COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT NO. SJC RANDALL SHIELD WOLF TRAPP and ROBERT FERREIRA, Plaintiffs-Appellees,

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1 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT NO. SJC RANDALL SHIELD WOLF TRAPP and ROBERT FERREIRA, Plaintiffs-Appellees, v. COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellants ON APPEAL FROM A JUDGEMENT OF THE WORCESTER SUPERIOR COURT BRIEF OF AMICUS CURIAE HUY IN SUPPORT OF PLAINTIFFS-APPELLEES Joel West Williams, PA #91691 Native American Rights Fund 1514 P Street, NW (Rear) Suite D Washington, D.C Ph.: (202) Gabriel S. Galanda, WA #30331 Galanda Broadman, PLLC th Avenue NW, Suite L1 Seattle, Washington Ph.: (206) August 21, 2015

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTEREST OF AMICUS CURIAE STATEMENT OF ISSUES SUMMARY OF FACTS ARGUMENT I. Sweat lodge is an ancient Native American religious practice, which is widely practiced in U.S. prison systems and has positive rehabilitative benefits for Native American inmates II. Closing the sweat lodge at Souza-Baranowski Correctional Center violated RLUIPA A. SBCC substantially burdened the religious exercise of its Native American inmates B. Closure of the sweat lodge at SBCC was not premised on a compelling interest C. SBCC failed to prove that closing the sweat lodge was the least restrictive means of accomplishing its objectives..22 CONCLUSION i

3 TABLE OF AUTHORITIES Cases City of Boerne v. Flores, 521 U.S. 507, (1997)...15 Cutter v. Wilkinson, 544 U.S. 709,(2005)...18 Employment Division v. Smith, 494 U.S. 872 (1990)...18 Gallahan v. Hollyfield, 516 F. Supp (E.D. Va. 1981) (same), aff'd, 670 F.2d 1345 (4th Cir. 1982) Holt v. Hobbs, 135 S. Ct. 853 (2015)...passim Lindh v. Warden,Fed. Corr. Inst., Terre Haute, Ind., No. 2:09-CV JMS, 2012 WL (S.D. Ind. Feb. 3, 2012)...21 Native Am. Council of Tribes v. Weber, 897 F. Supp. 2d 828, 833 (D.S.D. 2012) aff'd, 750 F.3d 742 (8th Cir. 2014)....7 O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...18, 25 Rich v. Sec y, Fla. Dep t of Corr., 716 F.3d 525, (11th Cir. 2013)...21 Roybal v. Deland, Nos. C A & C G (D. Utah 1989)...10 ii

4 Spratt v. Rhode Island Dep't Of Corr., 482 F.3d 33 (1st Cir. 2007)...21 Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975)...17 Trapp v. Clarke, No. WOCV D, 2012 WL (Mass. Super. Sept. 28, 2012)...5, 22, 24 Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014)...21 Statutes American Indian Religious Freedom Act of 1978, 42 U.S.C (1993 amendments at 42 U.S.C. 1996a)...2,17 Archeological Resource Protection Act, 16 U.S.C. 470aa et seq...17 Indian Arts and Crafts Act of 1990, 25 U.S.C et seq...17 National Historic Preservation Act, 16 U.S.C. 470 et seq...17 Native American Graves Protection and Repatriation Act, 25 U.S.C et seq Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq...17 iii

5 Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),42 U.S.C. 2000cc-1....passim Legislative Materials 146 Cong. Rec , (2000) (joint statement of Senators Hatch and Kennedy)...19 S. REP , 1993 U.S.C.C.A.N , 22 Other Authorities Andrew Knochel, Arizona Adding Sweat Lodge for Native American Inmates, Sacramento Bee, Oct. 27, Ariz. Dept. of Corr., DO 904, Department Order Manual: Inmate Religious Activities / Marriage Requests (2011) (Arizona)...11 Byron R. Johnson, et al., A Systematic Review of the Religiosity and Delinquency Literature: A Research Note, 16 J. Contemp. Crim. Just. 32 (2000) Byron R. Johnson, et al., Religious Programs, Institutional Adjustment, and Recidivism among Former Inmates in Prison Fellowship Programs, 14 Justice Quarterly 145, (1997)...9 Christine Wilson Duclos & Margaret Severson, American Indian Suicides in Jail: Can Risk Screening be Culturally Sensitive?, RESEARCH FOR PRACTICE (Nat l Inst. of Justice, Office of Justice Programs, U.S. Dep t of Justice) June iv

