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Sunday, 16 February 2014

Native American inmates appeal hair length issue to U.S. Supreme Court

Plaintiffs argue Corrections' policy requiring short hair violates their religious tenets

By Brian Lyman
Montgomery Advertiser
MONTGOMERY, Ala. — A group of Native American inmates seeking the right to wear their hair long want the U.S. Supreme Court to review their case.
Attorneys for the inmates filed a petition with the nation’s highest court this week, asking the court to overturn recent rulings that have upheld a Department of Corrections policy requiring all male inmates to keep their hair cut short.
The plaintiffs, a group of current and former inmates who practice Native American religions, argue that long hair is a foundational part of their religious beliefs. Doug Dark Horns Bailey, an artist, Creek Indian and one of the plaintiffs in the suit, told the Advertiser last September that watching his hair fall to the floor during a mandated haircut in prison led him to feel that “most of me was laying on the floor.”
“Hair is closely connected to a Native American’s innermost being and identity, and has profound religious significance for all tribes,” Montgomery attorney Mark Sabel, representing the plaintiffs, said in a statement Thursday. “Hair constitutes part of one’s identity as an Indian person, and is a cornerstone element in Native American religious practice.”
DOC, in turn, argues that the policy is designed to ensure safety within the prisons. Corrections says that long hair makes it easier to smuggle contraband into prisons; is liable to be pulled during altercations and can allow escaped inmates to quickly change their appearance.
In their Supreme Court filing, the plaintiffs argue the 11th Circuit decisions contradict decisions in other circuits on the 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA forbids state and local governments from substantially burdening religious practice, unless they can demonstrate the burden is the least restrictive way to advance a compelling interest. The plaintiffs argue that courts in those circuits have required states to grant religious exemptions to their grooming policies.
“The Eleventh Circuit held that state prison officials do not need to actually consider and distinguish alternative policies in order to meet their burden under RLUIPA,” the petition says. “This holding flies in the face of the judgments of every other circuit to consider the issue.”
In two separate decisions late last year, panels of the 11th Circuit Court of Appeals sided with the Department of Corrections, saying Alabama could set its own policies on inmates’ hair, based on its determination of the risk and without reference to other states’ approaches.
“That other jurisdictions choose to allow male inmates to wear long hair shows only that they have elected to absorb those risks,” a court panel wrote in July. “The (Religious Land Use and Institutionalized Persons Act) does not force institutions to follow the practices of their less risk-averse neighbors, so long as they can prove that they have employed the least restrictive means of furthering the compelling interests that they have chosen to address.”
DOC commissioner Kim Thomas on Thursday had no comment on the filing, but noted the department had prevailed in previous actions.
“We’ve won that in two separate hearings at the district court level,” he said.
The latest action is part of litigation over Native American religious practices that stretches back to 1993. As a result of the suit, DOC has gradually expanded the number of religious practices available to those who practice Native American religions. However, the hair policy issue remains an area of dispute.

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