Incarceration in the New World
American Indian Overrepresentation and Spiritual Inequality in US Penal System
Mallory Simon
Introduction
In the United States penal system there is an overrepresentation of ethnic minorities, specifically American Indians. Within the correctional facilities, American Indian inmates are isolated from their communities and often times denied basic rights, such as the freedom to practice religion and the right to maintain traditional and cultural customs. American Indians have been advocating for their inmates to have access to their religious needs in a way that is comparable to other religions represented within the prison system. There are many prisons that completely restrict the rights of minority religions as they do not align with prison policy, but there are others that see the benefit to having their inmates maintain a connection with their religion as a means to assist in rehabilitation and cooperation.
White Man's Cell
The concept of incarceration originated from Europe; this idea of confinement in a cell was imported to America along with many changes that would lead to the eventual transformation of the New World. Imprisonment was not seen as the appropriate avenue for punishment in American Indian societies making incarceration as alien as the people that carried the idea to America. The first experience with confinement came with the Indian Wars when indigenous “chiefs, warriors, families and, sometimes, entire Tribes were confined as prisoners of war or criminals…” (Echo-Hawk 1996:4).
Today, there is a disproportionately high number of American Indians imprisoned in the American penal system. There is belief that this is caused by “factors such as alcoholism, poverty, social anomy of living in two worlds, lack of access to adequate legal representation, and discrimination” (Echo-Hawk 1996:5). American Indians are the most impoverished ethnic group in the nation; coupled with “fewer educational opportunities, high unemployment, permanent residency issues, homelessness, mental issues, substance abuse, and geographic isolation” (Tighe 2014:1) there is little that can feasibly challenge the social problems that American Indian are facing. These realities within the American Indian communities are compounded by the lack of cultural respect by members of other ethnic groups and the larger, more dominant community of whites. An anonymous female American Indian summarized the American Indian experience adding her opinion as to why indigenous communities continue to struggle within the United States, “of course we are crazy, first the whites conquered us, took our best land, sent us away to become white, then sent us back home to be Indian again, then told us how much Indian we are and then left us on the Reservation with nothing” (Tighe 2014:1).
Disparities Among Races
American Indians are one of the most overrepresented ethnic minorities within the United States penal system and the statistics across the nation reinforce this statement. On average, American Indians are incarcerated over two times as much as whites and (Hartney 2009:3) the national rate for new admissions to prisons for American Indian men is roughly four times higher than white men and is almost seven times higher for American Indian women than for white women (Hartney 2009:16). These disparities between American Indians and white people are more prevalent for violent, drug or public order offenses.
The FBI reported that while American Indians comprise only 1% of the national population they represent 2% of racially motivated hate crimes (Tighe 2014:2). Numerous state records reflect this overrepresentation with imbalanced statistics; an example of this exists in the correctional facilities in Utah and South Dakota. According to the 2010 US Census, American Indians in Utah and South Dakota make up 1 and 9% of the states’ total population respectively, but 4 and 29% of the population in the states’ prison (Sakala 2014). Several factors contribute to these disproportionate numbers while racial discrimination influences members of the white community and their actions in regards to American Indians. These actions directly correlate with American Indian opportunities “to maintain the benefits of cultural competency as an ethnic group including high self-esteem, prosperity and cultural integrity” (Tighe 2014:2) resulting in severe social and psychological effects within indigenous communities.
Penal Infringement on Religious Freedom
In the 1970’s it was noted that American Indians were being imprisoned at an exceedingly high rate. There was little to no information on what happened to these tribal members once they were in state custody. The Indian Corrections Project operated from 1972 to 1981 to investigate conditions and problems American Indians face in prison and to bring about legal change. The group was met with opposition as few indigenous activist groups addressed these particular issues at a national or even local level (Echo-Hawk 1996:6). By 1995 an informal coalition was formed to combat and find solutions for problems in the correctional system in the United States (Echo-Hawk 1996:6).
One of the main issues found to be most prevalent within the prison system was a denial of access to freely exercise religious practices that was comparable to other prisoner’s religions. Once found this issue was remedied effectively with litigation until the late 1980’s when the Supreme Court “weakened the legal standard for protecting the rights of prisoners”(Echo-Hawk 1996:8). The Supreme Court ruled that “when a prison regulation impinges on an inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests” (Echo-Hawk 1996:15). This change allowed for those incarcerated to be vulnerable to the prison system as many of their rights could be denied without safeguard because virtually anything could be seen as related to the prison’s interest. The “reasonably related” concept replaced a much stricter ruling that forced prisons to justify their policies if they outweighed the First Amendment rights of their prisoners; this was called “compelling government interest” (Echo-Hawk 1996:14).
