- Associated Press - Saturday, April 26, 2014

SIOUX FALLS, S.D. (AP) - An appellate court has ruled that a tobacco ban in South Dakota prisons violates the constitutional rights of Native American inmates, affirming the 2012 ruling of District Judge Karen Schreier that was appealed by the state’s Department of Corrections last year.

The ruling, released Friday, means the Department of Corrections cannot ban tobacco altogether in state prisons. The department could appeal the decision.

Under a plan, which was approved by Schreier and opposed by the Department of Corrections last fall, inmates may use a mixture of red willow bark and 1 percent tobacco in sweat lodge ceremonies.

Lawyers for the Native American Council of Tribes, an inmate advocacy group, praised the ruling, the Argus Leader said.

“This is an important victory for religious freedom,” said Pamela Bollweg, who represented the inmates who filed the original lawsuit against the Department of Corrections in 2009. “As the Court of Appeals recognized, the ceremonial use of tobacco has been central to the Lakota people and many other Native American tribes for thousands of years.”

The court found in the ruling that the across-the-board ban on all tobacco use constituted a violation of religious liberty not outweighed by the state’s interest in maintaining order and security within the prison.

Lakota spiritual leaders testified during the district court trial in Sioux Falls that tobacco has been smoked for generations in sweat lodge ceremonies, the Argus Leader said.

Richard Bernard Moves Camp testified that the smoke from burned tobacco represents the spirit, and that tobacco represents the highest offering available. Depriving tobacco from a Lakota person would be “like taking a Bible away from the church.”

The South Dakota prison system went tobacco-free in 2000 but made an exception for tobacco used in Native American ceremonies. Officials eliminated that exemption in October 2009.

In their 2009 federal lawsuit against the South Dakota Department of Corrections, inmates Blaine Brings Plenty and Clayton Creek contended that the policy was discriminatory. The state said ceremonial tobacco inside the state penitentiary was becoming increasingly abused, and the policy was not overly restrictive because it allowed other botanicals such as red willow bark to be burned.

Native Americans comprise 27 percent of all prisoners in the state’s six correctional facilities, the highest concentration of Native American prisoners of any state prison population, according to the documents released Friday.

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