Manataka American Indian Council








Native Spirituality Behind Bars


A Preface to Trapp, et al. v. DuBois, et al.,

(MA Superior Ct., Civil No. 95-0779)


by Peter d'Errico, Legal Studies Department,

University of Massachusetts, Amherst, MA 01003

Trapp v. DuBois was filed in April, 1995, on behalf of a group of inmates who belong to a Native American Spiritual Awareness Council in a Massachusetts prison. Prison administrators had subjected the Circle to varying forms of harassment and intimidation. Prayer pipes, headbands, drums, smudge sticks and other items of sacred significance had been confiscated as contraband. Inmates who are not members of "federally recognized tribes" had been told they cannot participate in the Circle.

I visited the Circle one evening in Winter, 1994, to decide whether to represent these inmates. I wrote the following essay after that visit.

Prison at night is all light all around -- not stars or moonlight but floodlight, orange-bright, glinting off razor-tipped concertina wire atop high fences, a boundary of steel and light. Two rows of fences separate a clear-zone perimeter, a no-man's land like that between the two Berlins in years past or at any other high-insecurity border. All-night lights glare against buildings, reflect from winter's snow into the sky, obliterating stars and moon. Denial of night vision, of night darkness, is one of the pains inflicted on the incarcerated.

Guards and dogs patrol the outer fence at the edge of orange glow, where earth's night overwhelms even the brightest man-made lamps. A visitor is reminded to park behind the trees, leaving the front of the building for official vehicles. The guard is curious, cautious for any sudden strangeness beyond the ordinary strangeness of an unknown person. The dog hangs on its leash like any dog, sniffing, panting, waiting for any command. The visitor parking area is cursorily plowed, snow in ruts contrasting sharply with heavily-salted pavement cleared and reserved for official transport.

A small crowd of family visitors mills in the outer lobby, waiting to be called by guards to pass through a "trap" into the prison interior. The new visitor peers into the lobby and through the heavy glass partition behind which two guards converse as if there were no one waiting to enter, as if there were nothing to do but chat. The visitor remembers they will ask for an ID. He walks out to his wallet -- left in the car because cash is contraband within the prison. He wonders whether his sudden leaving will attract the guards' notice in a way that sudden arrival did not. He suspects they are watching more carefully than they appear, their indifference being a studied attitude.

A driver's license is the normal form of identification, with its state seal and photo. His bar association card, no photo, might be a trump card, alerting them to the possibility that he has a right of access, more clout than a family member. He takes both and leaves his keys under the seat because they too will be contraband. Institution rules permit only what is essential -- whatever that may mean to a guard at the gate -- so that his glasses will not be challenged and his pen may not, but cash and keys will be. He wears a ring tonight -- "Is it religious?" "Yes." "OK, you can keep it." The turquoise stone in silver with a Navajo Yei figure on each side was his son's ring. It is a bond-symbol of the bridge between him and his son's spirit. He saves the story. The guard does not need it. Perhaps spiritual stories cannot be told. Perhaps they are beyond the rules.

Or are they? That is the issue here. That is why he is visiting the Native Circle. The members have been subjected to a series of edicts and reversals over the past few years regarding ceremonial practices and objects. Headbands, drums, smudge sticks, sweetgrass braids, tobacco, the ceremonial pipe have all been alternately allowed and prohibited, subject to varying views and attitudes of different superintendents, commissioners, and governors. Prison is political if nothing else.

Outside prison -- if the concept has any meaning to people whose lives have been circumscribed for decades and centuries by reservation boundaries and special government regulations -- Native American spiritual practices are a lightning rod for politics, often challenging government authority, especially over land, the fulcrum of Native spirituality.

Perhaps all spirituality poses challenges inside prison -- to "institutional security" -- since spirituality of whatever sort asserts claims on life apart from secular concerns. Spirituality in prison is the classic contest between God and Caesar, between the "now' of cosmic eternity and the "now" of alarmed gates and floodlit barriers.

