In an landmark statement of federal support for Indian prisoners' rights to freely practice tribal religion, the Department of Justice filed a Statement of Interest with a South Dakota federal district court, supporting the Native prisoners' use of traditional tobacco during worship. Gabe Galanda recently published a paper, "Protecting Indian Prisoners' Religious Freedoms," which cited various federal legal authorities on the topic:
To be clear, Native inmates “do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish (1979). Rather, they enjoy free exercise rights protected by the federal First Amendment. Pell v. Procunier (1974). Despite a U.S. Supreme Court decision in 1987 that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley (1987), restrictions on Native prisoner religious practices such as sweat lodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter (8th Cir. 1994). Further, some state constitutions, like Washington State’s, afford more protection for religious freedoms than the federal First Amendment. First Covenant Church v. City of Seattle (1992).
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber (D.S.D. 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik (W.D. Wis. 2006).
As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc. (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples—including those who live behind bars.
Kudos to the DOJ and the South Dakota U.S. Attorney's Office for standing in support of Indian prisoners' religious rights and traditional tobacco use -- and the free exercise of Indian religion at large.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.691.3631 or firstname.lastname@example.org.