PRISON AT NIGHT: Native Spirituality Behind Bars

A Preface to Trapp, et al. v. DuBois, et al., (MA Superior Ct., Civil No. 95-0779), Appeals Court, No. 2000-P-1640

by Peter d'Errico, Legal Studies Department, University of Massachusetts, Amherst 01003

Presented at the Academy of Criminal Justice Sciences conference, Albuquerque, NM, March 1998; and
Published in Publio: Culture at the Boiling Point, No 3, 2008, pp. 66-71

Prison at night is all light—not stars or moon, 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 the Israeli or Berlin wall or any other high-insecurity border. Lights glare against the buildings and reflect from snow into 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 at the edge of the orange glow, where earth's night overwhelms even the brightest man-made lamps. A guard directs me to park in the lot behind the trees, leaving the front of the building for official vehicles. He is curious, cautious for any sudden strangeness beyond the ordinary strangeness of an unknown visitor. The dog hangs on its leash like any dog, sniffing, panting, and waiting for any command.

A small crowd of family visitors mills in the lobby, waiting to be called to pass through the "trap"—the search and metal detector—into the prison interior. I peer through the lobby to 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. I suddenly remember that these guards will ask for my ID. My wallet is in the car (because cash is contraband within the prison), so I turn and leave, wondering whether this will attract the guards' attention. I suspect 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. My bar association card might be a trump card, alerting them to the possibility that I have a right of access, more clout than a family member. I take both, and leave my keys under the seat because they too are contraband. Institution rules permit only what is "essential"—whatever that may mean to a guard at the gate—so my glasses will not be challenged and my pen may not, but cash and keys would be.

Despite my precautions, the guard at the trap challenges the ring I am wearing, turquoise in silver with a Navajo Yei figure on each side. It once belonged to my son Julian and I wear it as a small remembrance of his life:

"Is it religious?"

"Yes, it is."

He pauses; "OK, you can keep it."

I save the story of my son. The guard doesn't need it. Perhaps spiritual stories cannot be told. Perhaps they are beyond the rules.

Or are they?

This is the question that has led me to visit the prison tonight. I have come to attend the Native Circle—to share in its observance, and to hear the grievances of its members. The prison authorities have subjected the Circle to edicts and reversals regarding ceremonial practices and objects. Headbands, drums, smudge sticks, sweet grass braids, tobacco, and the ceremonial pipe have been alternately allowed and prohibited, subject to varying views and attitudes of different superintendents, commissioners, and governors.

Native Americans' lives have been circumscribed for decades and centuries by reservation boundaries and special government regulations. Their spiritual practices are a lightning rod for politics, especially about land, the fulcrum of Native spirituality.

Inside prison, almost any spiritual practice can trigger an issue of "institutional security." 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.

In this Massachusetts prison, different superintendents have presented differing perceptions of threat to security. So far, none has been able to find a way to accept a "sweat lodge," though prisons elsewhere accommodate this important purification ceremony.

Part of the problem with administration has to do with 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 a person's right to engage in spiritual practices—to wear garments, use objects, eat food, make and display images. The other is the right to practice whatever spirituality one finds 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, however, 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. I have never heard of 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, but 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 spiritual practices 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 ontological issues—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. Yet the headband is too small for an effective disguise, while woolen caps are not prohibited and would make excellent disguises, and a sacred skullcap is permitted for another religion. There is no evidence of any rivalry about headgear, and cleanliness of all clothing is equally a concern or no concern. Do these facts not matter because they were not presented to the court or because the court did not find "unreasonableness" in them?

These questions are in my mind as I wait to be processed through the "trap." I have given the guards my driver's license, not wanting to alert them to my legal interests, wanting to see what happens to a regular visitor to the Circle. The search is routine, polite; they inspect my coat, belt, boots, and pockets. I joke that they could shine the boots; laughter is sometimes more effective than officiousness at locked gates. The far door is opened, and a guard escorts me across the yard to an interior building, where the Circle meets.

I wonder, as I walk, what else has been imposed here—will there be sage to purify the Circle, tobacco to smoke in the prayer pipe?


It is the guard inside the new building. He finds my name on a list and directs me to the third floor where the Circle is being held.

In the third floor hall, two men are standing, conversing. They look casual, but I sense they are waiting for me, and I ask for the room. "All the way to the end." As I pass them, I smell sage and sweet grass. I smile, and let my heart open. The Circle will be clean. Not everything has been taken away. A few moments after I enter the room, the two from the hall join the Circle. They had been waiting for me. They were guarding the purification of the Circle.

The chief and sub-chief—who have corresponded with me—greet me with a hand-to-forearm grip and an arm clasp around the back.

"Greetings! And thank you for coming!"

"Glad to be here!"

I walk around the room, greeting and being greeted. Someone makes a place for me in the Circle: my first face-to-face meeting with these people, after a year helping Slow Turtle, the Wampanoag Medicine Man, in his efforts to push back the bureaucratic roadblocks that threaten this Circle.

One of the men points out that more than half the men are wearing headbands, some beaded or painted, now that a confiscation has been reversed under pressure from Slow Turtle.

"The superintendent was pissed. He told us that we had better 'learn to march to his drum.'"

"Is he aware of what he said? Does 'drum' mean anything to him?" They laugh at the reference to the sacred instrument.

They tell me the superintendent has not limited himself to attacking Native spirituality, but attacks birds, flowers, and trees as well.

"All the bird houses in the yard have been removed and a patch of sunflowers cut down, for 'security reasons.' Forty trees were cut down or lopped off above the trunk."

I am amazed. Are there actually "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?

I eventually tell my story: "It's been more than twenty years since I first got involved with American Indian legal issues. That's when I began to understand the spiritual basis of life. My education prepared me to do legal work, but it was a dead weight on my spirit. I had to learn the difference between being a good person and being in a 'good' role in the system. As a lawyer, I can see inside the law, but my spiritual perceptions make me a critic of what I see."

The meeting is not only about complaints. Several men tell stories about friendly guards, cooperative superintendents. The predominant theme of their stories is how the Circle has changed them for the good. One after another tells me, "I was a rebel in the prison, violent and angry." "I had constant disciplinary reports." "I don't act out any more, because I learned to deal with anger and pain in a different way." "I know that the guards want me to get mad; it 'feeds' them and justifies their anger."

The lives of these men are evidence that the Circle has reshaped their understanding of what it means to be human, though incarcerated. We talk about the situation in 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 this 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?

I am pleased to be pulled back from complaints. I fear my habits as a lawyer might cannibalize the good of the Circle this night, focusing energy on wrongs and rights rather than on mutual fellowship and integrity that the Circle provides.

"No amount of legal action can accomplish anything unless the reality of this Circle is maintained."

Several of them smile, and assure me they are not "bummed out" by the discussion of problems, and have not lost sight of the Circle.

A couple men get up and start serving coffee and dessert: Food for the body as for the spirit. The Chief fills a pipe, lights it, and offers prayers to the directions. He passes it around the Circle. 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, I share a few last comments. Some of the men stay behind to clean up and pack the ceremonial items. I walk into the false brightness of the yard with the escort, followed by most of the men now. The Chief is drumming softly behind me. I turn at the final drumbeat.


I wave and leave them, returning to the true darkness of the night outside the prison walls.

Trapp, et al. v. DuBois, et al., Massachusetts Superior Ct., (Civil No. 95-0779), Appeals Court, No. 2000-P-1640, 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 this essay after that visit.

In March 2003, the case was settled according to the terms of a court-ordered agreement. In July 2003, the first Purification Lodge ceremonies were held in three Massachusetts prisons.