6 Col. Dept. of Corr., AR , Administrative Regulation: Religious Programs, Services, Clergy, Faith Group Representatives and Practices at E, J (2001) (Colorado)...11 Elizabeth S. Grobsmith, Indians in Prison:Incarcerated Native Americans in Nebraska (1994)....passim Fed. Bureau of Prisons, No. T , Technical Reference: Religious Beliefs and Practices (2002)...7, 8 Fed. Bureau of Prisons, P , Program Statement: Religious Beliefs and Practices (2004)...11 John Rhodes, An American Tradition: The Religious Persecution of Native Americans, 52 MONT. L. REV. 13 (1991) Laurence Armand French, Native American Justice (2003)...13 Lawrence A. Greenfeld & Steven K. Smith, AMERICAN INDIANS AND CRIME (Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep t of Justice) Feb Matt Hooley & Jacob Stroub, Sweatlodges in American Prisons, Harvard Pluralism Project, (last visited 8/14/2015)...12 Monique Fordham, Within the Iron Houses. 20 Soc. Just (Spring Summer 1993)...13 N.M. Corr. Dept., CD , , Policy: Religious Programs CD (D) & att. at 1 (1994) (New Mexico)...11 v

7 National Congress of American Indians Res. No. REN (June 27, 2013) Prisons Offer Sweat Lodges to Native Americans Inmates, NBC News (May 29, 2007, 6:57PM), Senator Daniel K. Inouye, Discrimination and Native American Religion, 23 UWLA L. REv , 17 Sharon O Brien, The Struggle to Protect the Exercise of Native Prisoner s Religious Rights,1:2 INDIGENOUS NATIONS STUDIES J., 29, 31 (Fall 2000)....3, 16 Statement of Interest of the United States, Limbaugh v. Thompson, No. 2:93-cv1401-WHA (M.D. Ala. Apr. 8, 2011)...21 Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia (2005)...8 Thomas P. O'Connor, A Sociological and Hermeneutical Study of the Influence of Religion on the Rehabilitation of Inmates (2001)...9 Thomas P. O'Connor & Michael Perreyclear, Prison Religion in Action and Its Influence on Offender Rehabilitation, 35 J. Offender Rehab. 11 (2002);...10 Todd D. Minton, JAILS IN INDIAN COUNTRY, 2011 (Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep t of Justice) Sept Todd R. Clear, et al., Does Involvement in Religion Help Prisoners Adjust to Prison?, NCCD Focus (Nov. 1992) vi

8 Todd R. Clear & Marina Myhre, A Study of Religion in Prison, 6 Int'l Ass'n Res. & Cmty. Alts. J. on Cmty. Corrs. 20 (1995)...10 Todd R. Clear & Melvina T. Sumter, Prisoners, Prison, and Religion: Religion and Adjustment to Prison, 35 J. Offender Rehab. 127 (2002) Walter Echo-Hawk, Native Worship in Prisons, Cultural Survival Q., Winter passim Wash. Dept. of Corr., DOC , Policy: Religious Programs Directive IV.C at 8-9 (1991) (Washington). 11 vii

