By John Hult, Argus Leader
A tobacco ban in South Dakota prisons violates the constitutional rights of Native American inmates, the 8th Circuit Court of Appeals has ruled.
The decision affirms the ruling of South Dakota District Judge Karen Schreier, which was appealed by the state’s Department of Corrections last year.
Friday’s ruling from the 8th Circuit panel means the Department of Corrections cannot ban tobacco altogether in South Dakota prisons.
Under a plan approved by Schreier last fall over Department of Corrections objections, inmates may use a mixture of red willow bark and 1 percent tobacco in sweat lodge ceremonies.
The plan also restricted which inmates can carry the mixture to the ceremonies and lets the prison bar inmates caught using or bartering with tobacco outside the ceremonies for one year.
Lawyers for the inmate advocacy group the Native American Council of Tribes praised the 8th Circuit’s ruling Friday.
“This is an important victory for religious freedom,” said Pamela Bollweg of Sioux Falls. “As the Court of Appeals recognized, the ceremonial use of tobacco has been central to the Lakota people and many other Native American tribes for thousands of years.”
The council’s legal challenge began in 2009 when the prison rescinded its religious exception to its tobacco policy.
The Department of Corrections could appeal the decision to the U.S. Supreme Court or ask for a review by the full 8th Circuit.
In a ruling issued Friday, the court found that the across-the-board ban on all tobacco use constituted a violation of religious liberty not outweighed by the state’s interest in maintaining order and security within the prison.
The prison banned tobacco for all reasons aside from religious ceremonies in 2000.
The Native American Council of Tribes, a group representing inmates with indigenous heritage, sued the Department of Corrections in 2009 when the exception was dropped.
Important to Lakota
Lakota spiritual leaders testified during the district court trial in Sioux Falls that tobacco has been smoked for generations in sweat lodge ceremonies.
The tobacco ties, made from tobacco, string and cloth, each represent a prayer and are burned during ceremonies. Prayer flags are larger versions of tobacco ties, each of which represents a cardinal direction.
Richard Bernard Moves Camp testified that the smoke represents the spirit, and that tobacco represents the highest offering available. Depriving tobacco from a Lakota person would be “like taking a Bible away from the church.”
The two inmates named in the lawsuit, Blaine Brings Plenty and Clayton Creek, each testified that they had used tobacco since childhood as part of religious ceremonies.
The Department of Corrections argued, however, that Native inmates had abused and repurposed tobacco meant for religious ceremonies and said that red willow bark alone is an adequate alternative.
In Friday’s ruling, the court shot down the Department of Corrections assertion the red willow bark alternative.
“We reject the defendants’ invitation to define the contours of the inmates’ religious belief,” the judges wrote.
The Department of Corrections also argued that the prison has an interest in security that overrode the right of the inmates to exercise their religious beliefs, but the appeals court said the ban did not represent the “least restrictive means” of achieving that goal.
Restrictions OK
Instead of banning tobacco altogether, the inmates said, the Department of Corrections could restrict which inmates have access to the tobacco ties, require prison officials to transport the tobacco ties or prayer flags to the sweat lodge, burn the tobacco immediately after the ceremony or perform searches of inmates immediately after the ceremonies.
Warden Doug Weber had testified that each of the alternatives were “unfeasible,” but the 8th Circuit found that the prison hadn’t seriously considered any of them.
The department appealed that revised policy, but the 8th Circuit ruled in favor of the inmates’ plan.
“The district court carefully balanced the need to fairly accommodate inmates’ exercise of their religion, taking into account the parties’ proposed remedies, while giving due ‘weight to any adverse impact on public safety or the operation of a criminal justice system’ that may result from a change in tobacco policy,” the judges wrote.
Department of Corrections Secretary Denny Kaemingk acknowledged the ruling in a statement.
“The Court of Appeals has issued their ruling on this matter,” Kaemingk said. “Throughout the proceedings, we have complied with the orders of the court and will continue to do so.”
At a glance
RULING:
The 8th Circuit Court of Appeals ruled South Dakota’s ban on tobacco in prisons violates the constitutional rights of Native American inmates.
REMEDY:
A plan allows inmates to use a mixture of red willow bark and 1 percent tobacco during religious ceremonies.
RESTRICTIONS:
Inmates may not carry the mixture and are barred from using or bartering with tobacco outside the ceremonies.