion as “neither particularly threatening nor particularly in need of protection.” Because people are naturally spiritual, soldiers can be measured for their “spiritual fitness,” Veterans Administration hospitals can require “spiritual assessment” on admission, and “spiritual care” can be required of any hospital accredited under government guidelines. “Religious life is so entirely disaggregated and religious authority so thoroughly shifted to the individual,” Sullivan elsewhere argues, “that both establishment and disestablishment are functionally impossible. There are no churches left to establish or to disestablish.” Sullivan acknowledges there “still are, and will be excluded disfavored religions under this new legal regime, of course, but the arbiter will no longer be the courts.”
“The spiritual religion practiced by chaplains,” Sullivan writes, aspires to be “inclusive, therapeutic, and self-consciously constitutional,” often serving secular purposes, and “deeply ambiguous in its metaphysical assumptions and its regulatory purposes.” Its legal management falls below the levels of the courts, in what Sullivan calls “spiritual governance” that fuses the religious and the secular a manner that resembles churchstateness.
The thing is that the spirituality that fails to trigger constitutional limits on government establishment of religion in Sullivan’s cases also fails, in the Native sacred land cases, to trigger the protections for free exercise, as we will see in the next chapter. In the prison cases, however, Native religious claims to individual spirituality are relatively legible to the courts. To argue this is to risk sounding too sanguine about the fortunes of incarcerated Native Americans as they seek to practice their religions with dignity. There are very real inequities of access to religious services for Native inmates, and there is urgency for their access to the healing that these religions can bring. This is the conclusion of a 2014 report submitted as part of a UN review process by the Native American Rights Fund, the National Congress of American Indians, and Huy, a nongovernmental advocacy organization in the Pacific Northwest.
The law accords considerable deference to prison officials, resulting in a wide range of access to Native religious practices across states and localities. Most grievances die at the institutional level, where severe power inequities can quiet legitimate arguments of discrimination. Many claims that do make it to the courts are filed pro se by inmates without benefit of professional counsel, and these cases unsurprisingly rarely go far. So it is true that Native inmates do not broadly enjoy religious freedom in prison. Still, where Native American religious freedom gains any meaningful traction in the courts, inmate claims to Native religious free exercise in prisons stand out.
Native American Spirituality in Prisons
Native Americans are imprisoned at alarming rates. A 1999 Department of Justice study found that the rate of incarceration on a per capita basis was 38 percent above that of the national average. A 2011 government study counted 29,700 Native American inmates, most of them in state prisons and local jails. The disproportion is even more regionally pronounced. In South Dakota, Native Americans make up fully one-fourth of the prison population while only making up 9 percent of the state’s population. As Walter Echo-Hawk has written, the incarcerated Native population is deserving of religious liberty not only as a matter of individual right; this religious liberty is urgent to the cultural survival of Native peoples as peoples:
When they are released, it is important to the cultural survival of Indian tribes and Native communities that returning offenders be contributing, culturally viable members, rather than further alienated and assimilated by their experience in the White Man’s prisons. Therefore, virtually every Native American and Indian Tribe is directly and vitally impacted by prison policies which affect the rights, rehabilitation and well-being of these prisoners.
Indeed, one can argue that the American Indian Movement had its genesis in 1963 ceremonial activities and the religious transformations of Anishinaabe activist Clyde Bellecourt and medicine man Edward Benton-Banai, Navajo activist Lenny Foster, and other inmates at the state corrections facility in Still-water, Minnesota. Bellecourt told a reporter that “things have improved” in state and federal prisons, “but there are still problems.”
Of course convicted offenders surrender many liberties, such as rights to assembly and movement, but rights to religious freedom are not, in principle, surrendered. Rights of conscience and belief are broadly recognized; rights to practice are balanced with competing government obligations. The challenge, from the perspective of corrections officials—even those who are inclined to support Native religious accommodations—is the balancing of safety, security, and equality of treatment. These determinations are also very much a function of scarce resources. I was told by a group of state corrections chaplaincy administrators that sweat lodge ceremonies, often requiring specific kinds of wood and stones (some stones can “explode” when superheated), antlers, and other items, are the most expensive accommodation they face. Some accommodations pertain to individual practice, like an inmate’s right to possess a medicine bag and/or sacred herbs; others pertain to group ceremonies that require staff supervision and the budget to pay for it. Increasing demand for these kinds of accommodations can run up against declining chaplaincy budgets.
Most prison chaplains are Christian, but as professionals, their job generally involves providing spiritual support to inmates of other traditions. As administrators, not just direct providers of religious services, chaplains contract out and arrange volunteers from various religious groups and serve as de facto arbiters of religious and cultural diversity. Whether they are effective advocates depends on their will and capacity to advocate, and even on their budgets.
