Teterud v. Gillman

• Decision Date: 20 November 1974
• Docket Number: Civ. No. 73-85-2.
• Citation: 385 F. Supp. 153
• Parties: Jerry TETERUD, on behalf of all others similarly situated, Plaintiffs, v. James GILLMAN, Commissioner of Social Services, et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

385 F. Supp. 153

Jerry TETERUD, on behalf of all others similarly situated, Plaintiffs, v. James GILLMAN, Commissioner of Social Services, et al., Defendants.

Civ. No. 73-85-2.

United States District Court, S. D. Iowa, C. D.

November 20, 1974.

Robert D. Bartels and Mark E. Schantz, Iowa City, Iowa, and Roy S. Haber, Atty., Native American Rights Fund, Boulder, Colo., for plaintiffs.

Richard C. Turner, Atty. Gen., State of Iowa, and Sp. Asst. Attys. Gen., Lorna

L. Williams and Michael P. Murphy, Des Moines, Iowa, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

HANSON, Chief Judge.

This is a civil action filed by an American Indian inmate of the Iowa State Penitentiary at Fort Madison, Iowa, against the warden and other prison officials and administrators, under 42 U.S.C. § 1983, for declaratory and injunctive relief. The dispute grows out of the enforcement of the prison's hair regulation against the plaintiff and other American Indian inmates.

This action was commenced on April 4, 1973, when the plaintiff, Jerry Teterud, filed a pro se complaint on behalf of himself and all other American Indians confined within the Iowa correctional institutions under the jurisdiction of the Bureau of Adult Corrections. The complaint as subsequently amended on August 16, 1973, alleges deprivations under color of state law of rights secured by the First and Fourteenth Amendments to the United States Constitution, to-wit: That the named plaintiff and other American Indian inmates have been denied (1) the right to freely exercise their religion, (2) the right to govern their personal appearance, (3) their rights of free expression, and (4) their right to the equal protection of the laws, and pray for declaratory and injunctive relief. A temporary restraining order was issued by this Court on August 23, 1973, enjoining the defendants from taking disciplinary action against the plaintiff and the other members of the class stated herein for violation of the prison's hair regulation. A hearing was held on the merits on October 19, 1973, at which time the Court extended its order until the parties could take further depositions, and brief their respective positions; and, until the United States had an opportunity to file its amicus curiae brief.

FINDINGS OF FACT

Plaintiff Jerry Teterud is one-half Cree Indian and one-half white, that is, his father was a Cree Indian and his mother was a white woman. His parents were separated when he was a child, and he did not see his Indian father after the separation. During his youth Teterud was raised as Catholic in an orphanage. It was not until adulthood that the plaintiff accepted his Indian ancestry and became interested in Indian customs and life.

Defendant Lou V. Brewer is the Warden of the Iowa State Penitentiary and is responsible for the operation and administration of the Iowa State Penitentiary, and is delegated the authority to promulgate rules and regulations for the care and discipline of the inmates.

Defendant Nolan Ellandson is the Director of the Department of Adult Corrections for the State of Iowa and is responsible for the overall supervision of the correctional institutions, including the Penitentiary, wherein the plaintiff is housed.

The plaintiff is under the jurisdiction of the defendants.

On or about December 8, 1972, Warden Brewer posted a hair length regulation which stated:

Hair length may grow to the shirt collar, and bottom on the ears. May grow over the ears if desired.

The plaintiff Teterud requested of defendant Brewer, by letter on March 2, 1973, that he be permitted to wear his hair in the traditional Indian style for religious reasons. On March 16, 1973, defendant Brewer notified Teterud that permission had been denied. In so notifying the plaintiff, Warden Brewer stated, "While I can appreciate your reasons and desires to do this, and accept in good faith the ethnic, religious and cultural reasons that you stated, I believe the attached policy governing hair length to be valid."

On October 19, 1973, a hearing was held on the merits of this cause. Plaintiff's first witness was Wallace Black Elk, a Sioux medicine man, who has lived for many years on the Rosebud Indian Reservation in South Dakota and who testified about Indian religion and culture. Black Elk testified that the Indian religion and culture are tied together and that Indians live by nature. Black Elk further testified that he perceived the Great Spirit¹ as wearing long hair.

