N A T I O N A L C O N G R E S S O F A M E R I C A N I N D I A N S

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1 N A T I O N A L C O N G R E S S O F A M E R I C A N I N D I A N S Resolutions Committee Recommendation Resolution #: REN and 041 Title: Ensuring the Protection of American Indigenous Prisoners Inherent Rights to Practice Traditional Indian Religion Comments: This resolution and Resolution REN are similar in nature and should be combined as one resolution with two co-sponsors. They have been combined into REN There is similar to NCAI Resolution #SD , Native American Prisoner s Religious Rights. Recommendations: REN has been rewritten to include reference to SD and replaces this Resolution with updated directives to NCAI by referencing the signing of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Proposed revisions have been made to shorten the Resolution, while still attempting to capture the purpose and intent to protect Native Americans right to practice traditional religions within prison systems. Recommend title change to: Ensuring the Protection of Native Prisoners Inherent Rights to Practice their Traditional Religions Is this Resolution national in scope and emergency in nature (yes/no)?: _yes_ Sponsor a member in good standing (yes/no)?:

2 REN TITLE: Ensuring the Protection of American Indigenous Prisoners Inherent Rights to Practice Traditional Indian Religion WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and WHEREAS, Native Americans, Alaska Natives and Native Hawaiians in the United States (collectively American Indigenous Peoples or Indian People ) have the highest incarceration rate of any racial or ethnic group in the country, at 38% the national rate; and WHEREAS, incarcerated American Indigenous Peoples depend upon their freedom to engage in traditional indigenous religious practices for their rehabilitation, survival, and the ability to maintain their identity as indigenous peoples; for some Native American prison inmates, walking the red road in the white man s iron house is the path to salvation, the way of beauty, and the only road to rehabilitation and survival, Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia 774 (2005); and WHEREAS, American indigenous governments, communities and societies generally share the penological goals of repressing criminal activity within their jurisdictions and thus preventing habitual criminal offense, and to that end, facilitating their imprisoned indigenous citizens spiritual rehabilitation; and WHEREAS, those traditional indigenous religious practices that further incarcerated American Indigenous Peoples rehabilitation include, without limitation, the practice of sweat lodge, talking circle, blessing way, Change of Seasons, pipe, drumming, and pow wow ceremonies; and the related use of sacred traditional items like beadwork, pipes, eagle feathers, animal hides, bones and teeth, prayer fans, hand-drums and sticks, rattles and medicine bags, and sacred traditional medicines like sage, sweet grass, cedar, copal, bitter root, osha root, kinnikinnick, and tobacco; and

3 WHEREAS, many American indigenous governments, as a matter of those indigenous governments own laws, policies, customs, traditions, and practices, affirm and support the traditional indigenous religious rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; and WHEREAS, it is the policy of the United States, according to the American Indian Religious Freedom Act of 1978, 42 U.S.C. 1996, to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites ; and WHEREAS, in the Native American Apology Resolution, Public Law No , section 8113, Dec. 19, 2009, 123 Stat. 3453, the United States expressed its commitment to build on the positive relationships of the past and present to move toward a brighter future where all the people of this land live reconciled as brothers and sisters... and encourage[d] all State governments similarly to work toward reconciling relationships with Indian tribes within their boundaries ; and WHEREAS, the United States Supreme Court has recognized that prison inmates do not forfeit all constitutional protections by reason of their conviction and confinement in prison, Bell v. Wolfish, 441 U.S. 520, 545 (1979); and WHEREAS, the first Amendment of the United States Constitution, as well as state constitutional amendments and provisions, generally guarantee all Americans including American Indigenous Peoples the right to religious liberty; and WHEREAS, the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq., generally prevents a prison from substantially burdening an incarcerated American indigenous person s religious exercise unless the imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest; and WHEREAS, the United Nations Declaration on the Rights of Indigenous Peoples ( the Declaration ), as endorsed by the United States in 2010, affirms that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, and that indigenous peoples have the right to be free from any kind of discrimination, in the exercise of their rights ; and WHEREAS, the Declaration provides that States such as the United States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs ; and

