An Act Recognizing Native American Religion in Maine Prisons and Jails
Maine Legislature, Session 123, LD 0507
Committee: Judiciary
Sponsors: SOCTOMAH, EATON, LORING, PERRY, PIEH, SCHATZ
Amends: 5 MRSA §4553, 5 MRSA §4613, 30-A MRSA §1561-A, 30-A MRSA §1653, 34-A MRSA §3031-C

Legislative Document 
No. 507 
H.P.390 
House of Representatives, February 1, 2007 
An Act Recognizing Native American Religion in Maine Prisons and 
Jails 
Reference to the Committee on Judiciary suggested and ordered printed. 
111~/J7·~ 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative SOCTOMAH of the Passamaquoddy Tribe. 
Cosponsored by Representati yes: CLEARY of Houlton, EATON of Sullivan, LORING of the 
Penobscot Nation, PERRY of Calais, PIEH of Bremen, SCHATZ of Blue Hill. 
Printed nn n~cycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 5 MRSA §4553, sub-§IO, ~, as amended by PL 2005, c. 10, §5, is 
further amended to read: 
F. Unlawful educational discrimination as defined and limited by subchapter 5-B; 
aBEl 
Sec. 2. 5 MRSA §4553, sub-§IO, ~G, as enacted by PL 2005, c. 10, §6, is 
amended to read: 
G. 
Discrimination in employment, housing, public accommodation, credit and 
educational opportunity on the basis of sexual orientation, except that a religious 
corporation, association or organization that does not receive public funds is exempt 
from this provision with respect to: 
(1) Employment, as is more fully set forth in section 4553, subsection 4 and 
section 4573-A; 
(2) Housing, as is more fully set forth in section 4553, subsection 6, paragraph 
C; and 
(3) Educational opportunity, as is more fully set forth in section 4602, subsection 
4. 
Any for-profit organization owned, controlled or operated by a religious association 
or corporation and subject to the provisions of the Internal Revenue Code, 26 United 
States Code, Section 511(a) is not covered by the exemptions set forth in this 
paragraph,:, ; and 
Sec. 3. 5 MRSA §4553, sub-§IO, ~ 
is enacted to read: 
H. 
Failure to provide reasonable accommodation of Native American religious 
practices or ceremonies in violation of Title 30-A, section 1561-A or Title 34-A, 
section 3031-C. 
Sec. 4. 5 MRSA §4613, sub-§2, ~, as amended by PL 1997, c. 400, §1, is 
further amended to read: 
B. If the court finds that unlawful discrimination occurred, its judgment must specify 
an appropriate remedy or remedies for that discrimination. 
The remedies may 
include, but are not limited to: 
(1) An order to cease and desist from the unlawful practices specified in the 
order; 
(2) 
An order to employ or reinstate a victim of unlawful employment 
discrimination, with or without back pay; 
(3) An order to accept or reinstate such a person in a union; 
(4) 
An order to rent or sell a specified housing accommodation, or one 
substantially identical to that accommodation if controlled by the respondent, to a 
victim of unlawful housing discrimination; 
(5) An order requiring the disclosure of the locations and descriptions of all 
housing accommodations that the violator has the right to sell, rent, lease or 
manage; 
and 
forbidding the 
sale, 
rental 
or lease of those 
housing 
accommodations until the violator has given security to assure compliance with 
any order entered against the violator and with all provisions of this Act. An 
order may continue the court's jurisdiction until the ·violator has demonstrated 
compliance, and may defer decision on some or all relief until after a 
probationary period and a further hearing on the violator's conduct during that 
period; 
(6) An order to pay the victim, in cases of unlawful price discrimination, 3 times 
the amount of any excessive price demanded and paid by reason of that unlawful 
discrimination; 
(7) 
An order to pay to the victim of unlawful discrimination, other than 
employment discrimination in the case of a respondent who has more than 14 
employees, or, if the commission brings action on behalf of the victim, an order 
to pay to the victim, the commission or both, civil penal damages not in excess of 
$10,000 in the case of the first order under this Act against the respondent, not in 
excess of $25,000 in the case of a 2nd order against the respondent arising under 
the same subchapter of this Act and not in excess of $50,000 in the case of a 3rd 
or subsequent order against the respondent arising under the same subchapter of 
this Act, except that the total amount of civil penal damages awarded in any 
action filed under this Act may not exceed the limits contained in this 
subparagraph; 
(8) 
In cases of intentional employment discrimination, compensatory and 
punitive damages as provided in this subparagraph. 
