A group of Native Americans challenged a policy implemented by prison authorities that banned all use of tobacco, including for religious purposes. South Dakota has the highest rate of Native Americans in the prison system and some of them use tobacco as part of their religious ceremonies. After gradually reducing the availability of tobacco in the prisons, the policy changed to complete ban. The prisoners challenged the ban based on religious freedom and the corresponding federal legislation (RULIPA). The court held the prisoners had shown the total ban on tobacco was a substantial burden on the exercise of their religion and that the authorities had not demonstrated a compelling governmental interest, or that they had used the least restrictive means to further that interest. The court ordered the parties to agree to a new policy embodying the court’s decision and submit it to the court for approval.
Native Am. Council of Tribes v. Weber (D.S.D., 2012)
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A discussion of the role of religion in regulating tobacco use.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Here, plaintiffs do not seek to either hold, smoke, or otherwise use tobacco in their cells. Instead,
plaintiffs seek to use tobacco in their pipe mixture, tobacco ties, and prayer flags during certain
ceremonies at a different location in the prison. It appears that all burning of tobacco will be conducted
outside in the sweat lodge when the pipe is smoked or the tobacco ties or prayer flags are burned. If a pipe
ceremony separate from a sweat lodge ceremony is held, it could also be held outside to reduce the risk of
exposure to second-hand smoke and protect buildings from property damage. Thus, Smith is
unpersuasive. In Brunskill, the inmate's request for permission to possess certain religious materials, including tobacco, was denied, and he brought a lawsuit against the prison alleging, in part, an RLUIPA claim. 141 Fed. App'x at 773. Because the defendants offered other alternatives (not specified in the case), the court found that the inmate could not show that the defendants had substantially burdened the exercise of his religion. Id. at 776. Brunskill is unpersuasive because the inmate sought possession of tobacco in his cell.
As stated above, plaintiffs do not seek possession of tobacco in their cells. Due to the differences in the cases cited by defendants, the court does not agree with defendants' statement that "[o]ther courts have agreed that a tobacco ban is the least restrictive means for addressing the safety and security concerns regarding tobacco in prisons." Docket 176 at 29."
"Based on the timing of the tobacco ban, which occurred shortly after the meeting with Has No
Horses, the court finds that the ban was implemented to effectuate what defendants believed was the
advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security
reasons. Defendants essentially enforced what they determined to be the more "traditional" Lakota belief.
But the state may not determine what is "traditional" or "orthodox" within a certain religious tradition.
Grayson v. Schuler, 666 F.3d 450, 453-55 (7th Cir. 2012) ("Prison [officials] may not determine which
religious observances are permissible because [they are or are not] orthodox."). After considering the
evidence presented to the court, the court finds that defendants have not shown a compelling
governmental interest in banning all tobacco."
"One could argue that the lack of change in attendance numbers at sweat lodge ceremonies after the ban is indicative that a substantial burden does not exist. This argument, however, is not persuasive. As Moves Camp noted in his testimony, tobacco to the Lakota is like the Bible to Christians. In keeping with this analogy, Christians would still likely attend church and other religious ceremonies even if the Bible was removed from the proceedings. But it is equally as likely that Christians would find their ability to practice Christianity substantially burdened by their inability to rely on the Bible during such ceremonies. Turning back to the case at hand, the fact that attendance at sweat lodge ceremonies has not changed after the ban does not prove that tobacco is unnecessary to practice the Lakota religion; it simply shows that the sweat lodge ceremonies still play an important role in the lives of the inmates attending such ceremonies, despite the lack of tobacco. Thus, plaintiffs have met their burden in showing that the complete tobacco ban is a substantial burden on their religious exercise."
"The fact that some Lakota use a blend of red willow bark and tobacco or only red willow bark is irrelevant because a religious practice does not need to be a universal practice for adherents of a particular faith. "Interfaith differences . . . are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences[.]" Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717 (1981) (finding that even under the less protective First Amendment free exercise doctrine, "it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow workers more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation."). "[N]o 'doctrinal justification' is required to support the religious practice allegedly infringed." Gladson, 551 F.3d at 833. An inmate's beliefs need "not fit squarely with the orthodoxy" of an established religion to be entitled to protection. Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (citing Thomas, 450 U.S. at 715-16). Interfaith differences in the Lakota religion are especially common due to the Lakota religion's oral tradition. All of the traditional healers testified, and defendants agree, that there are interfaith differences in the Lakota religion. Additionally, if RLUIPA forbids the court from examining whether a professed religious belief is a central tenet to the religion, 42 U.S.C. § 2000cc-5(7)(A), it certainly prohibits defendants from dictating that plaintiffs will use red willow bark in their religious ceremonies when plaintiffs have testified that tobacco is an essential and fundamental part of practicing their Lakota religion."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A group of Native Americans challenged a policy implemented by prison authorities that banned all use of tobacco, including for religious purposes. South Dakota has the highest rate of Native Americans in the prison system and some of them use tobacco as part of their religious ceremonies. After gradually reducing the availability of tobacco in the prisons, the policy changed to complete ban. The prisoners challenged the ban based on religious freedom and the corresponding federal legislation (RULIPA). The court held the prisoners had shown the total ban on tobacco was a substantial burden on the exercise of their religion and that the authorities had not demonstrated a compelling governmental interest, or that they had used the least restrictive means to further that interest. The court ordered the parties to agree to a new policy embodying the court’s decision and submit it to the court for approval.