9 INTERESTS OF AMICUS CURIAE Amicus Curiae Huy is a nationally recognized nonprofit organization established to enhance religious, cultural, and other rehabilitative opportunities for imprisoned American Indians, Alaska Natives and Native Hawaiians (collectively hereafter referred to as Native or Native Americans ). In the traditional Coast Salish language known as Lushootseed, the word huy (pronounced hoyt ), means: See you again/we never say goodbye. Huy s directors include, among others, the President of the National Congress of American Indians, elected chairpersons of federally recognized tribal governments, a former Washington State legislator, and the immediate past Secretary of the Washington State Department of Corrections. In addition to funding and supporting Native prisoner religious programs, Huy advocates for Native prisoners religious rights in federal courts, state administrative rulemakings, and through testimony and reports to the United Nations. This case presents issues vital to Native cultural survival. As the American Indian Religious Freedom Act acknowledged, the religious practices of the American Indian... are an integral part of 1

10 their culture, tradition and heritage, such practices forming the basis of Indian identity and value systems. 42 U.S.C As such, religious practice is the cornerstone of Native culture and has held Native communities together for centuries. Walter Echo-Hawk, Native Worship in American Prisons, CULTURAL SURVIVAL Q., Winter 1995, available at ticle/native-worship-americanprisons. At the same time, approximately 29,700 American Indian and Alaska Natives are incarcerated in the United States. Todd D. Minton, JAILS IN INDIAN COUNTRY, 2011 (Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep t of Justice) Sept. 2012, available at Native People in the United States have the highest per capita incarceration rate of any racial or ethnic group, at 38 percent higher than the national rate. Christine Wilson Duclos & Margaret Severson, American Indian Suicides in Jail: Can Risk Screening be Culturally Sensitive?, RESEARCH FOR PRACTICE (Nat l Inst. of Justice, Office of Justice Programs, U.S. Dep t of Justice) June 2005, available at https://ncjrs.gov/pdffiles1/nij/ pdf; Lawrence 2

11 A. Greenfeld & Steven K. Smith, AMERICAN INDIANS AND CRIME (Bureau of Justice Statistics, Office of Justice Programs, U.S. Dep t of Justice) Feb. 1999, available at This reality stands in stark contrast to historical accounts from the 1700s and 1800s detailing Native communities virtually devoid of crime and where prisons were non-existent. See Sharon O Brien, The Struggle to Protect the Exercise of Native Prisoner s Religious Rights,1:2 INDIGENOUS NATIONS STUDIES J., 29, 31 (Fall 2000). Native inmates are important human and cultural resources, irreplaceable to their Tribes and families. When they are released, it is important to the cultural survival of [ ] Native communities that returning offenders be contributing, culturally viable members. Echo-Hawk, supra. For these reasons, Tribal governments share with federal, state and local governments the penological goals of repressing criminal activity and facilitating rehabilitation in order to prevent habitual criminal offense. See 3

12 National Congress of American Indians Res. No. REN (June 27, 2013). 1 Thus, as the Court decides the instant case, addressing the complete deprivation of sweat lodge 2 ceremonies at a Massachusetts prison, Amicus Huy steps forward to provide critical context and information to the Court on prison sweat lodge practice and the proper application of Religious Land Use and Institutionalized Persons Act ( RLUIPA ), 42 U.S.C. 2000cc 2000cc-5 (2000), to the deprivation of that religious practice in this case. 1 No other group faces more regulation in the time place and manner of religious exercise than Native People. While most Americans are very accustomed to free access to their churches and places of worship, Native Americans have the opposite experience. For Native Americans, certain prayers and ceremonies must be held in sacred places, which are often located on Federal lands and Natives must seek permission to access those places for ceremony. Echo-Hawk, supra. Moreover, use and possession of sacred objects, such as eagle feathers, peyote and animal parts is often the subject of comprehensive federal and state laws and regulations. Id. 2 Although referred to as purification lodge in the Settlement Agreement at issue here, this practice is known by many names, depending on the tribe or tradition. We use the term sweat lodge in this brief due to its more common use in academic literature and prison regulations. 4