(a) In an action brought by a complaining party under section 4612 and this 
section against a respondent who engaged in unlawful intentional 
discrimination prohibited under sections 4571 to 4575, if the complaining 
party can not recover under 42 United States Code, Section 1981 (1994), the 
complaining party may recover compensatory and punitive damages as 
allowed in this subparagraph in addition to any relief authorized elsewhere in 
this subsection from the respondent. 
(b) When a discriminatory practice involves the provision of a reasonable 
accommodation, damages may not be awarded under this subparagraph when 
the covered entity demonstrates good faith efforts, in consultation with the 
person with the disability who has informed the covered entity that 
accommodation is needed, to identify and make a reasonable accommodation 
that would provide that individual with an equally effective opportunity and 
would not cause an undue hardship on the operation of the business. 
(c) 
A complaining party may recover punitive damages under this 
subparagraph against a respondent if the complaining party demonstrates that 
the respondent engaged in a discriminatory practice or discriminatory 
practices with malice or with reckless indifference to the rights of an 
aggrieved individual protected by this Act. 
(d) Compensatory damages awarded under this subparagraph do not include 
back pay, interest on back payor any other type of relief authorized 
elsewhere under this subsection. 
(e) The sum of compensatory damages awarded under this subparagraph for 
future pecuniary losses, emotional pain, suffering, inconvenience, mental 
anguish, loss of enjoyment of life, other nonpecuniary losses and the amount 
of punitive damages awarded under this section may not exceed for each 
complaining party: 
(i) In the case of a respondent who has more than 14 and fewer than 101 
employees in each of 20 or more calendar weeks in the current or 
preceding calendar year, $50,000; 
(ii) In the case of a respondent who has more than 100 and fewer than 
I employees in each of 20 or more calendar weeks in the current or 
preceding calendar year, $100,000; 
(iii) In the case of a respondent who has more than 200 and fewer than 
employees in each of 20 or more calendar weeks in the current or 
preceding calendar year, $200,000; and 
(iv) In the case of a respondent who has more than 500 employees in 
each of 20 or more calendar weeks in the current or preceding calendar 
year, $300,000. 
(f) Nothing in this subparagraph may be construed to limit the scope of, or 
the relief available under, 42 United States Code, Section 1981 (1994). 
(g) If a complaining party seeks compensatory or punitive damages under 
this subparagraph, any party may demand a trial by jury and the court may 
not inform the jury of the limitations described in division (e). 
(h) This subparagraph does not apply to recoveries for a practice that is 
unlawful only because of its disparate impact. 
(i) Punitive damages may not be included in a judgment or award against a 
governmental entity, as defined in Title 14, section 8102, subsection 2, or 
against an employee of a governmental entity based on a claim that arises out 
of an act or omission occurring within the course or scope of that employee's 
employment; aOO 
(9) In addition to other remedies in subparagraphs (1) to (8), an order to pay 
actual damages in the case of discriminatory housing practices. 
This 
subparagraph is not intended to limit actual damages available to a plaintiff 
alleging other discrimination if the remedy of actual damages is otherwise 
available under this Act:-; and 
(10) In the case of a violation of Title 30-A, section 1561-A or Title 34-A, 
section 3031-C, an order to provide appropriate accommodation for Native 
American religious practices and ceremonies. The order may be as specific as 
necessary to ensure that reasonable accommodation is provided. 
Sec. 5. 30-A MRSA §1561-A is enacted to read: 
§1561-A. Religious rights of Native American prisioners 
1. Religious rights. A Native American prisoner in a county jail has a right to a 
reasonable opportunity to conduct or take part in, and a county jail shall provide 
reasonable accommodation for, Native American religious practices and ceremonies. For 
purposes of this section, "reasonable accommodation for Native American religious 
practices and ceremonies" includes, but is not limited to, reasonable accommodation of 
the following: 
A. Sacred pipe ceremonies involving ceremonial use of sacred herbs and tobacco; 
B. Talking circle ceremonies used to facilitate group meetings and help participants 
learn important lessons of listening to each other with respect and dignity; 
C. 
Smudging ceremonies involving the smudging of sacred herbs such as sage, 
sweet grass, cedar and tobacco in a smudging bowl; 
D. Sweat lodge ceremonies; 
E. Ceremonial drumming and singing of Native American songs; 
F. 
Native American reading programs that allow and facilitate access to Native 
American religious literature; 
G. Annual traditional feasts with traditional foods; and 
H. 
