Feds join challenge to S.D. prison ban on ceremonial tobacco

Tuesday, July 17, 2012

SIOUX FALLS, S.D. — The U.S. Department of Justice is supporting Native American inmates in their lawsuit challenging South Dakota’s ban on tobacco in religious ceremonies.

Inmates Blaine Brings Plenty and Clayton Creek in their 2009 federal lawsuit against the South Dakota Department of Corrections contend that a prison policy that bans the use of tobacco during religious ceremonies is discriminatory. The state said ceremonial tobacco inside the state penitentiary was becoming increasingly abused, and the policy was not overly restrictive because it allowed other botanicals such as red willow bark to be burned.

The Justice Department, in a brief filed late on July 13, said the state’s position runs contrary to the Religious Land Use and Institutionalized Persons Act and U.S. Supreme Court precedent.

“The court should decline this invitation to determine the importance of tobacco use to practitioners of Native American religions,” the Justice Department attorneys wrote. “Accordingly, the court should also reject defendants’ argument that they have not placed a substantial burden on plaintiffs’ religious exercise.”

The South Dakota prison system went tobacco-free in 2000 but made an exception for tobacco used in Native American ceremonies. But officials in October 2009 eliminated that exemption, saying tobacco was being sold or bartered and inmates had been caught separating it from their pipe mixtures and prayer ties.

Members of prison-based Native American Council of Tribes sued, arguing that for Native American prayer to be effective, it must be embodied in tobacco and offered within a ceremonial framework.

Brings Plenty and Moore in their suit said the policy change violates their First Amendment rights that ensure no prisoner be penalized or discriminated against solely on their religious beliefs or practices.

Their attorney, Pamela Bollweg, argued in March before U.S. District Judge Karen Schreier that prison officials have to show there’s a compelling interest in limiting access, and even if there is a compelling interest they have to use the least restrictive alternative.

James Moore, the attorney representing prison officials, argued that South Dakota’s policy change followed more than 10 years of conversations with tribal elders and traditional healers, some of whom perform pipe ceremonies without tobacco. He said prison officials stopped short of banning the use of pipes.

Moore did not return a phone call seeking comment on the Justice Department’s intervention in time for this story.

Other states, including Nevada and New Mexico, have prison smoking bans but allow Native Americans to use tobacco during religious ceremonies.

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