Native Sun News: Indian inmates sue over ban on tobacco use

Thursday, September 29, 2011  

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

SIOUX FALLS, SOUTH DAKOTA -- Native American inmates at the South Dakota Department of Corrections (DOC) will litigate the ban on the use of tobacco in traditional ceremonies at the facility. Recent documents allege medicine men and other spiritual leaders advocated the ban.

According to Federal Southern District Court documents, the DOC in Sioux Falls instituted a ban on the use of tobacco by inmates in 1992. However, the use of it in traditional Native American ceremonies was allowed.

At the DOC, Native inmates used a mixture of tobacco and other botanicals including: the inner bark of red twig dogwood (cansasa), sage, bitter root, bearberry, lovage, flat cedar, and sweet grass in ceremonies. Such ceremonies include making of ties and flags and smoking of the pipe.

After some of the inmates were found to have separated the tobacco for sale or barter, DOC officials reduced the tobacco portion of the mixture from 50 percent to 25 percent, in 2005.

In 2009, religious services volunteer, Mary Montoya, was present at a meeting between medicine man, Sidney Has No Horses, and the Native inmates. Montoya reported that Has No Horses, of the Pine Ridge Indian Reservation, told the inmates that they should not use commercial tobacco in their pipes.

Montoya reportedly noted she and Bud Johnston, who is president of a Native American Church in Pipestone, Minnesota, removed all tobacco from the pipe mixture the following month. Documents further stated that in late 2009, Oglala Lakota, Sidney Has No Horse agreed with Roy Stone, Sicangu Lakota, in his decision to ban all commercial tobacco from all Lakota ceremonies in the South Dakota penal system.

Johnston is reported as saying, “Inmates who really know about their culture will have no problem with this, and the others who just wanted to smoke will just go away.”

DOC officials were notified in this time period that tobacco would no longer be used in Native ceremonies.

Plaintiffs, Native American Council of Tribes, Blain Brings Plenty and Clayton Creek allege several violations in their suit. The defendants in this suit are: Douglas Weber, warden of the South Dakota State Penitentiary, Timothy Reisch, secretary of the DOC, and Marty Jackley, South Dakota Attorney General.

The plaintiffs presented four arguments. First, they argued “the defendants violated their rights under section three of the Religious Land Use and Institutionalized Persons Act. In part, it states, “No government shall impose a substantial burden on the religious exercise of a person residing in or confined in an institution.”

Plaintiffs’ other claims involved violations of; the First and Fourteenth Amendments, the American Indian Religious Freedom Act, and international laws.

The “defendants argue that tobacco is not part of the plaintiffs’ religious beliefs.” In reference to Montoya’s notes of the meeting with Has No Horses, in which he reportedly told inmates that “tobacco was not traditionally used in pipe ceremonies.”

As such, Federal Chief Judge Karen Schreier replied, “Defendants’ evidence does not indicate that the medicine men represent plaintiffs’ individual religious traditions. Schreier ordered court appointed counsel for the plaintiffs citing the case has become more complex.

(Contact Evelyn Red Lodge at elakota@yahoo.com)