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Native Sun News: Indian inmates in South Dakota win lawsuit

Filed Under: Law | National
More on: inmates, native sun news, oglala sioux, south dakota

The following story was written and reported by Evelyn Red Lodge, Native Sun News Correspondent. All content © Native Sun News.

Inmates win tobacco lawsuit
By Evelyn Red Lodge
Native Sun News Correspondent

SIOUX FALLS – Plaintiffs Native American Council of Tribes (NACT), and Blaine Brings Plenty and Clayton Creek, both Lakota, have overturned a total ban of religious tobacco use in penal institutions in South Dakota. The defendants were Douglas Weber, Warden of the South Dakota State Penitentiary and Dennis Kaemingk, Secretary of the Department of Corrections.

Following a March 2012 trial in which the plaintiffs prevailed, the “court ordered the parties to meet and confer about the terms of a narrowly tailored tobacco policy.” As the parties failed to agree on the policy, post-trial briefs were submitted and the final remedial order was entered.

According to last month’s remedial order, the court found “a complete ban of tobacco in South Dakota penal institutions is a substantial burden on the exercise of the Native American religion.”

The plaintiffs sought the use of tobacco for ceremonial purposes after it was banned in late 2009, according to United States District Court documents.

Misunderstanding and use of non-traditional Lakota input from various Native American medicine men and leaders led to the total ban, according to the plaintiffs’ post trial brief.

This was not the first time non-traditional Lakota input was used to ban ceremonial use as the brief states, “In 1998, the smoking of tobacco was banned at all South Dakota prisons.”

“That same year, the sacred pipe used by NACT was taken away by the prison administration, apparently at the urging of a staff member who was also a Christian minister.”

However this time, documents say Weber had concerns for security as it was alleged that some Native inmates separated the tobacco from the traditional Lakota pipe mixture and took tobacco intended for prayer ties and flags to barter with other inmates.

According to one court order, the background of the case and facts stated say, “The majority of incarcerated Native Americans in South Dakota are affiliated with the Oglala band of the Lakota Sioux people. Brings Plenty and Creek are both members of (their respective) Lakota tribe.”

With this information the court gave more weight to “the testimony of traditional Lakota healer Richard Bernard Moves Camp, and Creek and Brings Plenty to establish plaintiffs’ religious beliefs regarding the use of tobacco.”

Further, Moves Camp testified that taking tobacco away from a Lakota person would be “almost like taking a Bible away from the church. It’s like saying you can go to church, but you can’t use the Bible.”

In addition, the former President of the Oglala Sioux Tribe, John Steele wrote a letter of support of ceremonial tobacco use that was not considered in the course of the ban – even though most of the Native inmates are from the Oglala Lakota Tribe.

As for non-traditional Lakota, the defendants had relied on the advice and testimony of several Native leaders, but the court found they were members of Native religions who vary from traditional Lakota practices.

The plaintiffs explained in their brief, “Richard Two Dogs, Roy Stone, Bud Johnston and Breon Lake, witnesses called by the defendants at trial, are all members of the Native American Church or other churches that are different from the traditional Lakota religion practiced by Brings Plenty and Creek.” As per the remedial order, the mixtures used for ceremonial purposes will be reduced to one percent tobacco by volume.

Further, the ceremonial mixtures “used for tobacco ties and prayer flags must be ground” except for the mixtures used for smoking the sacred pipe. All flags and ties are to be burned following the ceremonies.

“The mixtures used during the ceremonies will be provided (by) volunteers who are cleared by the (Department of Corrections).”

--Inmates who practice the Native American religion will be allowed to help make the ties and flags.

Other security measures will also be taken but are basically the same as prior to the 2009 ban.

(Contact Evelyn Red Lodge at

Copyright permission by Native Sun News

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