4 WHEREAS, the Declaration further provides that Indigenous peoples have the right to manifest, [practice], develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; [and] the right to the use and control of their ceremonial objects... ; and WHEREAS, the International Covenant on Civil and Political Rights (ICCPR), as ratified by the United States in 1992, provides that everyone shall have the right to freedom of thought, conscience and religion, which shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching, and further states that religious or ethnic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture [and] to profess and practi[c]e their own religion ; and WHEREAS, the ICCPR also provides that the [f]reedom to manifest one s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, in regard to which the United Nations Office of the High Commissioners for Human Rights has declared that persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint ; and WHEREAS, the United States has further expressed, in its International Religious Freedom Report for 2011, that it opposes governments that repress[] forms of expression and religious freedom ; and WHEREAS, notwithstanding the above-referenced international, federal, and American indigenous government laws and norms, the inherent rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion, are too frequently violated by federal, state, and local government actors in the United States; and WHEREAS, the states of California, Montana, South Dakota, New Mexico, Texas and Washington have in recent years violated the inherent rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; yet in the instance of Washington State, the state s Department of Corrections violations of those inherent rights were subsequently remedied through the state and agency s meaningful consultation and collaboration with Washington tribal governments; and WHEREAS, on May 13, 2013, the Affiliated Tribes of Northwest Indians (ATNI) passed Resolution No , which in part called upon NCAI to formally call upon the United States, all fifty American states, and the District of Columbia, to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly

5 develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples ; now THEREFORE BE IT RESOLVED, that NCAI commends and supports the inherent rights of federally and state incarcerated American Indigenous Peoples to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED, that NCAI denounces and opposes any inappropriate or illegal federal, state or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, including any such restriction that does not advance the shared penological goals of federal, state and American indigenous governments or that was not preceded by meaningful tribal consultation with affected NCAI tribes or other American indigenous governments; and BE IT FURTHER RESOLVED, that NCAI specifically denounces and opposes the California Department of Corrections and Rehabilitation s emergency amendments to Section 3190(b) of the California Code of Regulations, Title 15, Crime Prevention and Corrections, and related regulatory restrictions regarding American Indigenous Peoples religious properties and sweatlodge ceremonies that were promulgated in February of 2013, because those state regulations violate federal, state and international law, were promulgated without any consultation with American indigenous governments, and are contrary to the penological interest of rehabilitating incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI calls upon the United States, all fifty American states and the District of Columbia including federal and state executive, agency, legislative, corrections, and judicial officials and employees to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI calls upon the United States Attorney General and Department of Justice and the American Correctional Association and American Association of State Correctional Administrators, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples to also formally call upon the United States, all fifty American states, and the District of Columbia, to:

6 (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI joins ATNI in calling upon the United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya, for an investigation into the pervasive pattern in the United States of increasing state and local restrictions on the religious freedoms of incarcerated American Indigenous Peoples; and in reporting to the United Nations Human Rights Committee, in anticipation of its upcoming review of the United States, the United States failure to comply with its obligations under the ICCPR with regard to federal and state incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED that this Resolution shall be immediately transmitted to the United States Attorney General and the Assistant Attorney General for the U.S. Department of Justice Civil Rights Division, the United States Ambassador-at-Large for International Religious Freedoms, the Chairwoman of the Senate Committee on Indian Affairs and the Chairman of the House of Representatives Subcommittee on Indian and Alaska Native Affairs, the Presidents of the American Correctional Association and American Association of State Correctional Administrators, the Secretary of California Department of Corrections and Rehabilitation, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples. BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution. CERTIFICATION The foregoing resolution was adopted by the General Assembly at the 2013 Mid-year Conference of the National Congress of American Indians, held at the Sacramento Convention Center from June 24-27, 2013 in Reno, Nevada, with a quorum present.