For reasons embedded in the historical battle between Christian colonists and indigenous peoples, Native spirituality attracts more than its fair share of controversy within prison. A major source of trouble is the absence of an institutional hierarchy of Native spiritual authority. Native spirituality recognizes Medicine People, but Medicine People are not credentialed like priests and ministers. In an important sense, Native spirituality is not "religion" at all. It offers no parallel to the institutional structure of churches, no bureaucratic reference point for prison administration.

Here, in this Massachusetts prison, a succession of superintendents have differed in their perception of threat to security from headbands, sacred pipes, drums, medicine shields. So far, none have been able to see their way to acceptance of a "sweat lodge" on the premises, though prisons elsewhere accommodate this important purification ceremony. Only part of the problem with administration has to do with sacred objects. A perhaps more crucial part is the prison's attempt to restrict Native practices to inmates who are officially "recognized Indians."

There are two issues: one is the right of people to practice spirituality -- to wear whatever garments, use whatever objects, eat whatever food, make and display whatever images are part of that spirituality. The other is the right of people to practice whatever spirituality they find meaningful. These two issues are most often bound together, as for example when a Roman Catholic inmate wants to carry a rosary. With Native spirituality, the issues are often separated, so that a question is raised not only about a particular practice -- wearing a headband, for example -- but also about the right of a particular individual to engage in that practice. While there would never be any objection to an inmate's request to meet with a priest or a rabbi on the grounds of lack of baptismal record or proof of Jewish blood, it is often the case that a request to meet with a Medicine Person is denied on grounds of lack of "Indian blood" or "tribal identification."

When law is exerted against spirituality in the United States, Constitutional questions arise -- First Amendment freedom of religion, Fourteenth Amendment due process and equal protection. Law is articulated around issues of human behavior -- what is the proper way to behave? Spirituality is articulated around issues of human being -- what does it mean to be? Not surprisingly, courts tend to side with claims about behavior when these conflict with claims about being.

An inmate wears a sacred Native headband. The superintendent calls it a disguise, or says it is unsanitary, or that it may provoke rivalry with another inmate. The court says the superintendent's view is "reasonable" and that "reasonableness" is all that is necessary under the Constitution. Does it not matter that the headband is too small for an effective disguise, or that other headgear including woolen caps are not prohibited and would make excellent disguises? Does it not matter that a sacred skull-cap is permitted for another religion? Does it not matter that there is no evidence of any rivalry about headgear, or that cleanliness of all clothing is equally a concern or no concern? Do these facts not matter because they were not presented to the courts or because the courts did not find "unreasonableness" in them?

These questions are in the visitor's mind as he waits to be processed through the "trap," the search and metal detector. He has given them his driver's license, not wanting to alert them to his legal interests, wanting to see what happens to a regular visitor to the Circle, a religious visitor, an outside counselor perhaps, or whatever they think he may be, knowing only so much about him as may be revealed by the clearance papers they have received for his visit. The search is routine, polite, asking for his coat and boots, for his pockets to be turned out, for his belt to be removed. The coat, belt and boots are examined, returned to him with a thank you. He takes his time to dress, jokes out loud that they didn't shine his boots. The far door is opened and he is escorted across the yard to another building, where the Circle meets. Lights glare against the sky, shutting out the wonder of the cosmos, imposing a local visibility that is alien to night.

He wonders as he walks what else has been denied here, whether there will be sage to purify the Circle, tobacco to smoke in the prayer pipe. The guard inside the building takes his name, tells him where the meeting is. Third floor, far end. Halfway through the third floor hall two men wait, conversing. They look to be casual, but he senses they are waiting for him. Walking between them he asks for the room number and is directed further. As he passes them he smells the sage, the sweetgrass, smiles, lets his heart open. The Circle will be clean. Not everything has been taken away. Later, a few moments after he has entered the room, the two from the hall join the Circle. They were waiting. They were guarding the purification of the Circle.

