I received a notice from the Superior Court of a hearing on a motion for contempt filed by Randall Shield Wolf Trapp, lead plaintiff in the lawsuit that had won protection for Native American Indian religious practices in Massachusetts prisons. Shield Wolf had filed the motion pro se, “for himself,” without representation, so it’s unusual that I got a notice to appear. More unusual is the fact that I had been an attorney pro hac vice in the case, meaning that I am not a member of the Massachusetts Bar, but was admitted for the purposes of this case only, on motion by my co-counsel, Robert Doyle, who is a member; but Bob didn’t get a notice of this hearing!

We figured something was screwy, but we went to court. We got the papers from the clerk and saw what Shield Wolf had filed: a motion to show cause why the Department of Corrections (DOC) should not be held in contempt of the court-ordered Agreement, because it has prohibited the use of tobacco in the kinnickkinnick mixture (for smoking and in Medicine bundles). The Agreement states that religious ceremonies in the prisons shall be based upon Wampanoag traditions. Shield Wolf’s motion argued that a tobacco mixture is in accord with Wampanoag tradition.

We saw that the court had issued a habeas writ, ordering the DOC to bring Shield Wolf to court for the hearing. When we looked for him, however, we found he had not been brought to court. We were disappointed not to see him. He is a thoughtful person, whose conversation always opens philosophical vistas. He had been the inmate leader of the original Native American Circle at the time the original litigation began.

Bob and I went to the courtroom at the scheduled time, to see what might happen and what, if anything, we could do. Staff Attorney Joan Kennedy appeared for the DOC. The judge, Ernest Murphy, told the court officer to find Shield Wolf, but he could not be found; he was not in the building and there was no information about his whereabouts. The judge took no action to enforce his habeas order, and, instead, said he wanted to “have a discussion” about the motion. He recognized that neither Bob nor I represented Shield Wolf, but said, since we were familiar with the case he wanted to explore the Constitutional and Native American religious issues. We said we had only seen the motion that morning; the DOC attorney said she had not seen it at all. The judge told her to “calm down,” and handed her the court’s copy and said she should read it and then speak to it. We had a few minutes break while she read the motion and looked through her whole file, making notes. When she was ready, the court reconvened.

The judge asked Kennedy to speak first. She talked about the Native Circle being in existence a long time, and said it was working well. She said she had spoken to the Superintendent at Gardner prison recently and been told there were no complaints about anything with the Circle. She said tobacco was not mentioned specifically in the Agreement, and that the proper route for complaints was not a contempt hearing, but through the DOC Religious Services Committee. Then she said that one of the names on a Circle member list looked like a Muslim name.

Bob and I both spoke. We pointed out this was a pro se matter, that we had not entered appearances at this hearing, and that Shield Wolf was doing a good job with the motion and should be provided an opportunity for a hearing through enforcement of the habeas. I said the DOC attorney was confusing different prisons, that Shield Wolf was at Norfolk, not Gardner, that I was aware of many complaints from Native Circles in several prisons that had been made to the Religious Services Committee with no results, and that a contempt hearing was appropriate. I also said the remark about a Muslim name seemed irrelevant to the issue and designed to arouse suspicion in the current political climate.

The judge said, “Where there’s smoke, there’s fire.” I heard this as an acknowledgment of a problem with the smoking mixture, but he refused to get involved. He said nothing about the ignored habeas. He said the existence of other complaints meant this motion is only the “tip of the iceberg” and anything he ruled would not end the overall troubles. He said Shield Wolf should take the matter to the Appeals Court, since it had ordered the settlement Agreement. I pointed out that the Agreement says it shall be enforceable in Superior Court; the judge said that didn’t matter. I argued that the other issues were not before him — only the motion from Shield Wolf — and he said again it didn’t matter. He denied the motion.

We were very upset, and walked out without waiting for Attorney Kennedy. On the way home, we talked about various options for Shield Wolf. Before I could bring myself to write about those, I wrote the prose poem. It got much off my chest.