Native American Indian Spiritual Freedom in Prison

feather sketch
Original sketch by Black Crow [this link will open in a new window]

Randall Trapp, et al. v. Commissioner DuBois, et al.
Massachusetts Superior Court (Worcester, Civil No. 95-0779)
Appeals Court, No. 2000-P-1640


Randall Trapp, et al. v. Commissioner DuBois, et al. was filed in 1995 on behalf of a group of inmates who were part of a Native American Spiritual Awareness Council in a Massachusetts prison. The Council maintained a weekly Circle and other practices associated with American Indian spirituality. At the time of filing, the Circle had already been in existence at the prison for more than five years.

The case proceeded to trial in 1999. In 2002, the Massachusetts Appeals Court ordered the Defendants to settle the controversy by negotiations with the Plaintiffs. In 2003, the first Purification Lodges were held inside three Massachusetts prisons, where named Plaintiffs were incarcerated (several having been transferred from the original prison). By 2003, Native Circles were meeting regularly in many prisons in the state.

History of the Case

Plaintiffs' complaint alleged an ongoing pattern of substantial discrimination against and burden upon their free exercise of religion, willfully and maliciously imposed by various administrators of the prison system.

Prison administrators subject the Circle to varying forms of harassment and intimidation. At one or another time, articles of spiritual significance (pipes, headbands, drums, etc.) have been confiscated as contraband. Inmates who are not members of federally "recognized tribes" were told they cannot participate in the Circle.

The complaint was supported by an affidavit from the lead plaintiffs (Chief and Sub-Chief of the Council) and an affidavit from Slow Turtle, primary spiritual advisor to the Circle.

The lawsuit states claims based on state and federal constitutions and statutes, to wit: that prison administration knowingly violated religious freedom and intimidated inmates who expressed an interest in Native American spirituality. We also argue the beneficial effects of the Circle for inmates and for the institution, in order to prove that these practices do not threaten the security of the prison (one of the factors typically considered by courts in such cases).

On May 12, 1995, after a hearing on plaintiffs' motion for preliminary injunction, the Court, Justice Diane Kottmyer presiding, issued an order permitting the use of headbands along with other sacred items and permitting inmate participation in the Native American Spiritual Awareness Council subject only to the approval of "an outside spiritual advisor or sachem."

On October 20, 1995, Judge Kottmyer denied plaintiffs' Motion for Class Certification, without prejudice, on the ground that the number of inmates likely to be affected by the litigation was not so numerous as to preclude joinder in the lawsuit. On the same day, Judge Kottmyer also denied a Motion for Contempt brought by plaintiffs in response to continuing delay by prison officials in complying with the preliminary injunction. The denial was based on an agreement of the parties as to compliance by officials to provide items traditionally used in Native ceremonies.

On December 15, 1995, the Court, Justice Herbert F. Travers, Jr., presiding, denied plaintiff's motion for partial summary judgment. Plaintiffs had moved for summary judgment on three issues: 1) that a purification lodge ("sweat lodge") be constructed; 2) that items of spiritual practice be permitted in inmate cells; and 3) that defendant officials of the Department of Correction be held personally liable for their actions abridging free exercise of religion. Judge Travers ruled -- in reference to 1 and 2 -- that "there are disputed material facts bearing on this question" and therefore summary judgment is inappropriate. (This is the standard rule: that summary judgment is appropriate where there are no genuine issues of material fact between the parties. Plaintiffs had argued that there were no such issues.) The judge made no ruling on the issue of personal liability of prison officials.

Discovery activities (depositions, interrogatories, requests for admissions) stretched over much of 1996 and 1997. Plaintiffs challenged incomplete disclosure by defendants of Department of Corrections memoranda documenting institutional awareness of plaintiff's religious freedom rights and other matters. This skirmish ended inconclusively.

On February 6, 1997, Judge Mitchell J. Sikora, Jr., denied plaintiffs' Motion to Compel Joinder, which had been brought to add several named inmates as plaintiffs and several named prison officials as defendants. Joinder of plaintiffs was sought in accordance with Judge Kottmyer's denial of class certification; joinder of defendants was sought as a means to ensure obedience to the prelimninary injunction at other institutions. Judge Sikora based his denial on an interpretation of a procedural rule requiring joinder where claims arise out of "the same transaction, occurrences, or series of transactions or occurrences" and decided that since the additional inmates and officers were at different prisons they were not sufficiently related so as to require joinder. Plaintiffs regard this ruling as a contradiction to Judge Kottmyer's earlier decisions on class certification and contempt.

On February 27, 1998, Judge Robert H. Bohn, Jr., denied a second motion by plaintiffs for summary judgment, which had been brought to follow-up results of deposition testimony by some of the defendants. In particular, the previous denial of summary judgment had been made in part on the grounds (1) that plaintiffs had not demonstrated a "legitimate and sincerely held religious belief," which is a stated precondition to legal relief from interference with one's belief; and (2) that a question of fact existed about security issues related to Native spirituality. Judge Bohn rebuffed plaintiffs' efforts to use deposition testimony to prove that defendants' no longer contested these issues. Despite the denial of these summary judgment motions, the arguments have helped to narrow the issues which will be presented at trial -- eliminating contests over whether native spiritual practices are protected at all and whether an inmate need be "recognized" by the government as an "Indian" in order to meet with Native Medicine Teachers.

