Part Four – The Spiritual Warrior Awakens
Chapter 19 – Finally, My Day In Court
By Ghost Dancer
In 1989, after years of mental and physical abuse in the Alabama prison system, I filed suit in federal court in the Northern District of Alabama against the State of Alabama for the right to practice my religion. Now it truly made my day when the judge allowed me to represent the case in court myself because unlike any lawyer, I would not be nice to any of the government’s witnesses or defendants. I would be prepared to question them like they never ever had been. The judge ordered only law enforcement or government officials would be allowed in the courtroom other than my family. Guess he wanted to keep it quiet from the public. But the state had numerous attorneys, plus the attorney general, the Department of Corrections attorneys and all the wardens, prison officials and numerous staff who were all involved.
They brought their so-called experts who were chaplains, a high school history teacher and a college professor. I had Cat and all my family there. My dad and mom both came and testified for the first time of their true nationality and our family history. This was the first time ever that either one of them had admitted this publicly. Remember by law in Alabama and other southern states it was illegal for Native people to be living or working or owning any property in the state. Even today, this is still in the law books of some southern states and still in the law books that it’s legal to kill any Native.
Yet here was my dad and mom both testifying in federal court in Birmingham Alabama about who and what they were and how I was raised and believed. And even though my maternal grandmother was not physically there she had done all she could. She had sworn an affidavit in front of the Morgan County probate judge and had it notarized to the effect of her marriage to my grandfather, Edgar Beavers who was a full blooded Native American and she knew my dad’s family as well that he was full blooded Native American. My mom had brought her Holy Bible with the recorded marriages and dates and who they were going back to the early 1800s.
My dad and mom both also testified as to me being different and living traditionally and practicing my traditional beliefs and religion all my life. They told how much it meant to me even as to how my medicine forbids me to eat any bird flesh or harm any type of bird. I presented all my disciplinaries and complaints that I had as evidence about my religious beliefs and practices. I also submitted to the court and before the court read all the documents I had received from various wardens from numerous other prisons. I took the stand myself and testified about all the abuses that I had received and had to endure because of my religious beliefs and race.
I read all the amicus curiaes that had come to me from all the expert highly recognized traditional spiritual leaders from various tribal nations and had submitted to the court as friends of the court. Numerous times the defense tried to cross examine me, trying to make me mad or say something wrong but that didn’t happen.
When I was done I rested my case. Then the defense put on their witnesses. After each one testified I was allowed to cross examine them. When I asked them what tribal nation they belonged to or was descended from, they would only say that they were citizens of the United states. Then I asked them what qualifies them to testify as having any knowledge of Native American religion. They could only say that they were qualified because they worked in prison and knew how prisons are.
As for the chaplains, they spoke about all their religious training. When I asked them where they went to get their license to be a chaplain, they were only given that job title by the prisons! I asked them what religion they practice and had they ever practiced or participated for any length of time in any Native American religion. They said they practiced the Christian religion. So I asked what made them think they had any expert knowledge or personal knowledge on Native American religion? All they could say was they didn’t understand what I was asking and their attorneys objected to my questions. The court overruled them and ordered them to answer. They said as chaplains they were testifying as to what is allowed to be practiced by the prisons. “So in other words,” I asked, “You can’t speak on anything you have no knowledge of so you have wasted this court’s time and mine too.
Then they put the college professor on and talked about all the degrees he had and how many years of experience he had. When he finished testifying, I got my turn. My questions followed the same line as before.
“What tribal nation do you belong to?”
“What tribe are you descended from?”
“Okay, what tribal nation recognizes you as an expert on their traditional beliefs and practices?”
“Do you practice any type of Native American religion?”
“Have you ever practiced or participated in any type of traditional Native American religious ceremony?”
“So, on whose authority are you testifying today as an expert on Native American religion?”
He said he had a degree in Native American history.
“Is history a religion?”
“Well, do you think it is fair to say that as far as being an expert on Native American religion you have no knowledge at all.
“Yes, that would be fair to say.”
I let him step down. Next they put the wardens and prison officials on the stand and presented them as experts in security and prison operations. When each was done I got to cross examine them. My questions were simple.
“Since you say that my religion is a security threat because of my long hair, or my ceremonial items such as a sacred pipe, cedar, sage, drum, rattles, tobacco, or snake root, and of course, a sweat lodge…do you have any experience at a prison where this was allowed?”
“Okay, then do you have any proof of these things being a security threat or documents proving any incident where they have been a security threat or has helped anyone escape or threatened the safety of anyone?”
They could only answer “No.”
I asked each one if it is policy that every single inmate must cut their hair. They all testified to the question with an affirmative, “Yes.”
Repeatedly I asked them why this is the policy? Each time they said it was for security reasons. Then I questioned what facts, incidents or documents from anywhere that long hair is a security threat. They had none.
“You only say long hair is a security threat, yet you can’t prove it in anyway. And just because you say it is doesn’t mean it is.”
