(MintPress) – Two Native American inmates in South Dakota filed a lawsuit against the state’s Department of Corrections, believing their first amendment rights to freedom of religion and freedom of expression from government interference were being trampled on by an unjust state law.
A South Dakota law, which went into effect in 2009 and banned prisoners from using tobacco in religious rituals, was recently found by the U.S. Department of Justice to be in violation of U.S. Supreme Court precedent.
Background of the issue
Blaine Brings Plenty and Clayton Creek brought a federal suit against the South Dakota Department of Corrections in 2009, after a prison policy banning the use of tobacco during religious ceremonies was put in place.
Brings Plenty said the policy change violated his U.S. Constitutional rights ensuring that no prisoner be penalized or discriminated against solely on their religious beliefs or practices in the lawsuit.
Creek, who has been imprisoned since 1990, is also a Cheyenne River Sioux Tribe member. He is also a pipe carrier. Pipes are regarded as one of the most spiritually sacred objects to many Native Americans, and acting as a pipe carrier is a special religious distinction.
Being a pipe carrier involves carrying the burdens of the world on one’s shoulders and clearing oneself of any negative thoughts to respect the higher power, as well as leading communal gathering for religious purposes.
Creek told the Associated Press (AP) in March that he took his role as a pipe carrier very seriously.
He said tobacco is sometimes mixed with other botanicals in Native American ceremonies, but it is always part of the tradition.
The state had ruled in 2000 that tobacco could not be used inside of its prisons, citing the abuse of tobacco in such places.
However, Brings Plenty and Creek, who are members of the prison-based Native American Council of Tribes, sued, arguing that the policy was discriminatory and prevented Native American inmates from utilizing tobacco in religious ceremonies.
Those named in the suit, filed in December 2009, were prison warden Doug Weber, corrections secretary Dennis Kaemingk and attorney general Marty Jackley.
Although the prisons went tobacco-free in 2000, an exception had been made for tobacco used in Native American ceremonies until October of 2009, when the exemption was eliminated.
James Moore, attorney for the corrections’ officials, argued that tobacco was being sold or bartered and inmates were found separating it from their pipe mixtures and prayer ties, so officials made a move to remove tobacco from a tobacco/botanical mixture used by plaintiffs during Native American religious ceremonies.
Taking tobacco away from Native Americans likened to taking Bibles away from Christians
Plaintiffs alleged that this was a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a United States federal law that prohibits the imposition of burdens on the ability of prisoners to worship as they please.
Plaintiffs also said that the ban on tobacco violated their First Amendment, 14th Amendment, the American Indian Religious Freedom Act and various violations of international law, and sought to have the October 2009 policy overturned.
In March, Lakota traditional healer Richard Moves Camp testified during a federal trial that tobacco was an integral part of Native American religious ceremonies and said that denying its use would be similar to taking away the Bible from a Christian, the Associated Press reported.
Camps explained that tobacco has been sacred to Native Americans for thousands of years. It has traditionally been mixed with other botanicals in pipes which are smoked during religious ceremonies to bring peace and harmony.
At the trial, Pamela Bollweg, an attorney for the plaintiffs, argued before U.S. District Judge Karen Schreier in March 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.
Moore, however, countered saying that South Dakota’s policy change came after over 10 years of conversations with tribal elders and traditional healers. The corrections’ officials determined, based on these conversations, that tobacco was not needed, as some of the tribal leaders they spoke with said that they performed pipe ceremonies without tobacco. Moore also relayed that prison officials considered banning the use of pipes, but did not enact such measures.
“I do know that the tobacco pipe is very central to Native American spirituality and religious identity,” said Rev. Ward H. Simpson is the Dean of Calvary Cathedral, an Episcopal Church in Sioux Falls, S.D. said in an interview with MintPress.
Simpson, who works with Lakota communities in his area, said “it [tobacco] plays a very significant role” in Native American spiritual practices, but noted that the role and significance placed upon it can vary from one tribe to another.
Calvary Cathedral offers a worship service called Tiospaye Wakan within its church every Sunday. The service combines the Rite II Holy Eucharist of the Book of Common Prayer with the style and symbolism of Native American culture. “Conducted in a circle, evoking the shape of the inside of a tipi, with a ceremonial fire in the center, this service provides an environment welcoming to many people who would otherwise feel uncomfortable in a traditional church setting,” the church’s website explains.
DOJ supports Native American inmates
The Justice Department concluded in a brief filed last week that 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.”
Moore did not return a phone call by MintPress seeking comments on the matter.
In the U.S., states including Nevada and New Mexico currently have prison smoking bans but do not prohibit Native Americans from using tobacco during religious ceremonies.