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Corrections officials, Native American inmates group agree to adjust ceremonial tobacco policy


SIOUX FALLS, South Dakota — Attorneys for the South Dakota Department of Corrections and an organization of Native American inmates have agreed to some policy changes, which will make it easier for inmates to get tobacco for Lakota religious ceremonies.

U.S. District Court Judge Karen Schreier ruled in 2012 that the prison system's ban on tobacco in religious ceremonies substantially burdened Native American inmates' religious rights and ordered the parties to come up with a less restrictive policy. The state had argued that ceremonial tobacco inside the state penitentiary was increasingly abused.

Under the original agreement, tobacco mixtures had to be brought in only through volunteers approved by the Department of Corrections. But under last week's amendment, Native American inmates can purchase tobacco from a downtown Sioux Falls smoke shop and have it shipped directly to the prison, where it can be mixed by designated department staff.

"They use this mixture several times a day, so getting volunteers to bring the mixture in was just very, very difficult to have any kind of regular schedule," said the inmates' attorney, Pamela Bollweg.

Corrections Secretary Denny Kaemingk said the department is committed to providing all inmates with the ability to freely exercise their religion while ensuring the safety and security of both inmates and staff.

The state's prison system went tobacco-free in 2000 but made an exception for tobacco used in Native American ceremonies. Officials in October 2009 eliminated that exemption, saying tobacco was being sold or bartered and inmates had been caught separating it from their pipe mixtures and tobacco ties, which embody a small amount of tobacco in cloth.

Members of prison-based Native American Council of Tribes sued, saying the policy change violated their constitutional rights that ensured no prisoner be penalized or discriminated against for their religious beliefs or practices.

Inmates Blaine Brings Plenty and Clayton Creek argued that for Native American prayer to be effective, it must be embodied in tobacco and offered within a ceremonial framework. The inmates' position was bolstered by a brief filed by the Justice Department, which said the state's position ran contrary to the Religious Land Use and Institutionalized Persons Act and U.S. Supreme Court precedent. The state appealed Schreier's ruling, but the 8th U.S. Circuit Court of Appeals upheld the decision in 2014.

Bollweg said the parties also agreed to remedy a disagreement over the location of powwows, which will once again be allowed in either the penitentiary's gymnasium or visiting room. An inmate had complained that limiting the powwow to only the visiting room, which is smoke-free, essentially prevented the use of tobacco during the ceremonies.

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