And then I asked them each again, “Are you absolutely sure you are telling the truth that all prisoners must cut their hair?”
“Yes!” they were telling the truth.
Next they put the prison commissioner on the stand. Finally someone I had been really waiting for. He testified as to all his credentials and how long he had been in the criminal justice system, prison services. They questioned him about how violent all prisoners are and especially me. He testified about how I had attacked all his staff in the prison system and how I was causing chaos in his prisons. He said that every part of my religion was a security threat just as I was. That I had attacked and hurt so many of his officials, guards and I would not obey any of their rules or orders. He concluded that I could not be allowed to practice this religion.
Then it was my turn. I asked him all the same questions I asked them all. And then I asked him to answer this as his position gave him the authority to answer. “Okay you said that all prisoners must cut their hair correct?
“Do you and your staff and all the other government witnesses know what perjury is?”
He got pissed and said he knew exactly what it meant.
I said, “Are you sure?”
“Then why did you all, including you, get on this stand and commit perjury?”
He said, “I didn’t and they didn’t.”
I asked again, “Are you sure all prisoners must cut their hair?”
I then asked the court to please accept exhibits of affidavits and photos from the women prisoners at the women’s prison. The court accepted them into evidence. I handed a copy of the women’s grooming policy to the prison commissioner and asked him to please read the highlighted text.
“Women can wear their hair long or in any style they chose.”
“But you just testified as did all your coworkers and co-witnesses that all prisoners must cut their hair.”
“Well that doesn’t include women.
“Why not, aren’t they are prisoners too?”
“Because they are women, and the Bible says they should not cut their hair.
“Now you admit that you are discriminating against me because of my sex?”
“Well then you are discriminating against me because of my religion. In fact you and all your staff and officials are discriminating against me because of my race, religion and sex.”
“No! It’s because of security threat.”
“Well long hair apparently isn’t a security threat with the women.
“Women aren’t as violent as men.”
I said I would like to submit some documents to the court. The court reviewed them and accepted them. I then asked the witness to please read the documents I put in his hand. He did and said they were from the U.S. Justice Department Bureau of Statistics.
“Now read the actual report on violence in prisons and say who are the most violent prisoners.”
He did and said, “Women”… that more women are in prison for violent acts of murder, attempted murder, aggravated assault, manslaughter etc. than men.
I asked him where the document said these figures came from. He read them and it said the figures were reported by each state.
“So every one of you knew or should have known these basic facts yet you each got up here on the stand and committed perjury in this court.”
I asked the court to charge each one of these witnesses and to exclude and disregard all of their testimonies. I asked the court for a direct verdict.
The defense objected and asked for a break.
When we came back the judge said he was making a ruling. As for a direct verdict, he granted my Motion for Direct Verdict saying that he only recognized one expert on Native American religion and that it was me, the plaintiff. All other testimony is only hearsay and the witnesses have no knowledge as they admitted. And it was evident to the court that I am entitled to practice my traditional religion and to be free from any and all retaliations against me because of my religion. He said he also recognized the state’s dilemma about what to do with me since this would cause a possible disruption or chaos in the prisons where I was housed. Never-the-less, my religious diet was ordered, my hair was not to be cut, and my freedom to pray according to my religion was won.
I was so proud of my family and my loyal wife, Cat, for all showing up. Even my dad took the stand before many people he had known for decades and shocked them by testifying that he was a Native American Indian and that I was his son. Now this was so uplifting to me. For all these years and decades most of my family had tried to hide who they were. Now on federal records and in public, they all testified on my behalf about me and about my practice of traditional Native American religion. Because of this, along with the letters from Native American spiritual leaders, such as Art Solomon, Lenny Foster, Big tree, Jake Strong, and so many others, the judge ruled in my favor.
Preparing for this case was no small task. I wrote numerous letters to organizations, publications and political leaders to help gather information. Among those who offered their knowledge and insights were Iron Shirt, a detective in California and a Catholic nun, Sister Connie DeNault, as well as the Red Bird Society for whom I served as a spiritual advisor.
Now all along, Cat and I had been working to gather important evidence for court. We legally founded a non-profit organization we called The Buffalo and Turtle Clan Medicine Society Inc. Through this organization we quietly began gathering materials we would need. I would write letters and Cat would spend hours typing them up and mailing them out. All these materials would be sent back to a Post Office address for the organization.
We gathered statistics from the U.S. Department of Justice for prisons all across this country and we sent letters of inquiry to wardens requesting copies of their institutions hair/dress code policies, religious groups, and activities provided for all prisoners asking for any and all photos, pamphlets rules etc. We sent out letters to women prisoners in many different prisons asking for their help by writing up affidavits and providing copies of their institution’s hair and dress codes, and religious scheduling at their prisons along with any photos they wished to share.
We wrote letters asking different prison commissioners to address any issues they had concerning safety and security pertaining to prisoners with long hair and asked for any studies, surveys, and documented evidence pertaining to any such security threats or safety issues.