American Indian prisoners have been pushing for the right to wear traditional hairstyles, have access, in some cases, to sweat lodges, peace pipes, sacred objects, and spiritual leaders. There are cases in which the court system contradicts itself and aids inmates and their prison’s violation of their First Amendment rights, on the other hand, there has also been support for continued prison searches for sacred objects, restrictions on pipe ceremonies, and time limits in sweat lodges. These are backed by the “reasonably related” standard, allowing for prisons to claim their policies are in the penological interest of the facility (Echo-Hawk 1996:18).
Along with the Supreme Courts leniency ruling came two cases that effectively cut the government’s responsibility to accommodate minority religious needs. Both cases involved tribal issues forging a harsh reality in American Indian inmate cases (Echo-Hawk 1996:20). The Lyng case (1990) held that the First Amendment did not protect an area sacred to three tribes from the US Forest Service’s construction of a logging road and the Smith case (1988) denied that the First Amendment protected the religious use of peyote “in light of a neutral employment regulation banning drug use” (Echo-Hawk 1996:19). These two cases, for a period, allowed for an entire minority within American society to be without the “fundamental right to worship” (Echo-Hawk 1996:20).
By the mid-1990’s these decisions began to instigate changes; a few acts were passed to overturn the previous rulings that had effected small minority’s religious rights and restored the former testing for “compelling government interest” (Echo-Hawk 1996:21) within correctional facilities. However, Congress did fail to pass legislation that would protect issues specific to American Indians, such as protecting sacred sites, religious use of peyote, eagle feathers and animal parts (Echo-Hawk 1996:21). With legal limitations, religious freedom has essentially been left to the American Indian leaders and organizations to work with correctional administrations to “develop standards and voluntary changes in corrections practices for the purpose of better accommodating Native American religious practices in a correctional setting” (Echo-Hawk 1996:25).
Many prison officials know little about tribal religions and traditions, which compounds the already withstanding discriminatory attitudes against American Indian prisoners. Inmates at the Central Utah Correctional Facility, however, have been able to hold a pow wow and have access to a sweat lodge and peace pipe ceremonies several times a month (Brown 2014). Utah is not a representation of every prison in America, but it is an example of an ideology that should be adopted by other correctional facilities.
In 1985, six inmates sued the state to provide a sweat lodge for their use claiming that an integral part of their religion was missing without the structure (Grobsmith 1994:162). The state denied their access due to security concerns, but did speak with a prison in Nebraska where a sweat lodge had been built finding that the security concerns were unfounded and by 1989 the court ruled that the prison must construct a sweat lodge and bear the cost as they would for any other religions structure (Stroub 2005). Since then the Utah correctional facilities proudly claim that they have volunteers that “ensure the Department is able to meet the spiritual needs of inmates” and that “there are more than two dozen religious affiliations claimed by inmates in state custody” (UDC 2016). This cooperation with the court and the American Indian’s need have provided an opportunity to help inmates “become less stressed in this environment” (UDC 2016) and celebrate their culture.
References and Further Reading
Brown, Toyacoyah
2014. Pow Wow Allows Inmates To Reconnect with Their Roots - PowWows.Com - Native American Pow Wows. Native American Pow Wows RSS.www.powwows.com/2014/12/18/pow-wow-allows-inmates-to-reconnect-with-their-roots/, accessed April 20, 2016
Echo-Hawk, Walter
1996. Study Of Native American Prisoner Issues. National Indian Policy Center. George Washington University.
Grobsmith, Elizabeth S.
1994. Indians In Prison: Incarcerated Native Americans in Nebraska. Lincoln: University of Nebraska Press
Hartney, Christopher, and Linh Vuong
2009. Created Equal: Racial And Ethnic Disparities in the US Criminal Justice System. National Council On Crime and Delinquency
Sakala, Leah
2014. Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity. Breaking Down Mass Incarceration In the 2010 Census. http://www.prisonpolicy.org/reports/rates.html, accessed April 20, 2016
Stroub, Jacob
2005. NativeReligion.Org - Case Study: Matt Hooley, ed. NativeReligion.Org - Case Study: Nativereligion.org. www.nativereligion.org/case_study.php?profile=103, accessed April 20, 2016
Tighe, Scott
2014. 'Of Course We Are Crazy': Discrimination Of Native Americans through Criminal Justice. Justice Policy Journal 11(1). www.cjcj.org/jpj , accessed April 20, 2016
Utah Department Of Corrections.
www.corrections.utah.gov/index.php?option=com_content, accessed April 20, 2016