7 N A T I O N A L C O N G R E S S OF A M E R I C A N I N D I A N S The National Congress of American Indians Resolution #REN TITLE: Ensuring the Protection of American Indigenous Prisoners Inherent Rights to Practice Traditional Indian Religion E XECUTIVE COMMITTEE PRESIDENT Joe A. Garcia Ohkay Owingeh (Pueblo of San Juan) FIRST VICE-PRESIDENT Jefferson Keel Chickasaw Nation RECORDING SECRETARY W. Ron Allen Jamestown S Klallam Tribe TREASURER gaiashkibos Lac Court Oreilles Band of Lake Superior Chippewa Indians R EGIONAL V ICE- P RESIDENTS ALASKA Mike Williams Yupiaq EASTERN OKLAHOMA Joe Grayson, Jr. Cherokee Nation GREAT PLAINS Ron His Horse Is Thunder Standing Rock Sioux Tribe MIDWEST Robert Chicks Stockbridge-Munsee NORTHEAST Randy Noka Narragansett NORTHWEST Ernie Stensgar Coeur d Alene Tribe PACIFIC Juana Majel Pauma-Yuima Band of Mission Indians ROCKY MOUNTAIN Willie Sharp, Jr. Blackfeet Tribe SOUTHEAST Archie Lynch Haliwa-Saponi SOUTHERN PLAINS Darrell Flyingman Cheyenne-Arapaho Tribes SOUTHWEST Derek Valdo Pueblo of Acoma WESTERN Alvin Moyle Fallon Paiute-Shoshone WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and WHEREAS, Native Americans, Alaska Natives and Native Hawaiians in the United States (collectively American Indigenous Peoples or Indian People ) have the highest incarceration rate of any racial or ethnic group in the country, at 38% the national rate; and WHEREAS, incarcerated American Indigenous Peoples depend upon their freedom to engage in traditional indigenous religious practices for their rehabilitation, survival, and the ability to maintain their identity as indigenous peoples; for some Native American prison inmates, walking the red road in the white man s iron house is the path to salvation, the way of beauty, and the only road to rehabilitation and survival, Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia 774 (2005); and WHEREAS, NCAI and other American indigenous governments, communities and societies generally share the penological goals of repressing criminal activity within their jurisdictions and thus preventing habitual criminal offense, and to that end, facilitating their imprisoned indigenous citizens spiritual rehabilitation; and WHEREAS, those traditional indigenous religious practices that further incarcerated American Indigenous Peoples rehabilitation include, without limitation, the practice of sweat lodge, talking circle, blessing way, Change of Seasons, pipe, drumming, and pow wow ceremonies; and the related use of sacred traditional items like beadwork, pipes, eagle feathers, animal hides, bones and teeth, prayer fans, handdrums and sticks, rattles and medicine bags, and sacred traditional medicines like sage, sweet grass, cedar, copal, bitter root, osha root, kinnikinnick, and tobacco; and EXECUTIVE DIRECTOR Jacqueline Johnson Tlingit

8 NCAI 2013 Mid-Year Session Resolution ### WHEREAS, NCAI and other American indigenous governments, as a matter of those indigenous governments own laws, policies, customs, traditions, and practices, affirm and support the traditional indigenous religious rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; and WHEREAS, it is the policy of the United States, according to the American Indian Religious Freedom Act of 1978, 42 U.S.C. 1996, to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites ; and WHEREAS, in the Native American Apology Resolution, Public Law No , section 8113, Dec. 19, 2009, 123 Stat. 3453, the United States expressed its commitment to build on the positive relationships of the past and present to move toward a brighter future where all the people of this land live reconciled as brothers and sisters... and encourage[d] all State governments similarly to work toward reconciling relationships with Indian tribes within their boundaries ; and WHEREAS, the United States Supreme Court has recognized that prison inmates do not forfeit all constitutional protections by reason of their conviction and confinement in prison, Bell v. Wolfish, 441 U.S. 520, 545 (1979); and WHEREAS, the first Amendment of the United States Constitution, as well as state constitutional amendments and provisions, generally guarantee all Americans including American Indigenous Peoples the right to religious liberty; and WHEREAS, the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq., generally prevents a prison from substantially burdening an incarcerated American indigenous person s religious exercise unless the imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest; and WHEREAS, the United Nations Declaration on the Rights of Indigenous Peoples ( the Declaration ), as endorsed by the United States in 2010, affirms that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, and that indigenous peoples have the right to be free from any kind of discrimination, in the exercise of their rights ; and WHEREAS, the Declaration provides that States such as the United States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs ; and Page 2 of 5

