Ka Wai Ola - Office of Hawaiian Affairs, Volume 28, Number 11, 1 November 2011 — State, CCA face lawsuit over Hawaiian religion [ARTICLE]

State, CCA face lawsuit over Hawaiian religion

By ūiana Leone Six Native Hawaiians have filed a civil rights lawsuit against the State of Hawai'i and its private prison contractor asserting violations of their rights to practice their Native Hawaiian religion while serving time in private Arizona prisons. The six pa'ahao, or prisoners, allege that state officials and the Corrections Corp. of America are blocking them from practicing critical tenets of the Native Hawaiian religion, including their ability to: meet on a daily basis for group worship; access sacred items; have regular visits with a kahu; construct a modest outdoor altar; ensure proper religious protocol; and conduct ceremonies in observance of Makahiki, a traditionally four-month-long season of peaee, sport and honoring the Hawaiian god Lono. The pa'ahao are being denied full practice of their religion, while inmates of other faiths are being allowed to meet with spiritual leaders and observe religious holidays, according to Native Hawaiian Legal Corp. attorneys who are representing them. The Davis v. Abercrombie lawsuit - whieh is pending class-action approval - names Gov. Neil Abercrombie, Hawai'i Puhlie Safety Director Jodie Maesaka-Hirata and CCA as defendants. A spokesman for the state attorney general's office said that CCA is handling defense of the case. CCA - a Tennessee-based, for-profit prison operator - and its Honolulu attorneys did not respond to repeated requests for comment. The NHLC attorneys said their clients would not be reachable for comment for this article. The plaintiffs were convicted of crimes under Hawai'i law and are now incarcerated in CCA's Saguaro and Red Rock correctional facilities in Eloy, Arizona, whieh are contracted to house Hawai'i prisoners. In their lawsuit, the specific requests of the men varied according to whether they are held in a prison general population or in solitary confinement. Plaintiffs Richard Kapela Davis, Miehael Hughes and Damien Kaahu, who are in the Saguaro Correctional Facility's general population, and James Kane III and Ellington Keawe, who are in the adjacent Red Rock Correctional Facility, asked prison officials repeatedly for the ability to: » Gather for a brief, daily eommunal worship to chant, pray and dance with other practitioners » Receive regular visits from a kahu, or spiritual adviser » Celebrate the opening and closing of the Makahiki season with all-day ceremonies,

religious protocol and a feast » Construct a small altar in the prison yard and have regular access to sacred items such as: pa'akai (sea salt), 'apu (coconut shell bowl), a kāhili (feather standard), pū kani (eoneh shell), drums and percussion instruments, 'ohe hano ihu (bamboo nose flute), and moena (floor mats woven of natural fibers). » Wear traditional clothing while observing their religion, such as malo (loin cloths) and klhei (capes). Plaintiff Robert A. Holbron, who is at Saguaro in solitary confinement, has asked prison officials for the opportunity to regularly meet with a kahu to assist him with his religious practices while in his eell. NHLC attorney Andrew Sprenger said prison officials have denied the requests without adequate explanation. "The plaintiffs are not seeking anything more than what the State of Hawai'i and CCA provide inmates of other faiths when honoring their respective beliefs," Sprenger said. "The Governor and CCA cannot eome up with any justifiable reason why inmates of the Native Hawaiian faith must receive such disparate treatment when it comes to their worship." Hawai'i state and CCA officials have established Hawaiian cultural classes for general population inmates at Saguaro prison, Sprenger said. However, they are deemed to be educational classes and not religious services, whieh means that they ean be canceled or changed without notice or justification. Hawai'i and CCA officials also sponsor short Makahiki ceremonies twice a year at Saguaro, but full participation has been limited to only prisoners who attend its Hawaiian cultural class, Sprenger said. It's unconstitutional to use any "litmus test" to prove sincerity of someone's faith, Sprenger said. Many Christians in prison do not go to Sunday services but are allowed to go to Christmas services, he said. "What's especially painful for our guys - they don't understand why the requests that they make are always being questioned for some ulterior motive," Sprenger said. Sprenger said this situation is frustrating because it revisits similar issues that he previously fought for - and believed were resolved - in a 2005 settlement of an earlier lawsuit, Bush v. Lingle, regarding access to Native Hawaiian religious practices in a CCArun prison in Oklahoma. In the Bush settlement, both the State of Hawai'i and CCA agreed to recognize the