If Native religious freedom challenges to restrictive prison policies have been generally successful in courts in recent years—relative to sacred land claims, that is—it has been because of the persistent, tireless advocacy of Native activists like Lenny Foster (Navajo) and Native spiritual leaders. It has also been because of advocates within the ranks of chaplains, such as Susan Van Baalen, OP, who retired as the head chaplaincy administrator for federal corrections. But especially so because of the changed legal terrain after the 2000 passage of the Religious Land Use and Institutionalized Persons Act.
Among other things, Van Baalen saw to the production in 2002 of the Federal Bureau of Prisons best practices manual, Inmate Religious Beliefs and Practices, which includes a twenty-five-page description of “Native American Spirituality” (Islam, too, gets twenty-five pages; Protestant Christianity twenty). The section includes an introduction by Osage scholar George Tinker and the full text of the American Indian Religious Freedom Act (1978). Although it documents de facto practices of Native American Spirituality as they have materialized in prison contexts, the manual also plays a defining role. I would stop short of saying the manual makes Native American Spirituality in the doing, but it is among the shaping influences, to be sure. In its effort to guide chaplains and corrections officials, the manual does the work of demarcating the authorized contours of Native American Spirituality, contours that hover above but draw on tribe-specific religions and their teachings about the practices. It capitalizes the terms of the practices it describes, subtly reifying them as proper nouns. Most importantly, its text appears in judicial decisions that make fine-grained determinations of what accommodations count.
Salient features of Native American Spirituality include ceremonial actions —the sweat lodge, the pipe ceremony, smudging, fasting, festivals like an occasional powwow, visits by Native American spiritual leaders, and listed religious items from medicine bags and drums to tobacco, sage, sweetgrass, cedar, copal, eagle feathers, and other animal parts.
The manual takes pains to properly direct officials in their response to specific situations that arise. “Native American spiritual leaders should receive the same professional courtesy and access to inmates that is afforded to ordained clergy” and should have the chaplains only visually inspect sacred items they bring with them, “avoiding x-rays unless absolutely necessary.” The manual designates the sacred pipe and the sweat lodge as the “cornerstones” of most Native American traditions. Sweats are “generally conducted on a weekly basis in a correctional setting” and “should not exceed four hours,” and the manual clarifies that all aspects of the ceremony are sacred from the spatial layout of the lodge and its associated fire to the final rinse and disposal of the ashes. Each step is sacred and deserves staff protocols of respect, including not entering the lodge or walking across the line between the fire and the lodge. Sweats should be scheduled at times that won’t involve institutional interruptions, such as “out-counts,” but if a “count” should be necessary, officials are to wait for one of the “four doors,” the moments in the ceremonial process when the lodge is opened to receive rounds of hot “Grandfather” stones and accompanying prayers.
The manual makes plain that it is not meant to formally define the features, even if it effectively does so. It “follows a best practices guide,” taking religious liberty law as well as the “corrections environment” into account and reiterates, in bold letters: “Final program decisions rest with the Warden.”
Universality of Native American Spirituality
Importantly, “Native American Spirituality” is not restricted to Native Americans at the level of law below the courts that Winnifred Sullivan calls “spiritual governance.” It is in this regard in tension with Native American religious traditions, which are largely coterminous with membership in Native nations. As I will show, the universalism of Native American Spirituality is related to its legibility in the law as protectable religion, and hence, relatively successful in the courts.
A search of federal case law in the LexisNexis database generated fifty-six different cases meaningfully using the term “Native American Spirituality.” All but five of those concerned religious practices in prison; none of them concerned sacred lands. The pattern of correlation illuminates how the discourse of spirituality shapes judicial approaches to Native cases. In several cases concerning hair length in prison and places of employment, Native litigants themselves used “Spirituality” as a term with a broader semantic range than religion. But in the vast majority of the cases, spirituality is no mere synonym for Native American religion, religions, or religious exercise; it is invoked as a term to distinguish spirituality from particular tribal religions. With one minor exception, cases involving the term do not concern tribe-specific claims to sacred sites or religious practices but rather deal with generalized claims to religious freedom in prisons and, not infrequently, with claims asserted by non-Native practitioners.
The federal chaplaincy manual suggests, in its entry for “Native American Spirituality—Membership,” that Native traditions “vary greatly with tribes,” and that “local religious authorities or tribal elders should be consulted.” But for the intertribal practices like the sweat lodge that prompt its sustained attention, the manual makes plain that participation “is not usually limited to those of Indian ancestry alone.” The recommendation is that “an understanding of Native American traditions, as well as religious preference will be considered in authorizing participation in the Sweat Lodge.”
There is a lack of good data on the religious affiliation of inmate populations generally, but a Pew Research Center survey of over seven hundred prison chaplains suggested that Native American Spirituality was among the four highest growing religions, measured by religious affiliations that had been changed in prison. One-fourth of chaplain respondents said, “Native American Spirituality is growing a lot.” This could be an indication of Native inmates who switch affiliation from Christian to Native American Spirituality, but it is more likely a function of non-Native inmates switching affiliations to an earth-based religion. “Paganism/Earth Based Traditions” like Wicca and Asatru Fellowship, was the third fastest growing in the estimation of the chaplains, behind Protestantism and Islam.
