Indian Inmates of Nebraska Penitentiary v. Gunter

• Decision Date: 19 May 1987
• Docket Number: No. CV72-L-156.,CV72-L-156.
• Citation: 660 F. Supp. 394
• Parties: INDIAN INMATES OF the NEBRASKA PENITENTIARY, Plaintiffs, v. Frank GUNTER, Defendant.
• Court: U.S. District Court — District of Nebraska

660 F. Supp. 394

INDIAN INMATES OF the NEBRASKA PENITENTIARY, Plaintiffs, v. Frank GUNTER, Defendant.

No. CV72-L-156.

United States District Court, D. Nebraska.

May 19, 1987.

Dana V. Baker, Lincoln, Neb., for plaintiffs.

Steven J. Moeller, Asst. Atty. Gen., Lincoln, Neb., for defendant.

MEMORANDUM OF DECISION

URBOM, District Judge.

The petitioner, Tatanka SapaNajin (a/k/a Jesse Rouse), is a Native American of the Nakota (Yankton Sioux) Tribe and, at times relevant to this case, was an inmate in the protective custody (PC) unit at the Diagnostic and Evaluation Center (D & E). Frank Gunter is the director of the Nebraska Department of Correctional Services (the Department). SapaNajin was one of the original litigants in this case, which resulted in consent decrees requiring prison officials to make available certain Native American religious, cultural, and educational experiences for inmates.

In his motion for order to show cause why defendant, Frank Gunter, should not be punished for contempt, filing 76, SapaNajin alleged that prison officials have denied him access to certain Native American spiritual practices, provided a Native American spiritual leader whose beliefs are contrary to his and to those of other Native American inmates, failed to provide accredited Native American studies courses, and failed to comply with the Department's affirmative action plan. SapaNajin argues that these alleged practices violate the consent decrees of 1974 and 1976. This case also presents the question whether the various restrictions on religious expression violate the first amendment.

The Sioux people are divided linguistically into the Dakota, Nakota and Lakota, and politically into the seven tribal fires. The sun dance, vision quest, and sweat lodge are among the seven sacred rites common to the Dakota, Nakota, and Lakota. SapaNajin is a sincere follower of the Nakota ways, and believes that God is the "great mystery" who gave the sacred pipe and the sacred rites. He seeks to follow the "good red road" or sacred way, viewing life as a purification ceremony for the after-life.

The sweat lodge ceremony was the first rite given to the Nakota; it is a preparation for all other rites as well as a rite in itself. During sweat lodge ceremonies, participants experience physical and spiritual purification and are "reborn" into harmony through the use of gifts from the helpers and powers that aid in prayer to the great mystery. Participants in the sweat lodge experience expanded spiritual and cultural understanding, feel more in harmony with life, gain increased wisdom, and are better able to follow the good red road. Elizabeth Grobsmith, an expert on the plains Indians, testified that there is support in the literature for the rehabilitative effects of sweat lodge ceremonies for Native American inmates.

Sweat lodges are constructed from willow, are attached to the earth, and contain a fire pit in which rocks are heated. At least three persons typically are present for a sweat, the leader, the fire keeper, and the door keeper. Although sweats are communal activities, there appears to be no reason why a person trained to be a leader, fire keeper, and door keeper could not sweat alone.

There is a group of institutionalized deviants among the Sioux known as the Heyoka society. The Heyokas are "contraries," and act in ways that are the opposite of what their larger Native American communities practice. They will, for example, be humorous when a death occurs in the tribe. Heyokas who are medicine men may conduct their worship services backwards or even act in an irreverent manner during ceremonies. Although Native American worshippers can participate in ceremonies that are conducted, for example, in the opposite direction of what they were taught, such ceremonies do not allow them full religious expression. The official medicine man brought in by the Department to conduct sweat lodge ceremonies and provide spiritual counseling, Elmer Running, is a Heyoka.

During the time relevant to this action, SapaNajin was on protective custody status. He did not know which inmates might be wanting to harm him and was unable to tell prison officials specifically whom they should protect him from. Inmates on PC status are kept isolated from general population inmates for safety and security reasons. This prevents them from participating in most of the usual prison activities, including Native American cultural and religious gatherings.