13 STATEMENT OF ISSUES Whether a lack of access to sweat lodge ceremonies violates a Native American prisoners rights to the free exercise of religion under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc-1. SUMMARY OF FACTS Amicus defers to the Statement of the Facts set forth in the Defendants-Appellees brief. ARGUMENT The central issue addressed here is whether Appellant Souza-Baranowski Correctional Center ( SBCC ) violated RLUIPA when it closed the sweat lodge at its facility in contravention of the 2003 Settlement Agreement ( Settlement Agreement ). The Settlement Agreement was the result of a 1995 lawsuit alleging that the Massachusetts Department of Corrections violated the religious rights of Native American inmates by, inter alia, failing to provide for religious ceremonies such as sweat lodge. Trapp v. Clarke, No. WOCV D, 2012 WL , at *9 (Mass. Super. Sept. 28, 2012). SBCC claims closure of the sweat lodge is justified because smoke from the 5

14 lodge s fire pit allegedly enters the prison through the ventilation system, threatening the health of the inmates and staff. R.A To better appreciate the significance of this deprivation for Native American prisoners, it is helpful to understand the role of sweat lodge in Native American religious life generally, as well as the role it plays in achieving the shared goals of inmates, tribes and correctional institutions. Additionally, RLUIPA was crafted to remedy precisely the type of arbitrary and unnecessary infringement on religious liberty in which SBCC has engaged. The recent U.S. Supreme Court decision in Holt v. Hobbs leaves no question that SBCC substantially burdened the religious exercise of Native Americans at its facility. Further, no plausible, compelling interest has been offered to justify its conduct. By also failing to examine alternatives to closing the sweat lodge, SBCC failed to meet RLUIPA s requirement that it utilize the least restrictive means available. For these reasons, the trial court correctly concluded that SBCC violated RLUIPA. 6

15 I. Sweat lodge is an ancient Native American religious practice, which is widely practiced in U.S. prison systems and has positive rehabilitative benefits for Native American inmates. A sweat lodge is a sacred space for purification of the spirit and the offering of prayers and has religious significance for virtually all Native American tribes, communities and families. Elizabeth S. Grobsmith, Indians in Prison: Incarcerated Native Americans in Nebraska 49 (1994). Representing life and family, the sweat lodge is the anchor and the livelihood of a family to prayer. Native Am. Council of Tribes v. Weber, 897 F. Supp. 2d 828, 833 (D.S.D. 2012) aff'd, 750 F.3d 742 (8th Cir. 2014). The sweat lodge itself is a dome-shaped structure, made by tethering together willow or other saplings indigenous to the area. Fed. Bureau of Prisons, No. T , Technical Reference: Religious Beliefs and Practices (2002) 14-15, available at It is then covered with a tarpaulin, blankets or canvas to make it light proof. Id. A small pit is dug in the center of the lodge, which is later used as a receptacle for hot rocks. Id. 7

16 Outside the lodge, there is a fire pit for heating those rocks. Id. The sweat lodge ceremony is generally conducted in four rounds, and at the beginning of each round hot rocks are carried from the fire into the lodge, where hot water is sprinkled on them, producing steam. Id. Although the prayers, songs and rituals conducted in the lodge during the rounds are confidential, and vary somewhat depending on the particular tribe or tradition, the common theme throughout is purification of the individual s mind, body and spirit. Participants are expected to be in good relationship with each other before entering the sweat lodge and not bring any negativity into the sweat lodge. Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia (2005). Sweat lodge is not only a stand-alone ceremony, but purification in a sweat lodge may sometimes be a prerequisite to other rites and ceremonies. Sweat lodge is the most widespread ceremony practiced by incarcerated Native Americans. Grobsmith, supra, at 49. Its intention for cleansing and purification has come to play an important role in 8