Perhaps because of a felt need to restrict access to the popular—and expensive and difficult to manage—accommodations for Native American Spirituality, at least one state, New York, has required a showing of Native identity for access to accommodations for Native American Spirituality. “Only inmates who have a documented Native American designation will be allowed to participate in approved Native American ceremonies,” a 2015 directive provides, adding that “appropriate verification of the inmate’s ancestry” by an administrator “in consultation” with the department’s Native American chaplains is required. Courts have struck down such policies in other prison contexts as violations of rights to equal protection. Such a measure can be at the urging of Native religious leaders trying to limit ceremonies to community members. But perhaps it has also to do with insincere interest in Native Spirituality. The Pew survey found a common concern among chaplains that inmates were seeking religious accommodations in an effort to game the system. New York’s directive does not require participants to be members of federally recognized tribes, appearing to leave room for discrete judgments of sincere practice. And in any case, New York appears to be an outlier in its restriction to those with documented Native identity.
In fact, the universality of Native American Spirituality, its availability to those non-Native inmates who simply designate it as their religious preference, has been underscored by the courts. A generative precedent has been Morrison v. Garraghty, a 2001 case in which the Fourth Circuit agreed with a lower court that a non-Native practitioner’s equal protection rights to his “Native spirituality” were violated by a Virginia prison’s policy requiring substantiation of Native American heritage for religious accommodations. Even though the inmate had professed a sincere belief in “the creator, mother earth, the sacredness of all living things, that everything has a spirit and is connected,” and was a member of a prisoner group called HEART—Heritage Examined Among Redman Traditions—authorities forced him to yield a number of spiritual objects and herbs, including sage, cedar, sweetgrass, and kinnickinnic. The court found the prison’s policy was plain: “acquiring or maintaining existing articles of Native American faith will only be considered for those inmates who are bona fide Native Americans”—and the denial was based solely on identity, not on the basis of an inquiry into his sincerity or for any reasons of security or safety. Specifically, the Fourth Circuit held that “Morrison pursues not a constitutional right to obtain the religious items, but a constitutional right to be treated the same as Native American inmates requesting the same religious articles.” It is clear from a host of cases that have followed, “Native American Spirituality” is a common usage in prison environments for ritual traditions like the sweat lodge and attendant paraphernalia. The paraphernalia are associated with Native American traditions but are not tribe-specific and must be open, on equal protection grounds, to participation by non-Native inmates. As a term of art that signals inclusiveness, “Native American Spirituality” can also admit of skepticism, suggesting the added “hassle factor” prison officials can associate with inmate access to what they view as any number of objects, medicines, and practices associated with Native Americans, and with enough play in its semantic range to account for possible imposture. I base this observation on two consultations with a group of state chaplaincy administrators, many of whom I understood to be quite sympathetic to such claims but keenly aware of the relatively costly nature of these accommodations. “Native American Spirituality” has even been associated with claims of identified prison groups like the Mexican Mafia using the moniker, as one court found, for nefarious assembly purposes.
Religious Freedom Law: A Brief Historical Sketch
As with other religious free exercise claims in the courts, Native American claims to religious practices in prison have fared differently over time, and it is important to understand these claims, as well as the claims to sacred lands that we encounter in chapter 3, in the context of a brief history of religious freedom jurisprudence. It seems counterintuitive today, but federal courts only seldom heard religious freedom claims before the mid-twentieth century, when the First Amendment’s Free Exercise Clause, “Congress will make no law respecting an establishment of religion or prohibiting the free exercise thereof,” was legally incorporated into the Fourteenth Amendment and thus formally applied to state and local government actions, where by far more controversy takes place.
The Supreme Court under chief justices Warren and Burger had given broad interpretations of the reach of Free Exercise Clause protections. The key case in Free Exercise Clause jurisprudence was Sherbert v. Verner (1963), in which the Supreme Court found unconstitutional the denial of unemployment benefits to a Seventh Day Adventist who had been fired for failure to work on the Adventist Sabbath when her schedule was abruptly changed. The Court articulated the three-part Sherbert test, which instructed subsequent courts in Free Exercise Clause cases to ask (1) whether a claimant could show that a government action placed a demonstrable burden on sincere religious exercise, (2) whether a government could justify its action with a compelling interest, and (3) whether the government could show it had exhausted alternative actions that would not thus burden religious exercise. By raising the judicial standard for reviewing governmental regulation of religion from “rational basis” to “strict scrutiny” (the application of the compelling interest and least restrictive means analysis), the Sherbert test effectively put the burden on government to show that its interests outweighed those of religious freedom. This logic extended through a number of expansive religious freedom protections for conscientious objectors who were not plainly religious in their affiliation or belief and beyond to Wisconsin v. Yoder, a 1972 case in which a Wisconsin compulsory education statute was found to violate the rights of an Amish community to commend its way of life by educating young people on its own terms after eighth grade.
