In South Dakota prisons, Indian inmates get to smoke — for religious reasons

After ruling last year that the South Dakota prison system violated the rights of incarcerated Native American tribe members when it imposed a blanket ban on all inmate tobacco use, a federal judge has issued guidelines regarding appropriate use.

The remedial order by U.S. District Judge Karen E. Schreier of the District of South Dakota allows for smoking mixtures that include a scant 1 percent of tobacco, which she said should minimize any security concerns by prison officials.

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The controversy began in 2000 when the South Dakota Department of Corrections banned the use of all tobacco, including tobacco used in Native American tribal religious ceremonies. Previously, inmates had been allowed to use tobacco in such ceremonies.

The Native American Council of Tribes and two South Dakota inmates who are members of the Lakota tribe sued state prison officials for violating the U.S. Constitution and other laws, including the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc.

The RLUIPA bars the government from interfering with the religious exercise of an institutionalized person absent a compelling government interest.  The law also mandates that the government impose the least restrictive method possible to achieve its goals.

According to Judge Schreier’s September 2012 written opinion, the controversy began in 2000 when the state’s Department of Corrections banned the use of all tobacco, including tobacco used in tribal religious ceremonies.  Previously, inmates had been allowed to use tobacco in such ceremonies.  Native Am. Council of Tribes et al. v. Weber et al., 2012 WL 4119652 (D.S.D., S. Div. Sept. 19, 2012) (see Westlaw Journal Tobacco Industry, Vol. 28, Iss. 2).

(Click here for Judge Schreier’s order on Westlaw.)

The defendants claimed the ban was enacted because of security issues related to tobacco trafficking and violence.

Judge Schreier said the plaintiffs established that their use of tobacco, including the smoking of tobacco in pipes and the burning of tobacco offerings through tobacco ties and prayer flags, “is an essential and fundamental part” of their exercise of religion and that an across-the-board ban is a substantial burden.

She also held that the defendants fell short in proving that they had a compelling government interest in imposing the ban and failed to provide less restrictive options.

In January Judge Schreier issued a remedial order outlining guidelines for tobacco use during prison religious ceremonies:

•           Smoking mixtures used during ceremonies will not contain more than 1 percent of tobacco.  The tribal plaintiffs had sought a 10 percent ratio, but their own expert said only 1 percent is needed for religious use, the order says.  The judge said “that a 1 percent limit is narrowly drawn, is not too intrusive and corrects the violation.”

•           Tobacco ties and prayer flags can contain tobacco-including mixtures but must be burned at the end of the ceremonies.  The 1 percent tobacco ratio coupled with burning at the end of the ceremonies mitigate prison officials’ security concerns, Judge Schreier said.

•           Mixtures for tobacco ties and prayer flags must be ground, but mixtures smoked in pipes do not need to be ground.  The plaintiffs had shown that smoking a ground mixture might make one sick, the order says.

•           The mixtures will be provided by volunteers with clearance from the Department of Corrections.  The judge said volunteers must have a “pink-tag” certification, which requires several hours of training, instead of the lower level of clearance sought by the plaintiffs, which would necessitate an escort by a department official.

•           Mixtures must be premixed to comply with the 1 percent tobacco ratio rule.  They must be brought into the prison by an approved volunteer in a sealed plastic bag subject to search.

•           Each facility will determine where the ceremonies will take place, including where tobacco ties and prayer flags will be made, and the ceremonies, with the exception of the sweat lodge ceremony, will be subject to video surveillance.  The judge said tobacco can be used in sweat lodge ceremonies because there is a low risk of separating the tobacco from the mixture and trafficking it among the prison population.

•           American Indian inmates can help make tobacco ties and prayer flags.  The judge rejected the defendants’ argument that they do not have enough staff to supervise this activity.

•           Inmates who improperly use ceremonial tobacco will be banned from participating in such ceremonies for one year.

The judge concluded that this system “is limited in its intrusiveness and still provides a narrowly tailored remedy to plaintiffs.”

Native American Council of Tribes et al. v. Weber et al., No. 09-4182-KES, 2013 WL 310633 (D.S.D., S. Div. Jan. 25, 2013).