United States ex rel. Goings v. Aaron, 5-72 Civ. 80.

• Decision Date: 02 October 1972
• Docket Number: No. 5-72 Civ. 80.,5-72 Civ. 80.
• Citation: 350 F. Supp. 1
• Parties: UNITED STATES of America, ex rel. Milo Warfield GOINGS, Petitioner, v. R. L. AARON, Warden, F. C. I. Sandstone, Minnesota, Respondent.
• Court: U.S. District Court — District of Minnesota

350 F. Supp. 1

UNITED STATES of America, ex rel. Milo Warfield GOINGS, Petitioner, v. R. L. AARON, Warden, F. C. I. Sandstone, Minnesota, Respondent.

No. 5-72 Civ. 80.

United States District Court, D. Minnesota, Fifth Division.

October 2, 1972.

Legal Aid Clinic by Melvin B. Goldberg, Minneapolis, Minn., for petitioner.

Robert G. Renner, U. S. Atty. by Stephen G. Palmer, Asst. U. S. Atty., for respondent.

NEVILLE, District Judge.

Petitioner, an Oglala Sioux Indian prisoner at the Federal Correctional Institution at Sandstone, Minnesota, presented a petition for a writ of habeas corpus on which the court held a trial and evidentiary hearing at Minneapolis, Minnesota on September 22, 1972. Petitioner originally is from the Pine Ridge Indian Reservation in South Dakota. He was sentenced by the United States District Court in that State in July 1969 to a five-year prison term apparently for breaking and entering. On January 4th and 5th, 1972, petitioner was granted a furlough to leave the Correctional Institution to attend his father's funeral. Before his departure he promised that in return for such privilege he would obtain a haircut prior to or upon his return so as to bring its length in compliance with prison regulations. He testified that on his father's grave he made a "Ceremonial Indian Vow" that he would return to the Old Indian Tradition and religion, a part of which includes not cutting his hair. On return to the Institution, however, he kept his prior promise and submitted to a conforming haircut. There is a dispute in the evidence as to whether in June of 1972 defendant had another haircut. That question need not be resolved in the view this court takes of the case because in any event by August petitioner's hair was below his collar at the back of the neck in violation of the regulations.¹ Despite suggestions and requests, he refused to have his hair cut as a result of which on or about August 28th he was confined to the isolation area of the Sandstone Institution after being told that he was in violation of the haircut regulations. Petitioner has no mustache, sideburns or beard, but his hair at time of his confinement extended below his collar line and at time of trial was an inch or more below the collar line. Petitioner testified that he has spent virtually all of the last ten years in prison for various offenses and that of his present sentence (given all good time credit) he had as at date of trial but 55 days remaining. He is 27 years of age and apparently was transferred to Sandstone from Leavenworth Prison in Kansas.

He testified that, of a dozen or more persons of the Indian race in the institution at Sandstone, he was the only one wearing his hair below collar level. He also confirmed that the Indian inmates met together with some regularity in the prison to practice Indian culture and to engage in religious services. In fact, the Warden and deputies were invited to attend on one or more occasions.

Petitioner stated he had but a few years of schooling, that he cannot speak the language of his tribe and that up to January 1972 he had not followed nor attempted to follow traditional Indian ways. He has had no previous religious inclination to grow, and therefore no problem with, long hair but now believes that if his vow is kept it will help keep him out of prison in the future. He believes that at some future date which he cannot predict, he will have a vision if he conducts himself according to his religious precepts and has kept his vow regarding long hair. He also believes that the Holy Men will interpret his dream which will or may tell him when and how to cut his hair in a certain way. The Holy Men in his religion are analogous to ministers in other religions. He avers that the vow is very solemn and that he intends to abide by it even though it makes a difference in the time that he will be required to spend in prison.

The discipline imposed as a result of violation of the haircut regulations has had some consequences which undoubtedly are detrimental to petitioner, namely, he lost earnings at the rate of some $50.00 a month while not working in the prison factory and has lost or will lose credit for good time served.

Petitioner produced two witnesses. One was Mr. Ed McGaa, an Oglala Sioux, highly educated and articulate, born on the Pine Ridge Reservation, now a graduate of South Dakota law school and a former jet pilot in the Armed Forces. He testified that annually he returns to the Reservation at the time of the Sun dance and participates in it, including the ceremony of piercing. The thrust of his testimony was that though he himself did not wear his hair long and had complied with hair regulations when in the Armed Forces, a vow of the type that petitioner had taken relative to letting his hair grow long was certain to be important to petitioner, particularly in view of the Indian teachings that to break a vow of this sort would make him fearful that great misfortune would be nearly certain to follow. Rabbi Louis Milgrom also was called as a witness and testified that for the last 26 years he has been a chaplain at the University of Minnesota and that he had studied the Jewish Religion in which long hair was a tradition, in support of which he cited a number of quotations from the Old Testament. He testified that if one took a vow not to cut his hair, but then broke it, he could renew his vow and that such would in effect amount to a reinstatement.

Warden Aaron appeared on behalf of the government and testified to the hairstyle regulations and the need therefor, reviewing the reasons and statements made in Blake v. Pryse, 315 F. Supp. 625 (D.Minn.1970), aff'd 444 F.2d 218 (8th Cir. 1971), as to identification, hygiene and security. He stated that the regulations made a separate provision for members of the black race in that they are allowed to have a modified or limited Afro hairstyle and that the regulations as they now exist had been submitted to the Bureau of Prisons at Washington and had been accepted and approved. He stated that he treated the meetings of Indians in the Institution as religious in character. At those meetings there is drum music and dancing and the occasional presence of a Professor from the University of Minnesota at Duluth who lectures on education and Indian culture; further, on Saturdays and weekends Indians are released to collect stones and other items on the prison grounds for the making of souvenirs and curios. In his opinion the Indian inmates are not unhappy and there is no other Indian complaint. He has served in eight institutions, all of which have hair regulations and none of which are special for Indians.

It seems to the court that the starting point for this decision is Blake v. Pryse, supra. Therein it was held that the prison hair regulations were valid and reasonably supported by the requirements of identification, hygiene and security. That decision was affirmed on appeal and therefore, it seems to the court that an attack on the validity or reasonableness of the prison hair regulations is without merit. Petitioner's counsel spent time attempting to show that these regulations were not reasonable or necessary as applied to petitioner and did not accomplish any objective. It is obvious that the regulations apply to different persons in different ways depending on the amount and position of hair grown. So, one question is, should the regulation not apply to one who has a limp or a big identifying scar and who washes his hair every night because as to him the purposes of identification and hygiene are needless? If the situation of each prisoner is to be personally examined as to whether the regulation should be applied to him because in his...