Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Native American Prisoners Have Right to Tobacco in Religious Ceremonies

Native American Prisoners Have Right to Tobacco in Religious Ceremonies

by David Reutter

The Eighth Circuit Court of Appeals has affirmed a South Dakota federal district court’s order holding that Native American prisoners have a right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to use tobacco during religious ceremonies.

Twenty-seven percent of prisoners in the South Dakota Department of Corrections (SD DOC) are Native Americans – the highest concentration of Native Americans in any state prison system.

Since 1998, the SD DOC has increasingly placed restrictions on the use of tobacco products in its facilities. At first it adopted a smoking ban, then chewing tobacco was banned in 2000. Regardless, prison officials continued to let prisoners use tobacco during Native American religious ceremonies.

Unauthorized use of tobacco allegedly became a problem, however, and the SD DOC began to place restrictions on the storage of tobacco for religious purposes. It also decreased the mixture of tobacco in the red willow bark mixture used during ceremonies. In 2009, the SD DOC instituted a complete ban on tobacco.

The policy to remove tobacco “from all Native American Ceremonies per the request of medicine men who lead ceremonies” became effective October 19, 2009. Staff were instructed to remind prisoners “that we are honoring the request of the respected medicine men and are going back to their traditional ways.”

The prisoners who challenged the tobacco ban had different religious beliefs. Prisoner Clayton Creek testified the ban “stripped him of his ‘whole essential belief system.’” Richard Barnard Moves Camp, a descendent of Lakota healers and a traditional healer himself, described tobacco as the “center” of the Lakota way of life.

The district court held a three-day bench trial and entered judgment in favor of the prisoner plaintiffs, granting injunctive relief and directing “the parties [to] confer regarding a revised tobacco policy.” No agreement was reached, and the court entered a detailed remedial order on January 25, 2013. The defendants appealed.

The Eighth Circuit rejected the SD DOC’s invitation to define the contours of the prisoners’ religious beliefs by finding “tobacco can be replaced by red willow bark – a readily-available traditional alternative to tobacco.” That type of inquiry, the appellate court wrote, “has no place in the RLUIPA analysis.”

The Court of Appeals held the prisoners had established that the SD DOC’s tobacco ban substantially burdened the exercise of their religious beliefs. The ban was not in furtherance of a compelling governmental interest, nor was it the least restrictive means to further any compelling governmental interest.

As such, the district court’s remedial order was affirmed. Among the nine provisions for injunctive relief was a provision that “[m]ixtures used during Native American ceremonies that include tobacco will not contain more than 1 percent tobacco by volume.” The prisoners’ expert agreed that such a mixture met the requirements of their religious beliefs; the district court had rejected a request for a 10% tobacco mixture. See: Native American Council of Tribes v. Weber, 750 F.3d 742 (8th Cir. 2014).

Following remand, on June 6, 2014 the plaintiffs filed a satisfaction of judgment in the district court, acknowledging that the defendants had paid the court’s judgment of $75,493.93 in attorney fees plus appellate fees of $19,535.80.


As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Native American Council of Tribes v. Weber