We also gathered help from spiritual leaders throughout the Native American tribal Nations and they wrote up amicus curiae affidavits or letters to the court as experts in Native spiritual concerns and explaining the needs for meeting our different religious practices and ceremonies. These were offered as friends to the court with expertise in all these matters.
If it weren’t for Cat’s dedicated support my efforts to present my case in court could not have happened. Though she worked quietly behind the scenes, Cat’s contribution was just as important as anyone elses in our struggle for religious freedoms. There was lots of copy work to be done as well and we didn’t have much money. Cat found someone who had their own business and told him what was going on. This man listened and offered her the use his office equipment as much as she needed. He wanted us to win. We still cannot thank this man enough for his help.
Winning my case in federal court was a huge step forward, but the prison officials were not done fighting. “Officially” they allowed Native American religion in the prison population, but in retaliation, they placed me back in solitary confinement, claiming that I was a threat to security, the well-being and safety of all prisoners, staff and the prisons themselves. This did not discourage me. Spirit had given me strength to overcome all this and pave the way here in the south.
In 1992 I filed an appeal to the Eleventh Circuit against State of Alabama for abuses. Again I submitted the amicus curiae from Big Tree, Nan-ta-shay, Lenny Foster, Jake Snake, and Art Solomon along with my affidavit with exhibits.
By this time I was working almost alone, few other prisoners were willing to commit to the risks inherent in standing up for the rights of Native People. I continued my activist work, writing for many Native publications across the U.S. as well as Toronto and Alberta, Canada. Some that I remember may no longer exist under the same title include, Native Sovereignty out of Washington State, Eagle Wing Press, out of Connecticut, and Indian Country, out of South Dakota, before it was sold to the Iroquois or Mohawk in New York. I also wrote for publications aimed at Native prison populations: Prison Solidarity out of Utah, Coalition of Prisoners’ Rights, out of Arizona, Spirits Behind the Walls, a publication of the University of Wisconsin, working to help anyone seeking the freedom to practice their religious ceremonies. My goal was to help others learn about the Federal Civil Rights Laws and how to file a case in court and to understand the importance of always having a paper trail to show that they had tried to resolve the issue with the prison officials.
I had also been in touch with Senator Daniel Inouye and Senator Ben Nighthorse Campbell for years about prison issues. They both sent me inquiries about the loop holes that prison officials were using in courts. I had also been receiving help from the Native American Rights Fund in Boulder, Colorado. John and Walter Echo Hawk had helped me so much over the years. I sent all these people reports that the prison officials and courts were using their own interpretations of what the law meant or was referring to.
To counter this, I suggested the importance of including clear definitions as to the intended meanings of the laws and began by writing a list of definitions of what it means to be an American Indian so as not to leave anything to interpretation by judges and prison administrators. These changes were included in the Amendments to the Native American Religious Free Exercise Law.
The American Indian Religious Freedom Act Amendments of 1994 passed in congress on October 6, 1994 and were signed into law by President Clinton.
American Indian Religious Freedom Act Amendments of 1994 Oct 6, 1994 Public Law 103-344 108 Stat. 3124 Passed by 103rd Congress [H.R. 4230] An Act To amend the American Indian Religious Freedom Act to provide for the traditional use of peyote by Indians for religious purposes, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "American Indian Religious Freedom Act Amendments of 1994". SEC. 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT. The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the "American Indian Religious Freedom Act", is amended by adding at the end thereof the following new section: "SEC. 3. (a) The Congress finds and declares that— "(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures; "(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation; "(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies; "(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling State interest standard; and "(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment. "(b)(1) Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs. "(2) This section does not prohibit such reasonable regulation and registration by the Drug Enforcement Administration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act. "(3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon's Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote. "(4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing reasonable limitations on the use or ingestion of peyote prior to or during the performance of duties by sworn law enforcement officers or personnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-l). "(5) This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities. "(6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-l), this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations. "(7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-l), this section does not prohibit the Secretary of Defense from promulgating regulations establishing reasonable limitations on the use, possession, transportation, or distribution of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. "(c) For purposes of this section— "(1) the term 'Indian' means a member of an Indian tribe; "(2) the term 'Indian tribe' means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; "(3) the term 'Indian religion' means any religion— "(A) which is practiced by Indians, and "(B) the origin and interpretation of which is from within a traditional Indian culture or community; and "(4) the term 'State' means any State of the United States, and any political subdivision thereof. "(d) Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting— "(1) the inherent rights of any Indian tribe; "(2) the rights, express or implicit, of any Indian tribe which exist under treaties, executive orders, and laws of the United States; "(3) the inherent right of Indians to practice their religions; and "(4) the right of Indians to practice their religions under any Federal or State law.". Approved October 6, 1994.
“Listen or your tongue will keep you deaf” – Native American Proverb
Coming Soon: Part Five – Sweet Freedom