Gabe Galanda was recently quoted in the Indian Country Today article, "Inmate's Religious Rights Allegedly Violated Within Texas Prison System."
Gabriel Galanda, a Seattle, Washington-based attorney and member of the Round Valley Indian Tribes, is the chair of the non-profit HUY, a Salish word for “We Never Say Goodbye.” The organization supports religious and rehabilitative opportunities of prisoners in the United States. Galanda said prisoners’ constitutional rights do not end upon incarceration.
“Contrary to common misunderstanding, prison inmates do not forfeit constitutional protection just because they have been convicted of a crime and are now confined to prison,” Galanda said. “They still enjoy the rights to free exercise of religion—including tribal religion—as protected by the First Amendment of the United States Constitution.”
Galanda said these include tobacco use, pipe and drum ceremonies. Galanda also said state prisons cannot interfere with practice of tribal religion unless the state prison “can demonstrate the compelling governmental interest and use the least restrictive means of furthering that interest.”
A comment such as that allegedly made by a guard in the Texas prison system would place the state of Texas in serious risk of civil rights violations, Galanda added. He said federal law does not allow for a state employee “to disparage anybody based on race or religion. The suggestion by this state officer ‘being an Indian doesn’t make you special’ could expose the state and the officer to federal civil rights violations” . . .
Put more precisely, Native prisoners enjoy free exercise rights protected by the First Amendment. Pell v. Procunier, 417 U.S. 817, 822 (1974). Despite a 1987 decision by the Rehnquist Court that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley, 482 U.S. 78 (1987), restrictions on Native prisoner religious practices such as sweatlodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter, 32 F.3d 1258 (8th Cir. 1994).
The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., was passed in 2000 to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong, 435 F.3d 1196, 1197 (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber, 2011 WL 4382271 (D.S.D. Sept. 20, 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik, 411 F.Supp.2d 983 (W.D. Wis. 2006).
As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” 42 U.S.C. § 1996. Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc., 485 U.S. 439, 455 (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples – including those who live behind bars.
Prisoners who are Native American -- or of any other race, color religion or creed -- should not stand for any violation of their free exercise rights, especially by state prisons or corrections officers.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe assists tribal members whose civil rights have been violated. Gabe can be reached at 206.691.3631 or email@example.com.