Ka Wai Ola - Office of Hawaiian Affairs, Volume 31, Number 5, 1 May 2014 — RELIGIOUS-RIGHTS LAWSUIT OK'D FOR TRIAL [ARTICLE+ILLUSTRATION]

RELIGIOUS-RIGHTS LAWSUIT OK'D FOR TRIAL

8 pa'ahao ane fighting to exencise Hawaiian neligious pnactices in 2 Anizona pnisons that house Hawai'i inmates

By Lurline Wailana McGregor Afederal judge's decision that a Native Hawaiian inmates' religious-rights lawsuit ean proceed to trial is a significant step, said the lead plaintiffs' attorney in the case - not only for Native Hawaiian prisoners but for every person behind bars who sincerely believes that he or she must engage in their practices. The Native Hawaiian Legal Corp. filed the lawsuit on Oct. 31, 2013, on behalf of eight Native Hawaiian prisoners incarcerated in Arizona: Richard Kapela Davis, Miehael Hughes, Damien Kaahu, Robert A. Holbron, James Kane III, Ellington Keawe, Kalai Poaha and Tyrone Galdones. The lawsuit claims that the State of Hawai'i Department of

Puhlie Safety and its contractor, the Corrections Corporation of America, whieh operates both the Saguaro and Red Rock correctional centers that house the Native Hawaiian inmates, are preventing them from engaging in the exercise of their Native Hawaiian religious practices. "This case is about the men and women behind bars who heal and gain strength from their traditional religion," said Sharla Manley, lead staff attorney on this case for NHLC. "Expressing those spiritual beliefs is a road to redemption." The Religious Land Use and Institutionalized Persons Act, or RLUIPA, a federal law that protects the right of prisoners to worship as they please, recognizes Native Hawaiian religious practices as allowahle. On March 31, 2014, U.S District Judge Leslie Kobayashi's ruling granted NHLC partial summary judgment - in effect allowing the lawsuit to proceed to trial - and recognized that five Hawaiian religious practices are protected under the federal law, including use of sacred items; observing Makahiki; having access to kahu, kūpuna and kumu; and having regular access to group worship and an 'aha, or Pōhaku o Kāne. Manley asserts that, "RLUIPA does not allow prison officials to decide what the basic needs are of a religion, and this court order means the

courts ean scrutinize a prison's decision to restrict a prisoner's ability engage in any of these five practices." Although DPS recognizes that possessing objects or amulets is a Hawaiian practice, prisoners have testified that their personal prayer objects have been confiscated or destroyed in the

Saguaro prison, where all personal items must be purchased from the facility's approved vendor. According to a declaration by Richard Subia, an expert witness in the case, Native Hawaiian inmates are not allowed to have kūpe'e (bracelets or anklets) or lei in their cells while Buddists ean have Tibetan freedom bands, Catholics ean have a scapular, Muslims ean possess prayer beads, Native Americans ean have chokers, headbands and wristbands, Protestants ean have crosses on a ehain and Voodoo practitioners are allowed religious necklaces. Native Hawaiians can't have 'ohe hano ihu (bamboo nose flutes) in their cells while Druid practitioners ean have wooden flutes, and Native Americans and Rastafarians ean maintain sacred pipes. Native Hawaiians can't have 'ōlena (turmeric), lau kl (ti leaU or 'alae (ferns), but Asatru and Odinismpractitioners ean possess sage, evergreen and lavender. Druids and Wieea inmates have both been allowed to possess salt, and after NHLC filed its suit, Native Hawaiians were finally allowed pa'akai in their cells. Other requests that have been denied include expanded time for religious practices and being allowed to construct an 'aha, or stone altar, not just twice a year for Makahiki, but for year-round use. The wardens at both facilities have stated that this request was denied because of the possibil-

ity of using the stones as weapons. At the same time, Native American inmates are allowed to maintain lava rocks in the prison yard that they use for their weekly sweat lodge ceremonies. The NHLC argued that the equal protection law is violated when prisoners cannot have daily access to sacred items that are similar to other items that are allowed on a daily or more regular

basis for other religions. The wardens at eaeh facility who consistently deny the Native Hawaiian inmates' requests cite issues of heahh, safety and security. Yet they admit that there is no precedent or example of incidents or misuse of any of these materials or practices and no reports of illness or death. The warden at Saguaro Correctional Center has further acknowledged that aeeommodating religious practices among the Native Hawaiian practitioner population has encouraged positive behavior, resulting in an increase in prison safety and security. Shari Kimoto, the mainland branch administrator in the Hawai'i Department of Puhlie Safety, is responsible for the negotiation of

contracts with private prison vendors as well as monitoring out-of-state facilities. Subia says that both the state and the prison administrators have exaggerated and distorted their safety and security concerns and have failed to appropriately research, address and accommodate reasonable religious requests from Native Hawaiian inmates. The State of Hawai'i, through Kimoto, maintains that the Makahiki guidelines and religious retention list of approved practices and items it issued in 2008 are only guidelines and that wardens have the discretion to fulfill the prisoners' requests. Contacted for an interview, Kimoto said she is not at liberty to comment on this case but has maintained through deposition that Hawai'i is in eomplianee with the agreed-upon 2008 guidelines, and that "anything else is extra and is not considered to be an essential tenet." Both the State and CCA asked the judge to throw out the whole lawsuit without a trial. The judge's rejection of their request is significant, says Manley, as is the court's decision to allow NHLC to take some of their specific claims to court. The trial is expected to begin within a year. ■ Lwīine Waiīana McGregor is a writer, fiīmmaker and author o/Between The Deep Blue Sea and Me.

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ln this 2007 file photo, prisoners at the Diamondback Correctional Facility in Watonga, Oklahoma, participate in makahiki observances. Phoīo: Correctional Facility/KWO Archives