Yoder is often cited as the high-water mark for Free Exercise Clause jurisprudence, and I think the details of the case offer an analogy for Native American religious freedom. Yoder was an Amish father who was prosecuted along with two others for refusing to enroll children in public schools after eighth grade, under Wisconsin’s compulsory education law. They took the issue to the courts, claiming that Wisconsin’s law violated their free exercise of religion, and ultimately won soundly in a 6-0 decision where the Court applied the Sherbert test: first determining that the Old Order Amish community’s religion had been burdened by the generally applicable law, and second that Wisconsin had failed to prove its interest in compulsory education outweighed Yoder’s free exercise right. Most religious freedom commentators gravitate toward the Yoder Court’s now quite remarkable pronouncement: “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”
Even more germane to the question of the protection of Native traditions as religion is the extensive analysis the Court undertook in its weighing of Yoder’s free exercise right. Perhaps as critics have pointed out, this is rooted in a sentimental regard for the countercultural Amish, but in any case the Court held that First Amendment protections extended to the entire Amish way of life, having ascertained that this way of life was “inseparable and interdependent” with Amish religion and distinguished from merely “subjective” rejection of social values that are merely “philosophical and personal”:
The Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.
An argument can be made that it is pointless to appeal for First Amendment protections to Yoder or any decision prior to Employment Div. v. Smith. But the Smith Court in 1990 didn’t overturn Yoder; it merely found the case as not controlling. Justice Scalia’s majority opinion in Smith took pains to distinguish Smith from the Yoder Amish case, since the Wisconsin compulsory education law in question was, like the Oregon controlled substance statute, a neutral law of general applicability. Scalia reasoned that in Yoder, it was not religious freedom alone that tipped the scales, but religious freedom claims bundled together with other rights—parental rights in the case of Yoder—and Scalia saw no such bundle of rights present in the Smith case.
In the conscientious objector cases during the Vietnam era, the Supreme Court expanded the definitional parameters of what it would consider religion. In U.S. v. Seeger (1965), the Supreme Court changed course from granting previous exemptions for conscientious objectors only when the convictions were religious—not merely moral—and upheld an atheist’s religious free exercise rights to conscientious objection. Citing theologian Paul Tillich’s consideration of God as a matter of “ultimate concern,” the Court found Seeger’s convictions legally “religious” even as they were unapologetically atheist. In this environment, the courts appeared somewhat friendly to Native free exercise claims that pushed the envelope of what would be considered religion. In those days, the issues turned on men wearing long hear in institutional settings. Long hair had become an accentuated symbol of Indian identity and related to traditional duties of mourning—if you don’t have hair to cut in a pronounced way, you cannot mourn. Not all courts regarded the Indian claims as sufficiently religious to merit protection, but when Jerry Teterud, a Cree inmate, challenged an Iowa prison’s restrictions on hair length as a violation of his religious right to long hair, a federal court found the policy unconstitutional. The judge drew on expert testimony and an analogy between the interrelatedness of Native religion and culture and that of the Amish communities of Yoder. Two other hair length victories at the appellate level for Native prison inmates bolstered the Teterud holding in the Fourth and Sixth Circuits.
But as the Rehnquist Court began to address what its conservative justices regarded as too-broad free exercise protections vis-à-vis government interests and other competing goods, Native inmates’ efforts to win court backing for their religious freedom ran aground. In O’Lone v. Shabbazz (1987), the Supreme Court changed the approach to balancing individual free exercise rights and the compelling government interest, hewing toward considerable deference to prison officials and their “legitimate penological interests.” Three years later, the Supreme Court in Smith all but nullified any inmate claim to violation of free exercise rights, since most prison policies are “neutral laws of general applicability” that, after Smith, no longer require a showing of the government’s compelling interest to pass constitutional muster. It didn’t help any Native prisoner’s case that Smith, and its 1988 predecessor on sacred lands, Lyng, were cases involving Native American religious freedom claims.
Employment Division v. Smith (1990)
Employment Division v. Smith was an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be members of the Native American Church and had continued to ritually ingest Peyote at ceremonies as part of their own wellness and religious discipline. As we know from chapter 1, the Native American Church is a religious organization that Native leaders strategically incorporated as a “church” in the 1910s to help secure First Amendment protection. Peyote practitioners had considerable success in courts winning legal protection for their tradition. But the Smith Court reversed that trend, criminalizing overnight the religion of tens of thousands of Native people. The Court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists but went beyond applying the Sherbert test to arrive at its result, an audacious move that Justice O’Connor’s strongly worded concurring opinion found to be gratuitous. Writing for the majority, Justice Scalia reframed the entire structure of Free Exercise Clause jurisprudence, holding as constitutional “valid and neutral laws of general applicability” that do not intentionally and expressly deny free exercise rights even if they have the effect of the same, and turning away practitioners of minority religions from the courts to legislatures for explicit protection. As a matter of law, the Smith decision found constitutional Oregon’s controlled substance law, and by extension, any other neutral, generally applicable government action even if such government actions had the effect of burdening the free exercise of religion. The Sherbert test would apply only in those rare cases where governments expressly act to prohibit or burden religious free exercise.
