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Nevada Supreme Court Reverses Dismissal of Prisoner’s Native American Religion Suit

by Matt Clarke

On May 10, 2019, the Nevada Supreme Court reversed a summary judgment order dismissing a prisoner’s claim that requiring him to prove tribal affiliation or otherwise demonstrate Native American association or ethnicity before he could participate in Native American sweat lodge and sacred pipe ceremonies violated his equal protection rights.

David August Kille, Sr., a Nevada Department of Corrections (DOC) prisoner held in protective custody at the High Desert State Prison (HDSP), filed a lawsuit in state court under 42 U.S.C. § 1983 alleging the DOC had violated his equal protection rights by requiring he prove Native American tribal affiliation, association or ethnicity before being permitted to take part in sweat lodge and other religious ceremonies.

The district court granted the state’s motion for summary judgment, ruling that Kille could not sue state entities such as HDSP, the DOC and prison staff in their official capacity. The court further found that Kille had failed to prove intent or purposeful discrimination.

On appeal, the Nevada Supreme Court noted the state did not dispute that Kille is a sincere practitioner of a Native American religion. The DOC also admitted that Native American prisoners are the only group required to prove association or ethnicity before being allowed to participate in religious ceremonies. Accordingly, the Court held that “the policy is facially discriminatory because it imposes differential treatment based on ethnicity or ancestry and, as applied to Kille, denies his right to have his religious request considered equally with those prisoners who can prove Native American heritage.”

The state argued it had “provided admissible evidence of actual security concerns and destruction of property rather than hypothetical concerns,” but failed to point to any specific evidence. A mention in a prison official’s affidavit that he was “familiar that there have been incidents at various institutions where Native American inmates have destroyed their lands or their sweat lodge because they believed it had been desecrated” by the presence of non-Native American prisoners was insufficient to show the DOC’s discriminatory policy was rationally related to the goal of prison safety and security.

Instead it showed, at best, that some Native American prisoners at other prisons “were offended by white inmates practicing Native American rituals.” In remanding the case, the state Supreme Court wrote that “As the policy is facially discriminatory and is not reasonably related to legitimate penological interests, we conclude that the State’s association- or ethnicity-based policy violated Kille’s equal protection rights.” See: Kille v. Calderin, 440 P.3d 655 (Nev. 2019); 2019 Nev. Unpub. LEXIS 551. 


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Related legal case

Kille v. Calderin