Sweat Lodge Appeal Wins – Oakland

Here’s Rob Yanagida’s testimony presented to the Oakland Planning Commission.

July 19, 2017

Commissioner Adhi Nagraj
Oakland City Planning Commission
250 Frank H Ogawa Plaza
Oakland, CA 94612

Subject: PLN15195 A01- Conditional Use Permit – Applicant – Wilson Riles

Dear Commissioner Nagraj:

My name is Rob Yanagida. I’m an attorney with 30 years of experience, and have a practice in downtown Oakland.

I am writing in support of Nafsi ya Jamii’s appeal of the Planning Department staff denial of a conditional use permit.  Before my involvement of the past 2 1/2 years with the current application, I’ve participated in activist trainings and meetings at the Nafsi Ya Jamii community.

I’ve researched the law specific to sweat lodge ceremony.  I have a few points to make.

The controversial appointment of Justice Gorsuch, to the Supreme Court, has brought into the news his ruling, we might be surprised, specifically on sweat lodge ceremony. In 2014’s Yellowbear v. Lampert case he concluded simply that native prisoners too have the constitutional right to practice sweat lodge ceremony. The decision pointed out that the traditional sweat lodge with its fire are well recognized judicially as central to native spiritual beliefs. The government, prison officials here, must use the “least restrictive means” to regulate. “Neutral” is in effect discriminatory.

Native rights activists in unique coalition with conservative religious groups brought about these changes. In this wake, cities in the state of Utah, wrote new regulations specifically for sweat lodge ceremonies.  Their scheme relies on traditional native spiritual practitioners to balance the fire safety, environmental determinations.  Their environmental quality regulations include more specifics (R303-202-2). No permits either are required for ceremonies. Portland and Seattle also have specific sweat ledge ordinances. The ceremony at Nafsi Ya Jamii is conducted by Jeremy Goodfeather, who has been specifically authorized by one of the Four Chiefs of the Arapaho tribe.  It would fit very well as a suggested path to help resolve the disputes over permits, structures and related concerns.

What’s Oakland’s law on sweat lodge ceremony?  The Fire Department cited the “religious ceremonies” provision of the fire code in its Cease and Desist Order of April 10, 2015.  “…participants in religious ceremonies are allowed to carry hand-held candles.  Hand-held candles shall not be passed from one person to another while lighted.” (2013 CA Fire Code 308.1.6).  There is no guidance.

The Planning Commission can take action now in this Conditional Use Permit.  The legal points on “least restrictive means” rather than “neutral” offer guidance. Staff use of “neutrality” in its approach has a way of inflaming.  It is also not for city department staff to intervene, through permits, expanding or narrowing scope and trying to apply ill-fitting “neutral” views on cultural diversity in this intense neighbors to neighbors dispute.  The localities in Utah with the native spiritual practitioner regulatory scheme offers a working solution.  The concept is worth applying here.

It’s a pressing challenge for the Commissioners to help erase longstanding disregard of native spiritual practices in our legal system nationally and in the city and at the same time prudently address the misinformed concerns of neighbors about fire safety and environmental quality.  But the Commissioners can do it now, with creative resolution and support for the conditional use permit at Nafsi Ya Jamii.

Yours truly,

Robert Yanagida

cc Jahmese Myres, Janathan Fearn, Tom Limon, Clark Manus, Amanda Monchamp, Emily Weinstein