Author: Kim Kalliber

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).