9 NCAI 2013 Mid-Year Session Resolution ### WHEREAS, the Declaration further provides that Indigenous peoples have the right to manifest, [practice], develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; [and] the right to the use and control of their ceremonial objects... ; and WHEREAS, the International Covenant on Civil and Political Rights (ICCPR), as ratified by the United States in 1992, provides that everyone shall have the right to freedom of thought, conscience and religion, which shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching, and further states that religious or ethnic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture [and] to profess and practi[c]e their own religion ; and WHEREAS, the ICCPR also provides that the [f]reedom to manifest one s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, in regard to which the United Nations Office of the High Commissioners for Human Rights has declared that persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint ; and WHEREAS, the United States has further expressed, in its International Religious Freedom Report for 2011, that it opposes governments that repress[] forms of expression and religious freedom ; and WHEREAS, notwithstanding the above-referenced international, federal, and American indigenous government laws and norms, the inherent rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion, are too frequently violated by federal, state, and local government actors in the United States; and WHEREAS, the states of Washington, Montana, and California, which share borders with several Northwest tribal governments, have in recent years violated the inherent rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; yet in the instance of Washington State, the state s Department of Corrections violations of those inherent rights were subsequently remedied through the state and agency s meaningful consultation and collaboration with Washington tribal governments; and WHEREAS, on April 19, 2013, Huy, a non-governmental organization lead by Northwest tribal leaders and advocates that provides economic, educational, rehabilitative and religious support for incarcerated American Indigenous Peoples, submitted a Letter of Allegation to United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya, requesting an investigation into the pervasive pattern in the United States of increasing state and local restrictions on the religious freedoms of incarcerated American Indigenous Peoples. Page 3 of 5

10 NCAI 2013 Mid-Year Session Resolution ### NOW THEREFORE BE IT RESOLVED, that NCAI commends and supports the inherent rights of federally and state incarcerated American Indigenous Peoples to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED, that NCAI denounces and opposes any inappropriate or illegal federal, state or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, including any such restriction that does not advance the shared penological goals of federal, state and American indigenous governments or that was not preceded by meaningful tribal consultation with affected Northwest tribes or other American indigenous governments; and BE IT FURTHER RESOLVED, that NCAI specifically denounces and opposes the California Department of Corrections and Rehabilitation s emergency amendments to Section 3190(b) of the California Code of Regulations, Title 15, Crime Prevention and Corrections, and related regulatory restrictions regarding American Indigenous Peoples religious properties and sweatlodge ceremonies, because those state regulations violate federal, state and international law, were promulgated without any consultation with American indigenous governments, and are contrary to the penological interest of rehabilitating incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI calls upon the United States, all fifty American states and the District of Columbia including federal and state executive, agency, legislative, corrections, and judicial officials and employees to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples. ; and BE IT FURTHER RESOLVED, that NCAI calls upon other regional inter-tribal associations, Northwest tribes and other American indigenous governments, the United States Attorney General and Department of Justice and the American Correctional Association and American Association of State Correctional Administrators, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples to also formally call upon the United States, all fifty American states, and the District of Columbia, to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, Page 4 of 5

