Native American Council of Tribes v. Weber

Native American inmates challenged a South Dakota state prison policy banning the use of tobacco in Native American religious activities. The court found that the tobacco ban illegally burdened the prisoners’ exercise of their religious beliefs in violation of federal law. The court said that the ban was not the least restrictive way of achieving the prison’s interest in preventing tobacco abuse. In particular, the prison failed to show why a policy decreasing the proportion of tobacco in the mixture distributed to inmates for religious purposes to one percent would not be an effective way of curbing tobacco abuse and achieving the prison’s interest in order and security. The court affirmed an order issued by the lower court with specific instructions about the percentage and use of tobacco in Native American religious ceremonies in the prison.

Native American Council of Tribes v. Weber, __ F.3d __, Nos. 13-1401, 13-2745 (8th Cir. 2014).

  • United States
  • Apr 25, 2014
  • U.S. Court of Appeals, Eighth Circuit

Parties

Plaintiff

  • Blaine Brings Plenty
  • Clayton Sheldon Creek
  • Native American Council of Tribes

Defendant

  • Dennis Kaemingk, Sercretary of the Deparment of Corrections
  • Douglas Weber, Warden of the South Dakota State Penitentiary

Legislation Cited

Prison Litigation Reform Act

Religious Land Use and Institutionalized Persons Act of 2000

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The inmates and Moves Camp discussed several alternatives to banning tobacco that could be implemented to alleviate tobacco abuse. Those alternatives include (1) limiting those who can construct tobacco ties and prayer flags to pipe carriers and fire keepers; (2) mandating that prison staff or volunteers transport tobacco ties, prayer flags, and tobacco pipe mixture to the site of their religious ceremonies; (3) burning the tobacco immediately after use; (4) implementing additional security measures, such as searches after a sweat lodge ceremony, and more severe penalties for misusing tobacco, such as cell restriction, disciplinary segregation or administrative segregation; and (5) decreasing the amount of the tobacco in the mixture to as low as one to five percent. At trial, Weber rejected each of the alternatives as ineffective or unfeasible. But other than Weber testifying that some of the alternatives were “talked about,” the defendants offered no evidence that they meaningfully considered any of the alternatives or tested the effectiveness of such alternatives before effectuating the tobacco ban.... Perhaps most damaging to the defendants’ position is the absence of any evidence that they seriously considered a further decrease in the amount of tobacco in the mixture as a less restrictive strategy of quelling tobacco abuse. At trial, Moves Camp testified that the tobacco mixture used in Lakota religious ceremonies could contain as little as one-percent tobacco, and the inmates testified that Moves Camp’s religious beliefs are consistent with their own. Thus, the district court correctly found that in assessing less restrictive means, “[i]t is not the amount of tobacco, but rather the fact that tobacco is present in the ceremonies, that is important.”"