Where Sherbert had placed the responsibility on government to justify actions that burden sincere religious exercise with a full showing of the compelling state interest behind the action and a showing that the action involved the least restrictive means to accomplish that compelling interest, Smith placed the burden on legislatures to generate such accommodations. But legislatures, it might be pointed out, rarely act in a majoritarian democracy in favor of the religious practices and beliefs of minority communities. This was particularly true of the 1980s, with a declared war on drugs gripping the public imagination.
Critics of the decision, and there are many, have pointed out how the Smith Court effectively gutted the Free Exercise Clause as it pertains to minority religions in which no clear line exists between inviolate beliefs and the practices that purportedly merely express them. They have also found Smith to significantly devalue the weight of the Free Exercise Clause, giving it credence only when conjoined in bundles of hybrid rights with other, nonreligious rights. Justice Scalia’s view was that the strict scrutiny standard of “compelling governmental interest” as applied to religious freedom in Sherbert v. Verner “waters it down” and “subverts its rigor in the other fields where it is applied.” In the case at hand, Scalia added, the application of the standard would be “courting anarchy”:
Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.
Plenty of critics, including Justice Blackmun in his strong dissent, have called this slippery slope concern into question, noting that Peyote exemptions in particular have never generated many challenges to the government enforcement of drug laws. Here, my interest is in identifying why a case involving Native practices should trigger Scalia’s doomsday scenario of “courting anarchy.”
Read generously, Smith was evenhanded in its explicit reluctance to involve the courts deeper and deeper in the business of evaluating the centrality of various religious beliefs and practices to ascertain their relative weight in balancing tests like the Sherbert test. “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” Justice Scalia wrote. “Judging the centrality of different religious practices is akin to the unacceptable ‘business of evaluating the relative merits of differing religious claims.’” But as with Lyng, what results from this logic for the case at hand is “cruelly surreal”: substance abuse counselors are denied free exercise protections even though they practice a religion long acknowledged to promote sobriety and to have passed so many historic layers of scrutiny as to be specifically exempted in many states. Here the burden of proof for the slippery slope argument, it would seem, would be on the outlier, Oregon.
Deep-seated myths about the vanishing Indian remain the controlling frames of understanding Native American claims. I’m convinced that Scalia’s “courting anarchy” concerns are evidence of the power of the vanishing Indian trope in jurisprudence on Native religious freedom claims, especially when read in the context of Justice O’Connor’s hasty application of the Bowen v. Roy analogy as controlling in the denial of Native free exercise rights to sacred lands in the Lyng decision two years earlier. The logic of this drift goes something like this: “real Indians” vanished long ago, and contemporary Native religious practitioners have been degraded by a tragic history of dispossession. At best these claimants are inventing traditions and at worst making novel and thin claims to sacred places, or to beliefs like Roy’s claimant that a Social Security number could damage his daughter’s spirit. Against this backdrop, Native peoples claiming First Amendment protections are emblematic of the far-fetched demands that wizened judges come to associate with freaks and mavericks. Perhaps this is the answer to the pressing question of why the major cases withdrawing the reach of the Free Exercise Clause are cases concerning Native American peoples rather than cases involving practitioners of less obviously established minority religions. In the end, the lesson of Smith, and even of Lyng, in that when Native peoples have sought protections for their religious and cultural traditions under the First Amendment, they have ended up being confused by the courts with what Kevin Washburn playfully referred to as “long-haired guys with bongs and microbuses” making opportunistic and arguably excessive claims about religion. That Justice O’Connor in Lyng and Justice Scalia in Smith explicitly do not take issue with the sincerity of the Native American beliefs at hand is belied by the extent of their miscalculation of how centrally their decisions obstruct Native free exercise.
Congress Responds with RFRA and RLUIPA
Emboldened by an alliance of religious and civil liberties groups from across the ideological spectrum who were unified in their distaste for the Supreme Court’s Smith decision, Congress in 1993 responded with a statutory restoration of pre-Smith religious freedom, the Religious Freedom Restoration Act (RFRA), which restored the compelling interest and least restrictive means prongs of the Sherbert test for any government action that substantially burdened a person’s religious exercise.
The Supreme Court responded four years later to find RFRA unconstitutional as it applied to the states, finding among other things that constitutional interpretation is the job of the courts, not Congress. Boerne v. Flores (1997) caused a number of states to pass state-level versions of RFRA, but it also prompted Congress to respond in 2000 with a more narrowly tailored statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). RFRA would continue to apply to federal government actions, but in 2000, Congress reopened the doors to religious freedom claims of the vast majority of prisoners, those in state and local corrections. With RLUIPA, Congress didn’t just reopen the door narrowly closed by O’Lone and shut tight by Smith, it opened it wider than previously available:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
RLUIPA was expressly aimed at furthering religious freedom protections against zoning laws and regulations in government institutions like prisons. RLUIPA explicitly removed any centrality test a court might apply; religious freedom claimants only need demonstrate the sincerity of their religious exercise, not the centrality of the burdened practice in question to their religion. Congress mapped this expanded definition of protectable religion by amending RFRA in the RLUIPA statute.