11 NCAI 2013 Mid-Year Session Resolution ### (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples. ; and BE IT FURTHER RESOLVED, that NCAI joins Huy in calling upon the United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya, for an investigation into the pervasive pattern in the United States of increasing state and local restrictions on the religious freedoms of incarcerated American Indigenous Peoples; and in reporting to the United Nations Human Rights Committee, in anticipation of its upcoming review of the United States, the United States failure to comply with its obligations under the ICCPR with regard to federal and state incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED that this Resolution shall be immediately transmitted to the President of the National Congress of American Indians, the United States Attorney General and the Assistant Attorney General for the U.S. Department of Justice Civil Rights Division, the United States Ambassador-at-Large for International Religious Freedoms, the Chairwoman of the Senate Committee on Indian Affairs and the Chairman of the House of Representatives Subcommittee on Indian and Alaska Native Affairs, the Presidents of the American Correctional Association and American Association of State Correctional Administrators, the Secretary of California Department of Corrections and Rehabilitation, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples; and BE IT FURTHER RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution. CERTIFICATION The foregoing resolution was adopted by the General Assembly at the 2013 Mid-Year Session of the National Congress of American Indians, held in Reno, Nevada on June 24-27, 2013, with a quorum present. ATTEST: President Recording Secretary Page 5 of 5

12 N A T I O N A L C O N G R E S S O F A M E R I C A N I N D I A N S E XECUTIVE COMMITTEE PRESIDENT Jefferson Keel Chickasaw Nation FIRST VICE-PRESIDENT Juana Majel Dixon Pauma Band of Mission Indians RECORDING SECRETARY Edward Thomas Central Council of Tlingit & Haida Indian Tribes of Alaska TREASURER W. Ron Allen Jamestown S Klallam Tribe R EGIONAL V ICE- P RESIDENTS ALASKA Cynthia Ahwinona Nome Eskimo Community EASTERN OKLAHOMA S. Joe Crittenden Cherokee Nation GREAT PLAINS Robert Shepherd Sisseton Wahpeton MIDWEST Matthew Wesaw Pokagon Band of Potawatomi NORTHEAST Lance Gumbs Shinnecock Indian Nation NORTHWEST Fawn Sharp Quinault Indian Nation PACIFIC Don Arnold Scotts Valley Band of Pomo Indians ROCKY MOUNTAIN Ivan Posey Shoshone Tribe SOUTHEAST Larry Townsend Lumbee Tribe SOUTHERN PLAINS George Thurman Sac and Fox Nation SOUTHWEST Joe Garcia Ohkay Owingeh WESTERN Ned Norris, Jr Tohono O odham Nation EXECUTIVE DIRECTOR Jacqueline Johnson Pata Tlingit NCAI HEADQUARTERS 1516 P Street, N.W. Washington, DC fax The National Congress of American Indians Resolution #REN Edits TITLE: Ensuring the Protection of NativeAmerican Indigenous Prisoners Inherent Rights to Practice their Traditional Indian Religions WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and WHEREAS, Native AmericansAmerican Indians, Alaska Natives, and Native Hawaiians in the United States (collectively Native Americans or Indian people ) collectively American Indigenous Peoples or Indian People ) are under the supervision of the adult correctional systems at a rate higher than their presence in the U.S. population, which includes probation, parole, or in custody of tribal, state, or federal incarceration facilitieshave the highest incarceration rate of any racial or ethnic group in the country, at 38% the national rate; and WHEREAS, incarcerated American Indigenous Peoples Native Americans depend upon their freedom to engage in traditional indigenous religious practices for their rehabilitation, survival, and the ability to maintain their identity as indigenous peoples;, which for many Indian people is a proper and necessary road to rehabilitation for some Native American prison inmates, walking the red road in the white man s iron house is the path to salvation, the way of beauty, and the only road to rehabilitation and survival, Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia 774 (2005); and WHEREAS, American indigenous Native governments, communities, and societies generally share the penological goals of repressing criminal activity within their jurisdictions and thus preventing habitual criminal offense, and to that end, selfdetermination in facilitating their imprisoned indigenous citizens spiritual rehabilitation of their citizens; and WHEREAS,, and those traditional indigenous religious practices that further incarcerated American Indigenous Peoples assist Indian peoples rehabilitation are unique to each Native group and many Native governments have developed laws and policies that affirm and support traditional Native religious rights and