SapaNajin made numerous requests to attend sweat lodge, which were denied because of his PC status. He similarly was not permitted to attend meetings of the Native American Cultural and Spiritual Awareness Club. While on PC status he also made requests to be visited by medicine men and filed a grievance concerning the Department's practice of bringing in Running, a Heyoka, to conduct all of the sweat lodge ceremonies. SapaNajin also requested, unsuccessfully, that he be permitted to receive beading materials from the club.

The parties present their first amendment and consent decree arguments in an intertwined fashion, but I shall separate the constitutional claims from the contempt claims because the legal analysis differs. The plaintiff argues that prison officials denied him religious expression allegedly guaranteed by the consent decrees and that the restrictions on his religious expression were unreasonable, and, therefore, violative of the first amendment.

I. CONSENT DECREE CLAIMS

SapaNajin contends that the Department has failed to comply with the affirmative action and Native American studies provisions of the 1974 consent decree, and has imposed restrictions on religious practices that violate both the 1974 and 1976 decrees. To prevail on his contempt claim, SapaNajin must show by clear and convincing evidence that the defendant violated the consent decrees. Kansas City Power & Light Co. v. National Labor Relations Board, 137 F.2d 77, 79 (8th Cir.1943); Washington-Baltimore Newspaper Guild, Local 35, of the Newspaper Guild, AFL-CIO-CLC v. Washington Post Co., 626 F.2d 1029, 1031 (D.C.Cir.1980). In this case SapaNajin argues not only that the defendant violated the decrees, but also that he is entitled to recover compensatory damages from the defendant.

At the onset, I note that the consent decrees do not discuss special custody inmates, such as those on PC status. Nothing in the decrees suggests that Native American inmates on PC status are to receive special treatment not accorded to other inmates in the PC unit.

A. AFFIRMATIVE ACTION

Paragraph 5 of the 1974 consent decree provides that:

The defendant and plaintiffs' counsel shall formulate an affirmative action hiring plan designed to locate job applicants and to secure employment and training by the defendant of qualified Indian personnel, recognizing the unique cultural needs of Indian inmates.

Filing 48. The Department did develop a plan — an ambitious one, see exhibit 43 (Nebraska Department of Correctional Services Equal Employment Opportunity Program, 1975) — and has continued to develop affirmative action guidelines. See exhibits 44 (1980), 45 (1986). The Department certainly has "formulated an affirmative action hiring plan," and there is no evidence that it is not "designed to locate job applicants and to secure employment and training by the defendant of qualified Indian personnel...." The defendant clearly has complied with the letter of the consent decree. Despite the plaintiff's contentions to the contrary, I find that the defendant also has complied with the spirit of paragraph 5.

The 1975 affirmative action plan had as its goal the hiring of a total of 22 Native American employees, a number that roughly correlates with the percentage of Native American inmates in the prison population, but is far in excess of the percentage of Native Americans in the Nebraska work force. The data presented by the defendant show that the percentage of Native American employees employed by the Department during recent years exceeds that of the Nebraska labor force generally. See exhibits 46, 47. That the Department was unable to secure 22 Native American employees does not show noncompliance with the spirit of the consent decree in light of the evidence presented at trial, which established that the Department, along with the Nebraska Department of Personnel, has made appropriate and regular efforts to attract Native American employees.

The Department ensures that numerous Native American organizations are informed of job openings, advertises at job fairs, and has used recruiting trips to reservations. The plaintiff suggests that failure to advertise on minority radio stations, to state on mailings that the Department has an affirmative duty to hire Native Americans, and to continue making regular recruiting trips demonstrates disregard for the directive of the consent decree. I disagree. The overall efforts of the Department reflect a commitment to finding and hiring qualified Native American applicants, and demonstrate compliance with the consent decree.

B. NATIVE AMERICAN STUDIES

During the years immediately following the 1974 consent decree, the Department contracted with Northeast Technical College for Native American studies courses. Northeast provided a certificate program in Native American studies for inmates until 1978, when the Department selected Southeast Community College (SECC) to assume responsibility for inmate education. Prior to 1978, regular and varied Native American courses were available to inmates. Inmates were involved in course selection and content, and assisted in suggesting instructors for the classes. After SECC took over the inmate education program, officials sought inmates' input less often; by about 1982 inmates essentially had no involvement in planning courses or suggesting instructors for the Native American Studies program.

The number and variety of Native American studies courses offered to...