The Supreme Court has twice thus far considered challenges to RLUIPA. First, in Cutter v. Wilkinson (2005) the Court both affirmed RLUIPA and restricted its reach: it confirmed no need for a showing of centrality in substantial burden analysis, but it also reiterated some measure of “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain … security … consistent with consideration of costs and limited resources.” In 2015, the Supreme Court expanded prisoner free exercise even further. In Holt v. Hobbs, the Supreme Court unanimously reversed lower court rulings and found a Muslim inmate was entitled to grow a beard for religious purposes even though it violated the regulations of an Arkansas corrections facility. Where the lower courts had found the grooming policy didn’t pose a substantial burden to his religion, the Supreme Court concluded the inmate had clearly shown a substantial burden to his religious exercise:
The District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights.
The Holt Court found “the availability of alternative means of practicing religion” to be “a relevant consideration,” but importantly the error was not tied to this particular strand of reasoning but to that used in cases involving prisoners’ First Amendment rights, because “RLUIPA provides greater protection.” In this regard, the Court in Holt underscored its Hobby Lobby holding in the previous year that Congress intended RFRA and RLUIPA to expand religious freedom protections beyond the First Amendment, applying that logic to the substantial burden analysis in Holt. The Court rooted its view of the substantial burden on the inmate’s religious exercise because the state of Arkansas had put to him the choice of violating his beliefs or facing disciplinary sanctions, a coercive choice that lined up with that of Hobby Lobby. The Court proceeded to reject Arkansas’s compelling interest and least restrictive means arguments, since forty-one other states were able to accommodate religious beards.
Native Inmate Religious Freedom in the Courts
RLUIPA has hardly ensured that every religious freedom claim to Native American Spirituality prevails in courts. Many inmates in state or local corrections facilities subject to RLUIPA, especially those who are non-Native, have been unable to persuade courts of the sincerity of their religious exercise, and those who do can have difficulty persuading courts that their particular grievance outweighs corrections officials’ claims to the urgency of security, safety, health, and equality of treatment in their policies, restrictive as they might be for Native spirituality. Given the Supreme Court’s deference to corrections officials in Cutter, this has created some inconsistencies in RLUIPA decisions across different circuits.
What is more, most limitations of Native religions in correctional facilities happen well below the radar of the courts, at the level of what Winnifred Fallers Sullivan calls “spiritual governance” or “law on the ground.” But especially since RLUIPA, Native American religious freedom claims have succeeded where they haven’t with other kinds of religious claims. Five cases stand out in this regard, each decided at the federal appellate level. The cases concerned a range of religious concerns, including hair length, ceremonial food and tobacco, and sweat lodge access.
Hair Length and Ceremonial Food
In Warsoldier v. Woodford (2005), the Ninth Circuit held that a Cahuilla inmate in a state prison had a religious freedom right under RLUIPA not to be punished for refusing to cut his hair under the prison’s grooming policy. There had been a number of earlier cases in the 1970s affirming religious freedom under the First Amendment for Native inmates to maintain long hair for religious reasons, including the ability to properly mourn by cutting long hair. But the prison religion jurisprudence had, in the meantime, taken a more deferential position with regard to legitimate penological interests. In Warsoldier, the Ninth Circuit reversed a lower court’s conclusion that the inmate had no substantial burden on his religion. And the Supreme Court’s ruling in Holt v. Hobbs affirming a Muslim inmate’s religious freedom from beard length restrictions has cleared further ground for Native inmates claiming accommodations to grooming policies inconsistent with their religiously inspired hair length. There remains, though, inconsistent treatment of Native inmates’ claims. The Eleventh Circuit (and effectively all lower courts in that circuit) repeatedly held against a Native inmate’s religious freedom challenges to Alabama regulations governing hair length in a similar case in 2013. The deference to corrections professionals signaled by the Supreme Court in Cutter appeared to carry the day.
Not so in the Seventh Circuit, which in 2015 cited Holt v. Hobbs to reverse a lower court ruling and to hold that a Navajo inmate who was denied venison for an annual Ghost Feast ceremony by a Wisconsin prison had rights under RLUIPA to that food and to a headband he could wear during prayer. In Schlemm v. Wall, a federal district court found that the inmate had not demonstrated a substantial burden on his religious exercise in the denial of his request for ceremonial venison. Even if he did, the district court conjectured, the prison had a sufficiently compelling interest to maintain food safety and costs by the least restrictive means of procuring only USDA-inspected meats. The Seventh Circuit disagreed, issuing a preliminary injunction to the restrictive policies.