13 NCAI 2013 Midyear Resolution REN-13-0xx005 expressionsinclude, without limitation, the practice of sweat lodge, talking circle, blessing way, Change of Seasons, pipe, drumming, and pow wow ceremonies; and the related use of sacred traditional items like beadwork, pipes, eagle feathers, animal hides, bones and teeth, prayer fans, hand-drums and sticks, rattles and medicine bags, and sacred traditional medicines like sage, sweet grass, cedar, copal, bitter root, osha root, kinnikinnick, and tobacco; and WHEREAS, many American indigenous governments, as a matter of those indigenous governments own laws, policies, customs, traditions, and practices, affirm and support the traditional indigenous religious rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; and WHEREAS, numerous U.S. domestic laws and international laws developed at the United Nations have affirmed the traditional religious rights of incarcerated Native peoples and have affirmed Native peoples overall freedom to believe, express, and exercise their traditional religious and cultural practices; and WHEREAS, it is the policy of the United States, according to the American Indian Religious Freedom Act of 1978, 42 U.S.C. 1996, to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites ; and WHEREAS, in the Native American Apology Resolution, Public Law No , section 8113, Dec. 19, 2009, 123 Stat. 3453, the United States expressed its commitment to build on the positive relationships of the past and present to move toward a brighter future where all the people of this land live reconciled as brothers and sisters... and encourage[d] all State governments similarly to work toward reconciling relationships with Indian tribes within their boundaries ; and WHEREAS, the United States Supreme Court has recognized that prison inmates do not forfeit all constitutional protections by reason of their conviction and confinement in prison, Bell v. Wolfish, 441 U.S. 520, 545 (1979); and WHEREAS, the first Amendment of the United States Constitution, as well as state constitutional amendments and provisions, generally guarantee all Americans including American Indigenous Peoples the right to religious liberty; and WHEREAS, the federal Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq., generally prevents a prison from substantially burdening an incarcerated American indigenous person s religious exercise unless the imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest; and WHEREAS, the United Nations Declaration on the Rights of Indigenous Peoples ( the Declaration ), as endorsed by the United States in 2010, affirms that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural

14 NCAI 2013 Midyear Resolution REN-13-0xx005 differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, and that indigenous peoples have the right to be free from any kind of discrimination, in the exercise of their rights ; and WHEREAS, the Declaration provides that States such as the United States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs ; and. WHEREAS, the Declaration further provides that Indigenous peoples have the right to manifest, [practice], develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; [and] the right to the use and control of their ceremonial objects... ; and WHEREAS, the International Covenant on Civil and Political Rights (ICCPR), as ratified by the United States in 1992, provides that everyone shall have the right to freedom of thought, conscience and religion, which shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching, and further states that religious or ethnic minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture [and] to profess and practi[c]e their own religion ; and WHEREAS, the ICCPR also provides that the [f]reedom to manifest one s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, in regard to which the United Nations Office of the High Commissioners for Human Rights has declared that persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint ; and WHEREAS, the United States has further expressed, in its International Religious Freedom Report for 2011, that it opposes governments that repress[] forms of expression and religious freedom ; and WHEREAS, notwithstanding the above-referenced international, federal, and American indigenous government laws and norms, the inherent rights of incarcerated American Indigenous PIndian peoples eoples freedom to believe, express, and exercise traditional indigenous religion, are too frequently violated by federal, state, and local government actors in the United States, and this has been reference in NCAI Resolution #SD ; and WHEREAS, the states of California, Montana, South Dakota, New Mexico, Texas and Washington have in recent years violated the inherent rights of incarcerated American Indigenous Peoples freedom to believe, express, and exercise traditional indigenous religion; yet in the instance of Washington State, the state s Department of Corrections violations of those inherent rights were subsequently remedied through the state and agency s meaningful consultation and collaboration with Washington tribal governments; and