Possession and use of ceremonial items, including but not limited to medicine 
bags, drums, eagle feathers, sweet grass, sacred pipes, tobacco ties, sage, cedar, 
smudge bowls, turtle rattles, prayer blankets, beads and string for necklaces, dream 
catchers and tribal ceremonial attire such as ribbon shirts, cloth shields and sacred 
sticks. 
2. Remedies. A person who believes that the person has been denied reasonable 
accommodation in accordance with the requirements of this section may file a complaint 
with the Maine Human Rights Commission pursuant to Title 5, section 4611 or file a civil 
action in the Superior Court pursuant to Title 5, section 4621 against the sheriff or, if that 
office is vacant, the jailer, for failure to provide such reasonable accommodation. 
Sec. 6. 30-A MRSA §1653, as enacted by PL 1987, c. 737, Pt. A, §2 and Pt. C, 
§ 106 and amended by PL 1989, c. 6; c. 9, §2; and c. 104, Pt. C, §§8 and 10, is further 
amended by adding at the end a new paragraph to read: 
Accommodation for Native American religious practices and ceremonies must be 
provided in accordance with section 1561-A. 
Sec. 7. 34-A MRSA §3031-C is enacted to read: 
§3031-C. Religious rights of Native American prisoners 
1. Religious rights. A Native American prisoner in a correctional or detention 
facility has a right to a reasonable opportunity to conduct or take part in, and the 
commISSIOner shall ensure correctional and detention facilities under the general 
administrative supervision of the department provide reasonable accommodation for, 
Native American religious practices and ceremonies. 
For purposes of this section, 
"reasonable accommodation for Native American religious practices and ceremonies" 
includes, but is not limited to, reasonable accommodation of the following: 
A. 
Sacred pipe ceremonies involving ceremonial use of sacred herbs and tobacco; 
B. 
Talking circle ceremonies used to facilitate group meetings and help participants 
learn important lessons of listening to each other with respect and dignity; 
C. 
Smudging ceremonies involving the smudging of sacred herbs such as sage, 
sweet grass, cedar and tobacco in a smudging bowl; 
D. 
Sweat lodge ceremonies; 
E. 
Ceremonial drumming and singing of Native American songs; 
F. 
Native American reading programs that allow and facilitate access to Native 
American religious literature; 
G. 
Annual traditional feasts with traditional foods; and 
H. 
Possession and use of ceremonial items, including but not limited to medicine 
bags, drums, eagle feathers, sweet grass, sacred pipes, tobacco ties, sage, cedar, 
smudge bowls, turtle rattles, prayer blankets, beads and string for necklaces, dream 
catchers and tribal ceremonial attire such as ribbon shirts, cloth shields and sacred 
sticks. 
2. Remedies. A person who believes that the person has been denied reasonable 
accommodation in accordance with the requirements of this section may file a complaint 
with the Maine Human Rights Commission pursuant to Title 5, section 4611 or file a civil 
action in the Superior Court pursuant to Title 5, section 4621 against the commissioner 
for failure to provide such reasonable accommodation. 
Sec. 8. Development of guidance policies. The Commissioner of Corrections 
shall seek to develop guidance policies to assist correctional and detention facilities and 
county jails in providing reasonable accommodation for Native American religious 
practices and ceremonies in accordance with the requirements of the Maine Revised 
Statutes, Title 30-A, section 1561-A and Title 34-A, section 303J-C. The commissioner 
shall seek to form a Native American advisory group to assist in developing the guidance 
policies by inviting the governing bodies of each of the 4 federally recognized tribes in 
this State to appoint an appropriate member of that tribe to the advisory group. The 
commissioner shall seek to develop guidance policies that are specific to particular Native 
American practices or ceremonies, explain or describe the important elements of each 
practice or ceremony and describe how a practice or ceremony may be accommodated in 
a correctional setting. The commissioner shall provide to administrators of correctional 
and detention facilities and county jails any guidance policies developed by the 
commissioner and reviewed and approved by a Native American advisory group in 
accordance with this section. 
SUMMARY 
This bill provides Native Americans incarcerated in a state prison or county jail a 
right to a reasonable opportunity to conduct or take part in Native American religious 
practices and ceremonies. 
The bill provides that failure of the facility to provide 
reasonable accommodation for Native American religious practices and ceremonies is 
unlawful discrimination pursuant to the Maine Human Rights Act; remedies for such 
failure are provided under that Act. The bill directs the Commissioner of Corrections to 
seek to develop, in consultation with an advisory group of Native Americans, guidance 
policies to assist correctional and detention facilities and county jails in providing 
reasonable accommodations for Native American religious practices and ceremonies.