Although Schlemm successfully received a headband for ceremonial use, there emerged difficulties in the meantime with the food accommodation, since Schlemm’s options could only involve “shelf-stable” venison from approved vendors, the cost of which he would be asked to bear. Court documents illuminate the detailed texture of the accommodations:
Ultimately, plaintiff requested that he be permitted to order: (1) a jerky combo including venison, elk and buffalo jerky from Cabela’s online website, for $65.94; (2) a beef Indian Taco from a local restaurant, Frybread Heaven, for $6.75; and (3) a venison Sloppy Joe from another local restaurant, the 1919 Kitchen and Tap, for $19.00. The jerky arrived at GBCI before the Ghost Feast, and the venison sloppy joe and Indian Taco were scheduled to be delivered on the date of the feast. The total cost for the food would have been $91.69, plus tax and additional delivery charges for the restaurant food.
According to the court, Schlemm withdrew from the September 2015 feast four days prior, indicating that it “would not be a proper Ghost Feast unless it: (1) was held in October or November, not September; (2) included a Sweat Lodge, tobacco burning, and spiritual songs; and (3) included foods more traditional than those being offered.” But Schlemm’s own story notwithstanding, the Wisconsin corrections agency revamped its policy for periodic celebratory religious meals, opening possibilities for various individuals to procure for themselves in a regulated process the shelf-stable foods that would fulfill their religious obligations.
Ceremonial Tobacco
Access to ceremonial tobacco has become a major point of recent case law with stricter enforcement of tobacco free rules. Formal accommodations remain in some states, like Minnesota, for access to ceremonial tobacco, often in an admixture with red willow bark, sealed in medicine bags or tobacco ties (offerings/embodiments of prayer), and in pipe ceremonies. In other states, like South Dakota, inmates have persuaded courts to compel such accommodations. Especially given the public health interests that stand behind the tobacco prohibitions, some courts’ willingness stands out for their acknowledgment of the significance and necessity of tobacco for many tribal traditions of ceremony and prayer. Recall that one-fourth of South Dakota state inmates are Native, many of them Lakota/Dakota whose traditions plainly center on the pipe and offerings of tobacco. A challenge under RLUIPA to that state’s total ban’s extension to Native ceremonies won in federal district court, which mandated a revision of the policy and then issued its own remediation order when the parties could not agree on a policy. Even though the remediated order included an even “weaker” admixture of tobacco with red willow bark, the South Dakota Department of Corrections appealed. In Native American Council of Tribes v. Weber (2014), the Eighth Circuit found with Native inmates Blaine Brings Plenty and Clayton Creek and rejected the state’s argument, citing several other Lakota spiritual leaders, that red willow bark, not tobacco, is the real traditional substance of Lakota ceremonies. Or rather, the Eighth Circuit avoided having to involve itself in such a judgment by finding a substantial burden on religious exercise as a consequence. Even though the state argued any amount of tobacco in a mixture could make the substance a valuable commodity inside prisons and invite abuse, the Eighth Circuit found that the state’s total tobacco ban was not the least restrictive means of accomplishing its aim of health and security and ordered the policy of allowing a ceremonial admixture to be sufficient.
Access to the Sweat Lodge
Like ceremonial tobacco, sweat lodges are a key component of Native American Spirituality in prisons, and like the policies on ceremonial tobacco, policies on inmate access to sweat lodges vary widely from state to state. In these cases, too, especially since RLUIPA’s enactment in 2000, courts have stepped in to protect prisoners’ rights of access to sweat lodges. A Tenth Circuit decision in Yellowbear v. Lampert (2014) is notable for the courts’ affirmation of the weight of a prisoners’ right of access to the sweat lodge in relation to the government’s compelling interest to limit that access in favor of safety and security, and in this case, budgetary limitations. It is also notable as an opinion written by Neil Gorsuch, a Tenth Circuit judge prior to his appointment to the Supreme Court, and one of the ten cases he submitted to the Senate confirmation process as emblematic of his thinking on religious freedom. Andrew Yellowbear, a Northern Arapaho tribal member, had been denied access to a sweat lodge by a Wyoming prison because the terms of his incarceration required a lockdown to protect him, and thus, prison officials argued, he effectively would enter the lodge alone. This presented the prison with a cost it considered “unduly burdensome.” A district court sided with Wyoming Corrections, granting summary judgment and thus requiring no bench trial to try facts, but the Tenth Circuit vacated and remanded for trial consistent with an opinion that went out of its way to underscore the legitimacy of Yellowbear’s claims. “A burden can be “substantial,” Judge Gorsuch wrote, even if it does not compel or order the claimant to betray a sincerely held religious belief.” He cited a Tenth Circuit decision that found sufficient coercion in a government action that forces “an illusory or Hobson’s choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise.”
It is enough that the claimant is presented with a choice in which he faces considerable pressure to abandon the religious exercise at issue. The term “substantial,” after all, doesn’t mean complete or total, so a “substantial burden” need not be a complete or total one.