15 NCAI 2013 Midyear Resolution REN-13-0xx005 WHEREAS, on May 13, 2013, the Affiliated Tribes of Northwest Indians (ATNI) passed Resolution No , which in part called upon NCAI to formally call upon the United States, all fifty American states, and the District of Columbia, to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples ; now THEREFORE BE IT RESOLVED, that NCAI commends and supports the inherent rights of federally and state incarcerated American Indigenous Peoples to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED, that NCAI denounces and opposes any inappropriate or illegal federal, state or local government restrictions placed upon incarcerated American IndigenousNative Peoples inherent rights to believe, express, and exercise traditional indigenous heir traditional religions and practices, and Resolution #REN replaces Resolution #SD , including any such restriction that does not advance the shared penological goals of federal, state and American indigenous governments or that was not preceded by meaningful tribal consultation with affected NCAI tribes or other American indigenous governments; and BE IT FURTHER RESOLVED, that NCAI specifically denounces and opposes the California Department of Corrections and Rehabilitation s emergency amendments to Section 3190(b) of the California Code of Regulations, Title 15, Crime Prevention and Corrections, and related regulatory restrictions regarding American Indigenous Peoples religious properties and sweatlodge ceremonies that were promulgated in February of 2013, because those state regulations violate federal, state and international law, were promulgated without any consultation with American indigenous governments, and are contrary to the penological interest of rehabilitating incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI calls upon the United States, all fifty American states and the District of Columbia including federal and state executive, agency, legislative, corrections, and judicial officials and employees to: (a) (a) Ttake all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI calls upon the United States Attorney General and Department of Justice and the American Correctional Association and American Association of State Correctional Administrators, and the United Nations Special Rapporteur on the Rights of

16 NCAI 2013 Midyear Resolution REN-13-0xx005 Indigenous Peoples to also formally call upon the United States, all fifty American states, and the District of Columbia, to: (a) Take all reasonable steps to commend, support, and facilitate incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, (b) Denounce or cease any unduly inappropriate or illegal federal, state, or local government restriction upon incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion, and (c) Explore how federal, state, and American indigenous governments can jointly develop and advance shared penological goals in regard to incarcerated American Indigenous Peoples; and BE IT FURTHER RESOLVED, that NCAI joins ATNI in calling calls upon the United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya, for an investigation into the pervasive pattern in the United States of increasing state and local restrictions on the religious freedoms of incarcerated American Indigenous PNative peoples in the United States; and in reporting to the United Nations Human Rights Committee, in anticipation of its upcoming review of the United States, the United States failure to comply with its obligations under the ICCPR with regard to federal and state incarcerated American Indigenous Peoples inherent rights to believe, express, and exercise traditional indigenous religion; and BE IT FURTHER RESOLVED that this Resolution shall be immediately transmitted to the United States Attorney General and the Assistant Attorney General for the U.S. Department of Justice Civil Rights Division, the United States Ambassador-at-Large for International Religious Freedoms, relevant Congressional Committees,the Chairwoman of the Senate Committee on Indian Affairs and the Chairman of the House of Representatives Subcommittee on Indian and Alaska Native Affairs, and the Presidents of the American Correctional Association and American Association of State Correctional Administrators, the Secretary of California Department of Corrections and Rehabilitation, and the United Nations Special Rapporteur on the Rights of Indigenous Peoples.; and BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution. CERTIFICATION The foregoing resolution was adopted by the General Assembly at the 2013 Midyear Session of the National Congress of American Indians, held at the Atlantis Casino from June 24-27, 2013 in Reno, Nevada with a quorum present. ATTEST: President

17 NCAI 2013 Midyear Resolution REN-13-0xx005 Recording Secretary President ATTEST: Recording Secretary