He is greeted by the chief and a sub-chief -- who have corresponded with him -- with a hand-to-forearm grip and an arm clasp around the back. He shares the embrace, and walks around the room, greeting and being greeted by each man. Only one or two are reticent, offering instead a handshake, which he gladly accepts. A place is made for him in the Circle and he sits. This is his first face-to-face meeting with these people, with whom he has corresponded over the past year, coordinating some legal research, reading documents they have filed with the court, lending a hand to their Medicine Man in his efforts to push back the bureaucracy that threatens to block this Circle. Over half the men are wearing headbands, some beaded or painted, some not.

The meeting unfolds with descriptions of the craziness of the current superintendent, who has not limited himself to attacking Native spirituality, but has attacked birds, flowers, and trees as well; all bird houses in the yard were removed and a patch of sunflowers cut down, for "security reasons." Forty trees were cut down or lopped off above the trunk for a similar reason. Are there "reasons" for this? Is anything the superintendent calls "security" a reason? Is his obvious insecurity in relation to the natural world a valid "security" concern for the institution? The headbands were returned under pressure from the Medicine Man through the commissioner's office, but the superintendent makes known that the inmates will "march to his drum" inside the walls. Is he aware of what he says? Does "drum" mean anything to him?

The visitor explains his own history, over two decades since he first got involved with American Indian legal issues, two decades since he began to understand the spiritual basis of life as the ground of his quarrels with the legal system. His advanced education prepared him to do legal work, but was a dead weight on his spiritual growth. He has had to clarify for himself the difference between being a good person and being in a "good" role in the system. His access to power has provided him with an insider's view of the law, while his own spiritual perceptions have made him marginal, a critic.

The meeting is not only about complaints. Several stories are told about friendly guards, cooperative superintendents. The overwhelming evidence of positive good that flows from the Circle is told in people's stories of their own prior pasts as rebels within the prison, acting out violence and anger, building records of disciplinary incidents, actions and incidents that no longer occur as each of these people comes to deal with anger and pain in a way that reshapes understanding of what it means to be human, although incarcerated. News from other states is shared, states where "sweat lodges" are allowed in prison, where prison authorities marvel at the reduction in inmate violence and the surge of inmate learning that follows from Purification and other ceremonies. Why is this prison administration so recalcitrant? Is it only the craziness of the superintendent, or is it also the politics of a governor and a public who feed on stereotypes of crime, who need to reinforce these stereotypes in order to reinforce their own self-images as powerful, successful, deserving people?

The visitor is pleased to be pulled back from the complaints. He fears his habits as a lawyer may cannibalize the good of the Circle this night, focus energy on wrongs and rights rather than on mutual fellowship and integrity that the Circle provides. He voices this fear, says he recognizes good that is happening here, says there is no amount of legal action that can accomplish anything unless the reality of this Circle is maintained. The spiritual foundation of legal work must be real and vital, not sham or veneer. Several of them smile, assure him they are not "bummed out" by this discussion, have not lost sight of the Circle.

Coffee and dessert is provided. Food for the body as for the spirit. A pipe is filled and lit, prayers offered to the directions, and the pipe is passed around the Circle to close the evening. A final prayer follows for those who are sick or in other need, homeless, or hungry, prayers in the traditional way, not for ourselves but for others.

Out of the room, down to the door, waiting for the escort guard, the visitor shares a few last comments as some of the men stay behind to clean up, pack the ceremonial items. Into the false brightness of the yard with the escort, followed by most of the men now, the chief drumming softly behind him, the visitor turns at the final drumbeat, says "Aho!" waves and departs into the true night darkness outside.

Penitentiary. The original religious purpose and method of imprisonment. Penitent Quakers in Pennsylvania. If, after all these years of loss of faith in penitence there should arise within the imprisoned population a Circle of faithful practice of fellowship and meditation and communication with All That Is, if, I ask, this should happen, would we see it as a sign of the original purpose fulfilled, or would we stamp it out to prevent any rupture in the solid, cynical, well-lit walls of incarceration?

Copyright 1994, 2000 by Peter d'Errico


Email          Home          Index          Trading Post