ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, May 12, 1996 TAG: 9605130106
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
note: above
THE ACLU has taken on the case of two prisoners who say the Department of Corrections has denied them their right to several important Native-American religious practices.
The state prison in Buchanan County is built on Keen Mountain, in an area once populated by American Indian tribes.
"It's a very, very powerful site spiritually," said Randal Lonewolf Mullins. "It's right up at the clouds."
But Mullins, a Roanoke County resident who observes Native-American religious practices, had little chance to take advantage of the spiritual surroundings during his six years as an inmate at Keen Mountain Correctional Center.
Even though the Virginia Department of Corrections has a policy allowing American Indian prisoners to practice their religion, Mullins says he was turned down or ignored every time he requested permission to hold a sweat lodge ceremony and observe other religious practices.
After several years of denials, Mullins and another inmate, William Martin, filed a lawsuit against seven prison officials, claiming their constitutional rights had been violated.
While most prisoner lawsuits go nowhere - and more than 1,000 are filed every year in Roanoke federal court, over everything from medical care to the quality of prison food - this one attracted the interest of the Virginia chapter of the American Civil Liberties Union, which took on the case.
In defense of the prison officials being sued, Attorney General Jim Gilmore - who was elected with strong support from conservative Christians - is attacking the Religious Freedom Restoration Act, a 1993 law that gained the support of virtually every religious group in the country, from evangelical Christians to Muslims.
That Gilmore is "trying to strike down the most important federal statute defending religious freedom is really ironic," said Joseph Conn of Americans United for Separation of Church and State.
But Gilmore's opposition isn't surprising to Marc Stern of the American Jewish Congress, even though the attorney general has professed strong support for religious rights.
"It's politically helpful to be against prisoners, no matter their claims," Stern said.
Gilmore's press secretary did not return phone calls over a two-week period seeking comment.
A national coalition of religious groups that support RFRA (pronounced riffrah) - among them, former lieutenant governor candidate Mike Farris' home-schooling association - plans to file a brief in support of the law.
And the state's position also has prompted the U.S. Justice Department to get involved in defense of the law.
"The whole thing started out as a personal issue for me," Mullins said in a phone interview from the Augusta Correctional Center in Craigsville, where he has been transferred for unrelated reasons. "It very quickly became much more. Now, it involves every Indian person in Virginia and every Indian person who ever comes through here."
Sweating is an important purification ritual in every tribe he has encountered, from Eskimos to South Americans, said George Whitewolf, spiritual leader of the Monacan tribe in Amherst County.
A sweat lodge - a temporary, tent-like structure - is fashioned out of willows and covered with blankets, hides or canvas to hold in heat. A fire pit is built outside and heated rocks are carried into the lodge, with water sprinkled on them to create a sauna effect. Participants share communal prayer or use the lodge for healing purposes.
The sweat lodge is comparable to a Christian's church, said Whitewolf, who serves as a volunteer spiritual "guide" to inmates in two state prisons. While an Indian can pray without a lodge, "you have to purify yourself in order to pray for something important," he said.
The last sweat lodge ceremony Mullins participated in was in the woods behind his home on Bent Mountain. That was before his conviction for robbing a bank in Fairfax County and writing bad checks. He said he was addicted to cocaine at the time.
He began serving his sentence in 1989 and requested permission to build a sweat lodge six times a year. He had spent five years in the 1980s in federal prison for assaulting a police officer and had participated in such purification rituals in Leavenworth, Kan.
Such ceremonies are common in federal prison. But Virginia prisons apparently never had dealt with the issue, even though other religions are accommodated. Christians have chapels, for example; Muslims are allowed to observe Ramadan, and Jews are allowed to have kosher meals.
In response to Mullins' request, state correction officials drafted a policy on Native-American religious practices in 1991. The memo, now a central piece of evidence, states: "The Virginia Department of Corrections ... accords Native American religion status and protection equal to that of other religions."
The policy allows Indian inmates to maintain fenced-off "sacred" areas where they can use sweat lodges and possess peace pipes, medicine bags, necessary herbs and plants, feathers and drums.
But despite the policy, no sweat lodge has ever been allowed, Mullins said. Prison officials cited problems in finding outside religious sponsors to come to the prison as well as other difficulties, according to the lawsuit's exhibits.
"I'm tired. It's been a very long struggle, a very long fight, and I don't see an end to it while I'm here," said Mullins, who is scheduled for release in eight months. "I wanted to leave here spiritually and emotionally clean and start my life. But I'm not going to be able to do that in the traditional sense."
