Thursday, January 29, 2015

NARF welcomes Legal Fellow Ansley Sherman

Ansley Sherman
Ansley Sherman has joined NARF’s Boulder, Colorado office as a Legal Fellow.  Ansley is a citizen of the Muscogee (Creek) Nation and is a recent graduate of the University of Denver Sturm College of Law.  While in law school, Ansley was involved in the Tribal Wills Project, a volunteer program that brings law students to tribal lands in Southwestern Colorado and Utah in order to draft wills and other estate planning documents.  She was also a member of the Native American Law Students Association.

Ansley grew up in Oklahoma City and received her B.A. in English from Fort Lewis College in Durango, Colorado.  Her legal interests include defending religious freedoms, voting rights, and other civil rights of Indian tribes and individuals, furthering Indian education, and strengthening tribal sovereignty. 

Welcome, Ansley!

Tuesday, January 27, 2015

NARF Staff Attorney Matthew L. Campbell testifies to Colorado House of Representatives Education Committee

Matthew L. Campbell
Yesterday, NARF Staff Attorney Matthew L. Campbell testified in front of the Colorado House of Representatives Education Committee in favor of a proposed In-State Tuition Bill for Native students from tribes with historical ties to Colorado.  Matthew represents the Tribal Education Departments National Assembly (TEDNA), a non-profit organization for tribal education departments and agencies nationwide.  To learn more about the proposed legislation, read Matthew’s full testimony.

Friday, January 23, 2015

Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz to speak in Boulder, Colorado

Victoria Tauli-Corpuz
Victoria Tauli-Corpuz; Photo courtesy of the United Nations
For our friends in the Colorado area, on Thursday, January 29, Victoria Tauli-Corpuz, Special Rapporteur on the Rights of Indigenous Peoples, will be speaking at the University of Colorado Law School.  Ms. Tauli-Corpuz is the founder and Executive Director of Tebtebba, a Philippines-based organization which works on indigenous issues.  Ms. Tauli-Corpuz assumed her responsibilities as the Special Rapporteur in June 2014 and in her position she:
  • Promotes good practices, including new laws, government programs, and constructive agreements between indigenous peoples and states, to implement international standards concerning the rights of indigenous peoples;
  • Reports on the overall human rights situations of indigenous peoples in selected countries;
  • Addresses specific cases of alleged violations of the rights of indigenous peoples through communications with Governments and others;
  • Conducts or contributes to thematic studies on topics of special importance regarding the promotion and protection of the rights of indigenous peoples.
NARF’s work on implementation of the United Nations Declaration on the Rights of Indigenous Peoples and in the UNFCCC process to reach an international climate change agreement directly involve us in matters related to the work of the Special Rapporteur in fighting for the rights of indigenous peoples.

For more information on the event, please see the announcement from the American Indian Law Program.

Thursday, January 22, 2015

The impact of Holt v. Hobbs on Native American inmates

Holt v. Hobbs, a recent unanimous decision by the U.S. Supreme Court protecting a Muslim prisoner’s right to wear a half-inch beard, has important implications for Native American inmates seeking accommodation of their religious practices.  In Holt, the Court held that Arkansas violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) where its grooming policy did not allow beards and it refused to grant a religious exemption to an inmate whose Muslim religion required him to wear a beard.  Shortly before the Court granted review in Holt, a group of Native American inmates filed a petition in Knight v. Thompson, asking the Court to review a case where prison officials in Alabama refused to grant a religious exemption from their restrictive grooming policy to allow Native Americans to wear long hair consistent with their Native religious beliefs.  The Native American Rights Fund, representing the National Congress of American Indians and Huy filed “friend of the Court” briefs supporting the prisoners in both Holt and Knight.  The Court has held the Knight petition since May 2014 and now, with its decision in Holt, has rescheduled consideration of the petition for its January 23, 2015, conference.

Like Mr. Holt, the Native American prisoners in Knight seek relief under RLUIPA, which requires that a substantial burden on an inmate’s religious exercise be the least restrictive means of furthering a compelling government interest.  This standard, referred to as “strict scrutiny,” is the most stringent legal standard applied to laws and government rules.  A lack of consistent application of this rigorous standard by the lower federal courts has allowed some state prison systems to unduly restrict religious practices of Native American inmates.

Since the Nebraska prison system became the first in the U.S. to accommodate sweat lodge in 1972, many others have gradually accommodated a variety of religious practices unique to Native Americans, including sweat lodge, tobacco use and long hair. Now, 80% of U.S. prison systems allow Native Americans to wear long hair, either through blanket policies or special religious exemptions. By and large, prison officials have found ways to mitigate the minimal risks associated with these practices and have observed numerous benefits to Native inmate behavior and rehabilitation as a result.

However, a handful of state prison systems stubbornly refuse to accommodate certain facets of Native religion, such as long hair at issue in Knight.  Those prison officials have hidden behind safety, security and hygiene concerns to frustrate sincere religious beliefs and practices.  Yet, these same prison officials openly admit that they did not investigate, or even consider, the successful accommodation measures taken by the 80% of prison systems allowing long hair, or exemptions for Native American inmates.  Rather than apply RLUIPA’s strict scrutiny to the state’s arguments and ask, “Why not Alabama?” the lower courts in Knight deemed the policies of other jurisdictions simply irrelevant to the operation of Alabama prisons and accorded “due deference” to the uninformed opinions and unsubstantiated claims of prison officials.

Holt holds that this approach is wrong.  Much like Knight, the Arkansas prison officials in Holt feared safety and security issues and ignored the successful measures taken by the vast majority of prison systems to safely accommodate religious beards.  The Holt opinion makes clear that these successful, widespread accommodations are indeed relevant and indicate that Arkansas was not utilizing the “least restrictive means.”  Additionally, the Supreme Court emphasized that judges cannot simply defer to the opinions of prison officials as a means of practicing “unquestioning acceptance,” thereby abdicating judicial responsibility to apply RLUIPA’s very rigorous standard.  Courts must demand persuasive proof that denial of an exemption to a specific person is the least restrictive means of furthering compelling penological interests.  Like the prison officials in Holt, the officials in Knight failed to meet this standard, and the court applied an unquestioning acceptance of their opinions.  It is an error that has plagued the cases of several Native American inmates through several decades of litigation, and we believe that Holt provides the clarity necessary to remedy this persistent issue.

The Holt opinion changes a fundamental aspect of how certain prison systems deal with Native Americans and their religious practices.  For those Natives who reside in the darkest corners of U.S. penal systems, it is no longer the rule that they cannot engage in their traditional religious practices merely because their jailors say so.  Courts will demand more, just as Congress intended when it enacted RLUIPA.

For more information on this issue, please contact NARF Staff Attorney Joel West Williams at (202) 785-4166.  For more information on the religious practices of Native American inmates, please see the article, Walking the Red Road in the Iron House.

Tuesday, January 20, 2015

New Update Memoranda published for the Tribal Supreme Court Project

A new Tribal Supreme Court Project Update Memoranda is now available!

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty.  The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes.  We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review.  You can find copies of briefs and opinions on the major cases we track on the project's website.