Native Hawaiian religion as a constitutionally protected faith for inmates and to allow inmates to observe the Makahiki season, Sprenger said. "Following the Bush settlement, there was hope among all the pa'ahao that state officials and CCA would now respect the rights of Native Hawaiian practitioners who are incarcerated," Sprenger said. "Unfortunately, the present policies of this administration and its for-profit prison contractor makes this previous settlement ring hollow for the pa'ahao. Our clients have no ehoiee but to seek further redress from the courts to resolve these matters." The lawsuit originally was filed in February in state Circuit Court. The defendants got the case transferred to federal court but failed in an attempt to get the case moved to Arizona. U.S. Magistrate Judge Barry Kurren ruled in May that Hawai'i is the appropriate venue for a number of reasons, including that the rights of Native Hawaiians are "a matter of great puhlie eoneem in Hawai'i." Having the lawsuit heard in Hawai'i was an important victory, NHLC attorney Sharla Manley said. More recently, the judge's order on Oct. 20 opens the door for class-action status. Manley said this is also important because any ruling in a class-action lawsuit could affect all Native Hawaiian religious practitioners in CCA facilities and offers a meaningful opportunity for institutional reform. The lawsuit is scheduled for trial before U.S. District Judge Leslie Kobayashi in July 2012. All of the prisoners held in Saguaro and many in Red Rock are from Hawai'i. According to Sprenger, as of November 2010: Saguaro housed 1,980 Hawai'i state inmates, of whom 142 men - or 7 percent - had registered the Native Hawaiian religion as their faith. Of Red Rock's 56 Hawai'i inmates, 20 men - or 35 percent - are believed to be practitioners of Native Hawaiian religion. The fact that Native Hawaiians are present in the Hawai'i prison system in a larger proportion than in Hawai'i's general population is a eoneem for the Native Hawaiian community, said Jeff Kent, an OHA Puhlie Policy Advocate. In 2008 Native Hawaiians comprised 24 percent of Hawai'i's population but 39 percent of the state's total inmates, including those housed on the U.S. continent, according to the OHA report Tlie Disparate Treatment ofNative Hawaiiam in the Criminal Justice System. "OHA advocates for the betterment of all SEE LAWSUIT ON PAGE 37

CULTURE

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Native Hawaiians, including pa'ahao," Kent said, adding that OHA's 2011 legislative package built upon the findings of the Disparate Treatment report. At the Legislature, OHA successfully pushed for a measure to create a task force to formulate policies and procedures to eliminate the disproportionate representation of Native Hawaiians in Hawai'i's criminal justice system. The task force is expected to submit a report to the 2013 Legislature. OHA has been a longtime funder of the NHLC, whieh is representing the plaintiffs in the current lawsuit free of charge, and has also been active in helping prisoners get cultural and religious books and spiritually significant objects while incarcerated. "We've heard the most impressive testimonials about the power that learning about and practicing Native Hawaiian religion has" for some of the pa'ahao, Manley said. "It is transformative. It will bring you to tears to hear some of these men talk about how it completely changed them and they will never be the same." In their court filings, the state and CCA deny any wrongdoing and allege that their conduct: "did not violate the applieahle standard of care," "did not breach any duty to plaintiffs," "were objectively reasonable under the circumstances and they acted in good faith and without maliee." They also said "there existed no conduct by defendants that was driven by an evil motive or intent, nor conduct that was reckless or callously indifferent to plaintiffs' constitutional rights." The defendants allege in court filings that "the plaintiffs have suffered no actual harm or damages" and "any claimed physical or emotional injuries are the result of a pre-existing condition(s)." Ty Preston Kāwika Tengan, an Associate Professor of ethnic

studies and anthropology at the University of Hawai'i at Mānoa and author of the book Native Men Remade: Gender and Nation in Contemporary Hawai'i, has written in a statement on behalf of the pa'ahao, saying that incarcerated Native Hawaiian religious practitioners who are denied the ability to practice basic tenets of their faith suffer spiritual injury. That injury is increased when those practitioners are separated from their land, culture and family while they are imprisoned outside Hawai'i. The injury to plaintiffs is "a spiritual injury," NHLC attorney Manley said. "And the injury of having an institution that's giving inmates of other faiths the things they need to observe their religion, but they aren't given the same status." Hawaiian cultural practitioner Andre Perez has offered support to pa'ahao in Mississippi and Arizona prisons by helping them get access to books and cultural items. Cultural items have been donated by individuals and books donated by Kamehameha Schools publications, Bishop Museum Press, Native Books/Nā Mea Hawai'i and the University of Hawai'i-Hilo. Perez has received donations and several small grants to hnanee trips to mainland prisons to visit prisoners, share Hawaiian cultural knowledge and deliver materials. "I firmly believe that for Hawaiians, traditional and cultural approaches to rehabilitation are more powerful and long lasting than any western class or training," Perez said. "Our universal values are more meaningful and relevant when presented in ways that are understandable, palatable and desirable. All Hawaiians have little seeds of traditional values somewhere inside of them. These seeds have roots through genealogical connections that are very powerful when nurtured." ■ Diana Leone, a veteran journaīist, runs the freelance writing and editing business Leone Creative Communication, on Kaua 'i.