His co-plaintiff Martin, however, is in for a much longer sentence, so the lawsuit can continue even after Mullins is released.
Their lawsuit asks for four yearly sweat lodge ceremonies, weekly outdoor tobacco and peace pipe ceremonies, and permission to keep peace pipes in their cells. They're the same basic freedoms given to Christian, Jewish and Muslim prisoners who practice their faith, supporters say. The suit also asks U.S. District Judge Samuel Wilson in Roanoke to certify the case as a class action, which would ensure the changes apply to all future prisoners at Keen Mountain.
In the federal prison system, the issue was resolved nearly two decades ago.
Helen Butler, a spokeswoman for the U.S. Bureau of Prisons, said federal prisons by law have allowed sweat lodges since 1979. She said she knows of no problems that have occurred involving inmates using them.
Ed Claunch, executive assistant to the warden at the maximum-security federal prison in Lewisburg, Pa., said the 10 or so Indian prisoners who participate there have a fenced-off, locked area in the prison yard for their sweat lodge. The inmates do maintenance work in the area on Mondays and Fridays and hold their worship there on Saturdays.
Lewisburg's sweat lodge is not unique among federal prisons.
"Any place there is a need, a request, there is one," Claunch said, "because it's not anything elaborate."
The state argues that Congress lacked the authority to pass RFRA and is asking Wilson to declare the law unconstitutional. A hearing that had been scheduled for last week was continued so the attorneys can write more briefs.
Federal courts have been divided on the issue and the Supreme Court has yet to rule on the law's constitutionality. But more federal courts have ruled the law constitutional than not, Stern says.
In a Missouri case, the court ruled that inmates have no right to sweat lodges under RFRA. The court ruled that the security risk was too high because inmates participating in a lodge are removed from the view of security guards for extended periods.
A sweat lodge case is also pending in Massachusetts state court.
Another religious minority won a significant ruling under RFRA, however, when the 9th U.S. Circuit Court of Appeals overturned the marijuana possession convictions of three Montana residents who are Rastafarians, who view marijuana use as a religious sacrament.
But Conn, of Americans United, says RFRA doesn't guarantee that prisoners win.
"Prison officials find a lot of judges are sympathetic to their arguments that circumstances are so different in prisons."
Besides attacking the validity of RFRA, the state of Virginia argues that Mullins and Martin aren't really Indians. They're not registered with the federal government to any tribe or reservation and both listed themselves as Christian when they entered prison, according to the state's response. Their current claims of observing Native-American religious practices are "fabrications," the state says.
"Neither [inmate] is in fact a Native American and, therefore, neither ... has any right to participate in Native-American religious services," the prison officials' response says.
By that reasoning, ACLU attorney Steve Pershing said, an inmate couldn't convert to Christianity and be baptized before he died. The state has said Mullins must prove he's an Indian "by birth," a standard Pershing says is a violation of church and state separation. Whether he's a "real" Indian is irrelevant to the debate over his religious practices, supporters say.
"It's the sorriest example I've seen in recent memory of twisting of the law by the state of Virginia," Pershing said. "The free exercise clause [of the First Amendment] is about what you believe, not what your birth certificate says."
Stern, an attorney for the American Jewish Congress who was chairman of the committee that drafted RFRA, agrees.
"It's not a matter of genealogy, but whether the people are sincere," Stern said. "The only test that is relevant is whether the person sincerely holds that particular religious belief."
Whitewolf has visited with Mullins in prison for several months as part of a Native-American cultural and educational "circle" that Mullins started. He believes Mullins' beliefs are sincere.
Mullins says he has Cherokee, Shawnee and Choctaw ancestors, even though he was raised as a Christian in Southwest Virginia. As he grew older, he said, he began to explore his Native-American background.
To Whitewolf, whether a person has Indian blood when he joins a Native-American circle in prison is irrelevant.
"What's a 'real' Christian? What's a 'real' Muslim?'' he asked. "To deny a person the right to pray as an Indian is against the Constitution."
LENGTH: Long : 189 lines ILLUSTRATION: PHOTO: 1. JOE HERMITT/Lewisburg Daily Journal At theby CNBmaximum-security prison in Lewisburg, Pa., the sweat lodge is
covered with blankets or skins and water is poured on heated rocks
to create a sauna effect while Indian inmates pray. color
2. The inmates also maintain this fire pit - filled with water by
recent rains - for use in their Saturday purification rituals.
color
3. map showing location of Keen Mountain Correctional Center
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