17 drug and alcohol rehabilitation for Native Americans. Id. Moreover, in the prison setting, it is a unifying religious expression despite variability of tribal affiliation among Native prisoners. Id. Several studies have demonstrated the benefits of religious practice for prisoners generally and many correctional facilities have come to appreciate the penological benefits of accommodating sweat lodge for Native American inmates. Corrections experts now understand that [r]eligion targets antisocial values, emphasizes accountability and responsibility, changes cognitive approaches to conflict, and provides social support and social skills through interaction with religious people and communities and is consistent with principals of effective treatment. Byron R. Johnson, et al., Religious Programs, Institutional Adjustment, and Recidivism among Former Inmates in Prison Fellowship Programs, 14 Justice Quarterly 145, 148 (1997) (internal citations omitted). 3 Religious 3 See also Thomas P. O'Connor, A Sociological and Hermeneutical Study of the Influence of Religion on the Rehabilitation of Inmates (2001) (unpublished Ph.D. dissertation, Catholic University of America), available at content/uploads/2011/11/unpublished-ph.d.- Dissertation.pdf; Todd R. Clear, et al., Does Involvement in Religion Help Prisoners Adjust to 9

18 involvement by inmates reduces infraction rates and is associated with reduced time in disciplinary confinement and better adjustment to prison. Thomas P. O'Connor & Michael Perreyclear, Prison Religion in Action and Its Influence on Offender Rehabilitation, 35 J. Offender Rehab. 11 (2002); Todd R. Clear & Melvina T. Sumter, Prisoners, Prison, and Religion: Religion and Adjustment to Prison, 35 J. Offender Rehab. 127, 154 (2002). In light of this evidence and the prominence of sweat lodge in Native American religious life, many prison systems throughout the U.S. have safely and successfully accommodated sweat lodge for decades. Nebraska had the first prison sweat lodge in 1974, and since then several prison systems throughout the U.S. have followed suit, including the Federal Bureau of Prisons, which houses the largest population of inmates in the U.S. See Roybal v. Deland, Nos. C A & C G (D. Utah 1989) (citing evidence that twenty prison systems accommodate sweat lodge); Prison?, NCCD Focus (Nov. 1992); Todd R. Clear & Marina Myhre, A Study of Religion in Prison, 6 Int'l Ass'n Res. & Cmty. Alts. J. on Cmty. Corrs. 20 (1995); Byron R. Johnson, et al., A Systematic Review of the Religiosity and Delinquency Literature: A Research Note, 16 J. Contemp. Crim. Just. 32 (2000). 10

19 see also, e.g., Fed. Bureau of Prisons, P , Program Statement: Religious Beliefs and Practices 2, 20(f) (2004) (Federal BOP allowing sweat lodges); Ariz. Dept. of Corr., DO 904, Department Order Manual: Inmate Religious Activities / Marriage Requests (2011) (Arizona); N.M. Corr. Dept., CD , , Policy: Religious Programs CD (D) & att. at 1 (1994) (New Mexico); Col. Dept. of Corr., AR , Administrative Regulation: Religious Programs, Services, Clergy, Faith Group Representatives and Practices at E, J (2001) (Colorado); Wash. Dept. of Corr., DOC , Policy: Religious Programs Directive IV.C at 8-9 (1991) (Washington). Given the empirical evidence that religious activity is beneficial in the prison setting, it is not surprising that many prison officials report positive results from accommodating sweat lodge for Native American inmates. Mike Linderman, Senior Chaplain with the Arizona Department of Corrections, wrote: Since the basic concept of the sweat lodge ceremony is to provide an opportunity for its participants to cleanse themselves in order to be in the proper attitude for prayer, it causes them to 11