Having established the substantial burden, the opinion goes on to weigh how compelling is the government interest, and dutifully cites the deference to corrections officials on matters of security, safety, and cost in Cutter v. Wilkinson, but this “does not extend so far,” Judge Gorsuch stated, “that prison officials may declare a compelling governmental interest by fiat,” and also suggested a lockdown for religious freedom purposes could well be as necessary as one for medical purposes. The court noted Yellowbear’s high burden—“no access of any kind, ever”—and “the cost to the prison left undefined and thus presumably low.” “In these circumstances,” the court held, “we don’t doubt a reasonable trier of fact could find a RLUIPA violation.” Judge Gorsuch’s opening makes clear that Native traditions will count, and he even refrains from using the language of spirituality:
Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge—a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them—at least in the absence of a compelling reason. In this record we can find no reason like that.
As made clear in a PhD dissertation by Emily Brault based on her experience as a chaplain in an Iowa prison, sweat lodges are remarkable for physical, emotional, psychological, social, and spiritual healing. Sweat lodge ceremonies in the middle of prison yards offer practitioners an extraordinarily powerful space and time for tapping into realities that transcend the confines of the prison, and that offer purification, renewal, and community. Not surprisingly, perhaps, sweat lodge ceremonies are compelling to many inmates seeking healing and transcendence who are not Native American and who have encountered a sweat lodge before their time in prison, where it can shine like a beacon in the drab yard.
This is the context of a case decided in the same year as Yellowbear in the Sixth Circuit Court of Appeals. Three death row inmates in Kentucky, Robert Foley, Roger Eppinger, and Vincent Stopher, sought unsuccessfully to hold a sweat lodge that they offered to pay for at their own expense, to have access to ceremonial bison for an annual powwow, and to receive visits by a Native spiritual leader. Joined by Randy Haight and Gregory Wilson, who had other religious freedom complaints, the five inmates represented themselves in a challenge under RLUIPA. Although the court record in Haight v. Thompson doesn’t specify their identity, each of the five is identified racially as “white” in the Kentucky inmate information system.
Initially, the five lost their case in district court, which granted summary judgment without a bench trial, and thus without the process of discovery and evidence that substantially encompasses the facts of the case. On appeal, the Sixth Circuit vacated the summary judgment and remanded the case to the district court for a bench trial informed by the appellate court’s guidelines for the case. Addressing Kentucky’s argument from the slippery slope that exceptions here and there will breed other unlimited exceptions, the Sixth Circuit wrote:
Rejecting accommodation requests on the ground that an exception to a general prison policy will make life difficult for prison wardens is a fine idea in the abstract and may well be a fine idea under Smith. But it has no place as a stand-alone justification under RLUIPA.
The decision found difficulty with Kentucky’s argument that its prohibition was rooted in a compelling government interest, citing numerous examples of sweat lodge access upheld by courts in other states. But the decision also cautioned that RLUIPA prison cases are highly contextual, acknowledging without challenging other circuit court decisions that upheld prison denials of sweat lodge access.
Conclusion
Contextual, indeed. It is easy to overstate the strength of the inmates’ hands in these cases. Even when pro se inmates win at the appellate court level, their substantive claims to religious freedom in their particular prison can go unfulfilled. Andrew Yellowbear’s pro se efforts ultimately failed to produce his desired access to a sweat lodge when the district court in Wyoming took his case on remand. Despite the strongly worded opinion by the Tenth Circuit, the full range of Yellowbear’s grievances were dismissed in deference to the prison official’s legal pleadings. And in the Haight case, the district court, flatly and without elaboration denied a motion for summary judgment by the Kentucky inmates, who again were acting pro se and were presumably lacking the resources or liberty to undertake a bench trial. So neither did their effort to have a sweat lodge result in a court injunction.
But the victories in the appeals court phase of the Yellowbear and Haight proceedings stand tall nonetheless, shaping the legal interpretation of RLUIPA that bolsters a wide range of claims in their wake, and more importantly, promises to shape the approaches taken by prison officials. And the RLUIPA victories at the appellate court level call attention to how even for non-Native seekers/practitioners of Native American Spirituality, it is the spirituality, not the identity, of the practitioner that matters. Nothing in the court record of the three phases of Haight v. Thompson engages the question of the identity of the plaintiffs.
Religious preference is part of an initial intake screening for inmates in the federal system. Federal regulations provide that “by notifying the chaplain in writing, an inmate may request to change this designation at any time, and the change will be effected in a timely fashion.” Native American Spirituality is a religious preference, not a heritage keyed to citizens of a Native nation.
We turn now to consider the contrasting career of Native American claims to sacred lands in the courts, which have consistently failed to persuade judges that religious exercise involving sacred lands is substantially burdened. The cases to which we turn are distinguished from the prison cases by their collective nature; claimants are consistently tribal governments, not individuals. But with a few exceptions in lower courts, they have failed under the First Amendment or under RFRA. As we will see, the common thread between the inmate victories and the tribal sacred lands losses is that both are viewed in terms of the controlling image of Native American spirituality.