On May 14, 1998, the parties met for a mandatory "pre-trial conciliation conference." Despite urgings by the court conciliator that these issues seemed appropriate for negotiated settlement, the prison authorities have refused to meet with plaintiffs to discuss possible settlements. A trial date was set for April, 1999, but due to a schedule mix-up was set back to December, 1999.

A two-day non-jury trial was held December 14-15, 1999, in Worcester Superior Court, before Judge Daniel F. Toomey. Substantial evidence was presented by the Plaintiffs and other witnesses about the significance of the Lodge and how it happens in other prison systems. Defendants asserted 'security problems,' but did not substantiate their concerns with much evidence. The judge listened carefully and was attentive throughout the trial. Plaintiffs' post-trial memoranda were filed January 18, 2000; defendants' post-trial memorandum was filed March 3.

On May 4, 2000, Judge Toomey issued a decision, holding that

... although plaintiffs' identification with their cultural heritage and their devotion to their religious belief system is indisputably sincere ... the extraordinary risks posed by the purification lodge ... persuaded [the Court] that the preclusion [of the lodge] is reasonably related to the legitimate objectives of defendants' authority, is justified by the Commonwealth's interests in penological security and does not unduly burden plaintiffs' constitutional rights to practice their religion.

The Judge therefore denied the Plaintiffs' request for a Purification Lodge in the prison.

However, the judge found in favor of the Plaintiffs on other aspects of the case. He issued an order making permanent and expanding the protection offered by the temporary injunction [126K gif]. Specifically, the Court ordered

That the defendants are enjoined from interfering with plaintiff's [sic] possession of ceremonial items and return to plaintiff's [sic] all ceremonial items previously seized.
That the defendants are enjoined from establishing any criteria regarding membership in and of plaintiff's [sic] Native American Spiritual Awareness Council.

These two orders establish the basic freedom of inmates in the Massachusetts prison system to practice Native American Indian spirituality.

Plaintiffs filed a notice of appeal on June 26, 2000, challenging the Court's denial of the Purification Lodge. The Commonwealth did not appeal the two orders quoted above. Appellants filed their appeal brief on December 27, 2000.

Oral argument in the appeal was heard on October 21, 2002, before Massachusetts Appeals Court Judges Brown, Greenberg and Mason. The judges expressed considerable doubt about the validity of the trial court decision and the total ban of the Lodge in Massachusetts prisons. At the conclusion of the argument, the court stated it would stay its decision for 14 days, to allow time for the Department of Corrections to initiate settlement negotiations with the appellants; failing that, the court indicated it would rule in favor of appellants.

On October 25, 2002, a Department of Corrections attorney contacted appellants' attorneys to offer to institute the Lodge in three prisons and to initiate discussions to settle the case. Appellants agreed to enter into negotiations on this basis. The first meeting occurred on November 7, 2002.

In March 2003, the case was settled between the parties according to the terms of a Settlement Agreement and Protocols for Construction and Operation of Native American Purification Lodges within the Massachusetts Department of Correction. These documents were signed and filed with the court.

In July 2003, the first Purification Lodge ceremonies were held in three Massachusetts prisons.

UPDATE - 23 November 2015

The DOC built a lodge at SBCC in 2004. Within six months, however, it halted all ceremonies at the SBCC lodge, citing health concerns that resulted from smoke filtering into the main building from the wood fires used to heat the rocks.

On November 23, 2015, in the case of RANDALL TRAPP & another vs. GARY RODEN & others, SJC-11863, the Supreme Judicial Court of Massachusetts affirmed a Superior Court ruling by Judge Cornelius J. Moriarty, II, that the Department of Corrections (DOC) violated the Settlement Order and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et seq. (RLUIPA) by closing purification lodges in Massachusetts prisons.

The SJC affirmed the trial judge's ruling that the DOC's evidence supporting any compelling interest of health concerns was unpersuasive. The court further stated, "even if we were to conclude that the DOC's asserted health concerns constituted a compelling government interest in these circumstances, the DOC must prove that it used the least restrictive means to further that interest." The court held that DOC had failed to meet both the "compelling interest" and the "least restrictive means" standards.

Attorney Jarrett M. Scarpaci represented the prisoners. Amicus briefs were filed on behalf of the plaintiffs.

MassLive News reported the SJC decision: "SJC ruling: Wampanoag inmates' religious rights violated when Souza-Baranowski Correctional Center closed sweat lodge."

Plaintiffs' attorneys in the original case were Peter d'Errico and Robert Doyle.

We provide the following documents to help others in similar circumstances.

Trapp, et al. v. DuBois, et al. Documents:

Related Documents & Sites:

Author of this site is Peter d'Errico
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