20 evaluate their conduct, and be accountable for their actions. Matt Hooley & Jacob Stroub, Sweatlodges in American Prisons, Harvard Pluralism Project, (last visited 8/14/2015). Joseph Vitek, former director of the Nebraska Department of Correctional Services, who established the first prison sweat lodge in the U.S., 4 described the remarkable results of sweat lodges and other Native American practices this way: [W]hat I did see specifically... [was] that a lot of Indians, not all of them, developed a great deal of self-esteem and pride in themselves. There was an apparent increase in what I call good grooming, the clothing,... there seemed to be a prideful thing that was kind of fun to watch. Sense of identity if you will. Grobsmith, supra at 163. George Sullivan, Deputy Director for Operations for the Colorado Department of Corrections, has, over the course of more than 30 years of service as a corrections official, established sweat lodges in the 4 Sweat lodge was established in the Nebraska prison system when prisoners there prevailed in a federal law suit. Although he was the defendant in that lawsuit, Vitek observed many benefits to the Native American inmate population and went on to testify in support of prison sweat lodges in a number of lawsuits throughout the U.S. 12

21 Oregon, New Mexico and Colorado prison systems. He observed that sweat lodge, along with other religious accommodations, gave [Native inmates] the opportunity to rekindle their relationships and understandings of their heritage, and I think it was very valuable to them. Monique Fordham, Within the Iron Houses, 20 Soc. Just (Spring-Summer 1993). 5 Ivonne Riley, spokesperson for the New Mexico prison system, said of sweat lodge: Having an inmate spiritually look within themselves and leave their services a different person, even for a while, that's helpful to us security-wise. Prisons Offer Sweat Lodges to Native Americans Inmates, NBC News (May 29, 2007, 6:57PM), In all, the ancient sweat lodge ceremony is a critical element of traditional religious practice for 5 Additional survey results from numerous states demonstrating the benefits of traditional Native American religious accommodation in the prison setting, including reducing recidivism, providing a sense of stability, and positive effects on discipline can be found at Grobsmith, supra, at and Laurence Armand French, Native American Justice 117 (2003). 13

22 many Native American inmates and also furthers a shared goal of Native American tribes and correctional institutions: the rehabilitation of Native offenders, who can return to their tribes as productive, culturally viable citizens. As Jim Bret, the sweat lodge program coordinator at the Coconino County Jail in Arizona said: They're at a place where they want to reconcile with themselves... I think that's the first step to reconciling with their families, with friends or with society at large. Andrew Knochel, Arizona Adding Sweat Lodge for Native American Inmates, Sacramento Bee, Oct. 27, 2013, Accordingly, deprivation of this important Native American religious practice not only further alienates a Native American inmate from his religion, culture and traditions, but also disregards an important tool in rehabilitation of Native American offenders. 14

23 II. Closing the sweat lodge at Souza-Baranowski Correctional Center violated RLUIPA. RLUIPA prohibits state governments from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution... 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. 42 U.S.C. 2000cc-1(a). Holt v. Hobbs, U.S. ; 135 S. Ct. 853, 859 (2015). This statute sets a high bar. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. City of Boerne v. Flores, 521 U.S. 507, 534 (1997). RLUIPA s passage was extraordinarily important for Native American inmates. Protecting the rights of Indian inmates to practice their religion is of special salience when one considers the extent to which Indian people are over-represented in prisons, the reasons for the high numbers of Indians in prison, and the highly effective role of Indian religious 15

24 practices in inmate rehabilitation. Sharon O Brien, The Struggle to Protect the Exercise of Native Prisoner s Religious Rights, 1:2 Indigenous Nations Studies J., 34 (Fall 2000). The restriction of Native prisoners religious practice exists within a broader, shameful legacy of religious discrimination against Native Americans. In a scholarly review of the ways in which the United States legally discriminated against Native religion, Senator Daniel K. Inouye, then-chairman of the Senate Committee on Indian Affairs, described this discrimination as commonplace. Senator Daniel K. Inouye, Discrimination and Native American Religion, 23 UWLA L. REV. 3, 13 (1992). Recognizing the centrality of religious life to Native Americans, the United States historically targeted and outlawed specific religious practices in an effort to control individual Natives and eradicate Tribes. John Rhodes, An American Tradition: The Religious Persecution of Native Americans, 52 MONT. L. REV. 13, (1991). In a calculated effort to extinguish Native culture, the United States outlawed traditional practices and ceremonies, punishing 16

