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South Dakota, Native inmates far apart on ceremonial tobacco

By Dirk Lammer
Sioux Falls, South Dakota (AP) - December 2012

South Dakota corrections officials and an organization of Native American inmates are far apart on their suggested revisions to a prison policy regulating the use of tobacco in religious ceremonies.

Chief Judge Karen Schreier ruled in September that the prison system's ban on tobacco in religious ceremonies substantially burdens Native American inmates' religious rights. The state had argued that ceremonial tobacco inside the state penitentiary was increasingly abused.

Schreier ordered the groups to meet and propose revisions to the tobacco policy for inmates practicing the Lakota religion. If they couldn't reach a consensus, they were asked to submit individual written proposals.

The South Dakota prison system went tobacco-free in 2000 but made an exception for tobacco used in Native American ceremonies. 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 tobacco ties.

The state in its brief is agreeing to allow tobacco at pipe ceremonies but wants the right to prohibit its use in tobacco ties _ which embody a small amount of tobacco in cloth _ in prayer flags and inside the prison's sweat lodge. It also wants to cap the tobacco mix at 1 percent and require that prisoners use only finely ground cherry-blend tobacco.

The inmates group wants tobacco allowed at all four of those circumstances. It is agreeing to limit the mix to 10 percent, but says it should not be ground, as that makes the mixtures almost impossible to smoke.

The group agrees to have pipe ceremonies in locations that are under video surveillance, but wants an exception for pipe ceremonies inside the sweat lodge, which has surveillance outside.

The inmates' attorney, Pamela Bollweg, said Nov. 27 that she'd wait to comment until Schreier issues her final ruling.

James Moore, the officials' attorney, did not return a telephone call seeking comment.

The parties have until Dec. 4 to file objections to the other group's proposal.

Members of prison-based Native American Council of Tribes sued after the 2009 exemption was eliminated, saying the policy change violated their U.S. constitutional rights ensuring that no prisoner be penalized or discriminated against for their religious beliefs or practices. Inmates Blaine Brings Plenty and Clayton Creek argued that for Native American prayer to be effective, it must be embodied in tobacco and offered within a ceremonial framework.

The state argued that 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 in July, said the state's position ran contrary to the Religious Land Use and Institutionalized Persons Act and U.S. Supreme Court precedent.

Schreier said in her September ruling said that even if state officials had asserted a compelling governmental interest, they did not prove that the complete ban was the least restrictive means available to further that governmental interest.