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Native American Council of Tribes v. Weber

United States Court of Appeals, Eighth Circuit

April 25, 2014

Native American Council of Tribes; Blaine Brings Plenty; Clayton Sheldon Creek, Plaintiffs - Appellees
v.
Douglas Weber, Warden of the South Dakota State Penitentiary; Dennis Kaemingk, Secretary of the Department of Corrections, Defendants - Appellants; United States of America, Amicus on Behalf of Appellee(s)

Submitted December 18, 2013

Page 743

Appeal from United States District Court for the District of South Dakota - Sioux Falls.

For Native American Council of Tribes, Blaine Brings Plenty, Clayton Sheldon Creek, Plaintiffs - Appellees (13-1401, 13-2745): Pamela Bollweg, Ronald A. Parsons Jr., Johnson & Heidepriem, Sioux Falls, SD.

Blaine Brings Plenty, Plaintiff - Appellee, Pro se (13-1401, 13-2745), Sioux Falls, SD.

Clayton Sheldon Creek, Plaintiff - Appellee, Pro se (13-1401, 13-2745), Springfield, SD.

For Douglas Weber, Warden of the South Dakota State Penitentiary, Dennis Kaemingk, Secretary of the Department of Corrections, Defendants - Appellants (13-1401, 13-2745): James Ellis Moore, Michele Ann Munson, Woods & Fuller Sioux Falls, SD.

For United States of America, Amicus on Behalf of Appellee(s) (13-1401, 13-2745): April J. Anderson, Mark Lenard Gross, U.S. Department of Justice, Washington, D.C., DC.

Before BYE, BRIGHT, and SMITH, Circuit Judges.

OPINION

Page 744

BRIGHT, Circuit Judge.

In this appeal, we consider the South Dakota Department of Corrections' (" SDDOC" ) decision to prohibit tobacco use by Native American inmates during religious activities. In 2009, the Native American Council of Tribes (" NACT" ) and South Dakota Native American inmates Blaine Brings Plenty and Clayton Creek (collectively " inmates" )[1] brought suit against prison officials from the SDDOC (collectively " defendants" )[2] claiming that

Page 745

the tobacco ban substantially burdened the exercise of their religious beliefs in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (" RLUIPA" ), 42 U.S.C. § 2000cc-1(a). After a three-day bench trial, the district court[3] granted injunctive relief to the inmates and directed the parties confer regarding a revised tobacco policy. On failure to agree, the district court entered a remedial order that, among other things, limited the proportion of tobacco in the mixture distributed to inmates for religious purposes to no more than one percent. The defendants appeal the grant of injunctive relief, including the remedial order. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

II. BACKGROUND

A. Restrictions on Tobacco Use in South Dakota Prisons

The SDDOC operates six adult correctional facilities in the state of South Dakota.[4] Native Americans comprise twenty-seven percent of prisoners incarcerated in SDDOC facilities, which constitutes the highest concentration of Native American prisoners of any state prison population. Plaintiffs Blaine Brings Plenty and Clayton Creek are two Native American inmates who are members of Lakota[5] Sioux tribes and are currently incarcerated in South Dakota state prisons. Plaintiff NACT is a nonprofit organization run by Native American prisoners in the South Dakota State Penitentiary. NACT oversees Native American religious activities within SDDOC facilities.

Over the past sixteen years, the SDDOC has increasingly placed restrictions on the use of tobacco in its correctional facilities. The first restriction came in 1998 in the form of a smoking ban in South Dakota prisons. Douglas Weber, the former Director of Prison Operations, testified that the SDDOC adopted the smoking ban in part to alleviate health hazards related to second-hand smoke. Two years later, in 2000, the SDDOC also banned chewing tobacco in order to promote inmates' health and curb " issues with sanitation." However, the SDDOC continued to permit inmates' use of tobacco during Native American religious activities.

Despite these restrictions, problems with unauthorized use of tobacco persisted. In response, the SDDOC convened Native American spiritual leaders in October 2004 to discuss strategies to curb tobacco abuse. As a result of this meeting, the SDDOC decreased the amount of tobacco in the ceremonial mixture to fifty-percent tobacco and fifty-percent red willow bark, and decreased the quantity of mixture distributed to one-quarter cup. The SDDOC also prohibited inmates from storing tobacco in their cells and instead required them to store tobacco in locked boxes and retrieve it from prison staff prior to using it for religious activities.

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In July of 2005, the SDDOC further reduced the amount of tobacco in the mixture to twenty-five percent and the quantity distributed to one-eighth cup. Prison staff also began grinding the mixture of tobacco and red willow bark to prevent inmates from extracting the tobacco from the mixture and using it for non-religious purposes. Additionally, NACT self-imposed a six-month ban on use of the tobacco mixture for inmates who violated tobacco policy.

On October 19, 2009, the SDDOC changed its policy to a complete ban on tobacco use, including tobacco use by inmates during Native American religious activities. The record includes two documents issued that same day. First, in a letter to " Tribal Liaisons, Spiritual Leaders, Pipe Carriers, and Sundancers" announcing the ban, Weber emphasized that unauthorized tobacco use by inmates continues to be a problem in SDDOC correctional facilities. He further explained:

Medicine Men and Spiritual Leaders, who lead ceremonies at our facilities, have brought to our attention that tobacco is not traditional to the Lakota/Dakota ceremonies and that it is too addictive to be used for ceremonies. They have requested that tobacco be removed from Native American Ceremonies so that the participants of these ceremonies will focus on their spiritual paths and not abusing the tobacco.
Effective 10/19/09, the SDDOC will follow the advice of the respected Medicine Men and Spiritual Leaders and remove tobacco from Native American Ceremonies.

Second, Jennifer Wagner, then Cultural Activities Coordinator for the SDDOC, sent an email to prison staff stating, " Effective today, 10/19, tobacco is being removed from all Native American Ceremonies per the request of Medicine Men who lead ceremonies at our facilities." In the event that inmates complained about the new policy, she advised staff to " remind [inmates] that we are honoring the request of the respected Medicine Men and are going back to their traditional ways." This suit for injunctive relief challenges the defendants' most recent decision banning inmates' use of tobacco during Lakota religious activities.

B. Tobacco Use in the Lakota Religion[6]

At trial, Richard Bernard Moves Camp, a descendant of traditional Lakota healers and a traditional healer himself, testified to the importance of tobacco in the Lakota religion and described the various ways in which tobacco plays a central role in Lakota religious activities. According to Moves Camp, the Lakota people use tobacco to make tobacco ties and prayer flags. Tobacco ties are made with tobacco, string, and cloth, and are burned after they are offered. Each tobacco tie represents a prayer. Prayer flags are larger forms of a tobacco tie and are unique in that they each represent one of the four cardinal directions. Moves Camp also explained that tobacco plays a central role in sweat lodge ceremonies, during which individuals sit around heated stones inside a covered lodge, sing songs, pass water, pray, and smoke the sacred pipe. According to Moves ...


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