Preston Holder, an anthropologist from the University of Nebraska, testified that the Plains Indians' religion expressed itself in their daily lives and that there was no division between the secular and sacred, that is, that everything is related to religion. Holder further indicated that one of the spiritual customs of Indians is to cut off their hair to show grief or humility after a close relative has died.

Robert Thomas, another anthropologist, described the importance of physical appearance of the Cree Indians with regard to spiritual matters. Thomas noted that it was a traditional Cree custom to wear their hair in long braids. He further testified that on very serious religious occasions the Cree would unbraid their hair.

Maria Thompson Parson, also known as Running Moccasin, a full-blooded Yankton Sioux Indian, was called by the defendants and testified that in her opinion the hair length of a male Indian is a matter of individual preference. She further testified that she had attended many Indian religious ceremonies across the United States and that the Indian male does not necessarily wear his hair long in these ceremonies.

Dr. Douglas Johnson, a practicing psychiatrist, who at times relevant to this matter was clinical director of the state security hospital, also known as the Iowa Security Medical Facility, which is a state hospital that diagnoses and recommends treatment for felons with mental problems, testified that the plaintiff, Jerry Teterud, was a patient of his. Dr. Johnson described Teterud when he first came for treatment as having a passive-aggressive personality which was based in part upon childhood rejection, including feelings of being "unworthy as an Indian" and being "just another god-damn Indian kid." Dr. Johnson advised Teterud that his low opinion of himself could change and that he should "start taking pride in being a red man, or an Indian, as opposed to feeling bad about it." Dr. Johnson further testified that the compelled cutting of Teterud's hair would generally be counter-productive to rehabilitation and, therefore, that the cutting of Teterud's hair would have no beneficial effect.

Robert Sarver, the former Commissioner of Corrections of Arkansas and West Virginia, testified that from the standpoint of criminology and penology, the instilling of racial and cultural pride in a member of a racial minority would be an important factor in successful rehabilitation.

CONCLUSIONS OF LAW

The plaintiff has raised a variety of constitutional objections to the hair rule based upon the First and Fourteenth Amendments to the United States Constitution. The plaintiff contends that the enforcement of the hair regulation violates his right to the free exercise of religion; that the hair regulation unconstitutionally infringes upon his right to govern his personal appearance; that the hair regulation impermissibly infringes upon his right to freedom of expression; and that the defendants' hair length regulation unconstitutionally discriminates against him upon the basis of race.²

The Court agrees with the plaintiff and believes that the prison's hair regulation does, in fact, infringe upon the plaintiff's First and Fourteenth Amendment rights.

Free Exercise of Religion

The plaintiff claims that the wearing of long hair is part of his traditional spiritual beliefs and as such is entitled to First Amendment protection. In considering whether the prison's hair regulation infringes upon the plaintiff's constitutional right to the free exercise of his religion, two issues must be considered — first, whether or not an Indian's cultural and traditional beliefs constitute a religion and, secondly, whether the plaintiff possesses a sincere belief in his creed. Remmers v. Brewer, 361 F. Supp. 537, 542 (S.D.Iowa 1973), aff'd 494 F.2d 1277 (8th Cir. 1974); United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

The plaintiff relies on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), to support his contention that an Indian's cultural and traditional beliefs constitute a religion. In Yoder, the defendants, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were violating Wisconsin's compulsory school attendance law, which required school attendance by children under age sixteen, by refusing to send their children to school after graduation from the eighth grade. The Court found that the Wisconsin's compulsory school attendance law violated the rights of the Amish under the Free Exercise Clause since the Amish demonstrated that they had a sincere religious belief and that the "Amish mode of life and education is inseparable from and a part of the basic tenets of their religion." Id. at 219, 92 S.Ct. at 1535.

Much of the testimony of the plaintiff's witnesses described the cultural and traditional ways of Plains Indians and their inseparability from spiritual beliefs. In United States v. Seeger, supra, 380 U.S. at 176, 85 S.Ct. at 859, the Supreme Court interpreted religious beliefs as follows:

Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.

The Indians' beliefs are based upon the existence of a Great Spirit, a power or being greater than man and, thus, clearly...