25 practitioners with imprisonment and starvation. See Inouye, supra, at 3, These overtly discriminatory policies ended in the mid-twentieth Century, but infringement on Native religious liberty persisted, necessitating a succession of laws in the latter Twentieth Century crafted to protect Native religion and culture. 6 Despite these explicit protections, religious discrimination against Native Americans in the prison context remained particularly entrenched. This circumstance only began to shift in the early 1970 s as the result of voluminous litigation. Echo-Hawk, supra.; see, e.g. Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975) (holding Native prisoner has a first amendment right to exercise his religion by wearing 6 Among these was the American Indian Religious Freedom Act of 1978, 42 U.S.C (1993 amendments at 42 U.S.C. 1996a), which explicitly recognized that First Amendment religious liberty protection had never worked for Native people, thus requiring a specific federal law preserving their religious rights. Other laws crafted to remedy this shameful legacy include, the Native American Graves Protection and Repatriation Act, 25 U.S.C et seq., the Indian Arts and Crafts Act of 1990, 25 U.S.C et seq., as well as sections of the National Historic Preservation Act, 16 U.S.C. 470 et seq., the Archeological Resource Protection Act, 16 U.S.C. 470aa et seq., the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. and RLUIPA. 17

26 his hair long); Gallahan v. Hollyfield, 516 F. Supp (E.D. Va. 1981) (same), aff'd, 670 F.2d 1345 (4th Cir. 1982). However, the early success of Native American inmates in securing their religious liberty through litigation was abruptly halted by the Supreme Court decision O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), which replaced the strict scrutiny standard for such claims with a much weaker rational basis standard. Three years later in Employment Division v. Smith, 494 U.S. 872 (1990), the Court went even further, holding that a law of general applicability burdening a non-incarcerated Native American s use of peyote for religious ceremonial purposes was likewise only subject to rational basis review. Congress took notice of the devastating results of these decisions and acted, passing the Religious Freedom Restoration Act and, later, RLUIPA, in order to provide greater freedom for religious exercise than is available under the First Amendment. Holt, 135 S. Ct. at ; Cutter v. Wilkinson, 544 U.S. 709, (2005). RLUIPA s primary sponsors, Senator Edward Kennedy and Senator Orrin Hatch, were particularly concerned that prison officials sometimes impose frivolous or 18

27 arbitrary rules. Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways. 146 Cong. Rec , (2000) (joint statement of Senators Hatch and Kennedy). As a remedy, Congress enacted a strict scrutiny standard in RLUIPA and made it clear that the state must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health or safety.... S. REP , 10, 1993 U.S.C.C.A.N. 1892, Likewise, inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements. S. REP , 10, 1993 U.S.C.C.A.N. 1892, For the reasons that follow, Plaintiffs-Appellees have satisfied the statute s prima facie requirements, and SBCC has failed to meet its burden. A. SBCC substantially burdened the religious exercise of its Native American inmates As an initial matter, SBCC incorrectly suggests that a substantial burden on religious exercise does 19

28 not exist where an inmate can still practice his religion in alternate ways, such pipe ceremonies or the wearing of beads. Defendants-Appellants Br. at 15. In Holt, the Court flatly rejected that notion, pointing out that such an approach improperly imports elements of a less rigorous First Amendment analysis rather than applying RLUIPA s greater protection. Holt, 135 S. Ct. at 862. Instead, the Court said that RLUIPA s substantial burden inquiry asks whether the government has substantially burdened the specific religious practice at issue in the case, not whether the RLUIPA claimant is able to engage in other forms of religious exercise. Id. at 862. In this case, it is undisputed that SBCC no longer accommodates the specific Native American practice at issue here: sweat lodge. Native American inmates at SBCC are, therefore, completely deprived of the ability to engage in this practice, creating a substantial burden on their religious exercise. Applying Holt, Plaintiffs-Appellees have met their prima facie burden and the burden shifts to SBCC. 20

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